HomeMy WebLinkAboutAppeal Request - PartitionCommunity Development Department
September 7, 2010
Planning Division Building Safety Division Environmental Health Division
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/cdd/
To: Deschutes Board of County Commissioners
From: Will Groves, Senior Planner
Subject: Board consideration to hear or not hear an appeal of a Hearings Officer
decision approving of a minor partition to divide a 1,306 -acre parcel in the
F-1 Zone west of Bend into three parcels. (File numbers: MP -10-3, MA -
10 -4, and A-10-4)
BACKGROUND
Bank of Whitman requested approval of a minor partition to divide a 1,306 -acre parcel in
the Forest Use (F-1) Zone west of Bend into three parcels. The Hearings Officer
approved this application on August 20, 2010. Central Oregon Landwatch filed a timely
appeal requesting de novo review on August 31, 2010. The Board needs to decide
whether or not to hear this appeal.
The Central Oregon Landwatch appeal addresses the following issues:
Access: The proposed parcel configuration includes `flag' Tots with `flagpoles' up to a
mile in length to meet the DCC 17.36.180(A) frontage requirements. The applicant has
not proposed to take actual access from these 'flagpoles' and would instead use other
travel surfaces in the area. Central Oregon Landwatch argues that the frontage and
access standards of 17.36.180(A), 17.22.020(A)(3), and 17.36.260 together require
actual, safe access can be taken from a public road. Central Oregon Landwatch also
argues that 17.36.260 requires that two points of access be required for resident
evacuation and that access roads be improved to county required widths.
Suitability: DCC 17.22.020(A)(5) requires that, "Each parcel is suited for the use
intended or offered, considering the size of the parcels, natural hazards, topography and
access." Central Oregon Landwatch argues that residences are one of the offered uses
and that the applicant has not demonstrated that the proposed parcels are suitable for
residential use, given the fire hazards in the area.
The 150 -day period expires on September 30, 2010. It appears that, at this point, the
Board's calendar would allow sufficient time to hear this matter.
Quality Services Performed with Pride
STAFF DISCUSSION
The Hearings Officer's decision and the appeal both make reference to the Thomas
partition (MP -02-12) affecting property northeast of the subject property (Tax Lots 4300,
4303 and 4304 on Assessor's Map 17-11). The Hearing Officer's and Board's decisions
in this previous matter are attached for your reference.
The Board may decline to hear this appeal or agree to hear this appeal. If the Board
agrees to hear this appeal, it may hear the matter de novo, or limit the scope of the
hearing to the issues on appeal. Staff recommends that, if the Board accepts the
appeal, that the Board hear the entire matter de novo, as requested by the appellant.
Limiting testimony to specific issues may significantly complicate the hearing.
SCHEDULE
This matter is scheduled for the Board's afternoon meeting on September 8, 2010.
Please contact me with any questions.
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Accepting Review of Hearings Officer's *
Decision in File no. A-10-4 (MP -10-3 and MA -10-4) * ORDER NO. 2010-052
WHEREAS, Applicants, the Bank of Whitman, requested a minor partition to divide a 1,306 -acre parcel
in the F-1 Zone west of Bend into three parcels, which was approved by the Hearings Officer's in application
numbers MP -10-3 and MA -10-4 on August 20, 2010; and
WHEREAS, Appellant, Central Oregon Landwatch, appealed the Hearings Officer's decision in
application number A-10-4 on August 31, 2010; and
WHEREAS, Section 22.32.027 of the Deschutes County Code allows the Board of County
Commissioners (Board) discretion on whether to hear appeals of Hearings Officer's decisions; and
WHEREAS, the Board has given due consideration as to whether to review this application on appeal;
now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. That it will hear the appeal for application number A-10-4 (MP -10-3 and MA -10-4) pursuant
to Title 22 of the Deschutes County Code and other applicable provisions of the County land use ordinances.
Section 2. The appeal shall be heard de novo.
Section 3. Staff shall set a hearing date and cause notice to be given to persons or parties entitled to
notice pursuant to DCC 22.24.030 and 22.32.030.
Dated this of , 2010 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
DENNIS R. LUKE, Chair
ALAN UNGER, Vice Chair
Recording Secretary TAMMY BANEY, Commissioner
PAGE 1 OF 1 - ORDER N0. 2010-052
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Accepting Review of Hearings Officer's *
Decision in File no. A-10-4 (MP -10-3 and MA -10-4) * ORDER NO. 2010-052
WHEREAS, Applicants, the Bank of Whitman, requested a minor partition to divide a 1,306 -acre parcel
in the F-1 Zone west of Bend into three parcels, which was approved by the Hearings Officer's in application
numbers MP -10-3 and MA -10-4 on August 20, 2010; and
WHEREAS, Appellant, Central Oregon Landwatch, appealed the Hearings Officer's decision in
application number A-10-4 on August 31, 2010; and
WHEREAS, Section 22.32.027 of the Deschutes County Code allows the Board of County
Commissioners (Board) discretion on whether to hear appeals of Hearings Officer's decisions; and
WHEREAS, the Board has given due consideration as to whether to review this application on appeal;
now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. That the Board will not hear on appeal application no. A-10-4 (MP -10-3 and MA -10-4).
Section 2. The appellants shall be granted a refund of some of the appeal fees, according to County
Procedures.
Dated this of , 2010 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
DENNIS R. LUKE, Chair
ALAN UNGER, Vice Chair
Recording Secretary TAMMY BANEY, Commissioner
PAGE 1 OF 1 - ORDER No. 2010-052
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w� Community Development Department
0Planning
117 NW Lafayette Avenue, Bend, OR 97701-1925
(541) 388-6575 - Fax (541) 385-1764
http://www.deschutes.org/cdd
APPEAL APPLICATION
EVERY NOTICE OF APPEAL SHALL INCLUDE:
1. A statement describing the specific reasons for the appeal.
See oktr-c-latt
FEE: t3'459
2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating
the reasons the Board should review the lower decision.
3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request
for de novo review by the Board, stating the reasons the Board should provide the de novo review as
provided in Section 22.32.027 of Title 22.
4. If color exhibits are submitted, black and white copies with captions or shading delineating the color
areas shall also be provided.
It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code.
The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the
above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal.
Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC Section 22.32.010)
or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues.
Appellant's Name (print): (ENrraPtL O/E401 t.ANOWAT 14 Phone: ( 641) 3.1 +953
Mailing Address: +535 1J'41 V+c14SGu4c 0016 City/State/Zip: 36,10 as cm 01
Land Use Application Being Appealed: M P-10- 3 , MA- 10- U
Property Description: Township I7Range 11 Section Tax Lot 132
Appellant's Signature: (2,. 1'`� � A1442 AA!? Coe Ea t.
EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE
TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE
PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD).
APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE
CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR
ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS.
SCANNPD
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AUG 31 2 10 7/09
CENTRAL OREGON LANDWATCH APPEAL OF
HEARINGS OFFICER DECISION OF AUGUST 19, 2010, DECISION
ON MP-10-3/MA-10-4 (BANK OF WHITMAN)
Central Oregon LandWatch requests de novo review by the Board of Commissioners of the
above Hearings Officer's decision for the reasons discussed below. Review by the Board is
necessary to interpret a number of Code provisions and to address issues of substantial public
concern. This partition application is of critical interest because of its location next to the
Skyline Forest, a proposed community forest, and because it would create new lots in a high fire
risk area WEST of the West Bend Fuel Break (the equivalent of proposing development on the
ocean side of a levee). Two of the parcels are also far to the west of the main public access road
in the area, connected with narrow flagpoles as long as one mile.
This partition application seeks to divide a 1,306 -acre parcel into three parcels (251 acres, 242
acres, and the remaining 813 acres). The largest parcel is located along a public road section of
the Sisters Mainline Road, but the other two parcels are separate from and are located to the west
of the road (connected to it only by narrow flagpoles 50 feet wide).
Access.
The Hearings Officer's Decision assumes that the Board has already addressed the issue of
whether a flagpole connector to a public road satisfies the access requirement of DCC
17.22.020(A)(3). That is not correct. While the Board in its Thomas decision approved two flag
lots, it did not address the issue here of whether 50 -foot -wide flagpoles (as long as two miles)
can satisfy the access requirement where there is no actual access road in that flagpole or any
proposed road in the flagpole. The Board in Thomas found in that case that "the subject property
will be accessed from a Forest Service road." (p. 6)
The Hearings Officer appears to have conflated the requirements of DCC 17.36.180(A) [each lot
shall abut upon a public road for at least 50 feet] and 17.22.020(A)(3) [each lot shall be accessed
by a public road]. "Access" means more than frontage as is clear from the Code provisions
requiring access for emergency vehicles and resident evacuation. DCC 17.36.260. Unless the
"access" to a public road is going to be the access point to a property, it is difficult to see how
requirements for emergency vehicle and resident evacuation access is satisfied by a mere
flagpole.
The problem with the Hearings Officer's reasoning is that she assumes that the access to a public
road requirement can be satisfied with flagpole frontage which everyone acknowledges here will
never be the true access point to the property. Actual access is to be provided miles away, and
not from a public road. This "bait and switch" approach to the Code's access criteria is not
consistent with the underlying purpose of the public road connection requirement which is to
ensure actual safe access.
This is a critical issue not only because of the importance of having real access to a public road
in such a high fire risk area, but also because of the growing use of flag lots in the Skyline Forest
area. Allowance of flagpole connections to the Sisters Mainline public road will fragment the
Skyline Forest area and lead to approval of remotely -located dwellings located miles away from
the nearest public road.
1
The Hearings Officer further erred in describing the secondary access road that would actually
provide access to parcels 1 and 2, Triangle Hill Road, as a Forest Service Road. There is no
evidence in the record that it is a Forest Service road. In fact, the only evidence is that the Forest
Service merely has an easement to use that private road. ,
The Hearings Officer also failed to make adequate findings of compliance under DCC 17.36.260
which requires two points of access wherever possible to provide assured access for emergency
vehicles and to ease resident evacuation. Further, no road improvements were required as
specified in DCC 17.48.170. A required width of 24 feet for access roads is necessary.
Suitability Criteria.
The Hearings Officer further erred in determining that the Applicant satisfied the requirement of
DCC 17.22.020(A)(5) that each parcel "is suited for the use intended or offered, considering the
size of the parcels, natural hazards, topography and access." LandWatch emphasized both
natural hazards and access (the Hearings Officer made no finding of suitability for the latter in
terms of fire hazard). LandWatch further pointed out that for dwellings (one of the Applicant's
"offered" uses) there must be a showing based on DCC 18.36.040(A) and (B) that the use will
not significantly affect forest practices or increase fire hazard or significantly increase fire
suppression costs or risks to fire suppression personnel.
Despite substantial evidence of the obvious fire hazard in the area and risks to fire fighters with
such remote proposed parcels, the Hearings Officer found that the proposed parcels "are suitable
considering fire hazards" simply on the basis that the land is included in a rural fire protection
district ("RFPD"). Nothing in the RFPD annexation procedures require consideration, though, of
the Code criteria of increased fire hazard, fire suppression costs or increased risks to fire
suppression personnel.
The Hearings Officer further erred in stating that adjacency to the proposed Skyline Forest is
irrelevant to fire risk. Fire hazard to and from adjacent properties is a very relevant
consideration. Forest practices on the Skyline Forest would also be affected by adjacent
residential development.
Additionally, the Hearings Officer erred in asserting that all of the subject property lies west of
the West Bend Fuel Break. The West Bend Fuel Break is a wide area with the Sisters Mainline
Road in the middle. LandWatch's fire expert recommended that any housing on the 1,306 -acre
parcel be located along the Sisters Mainline Road within the fire break so that there would be
good access for fire suppression personnel coming from Bend. Accordingly, LandWatch argued
for partitions that would create lots along the Road where dwellings could be more safely built,
instead of miles away to the west where any dwellings would be located outside the West Bend
Fuel Break and far away from fire protection services.
Another error of the Hearings Officer was her determination of approval despite finding there is
not sufficient information in the record to make determinations under DCC 18.36.040(B). The
burden of proof is on the Applicant and if not all criteria have suitable evidence, the application
should be denied. Where dwellings are one offered use, their suitability must shown.
2
Finally, the Hearings Officer fundamentally misstates the Board's decision in the Thomas
partition decision where the Board stated it was not determining that the template parcels
necessarily meant that dwellings would be allowed. The Board expressly approved of the two
80 -acre parcels only for forestry use. That did not mean that the suitability criteria did not need
to be addressed if the Applicant states a residential use.
De Novo Review.
Appellant Central Oregon LandWatch requests de novo review by the Board where its
substantial rights would be significantly prejudiced without de novo review. The Hearings
Officer's decision contains several inaccuracies and it will be important for the Board to hear the
evidence firsthand to understand and correct the errors. The factual circumstances surrounding
the flag lots and flagpole alignments are also critical facts for the Board to understand. Where
critical interpretations of the Code are involved, it is also important for the Board to have the
flexibility of de novo review to examine all evidentiary issues. The de novo review would not
cause the 150 -day time limit to be exceeded where the time limit does not expire until September
30, according to the Hearings Officer.
DATED this 31St day of August, 2010.
Respectfully submitted,
PAUL D. DEWEY
Attorney for Central Oregon LandWatch
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DECISION OF DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBERS:
APPLICANT/
PROPERTY OWNER:
APPLICANT'S
ATTORNEY:
APPLICANT'S
PLANNER:
APPLICANT'S
ENGINEER/
SURVEYOR:
OPPONENT'S
ATTORNEY:
STAFF REVIEWER:
REQUEST:
HEARING DATE:
RECORD CLOSED:
MP -10-3, MA -10-4
Bank of Whitman'
P.O. Box 270
Colfax, Washington 99111-0270
Tia M. Lewis
Schwabe, Williamson & Wyatt
360 S.W. Bond Street, Suite 400
Bend, Oregon 97702
Heidi Kennedy, AICP
64180 Old Bend Redmond Highway
Bend, Oregon 97701
David R. Williams, PLS
Hickman, Williams & Associates
1201 N.W Wall St Ste 100
Bend, Oregon 97701
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MAILEDA� X10
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Paul D. Dewey
1539 N.W. Vicksburg
Bend, Oregon 97701
Attorney for Opponent Central Oregon LandWatch
Will Groves, Senior Planner
The applicant requests approval of a minor partition to divide a
1,306 -acre parcel in the F-1 Zone west of Bend into three parcels.
June 8, 2010
June 25, 2010
' The record indicates the applicant acquired the subject property from the previous owner, EM Bull
Springs Holdings, LLC, through a deed in lieu of foreclosure, a copy of which is attached to the
applicant's burden of proof.
Bank of Whitman
MP -10-3, MA -10-4
Page 1 of 26
I. APPLICABLE STANDARDS AND CRITERIA:
A. Title 17 of the Deschutes County Code, the Deschutes County Subdivision/Partition
Ordinance
1. Chapter 17.08, Definitions and Interpretation of Language
* Section 17.08.030, Definitions Generally
2. Chapter 17.22, Approval of Tentative Plans for Partitions
* Section 17.22.020, Requirements for Approval
3. Chapter 17.36, Design Standards
* Section 17.36.040, Existing Streets
* Section 17.36.160, Easements
* Section 17.36.170, Lot Size and Shape
* Section 17.36.180, Frontage
* Section 17.36.210, Solar Access Performance
* Section 17.36.260, Fire Hazards
* Section 17.36.290, Individual Wells
4. Chapter 17.44, Park Development
* Section 17.44.010, Dedication of Land
* Section 17.44.020, Fee in Lieu of Dedication
5. Chapter 17.48, Design and Construction Specifications
* Section 17.48.170, Road Development Requirements — Partitions
B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.04, Title, Purpose and Definitions
* Section 18.04.030, Definitions
2. Chapter 18.36, Forest Use (F-1) Zone
* Section 18.36.030, Conditional Uses Permitted
* Section 18.36.040, Limitations on Conditional Uses
* Section 18.36.050, Standards for Single -Family Dwellings
* Section 18.36.060, Siting of Dwellings and Structures
* Section 18.36.070, Fire Siting Standards for Dwellings and Structures
* Section 18.36.090, Dimensional Standards
Bank of Whitman
MP -10-3, MA -10-4
Page 2 of 26
* Section 18.36.100, Yards and Setbacks
* Section 18.36.110, Stream Setbacks
* Section 18.36.130, Rimrock Setbacks
3. Chapter 18.56, Surface Mining Impact Area (SMIA) Combining Zone
* Section 18.56.060, Dimensional Standards
* Section 18.56.070, Setbacks
* Section 18.56.080, Use Limitations
4. Chapter 18.88, Wildlife Area (W) Combining Zone
* Section 18.88.060, Dimensional Standards
C. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.20, Review Of Land Use Action Applications
* Section 22.20.055, Modification of Application
2. Chapter 22.24, Land Use Action Hearings
* Section 22.24.140, Continuances and Record Extensions
II. FINDINGS OF FACT:
A. Location: The subject property has an assigned address of 62755 Forest Service Road
4606, also known as Sisters Mainline Road (hereafter "Sisters Mainline Road"), and is
further identified as Tax Lot 2732 on Deschutes County Assessor's Map 17-11.2
B. Zoning and Plan Designation: The subject property is zoned Forest Use (F-1) and is
designated Forest on the Deschutes County Comprehensive Plan map. The property also
is located within a Wildlife Area (WA) Combining Zone to protect the Tumalo Deer
Winter Range, and a portion of the property is located within a Surface Mining Impact
Area (SMIA) Combining Zone because of its proximity to Surface Mining Site 296.
C. Site Description: The subject property is approximately 1,306 acres in size, irregular in
shape and vacant. Vegetation consists of mature and immature ponderosa pine and
juniper trees along with native ground cover of varying densities. According to the staff
report and based on staffs site visit, portions of the subject property appear to have been
managed through thinning and other methods while other areas appear unmanaged with
dense vegetation. The property has no irrigation water rights. The topography is varied.
2 It appears from Exhibit F to the applicant's burden of proof and comments in the record from the
county's property address coordinator that this street address was assigned to the subject property by the
Bend Fire Department and not by the county.
Bank of Whitman
MP -10-3, MA -10-4
Page 3 of 26
Several dirt roads traverse the property. The Sisters Mainline Road forms most of the
southeastern boundary of the subject property and the eastern boundary of proposed
Parcel 3. A United States Forest Service (USFS) road, Triangle Hill Road, crosses the
northwest corner of the subject property and proposed Parcel 1.3 The portion of Sisters
Mainline Road beginning at the western terminus of Bull Springs Road east of the subject
property and continuing south to the southern boundary of the subject property and
proposed Parcel 3 is a dedicated public right-of-way (Deed of Dedication 2006-65233).
This dedication was required by the Deschutes County Board of Commissioners
(hereafter "board") as a condition of approval of the Thomas partition (MP -02-12)
affecting property northeast of the subject property (Tax Lots 4300, 4303 and 4304 on
Assessor's Map 17-11).
D. Surrounding Zoning and Land Uses: With the exception of one parcel, all property
abutting the subject property is zoned F-1. Abutting property on the east is zoned Surface
Mining (SM) and is designated SM Site 296 on the comprehensive plan map (also known
as the "Taylor pit"). Other abutting property to the east consists of two parcels
approximately 257 and 280 acres in size and separately owned. One parcel (Tax Lot
2722) has received conditional use approval for establishment of a large -tract dwelling
(Taylor, A-06-5, CU -05-106). Further to the east and southeast are Bull Springs Road,
Johnson Market Road, Shevlin Park which is owned and managed by the Bend Metro
Parks and Recreation District (hereafter "park district"), and land zoned Rural Residential
(RR -10) and developed with the Saddleback Subdivision. Abutting property to the north
is owned by Rubicon Enterprises, LLC and is vacant. Abutting property to the west and
south consists of two parcels of 3,914 and 162 acres in size owned by Cascade
Timberlands Oregon, LLC. These parcels are at the south end of a very large tract of F-1
zoned land west of Bend, owned by Cascade Timberlands Oregon LLC, and commonly
referred to as "Skyline Forest."4 In addition, abutting property to the south includes an
approximately 700 -acre parcel owned by the United States Forest Service (USFS).
E. Procedural History: The subject application is the latest in a series of requests for
approval of lot line adjustments, partitions, and dwellings for land within what once was
known as the Bull Springs Tree Farm, a very large tract of privately -owned F-1 zoned
land located west of Bend that for decades was managed for industrial forest operations.
The first partition — MP -01-13 — divided a 1,129 -acre parcel into three parcels. The
second partition — Tweedfam (Partition Plat 2002-90; MP -01-16, MA -02-4, A-02-6) —
divided a 1,907 -acre parcel into three parcels, the largest of which — Parcel 3 — is the
1,306 -acre subject property. The third partition — Thomas (MP -02-12, A-02-10, A-02-11)
— divided a 482 -acre parcel created by MP -01-13 into three parcels, one 322 acres in size
and two 80 -acre parcels. The county has considered several requests for approval of
dwellings on some of these partition parcels.
3 The record includes references to this road as Sisters Mainline Road. However, the revised partition plat
shows Triangle Hill Road diverges off Sisters Mainline Road just north of the subject property.
4 The Hearings Officer understands the Skyline Forest is under consideration for transfer from Cascade
Timberlands to the Deschutes Basin Land Trust to be managed as a "community forest" which would
include forestry operations as well as recreation and conservation areas.
Bank of Whitman
MP -10-3, MA -10-4
Page 4 of 26
The applicant submitted its original application for the subject partition (MP -10-3) on
March 11, 2010, and the application was accepted as complete on April 11, 2010. On
April 15, 2010 the applicant submitted the subject modification application (MA -10-4)
which changed the sizes and configuration of the proposed parcels, and the modification
application was accepted as complete on May 15, 2010. Under Section 22.20.055 of the
county's land use procedures ordinance, submission of the modification application
restarted the 150 -day period for issuance of a final local land use decision under ORS
215.427. Therefore, the 150 -day period would have expired on September 13, 2010.
A public hearing on the applicant's modified proposal was held on June 8, 2010. At the
hearing, the Hearings Officer received testimony and evidence, left the written
evidentiary record open through June 22, 2010, and allowed the applicant through June
29, 2010 to submit final argument pursuant to ORS 197.763. The applicant submitted its
final argument on June 25, 2010 and the record closed on that date. Because the applicant
agreed to extend the written record from June 8 through June 25, 2010, the 150 -day
period was extended for 17 days and now expires on September 30, 2010. As of the date
of this decision there remain 43 days in the extended 150 -day period.
F. Proposal: The applicant's modified proposal requests approval of a minor partition of the
1306 -acre subject property into three parcels which would have the following sizes:
Parcel 1 -- 251 acres; Parcel 2 -- 242 acres, and Parcel 3 -- 813 acres. A copy of the
proposed partition plat is attached as Exhibit "A" to this decision. Parcels 1 and 2 would
be rectangular in shape with their longest dimensions running north -south. Parcels 1 and
2 would have "flag lot" configurations with long access strips — "flag poles" -- running
east -west along their southern boundaries and connecting to, Sisters Mainline Road to the
east. Parcel 3, which abuts Sisters Mainline Road, would be roughly square in shape.
Because of the flag lot configurations all three proposed parcels would have at least 50
feet of frontage on the portion of Sisters Mainline Road dedicated to the public and
abutting the northeast corner of Parcel 3. Parcels 1 and 2 also would have frontage on
Triangle Hill Road.5 Each proposed parcel would be served by an individual well and on-
site septic system.
G. Agency Comments: The Planning Division sent notice of the applicant's original and
modified proposals to several public agencies and received responses from: the
Deschutes County Assessor, Environmental Health Division, Property Address
Coordinator, Senior Transportation Planner, Forester, and Road Department/County
Engineer; and the Bend Fire Department. These comments are set forth verbatim at pages
3-4 of the staff report and/or are included in the record. The following agencies did not
respond to the request for comments: the Oregon Department of Water Resources,
Watermaster-District 11; and the USFS.
H. Public Notice and Comments: The Planning Division mailed individual written notice
of the applicant's original and modified proposals and the public hearing to the owners of
5 Attached as Exhibit H to the applicant's burden of proof is a copy of an access easement to Triangle Hill
Road for the subject property.
Bank of Whitman
MP -10-3, MA -10-4
Page 5 of 26
record of all property located within 750 feet of the subject property. In addition, notice
of the public hearing was published in the Bend "Bulletin" newspaper, and the subject
property was posted with a notice of proposed land use action sign. As of the date the
record in this matter closed, the county had received three letters from opponent Central
Oregon LandWatch (hereafter "LandWatch") in response to these notices. In addition, the
attorney for LandWatch testified at the public hearing.
Lot of Record: The subject property is a legal lot of record consisting of Parcel 3 of
Partition Plat 2002-90.
III. CONCLUSIONS OF LAW:
MODIFICATION
A. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.20, Review Of Land Use Action Applications
a. Section 22.20.055, Modification of Application
A. An applicant may modify an application at any time during the
approval process up until the close of the record, subject to the
provisions of DCC 22.20.052 and DCC 22.20.055.
FINDINGS: The applicant's original partition application, MP -10-3, was submitted on March
11, 2010. The modification application was submitted on April 15, 2010, prior to the close of the
record on the original application, and therefore in compliance with this requirement.
B. The Planning Director or Hearings Body shall not consider any
evidence submitted by or on behalf of an applicant that would
constitute modification of an application (as that term is
defined in DCC 22.04) unless the applicant submits an
application for a modification, pays all required modification
fees and agrees in writing to restart the 150 -day time clock as
of the date the modification is submitted. The 150 -day time
clock for an application, as modified, may restarted as many
times as there are modifications.
FINDINGS: The applicant submitted its modification through a county modification of
application form accompanied by the required fees, and agreed to restart the 150 -day time clock
as of the date the modification application was submitted.
C. The Planning Director or Hearings Body may require that the
application be re -noticed and additional hearings be held.
FINDINGS: The staff report states the Planning Director elected to re -notice the modification
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application in order to advise interested persons of the proposed changes to the partition.
D. Up until the day a hearing is opened for receipt of oral
testimony, the Planning Director shall have sole authority to
determine whether an applicant's submittal constitutes a
modification. After such time, the Hearings Body shall make
such determinations. The Planning Director or Hearings
Body's determination on whether a submittal constitutes a
modification shall be appealable only to LUBA and shall be
appealable only after a final decision is entered by the County
on an application.
FINDINGS: The applicant's modification application was submitted prior to the date of the
public hearing and in order to changes the partition parcel acreages and boundaries.
For the foregoing reasons, the Hearings Officer finds the applicant's modified proposal meets all
applicable modification requirements in Title 22.
PARTITION STANDARDS
B. Title 17 of the Deschutes County Code, the Deschutes County Subdivision/Partition
Ordinance
1. Chapter 17.22, Approval of Tentative Plans for Partitions
a. Section 17.22.020, Requirements for Approval
A. No application for partition shall be approved unless the
following requirements are met:
1. Proposal is in compliance with Oregon Revised Statutes
Chapter 92, the applicable comprehensive plan and
applicable zoning ordinance. A proposed partition is
not in compliance with the zoning ordinance if it would
conflict with the terms of a previously issued approval
for land use on the property or would otherwise create a
nonconforming use on any of the newly described
parcels with respect to an existing structure or use;
FINDINGS: The Hearings Officer finds compliance with the provisions of Title 17 will assure
compliance with ORS Chapter 92 because Title 17 implements the statutory provisions
governing partitions. The property's F-1 zoning permits partitioning as long as minimum lot
sizes and other requirements discussed in the findings below are met. The record indicates there
are no previously issued land use approvals for the subject property with which the proposed
partition would conflict. In addition, the record indicates there are no existing structures on the
property, and I find compliance with the minimum building setbacks will be reviewed prior to
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issuance of a building permit. Finally, no nonconforming uses would be created by the partition.
2. Proposal does not conflict with existing public access
easements within or adjacent to the partition.
FINDINGS: The applicant's submitted subdivision guarantee, included in the record as Exhibit
B to the applicant's burden of proof, states there are no public access easements with which the
partition would conflict.
3. The partition is accessed either by roads dedicated to
the public or by way of United States Forest Service or
Bureau of Land Management roads where applicant
has submitted a written agreement with the appropriate
land management agency providing for permanent legal
access to the parcels and any required maintenance.
This provision shall not be subject to variance.
FINDINGS: In the Hearings Officer's decision approving the Thomas partition (MP -02-12), I
held this criterion requires the partition applicant to demonstrate that the proposed partition
parcels would have both permanent legal access and actual physical access from either a
dedicated public road or a USFS or Bureau of Land Management (BLM) road. As shown on the
revised partition plat, access to the subject property is from three dedicated public roads: Johnson
Market Road, Bull Springs Road, and the dedicated segment of Sisters Mainline Road which
abuts the subject property along the proposed eastern boundary of Parcel 3. As a result of the
proposed flag -lot configurations of Parcels 1 and 2, all three proposed parcels would have at least
50 feet of frontage on the dedicated portion of Sisters Mainline Road at the northeast corner of
Parcel 3.
In his June 15, 2010 comments on the applicant's proposal, Paul Dewey, the attorney for
LandWatch, argued access to the proposed partition parcels does not satisfy this criterion for the
following reasons:
"Applicant here apparently proposes to satisfy the requirements of DCC
17.22.020(A)(3), 17.36.180 and 17.36.260 by flag poles connecting Parcels 2 and
3 (as identified in MA -10-4) to that portion of the Sisters Mainline Road that has
been dedicated as a public road and also by a road easement that connects in the
north to a portion of the Sisters Mainline Road and has not been dedicated as a
public road. Regarding DCC 17.22.020(A)(3), the Board said [quoting from the
board's decision approving a proposed partition in Thomas (MP -02-12)]:
The Board agrees with the Hearings Officer that the purpose of
the access requirement in the above section is to assure that any
new parcels created by a partition have permanent legal access.
The Board also agrees with the Hearings Officer that the above
criterion [DCC 17.36.020(A)(3)J requires actual, physical access
for emergency and passenger vehicles from a Forest Service, BLM
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or dedicated public road. * * * However, the Board disagrees with
the Hearings Officer's ultimate decision to allow use of the Sisters
Mainline Road with the imposition of road improvement
requirements. The Board finds that the presence of the deer winter
range, the winter road closure in effect on the Sisters Mainline
Road, and the condition of the road south of Section 28 all create a
situation where the Sisters Mainline Road south of Bull Springs
Road does not provide the required access and, therefore, will not
satisfy this criterion. '
The proposed flag pole connection to the public road and the easement to access
the Sisters Mainline Road do not meet the criteria of `actual, physical access for
emergency and passenger vehicles' and direct frontage on the public road or
Forest Service Road. "
However, Mr. Dewey failed to include in his quotation the next paragraph in the board's Thomas
decision which states in relevant part:
"Nevertheless, the Board finds that the proposal can satisfy the above criterion
through a public dedication of Bull Springs Road. * * * Therefore, the Board
finds that if the applicants are able to dedicate Bull Springs Road to the public,
the proposal meets the above criterion because: 1) the subject property will be
accessed from a Forest Service road, 2) the applicants have a written agreement
providing for permanent legal access and any required maintenance on this
Forest Service road, and 3) the Forest Service road provides a direct connection
to a dedicated public road (Le., Bull Springs Road)."
The board approved the Thomas partition, with two flag lots, subject to conditions of approval
requiring the applicant to dedicate both the portion of Sisters Mainline Road from which these
lots would take access and Bull Springs Road. The board's approval of the Thomas partition
subsequently was affirmed by the Land Use Board of Appeals (LUBA) in Sisters Forest
Planning Committee v. Deschutes County, Or LUBA (2003; LUBA No. 2003-029).
The applicant's proposed partition parcels would have 50 feet of frontage on, and direct access
from, the dedicated portion of Sisters Mainline Road. The record indicates the dedicated right-of-
way is 60 feet wide and that both Bull Springs Road and the dedicated portion of Sisters
Mainline Road are improved to the county's standards for roads serving partitions, including a
20 -foot -wide gravel surface, which the board found sufficient to provide access to the Thomas
partition parcels. The Hearings Officer finds these road segments also are physically adequate to
provide access to the applicant's proposed parcels.
Although it is not entirely clear from Mr. Dewey's written comments, it appears LandWatch also
objects to the proposed partition because the applicant has not demonstrated that roads or
driveways providing access to dwellings have been or can be constructed within the 50 -foot -wide
flag poles for Parcels 1 and 2. The Hearings Officer finds no such demonstration is required by
this partition access criterion. Rather, the adequacy of road or driveway access to dwellings on
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forest -zoned land is determined at the time an application for a dwelling is considered under
Section 18.36.050.
For the foregoing reasons, the Hearings Officer finds the applicant's proposal satisfies this
criterion.
4. An access permit can be obtained from either the
County Public Works Department, the City Public
Works Department or the State Highway Division.
FINDINGS: The staff report notes, and the Hearings Officer agrees, that the fact the proposed
parcels abut or will abut a public road does not, in and of itself, assure the access required by
Paragraph (3) of this section because Section 17.48.210(A) states "Access onto public right of
way * * * shall require a permit." However, I concur with staff that this criterion can be satisfied
by imposition of a condition of partition approval requiring the applicant to provide to the
Planning Division, prior to final plat approval, documentation of approved access permits from
Deschutes County to the dedicated portion of Sisters Mainline Road for all three new parcels.
5. Each parcel is suited for the use intended or offered,
considering the size of the parcels, natural hazards,
topography and access.
FINDINGS: The Hearings Officer finds this criterion requires me to:
• determine the "use intended or offered" for the proposed partition parcels; and
• evaluate the suitability of the proposed partition parcels for their intended or offered use
considering four factors: (a) parcel size; (b) natural hazards; (c) topography; and (d)
access.
Each of these required determinations is addressed separately in the findings below.
1. Use Intended or Offered
The applicant's burden of proof states in relevant part:
"The applicants have not submitted development plans in conjunction with the
present application; however, the three parcels could be used for all uses
permitted outright in the F-1 Zone and could qualify for residential development.
None of the dwellings would meet the criteria for lot of record dwellings but all
three parcels could qualify for a large tract dwelling. As shown on the Tentative
Partition Map submitted herewith, each of the proposed parcels is of sufficient
size to allow for development of large tract dwellings that could meet all setback
and fire siting requirements of the F-1 Zone. Each proposed parcel will have
access to a County road as well as other road easement accesses and none of the
proposed parcels contain any natural hazards or topographical features that
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would make them unsuitable for uses permitted outright in the F-1 Zone or for
residential development."
The Hearings Officer finds from this statement that the intended uses of the proposed parcels are
any uses permitted outright in the F-1 Zone and residential uses other than lot -of -record
dwellings.
2. Suitability for Intended Uses
a. Parcel Size. The proposed parcels would be 813, 242 and 251 acres in size. As discussed in
the findings below, these sizes meet the 80 -acre minimum lot size for a new parcel in the F-1,
SMIA and WA Zones. Therefore, I find the proposed parcels are large enough to accommodate
uses permitted outright in the F-1 Zone.
Three types of single-family dwellings are permitted in the F-1 Zone under Section 18.36.050:
lot -of -record dwellings, template dwellings, and large tract dwellings. The applicant's burden of
proof states, and the Hearings Officer agrees, the proposed parcels would not qualify for lot -of -
record dwellings because they were not created prior to January 1, 1985. The record indicates
there are few existing dwellings on parcels abutting the subject property, so the proposed parcels
also may not qualify for template dwellings. Consequently, I find it likely the only type of
dwelling for which the proposed parcels would qualify is large tract dwelling. Section
18.36.050(C) provides the minimum lot size for such dwellings is 240 contiguous acres, and
therefore the proposed parcels satisfy the minimum lot size for such dwellings. I also find the
proposed parcels, 242 acres and larger, would have sufficient area to accommodate placement of
a dwelling meeting the minimum required setbacks and fuel and fire breaks established for such
dwellings in Section 18.36.070.
b. Natural Hazards. As discussed in the Findings of Fact above, the subject property is a large
forested parcel characterized by a moderate to dense vegetative cover including juniper and pine
trees and native brush and grasses. In previous partition decisions for parcels in the area
surrounding the subject property, the Hearings Officer and the board have found the potential
hazards presented by these parcels are snow accumulation/removal and fire. I adhere to that
finding here.
(1) Snow Accumulation/Removal. As discussed in the findings above, the board found the
proposed Thomas partition parcels would be suitable for both forestry and residential uses as
long as Sisters Mainline Road and Bull Springs Road were dedicated to the public. The record
indicates these roads are improved to the county's minimum standards for partition roads,
including a 20 -foot -wide all-weather gravel surface, making snow removal possible.
(2) Fire Hazards. The primary objection to the proposed partition raised by LandWatch concerns
the potential for the proposed parcels to increase fire hazards and the cost of fire protection.
(a) Fire Protection District. The record indicates the subject property is located within the
boundaries of the Deschutes Rural Fire Protection District 2 (hereafter "RFPD"), and receives
fire protection through the Bend Fire Department. Verification of fire protection services is
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included in the record as Exhibit F to the applicant's burden of proof. At the public hearing, the
Hearings Officer suggested the subject property's annexation into the RFPD reflects its
determination that the property can be adequately protected from fire. Paul Dewey responded
that the subject property's inclusion within the RFPD boundaries is essentially irrelevant, relying
on the opinion of fire expert Addison L. Johnson of Wildfire Risk Management. In an undated
letter attached to Mr. Dewey's June 15, 2010 submission, Mr. Johnson stated:
"Also I understand that the Hearings Officer has a misunderstanding of what
drives decisions of an emergency services district. I am very familiar with rural
fire protection districts and have served on several districts in various positions
including fire Chief and as chair of the Civil Service Commission for Bend Fire
Dept./Deschutes County Rural Fire Protection District number 2. It's not the lack
of risk but the inclusion of areas that increase the tax base and may in the long
run allow for new stations and/or increased personnel and equipment. If the
risk/reward calculations run against the district and a fire occurs before they are
able to sufficiently increase their capabilities, then so be it."
In response to Mr. Johnson's statement, the applicant submitted as Exhibit G to its burden of
proof a copy of the RFPD's standards and procedures for annexation. These require the RFPD to
determine "whether the City can and will furnish protection to the property proposed to be
annexed." They also require the RFPD to evaluate the physical state of the property including its
location contiguous to the RFPD's existing boundaries and within five miles of the nearest Bend
fire station, as well as its legal and physical access, existing improvements, and fire breaks. The
Hearings Officer understands the RFPD necessarily considers the potential impact of annexation
on its tax base. Nevertheless, in light of its annexation procedures and standards, I am not willing
to adopt Mr. Johnson's rather cynical view. Rather, I find that the fact the subject property is
located within the RFPD, and the verification of fire protection services, is relevant evidence
from which I can find the proposed partition parcels are suitable considering fire hazards.
(b) General Location. In an April 2, 2010 electronic mail message, Mr. Dewey stated:
"The proposed parcels are not suitable for the use intended. This is a high fire
risk area where dwellings simply are not appropriate. This is also a very
controversial area in which to propose development as it adjoins the proposed
Skyline Forest, the subject of recent State legislation."
The Hearings Officer finds the fact that the subject property is adjacent to the proposed Skyline
Forest is irrelevant to its fire risk. I also am not persuaded by the argument that the "area" in
which the subject property is located is by definition unsuitable for dwellings. At the public
hearing, Mr. Dewey refined his assertion somewhat by stating that no dwellings should be
permitted west of the West Bend Fuel Break which the record indicates is an area located on the
west side of Sisters Mainline Road within which the USFS and fire protection agencies have
undertaken or are planning to undertake significant vegetation thinning operations. In support of
this argument, Mr. Dewey relied on the following statement in Mr. Johnson's aforementioned
letter:
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"In conclusion, Bend and Deschutes County have seen fit to draw a line in the
sand to the west. This West Bend Fuel Break says that what I value and am
willing to protect is behind this line."
The Hearings Officer finds there is nothing in this record to indicate the county has adopted the
West Bend Fuel Break as part of its land use regulations in general, or its approval standards for
partitions and/or dwellings in the forest zones in particular. I find that whether or not the county
should do so is a broad policy question better presented to and addressed by the board through a
code amendment process. Moreover, for the reasons set forth above, I find it difficult to reconcile
Mr. Johnson's statement with the fact that the subject property, all of which lies west of the West
Bend Fuel Break, was annexed into the RFPD.
(c) Dwelling Siting Standards. Dwellings in the F-1 Zone are subject to a number of limitations
and rigorous siting standards intended to assure they do not interfere with accepted farming or
forest practices in the area or increase fire risks. In particular, Section 18.36.040(B) requires in
relevant part that any dwelling in the F-1 Zone "will not significantly increase fire hazard or
significantly increase fire suppression costs or significantly increase risks to fire suppression
personnel." The Hearings Officer has noted in previous partition decisions that these dwelling
siting standards are rigorous and difficult to satisfy. The evidence required to satisfy these siting
standards was discussed at length in LUBA's decisions in Sisters Forest Planning Committee v.
Deschutes County, 48 Or LUBA 78 (2004), rev 'd on other grounds 198 Or App 311 (2005), and
Central Oregon Land Watch v. Deschutes County, 53 Or LUBA 290 (2007).
The issue presented in this decision is whether compliance with the partition parcel suitability
standard in Section 17.22.20(A)(5) requires a determination that future dwellings on the partition
parcels can comply with these dwelling siting standards. This question was addressed by the
board in its decision approving the Thomas partition (A-02-10, A-02-11, MP -02-12):
"The Board finds that the question presented by the above [suitability] criterion is
not whether the proposed parcels would qualify for dwellings under the
applicable conditional use or other criteria established for dwellings in the F-1
zone. The County does not require development or conditional use applications
contemporaneously with partition applications and the time to submit evidence
related to whether or not the parcels meet those criteria is at the time those
applications are made. The Board finds that the question presented by the above
criterion is whether the proposed parcels are suitable for the uses intended based
on four factors: size, natural hazards, topography and access. The evidence in the
record is that the intended uses are forestry and residential. The Hearings Officer
found sufficient evidence to conclude that Parcel A [322 acres] was suitable for
forestry and residential and that Parcels B and C [80 acres each] were suitable
for forestry. The Board agrees with the Hearings Officer and adopts those
findings herein. " (Underscored emphasis in original; bold emphasis added.)
In this Hearings Officer's previous decisions approving partitions of F-1 zoned property west of
Bend, I have concluded that as long as the proposed parcels meet the minimum lot size for the
intended use(s), and in the case of intended residential use are large enough to accommodate
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dwellings meeting the minimum setbacks and fire and fuel break standards, the proposed parcels
satisfy the partition "suitability" standard considering fire hazards. E.g., Tweedfam (MP -O1-16;
Tax Lots 2722 and 2729 on Map 17-11); Taylor (MP -05-31; Tax Lot 2722 on Map 17-11).
Based on my review of appellate decisions, it appears this question has not been raised or
addressed by either LUBA or the Court of Appeals.
LandWatch argues the proposed partition parcels are not suitable for the intended residential use
essentially because it is not possible to site dwellings in any locations that would meet the fire
siting standards in Section 18.36.040(B) on proposed Parcels 1 and 2 -- flag lots with long flag
poles connecting to Sisters Mainline Road. LandWatch bases this argument in part on a technical
bulletin and a magazine article concerning wildfire prevention generally for residential
development in forest land, and in part on Mr. Johnson's expert opinion. In his aforementioned
undated letter, Mr. Johnson stated:
"I first analyzed this piece of property in 2005 under the previous owner
Tweedfam LLC. I have again analyzed this location with the proposed
partitioning and later modification of the application. Absolutely nothing has
changed my analyses and conclusions that I had drawn at that time and in fact
this application has only exacerbated the situation.
Reasonably fast and safe access to all potential building locations must be given
to afford fire, medical and law enforcement personnel the ability to perform their
duties. Delayed response allows hazardous situations to develop to an
unnecessary level and puts occupants, fire fighters and adjacent landowners at an
additional and avoidable risk.
Mapping out a flag line' does not provide the access to each parcel that is
needed. Only close, direct, all weather roads is the logical and correct answer.
Only a 'wink and a nod' answer is proposed here. This cannot be found to be
acceptable."
Mr. Johnson's 2005 analysis of fire hazards on the subject property, included in this record as
Hearing Exhibit 8, evaluated the siting of a dwelling at a particular location on the subject
property, and states in relevant part:
"What the risks are in this particular part of this drainage is not fully known and
no risk analysis was done by the applicant. With a proposal to site a structure
outside of the Wildland Urban Interface this distance without doing a thorough
analysis should deny the application on the face of it. * * * I have done a very
cursory and generic analysis and even so, the proposed site for the structure is on
a minor ridgeline on the west edge of the property. This is a fire prone area as
shown on the attached map of the fire history in the area. [See appendix Al This
is not the best location based on the following points. * * * I do not believe that
we should create an unusual risk for the public employees charged with
protecting us and our property. If this proposed site is approved, it will do just
that. "(Underscored emphasis added.)
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The applicant did not submit evidence into this record rebutting Mr. Johnson's opinion, but
rather argued that compliance with the dwelling siting standards is not relevant to determining
suitability of partition parcels.
The Hearings Officer finds LandWatch's argument is not without support in the broad mandate
of Section 17.22.20(A)(5) to evaluate the suitability of the proposed partition parcels considering
"hazards." The very purpose of the siting standards in Section 18.36.040(B) is to ascertain fire
hazards and costs and risks of fire suppression presented by a dwelling on forest land. On the
other hand, I find Mr. Johnson's above -quoted analysis illustrates the legal and practical
problems presented by LandWatch's approach in the absence of contemporaneous dwelling
proposals identifying particular sites to be evaluated.
As Mr. Johnson's comments acknowledge, review of large tract dwelling applications
necessarily includes both an analysis of the particular proposed dwelling site and a comparative
risk analysis of alternate potential building sites on the parcel. See, Central Oregon LandWatch
v. Deschutes County, 53 Or LUBA 290 (2007). Where, as here, no specific dwelling sites have
been proposed for any of the partition parcels, the only parcel -specific information in the record
consists of a large-scale topographical map and aerial photograph, and there is no analysis of fire
risks from dwellings at those sites or at alternative sites, I find it is simply not possible to make
the determinations required under Section 18.36.040(B). And for the same reasons, I cannot find,
as LandWatch apparently asks me to do, that there are no dwelling locations on the proposed
parcels that could satisfy the fire siting standards. Moreover, the Hearings Officer has not been
cited, nor have I found, any provisions in Title 17 or elsewhere in the county code authorizing
me to approve a partition for a particular use or uses but not for others — i.e., for forestry but not
for residential. And even if such authority existed, I find such a limitation would not preclude a
subsequent application for dwelling approval. For example, as discussed in the findings above,
the Thomas partition approved two 80 -acre parcels identified by the applicant, and found by
Hearings Officer Ken Helm, to be suitable for forestry. Subsequently, the county accepted for
processing and approved an application for a template dwelling on one of the 80 -acre parcels.
Verheyden (CU -08-29). LUBA dismissed an appeal of this decision filed by Central Oregon
LandWatch. Central Oregon LandWatch v. Deschutes County and Verheyden, _ Or LUBA
(2009; LUBA No. 2008-220).
The board clearly stated in its decision approving the Thomas partition (A-02-10, A-02-11, MP -
02 -12) that it interprets the partition "suitability" standard in Section 17.22.20(A)(5) not to
require a demonstration that the proposed parcels would qualify for dwellings. The Hearings
Officer adheres to that interpretation here.
3. Topography. The Hearings Officer finds none of the proposed parcels has identified
topographical features that would make the parcel unsuitable for uses permitted outright in the F-
1 Zone or for residential uses.
4. Access. As discussed in detail elsewhere in this decision, the Hearings Officer has found the
proposed parcels will have adequate access from dedicated and improved public roads.
For the foregoing reasons, the Hearings Officer finds the proposed parcels are suitable for the
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intended uses — forestry and residential — considering the four factors discussed above.
6. All required utilities, public services and facilities are
available and adequate and are proposed to be provided
by the petitioner.
FINDINGS: The record does not include "willing -to -serve" letters from electric and telephone
providers. However, the record indicates the abutting parcel to the east, Tax Lot 2722 on
Assessor's Map No. 17-11-00, is developed with a dwelling and currently is served by Pacific
Power and Qwest. The applicant's burden of proof states it intends to extend existing service
lines to each of the proposed parcels. In addition, the applicant proposes that each parcel would
be served by an individual on-site septic system and an individual private well. Attached to the
applicant's burden of proof as Exhibit E are seven well logs for wells in the area surrounding the
subject property. These logs show water is available in the area at depths ranging from 328 to 415
feet and providing 15-26 gallons per minute. The Hearings Officer finds these well logs demonstrate
the water depth and quantity are sufficient to serve the proposed parcels. I further find any land use
permit for a dwelling will be conditioned on approval of the parcel for an on-site septic system.
7. A water rights division plan, reviewed and approved by
the appropriate irrigation district or the Watermaster's
Office, if water rights are associated with the subject
property.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject
property has no water rights.
8. For partitions or portions thereof within one-half mile
of SM zones, the applicant shows that a noise or dust
sensitive use, as defined in Title 18 of the Deschutes
County Code, can be sited consistent with the
requirements of Chapter 18.56 of Title 18, as
demonstrated by the site plan and accompanying
information required to be submitted under Section
17.28.010 (C) of this chapter.
FINDINGS: The record indicates only the northeastern corner of the subject property within
proposed Parcel 2 is located within one-half mile of Surface Mine Site No. 296 and therefore is
subject to a SMIA Zone. Nevertheless, the staff report states, and the Hearings Officer agrees,
that this criterion is not applicable because the applicant's proposal is for a partition and
therefore does not include any noise- or dust -sensitive uses. As discussed elsewhere in this
decision, the proposed new parcels may qualify for large tract dwellings. The Hearings Officer
finds the modified tentative partition plat shows there is sufficient area on each of the three
parcels to site any future dwelling outside the SMIA Zone. Moreover, if a dwelling was proposed
within the SMIA Zone, it would be subject to the applicable provisions of Chapter 18.56, thereby
assuring it would be sited consistent with those provisions.
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B. If the Planning Director determines that the proposed partition
constitutes series partitioning, or if series partitioning has
occurred in the past, then the Planning Director may refer the
application to the hearings officer for a determination as to
whether the application should be subject to the requirements
of sections 17.36.300, Public Water Supply System, and
17.48.160, Road Development Requirements for Subdivisions.
FINDINGS: Section 17.08.030 defines "series partition" to mean a series of partitions of land
resulting in the creation of four or more parcels over a period of more than one calendar year. As
discussed above, the subject property is Parcel 3 of Partition Plat 2002-90, and therefore this
proposed partition constitutes a series partition. The staff report states in relevant part:
"Staff recommends that the application, as conditioned, should not be subject to
the requirements of Sections 17.36.300 because potable water can be provided by
domestic wells. Staff requests the Hearings Officer to determine if the application
should be subject to the requirements of Section 17.48.160, Road Development
Requirements for Subdivisions. "
The Hearings Officer finds this statement constitutes a referral by the Planning Director for me
to determine whether the public water system and subdivision street standards should be applied.
I agree with staff that a public water system is not necessary in light of the well log information
included in the record.
With respect to the appropriate road standard, in his comments on the applicant's proposal, Peter
Russell, the county's Senior Transportation Planner, stated in relevant part:
"The 8th edition of the ITE Manual indicates a single-family home generates 9.57
trips per day. Given MP -10-3 will result in two potential additional homesites, the
trip generation from this land use is 9.57 X 2 = 18.14 daily trips. As this
application will generate less than 50 new weekday trips, under DCC
17.16.115(C)(4) no traffic analysis is required."
The Hearings Officer finds that Mr. Russell's failure to recommend any improvements to either
Bull Springs Road or the portion of Sisters Mainline Road from which the partition parcels
would take access suggests the county believes the existing dedicated right-of-way and
improvements to those roads are adequate to handle traffic that would be generated by the
partition. Therefore, I find it is neither necessary nor appropriate to require that the proposed
partition be subject to the subdivision road standards.
2. Chapter 17.36, Design Standards.
a. Section 17.36.040, Existing Streets
Whenever existing streets, adjacent to or within a tract, are of
inadequate width to accommodate the increase in traffic expected
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MP -10-3, MA -10-4
Page 17 of 26
from the subdivision or partition or by the county roadway network
plan, additional rights of way shall be provided at the time of the land
division by the applicant. During consideration of the tentative plan
for the subdivision or partition, the Planning Director or Hearings
Body, together with the Public Works Director, shall determine
whether improvements to existing streets adjacent to or within the
tract, are required. If so determined, such improvements shall be
required as a condition of approval for the tentative plan.
Improvements to adjacent streets shall be required where traffic on
such streets will be directly affected by the proposed subdivision or
partition.
FINDINGS: The dedicated portion of Sisters Mainline Road forms most of the southeastern
boundary of the subject property and the eastern boundary of proposed Parcel 3. Due to flag -lot
configurations of proposed Parcels 1 and 2, all three proposed parcels will have at least 50 feet of
frontage on the dedicated portion of Sisters Mainline Road at the northeast corner of Proposed
Parcel 3. The record indicates the dedicated portion of Sisters Mainline Road is improved to the
county's minimum standards for partition roads, and Bull Springs Road between Johnson Market
Road and Sisters Mainline Road is paved. As discussed in the findings above, neither the road
department nor the county's transportation planner recommended any further improvements to
the existing transportation infrastructure serving the proposed parcels. Therefore, the Hearings
Officer finds the applicant's proposal satisfies this criterion.
b. Section 17.36.160, Easements
A. Utility Easements. Easements shall be provided along property
lines when necessary for the placement of overhead or
underground utilities, and to provide the subdivision or
partition with electric power, communication facilities, street
lighting, sewer lines, water lines, gas lines or drainage. Such
easements shall be labeled "Public Utility Easement" on the
tentative and final plat; they shall be at least 12 feet in width
and centered on lot lines where possible, except utility pole
guyline easements along the rear of lots or parcels adjacent to
unsubdivided land may be reduced to 10 feet in width.
FINDINGS: The subdivision guarantee included in the record as Exhibit B to the applicant's
burden of proof shows there are no public utility easements on the subject property with which
the partition would conflict, and the Hearings Officer finds none should be needed for the
proposed partition.
c. Section 17.36.170, Lot Size and Shape
The size, width and orientation of lots or parcels shall be appropriate
for the location of the land division and for the type of development
and use contemplated, and shall be consistent with the lot or parcel
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MP -10-3, MA -10-4
Page 18 of 26
size provisions of Titles 18 through 21 of this code:
FINDINGS: The Hearings Officer has found the proposed partition parcels are large enough to
accommodate both forestry and residential use. In addition, as discussed above, each parcel is
configured so it will have frontage on and direct access to a public road. Therefore, the Hearings
Officer finds the applicant's proposal satisfies this criterion.
d. Section 17.36.180, Frontage
A. Each lot or parcel shall abut upon a public road, or when
located in a planned development or cluster development, a
private road, for at least 50 feet, except for lots or parcels
fronting on the bulb of a cul de sac, then the minimum
frontage shall be 30 feet, and except for partitions off of U.S.
Forest Service or Bureau of Land Management roads.
Frontage for partitions off U.S. Forest Service or Bureau of
Land Management roads shall be decided on a case by case
basis based on the location of the property, the condition of the
road, and the orientation of the proposed parcels, but shall be
at least 20 feet. In the La Pine Neighborhood Planning Area
Residential Center District, lot widths may be less than 50 feet
in width, as specified in DCC 18.61, Table 2: La Pine
Neighborhood Planning Area Zoning Standards. Road
frontage standards in destination resorts shall be subject to
review in the conceptual master plan.
B. All side lot lines shall be at right angles to street lines or radial
to curved streets wherever practical.
FINDINGS: Due to the proposed flag -lot configurations of proposed Parcels 1 and 2, all three
proposed parcels will have at least 50 feet of frontage on the dedicated portion of Sisters
Mainline Road at the northeast corner of Parcel 3. The Hearings Officer finds the requirement for
all side lot lines to be at right angles to street lines or radial to curved streets is impractical in this
case given the size of the parcels and the proposed flag lot configuration necessary to provide
frontage on and access to a public road for all three parcels.
e. Section 17.36.210, Solar Access Performance
A. As much solar access as feasible shall be provided each lot or
parcel in every new subdivision or partition, considering
topography, development pattern and existing vegetation. The
lot lines of lots or parcels, as far as feasible, shall be oriented to
provide solar access at ground level at the southern building
line two h ours before and after the solar zenith from
September 22"d to March 21st. If it is not feasible to provide
solar access to the southern building line, then solar access, if
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Page 19 of 26
feasible, shall be provided at ten feet aboveground level at the
southern building line two hours before and after the solar
zenith from September 22nd to March 21st, and three hours
before and after the solar zenith from March 22°d to
September 21st.
FINDINGS: The Hearings Officer finds the proposed parcels, each at least 242 acres in size,
will have adequate solar access for any dwellings.
f. Section 17.36.260, Fire Hazards
Whenever possible, a minimum of two points of access to the
subdivision or partition shall be provided to provide assured access
for emergency vehicles and ease resident evacuation.
FINDINGS: This provision requires two points of access "to the subdivision or partition."
However, because the proposed minor partition does not include a road, the Hearings Officer
finds it is not clear to what extent this requirement is applicable. In any case, the modified
partition plat shows each parcel will have at least two points of access, including direct access
from Sisters Mainline Road for all three parcels, and for Parcels 1 and 2 frontage on and access
to Triangle Hill Road, a USFS road over which the subject property has a perpetual access
easement, a copy of which is included in the record as Exhibit H to the applicant's burden of
proof. I also find all three parcels would have additional emergency ingress/egress via existing
dirt roads and easements that traverse the subject property.
g•
Section 17.36.290, Individual Wells
In any subdivision or partition where individual wells are proposed,
the applicant shall provide documentation of the depth and quantity
of potable water available from a minimum of two wells within one
mile of the proposed land division. Notwithstanding section 17.36.300,
individual wells for subdivisions are allowed when parcels are larger
than 10 acres.
FINDINGS: The applicant proposes to serve any future development of the parcels with a
domestic water supply via private individual on-site wells. The applicant submitted as Exhibit E
to the burden of proof seven well logs from nearby properties. These well logs show water is
available in the area at depths and quantities adequate to serve the parcels.
3. Chapter 17.44, Park Development
a. Section 17.44.010, Dedication of Land
* * *
B. For subdivisions or partitions outside of an urban growth
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boundary, the developer shall set aside a minimum area of the
development equal to $350 per dwelling unit within the
development, if the land is suitable and adaptable for such
purposes and is generally located in an area planned for parks.
b. Section 17.44.020, Fee in Lieu of Dedication
A. In the event there is no suitable park or recreation area or site
in the proposed subdivision or partition, or adjacent thereto,
then the developer shall, in lieu of setting aside land, pay into a
park acquisition and development fund a sum of money equal to
the fair market value of the land that would have been donated
under DCC 17.44.010 above. For the purpose of determining the
fair market value, the latest value of the land, unplatted and
without improvements, as shown on the County Assessor's tax
roll shall be used. The sum so contributed shall be deposited
with the County Treasurer and be used for acquisition of
suitable area for park and recreation purposes or for the
development of recreation facilities. Such expenditures shall be
made for neighborhood or community facilities at the discretion
of the Board and/or applicable park district.
B. DCC 17.44.020 shall not apply to subdivision or partition of
lands located within the boundaries of the Bend Metro Park
and Recreation District or the Central Oregon Park and
Recreation District.
FINDINGS: In previous partition decisions for F-1 zoned land, the Hearings Officer has found
that unless the only identified use of the proposed partition parcels is residential these provisions
do not apply. E.g., Thomas. The applicant has identified the intended uses of the proposed
parcels as uses permitted outright in the F-1 Zone and residential use. Therefore, I find these park
provisions do not apply. And even if these provisions do apply, I find the subject property is not
suitable and adaptable for park purposes given its distance from the Bend city limits and its
proximity to the existing Shevlin Park.
4. Chapter 17.48, Design and Construction Specifications
a. Section 17.48.170, Road Development Requirements — Partitions
Roadway improvements within a partition and to a road maintained
by a public agency shall be constructed prior to final approval of the
partition, depending on the maximum parcel size as follows:
A. For a parcel size of 10 acres or larger, the minimum road
improvement standard shall be 20 feet wide with five inches of
aggregate surfacing (cinders are acceptable), the centerline of
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Page 21 of 26
which coincides with the centerline of the right of way.
FINDINGS: The proposed partition parcels are larger than 10 acres and therefore this provision
applies. The record indicates the dedicated portion of Sisters Mainline Road from which the
proposed parcels would take access was improved to the minimum standards for partitions,
including a 20 -foot -wide gravel surface. As discussed above, neither the road department nor the
county's transportation planner recommended any further improvements to this road, or to Bull
Springs Road which the record indicates is paved. Therefore, the Hearings Officer finds the
applicant's proposal satisfies this criterion.
For the foregoing reasons, the Hearings Officer finds the applicant's proposed partition satisfies
all applicable partition approval criteria in Title 17.
FOREST ZONE STANDARDS
C. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.36, Forest Zone F-1
a. Section 18.36.090, Dimensional Standards
In an F 1 Zone, the following dimensional standards shall apply:
A. The minimum lot size is 80 acres; or
B. Land divisions creating parcels less than 80 acres in size may
only be approved for uses listed in DCC 18.36.030(D) through
(0), provided that those uses have been approved pursuant to
DCC 18.36.040. Such division shall create a parcel that is the
minimum size necessary for the use.
C. Building Height. No nonagricultural building or structure shall
be erected or enlarged to exceed 30 feet in height, except as
approved under DCC 18.120.040.
FINDINGS: The applicant proposes to partition the 1,306 -acre subject property into three
parcels, each larger than 80 acres in size and therefore satisfying this criterion. The Hearings
Officer finds the 30 -foot height limit will apply to any future structures on the new parcels.
b. Section 18.36.100, Yards and Setbacks
A. The front yard setback shall be 40 feet from a property line
fronting on a local street, 60 feet from a property line fronting
on a collector and 100 feet from a property line fronting on an
arterial.
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MP -10-3, MA -10-4
Page 22 of 26
B. Each side yard setback shall be a minimum of 25 feet, except a
parcel or lot with a side yard adjacent to zoned forest land
shall have a minimum side yard of 100 feet.
C. Rear yards shall be a minimum of 25 feet, except parcels or
lots with rear yards adjacent to zoned forest land shall have a
minimum rear yard of 100 feet.
D. The setback from the north lot line shall meet the solar setback
requirements in DCC 18.116.180.
E. In addition to the setbacks set forth herein, any greater
setbacks required by applicable building or structural codes
adopted by the State of Oregon and/or the County under DCC
15.04 shall be met.
FINDINGS: Each of the proposed parcels will be at least 242 acres in size and therefore the
Hearings Officer finds they will be large enough to accommodate future development meeting
these setbacks.
c. Section 18.36.110, Stream Setbacks
d. Section 18.36.103, Rimrock Setbacks
FINDINGS: The Hearings Officer finds these sections are not applicable to the applicant's
proposal because there are no streams or lakes on the subject property, or rimrock as defined in
Section 18.04.030.6
2. Chapter 18.56, Surface Mining Impact Area Combining Zone — SMIA
a. Section 18.56.060, Dimensional Standards
In the SMIA Zone, the lot size shall be that prescribed in the
underlying zone.
FINDINGS: As discussed above, the proposed sizes for the three new parcels comply with the
minimum lot standards of the F-1 Zone.
b. Section 18.56.070, Setbacks
The setbacks shall be the same as those prescribed in the underlying
zone, except as follows:
6 Section 18.04.030 defines "rimrock" as "any ledge, outcropping or top or overlying stratum of rock,
which forms a face in excess of 45 degrees, and which creates or is within the canyon of the following
rivers and streams: * * *."
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Page 23 of 26
A. No noise sensitive or dust sensitive use or structure established
or constructed after the designation of the SMIA Zone shall be
located within 250 feet of any surface mining zone, except as
provided in DCC 18.56.140; and
B. No noise sensitive or dust sensitive use or structure established
or constructed after the designation of the SMIA Zone shall be
located within one quarter mile of any existing or proposed
surface mining processing or storage site, unless the applicant
demonstrates that the proposed use will not prevent the
adjacent surface mining operation from meeting the setbacks,
standards and conditions set forth in DCC 18.52.090, 18.52.110
and 18.52.140, respectively.
C. Additional setbacks in the SMIA Zone may be required as part
of the site plan review under DCC 18.56.100.
D. An exception to the 250 foot setback in DCC 18.56.070(A), shall
be to a written agreement for a lesser setback made between the
owner of the noise sensitive or dust sensitive use or structure
located within 250 feet of the proposed surface mining activity
and the owner or operator of the proposed surface mine. Such
agreement shall be notarized and recorded in the Deschutes
County Book of Records and shall run with the land. Such
agreement shall be submitted and considered at the time of site
plan review or site plan modification.
FINDINGS: The Hearings Officer finds the setbacks in the SMIA Zone will be applied at the
time a building permit is issued for any structure within the SMIA Zone on proposed Parcel 2. I
find the proposed parcels, each of which would be at least 242 acres in size, are large enough to
accommodate development meeting these setbacks.
c. Section 18.56.080, Use Limitations
No dwellings or additions to dwellings or other noise sensitive or dust
sensitive uses or structures shall be erected in any SMIA Zone without
first obtaining site plan approval under the standards and criteria set
forth in DCC 18.56.090 through 18.56.120.
FINDINGS: The Hearings Officer finds the SMIA site plan requirement will be applied at the
time land use approval is sought for any dwelling within the SMIA Zone on proposed Parcel 2.
3. Chapter 18.88, Wildlife Area Combining Zone - WA
a. Section 18.88.050, Dimensional Standards
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MP -10-3, MA -10-4
Page 24 of 26
In a WA Zone, the following dimensional standards shall apply:
A. In the Tumalo, Metolius, North Paulina and Grizzly deer
winter ranges designated in the Comprehensive Plan Resource
Element, the minimum lot size for new parcels shall be 40 acres
except as provided in DCC 18.88.050(D).
FINDINGS: The record indicates the subject property is within a WA Zone created to protect
the Tumalo Deer Winter Range. The Hearings Officer finds the proposed partition satisfies this
criterion because all three proposed parcels would be at least 242 acres in size.
IV. DECISION:
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby
APPROVES the proposed partition, SUBJECT TO THE FOLLOWING CONDITIONS OF
APPROVAL:
1. This approval is based upon the applicant's modified tentative partition plan, the
applicant's original and modified burden of proof statements and supplemental materials,
and the applicant's written and oral testimony. Any substantial change to the approved
plan will require a new land use application and approval.
PRIOR TO FINAL PLAT APPROVAL:
2. The applicant/owner shall have a licensed land surveyor prepare a partition plat which
conforms to Oregon Revised Statutes Chapter 92 and Title 17 of the Deschutes County
Code.
3. The applicant/owner shall pay all ad valorem taxes, fees and other charges that have
become a lien upon the entire parcel.
4. The applicant/owner shall provide documentation of approved access permits from
Deschutes County for all proposed parcels.
5. The applicant/owner shall submit a title report for the property
6. The applicant/owner shall contact the county's property address coordinator for new
addresses for the partition parcels.
ON OR WITH THE FINAL PLAT:
7. The final partition plat shall include the following information:
a. exact sizes for each parcel;
b. all easements of record and existing rights-of-way;
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Page 25 of 26
c. signatures of the Deschutes County Assessor and Treasurer.
Dated this / 9-1 day of August, 2010.
Mailed this(9P14" day of August, 2010.
Karen H. Gree Hearings Officer
THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS
TIMELY APPEALED.
Bank of Whitman
MP -10-3, MA -10-4
Page 26 of 26
Community Development Department
Planning Division Building Safety Division Environmental Health Division
REIMENZi
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/cdd/
CERTIFICATE OF MAILING
FILE NUMBER: MP-10-3/MA-10-4
DOCUMENTS MAILED: Hearings Officer's Decision
MAP AND TAX LOT NUMBER(S): 17-11, Tax Lot 2732
I certify that on the 20th day of August, 2010, the attached notice/report, dated
August 20, 2010, was mailed by first class mail, postage prepaid, to the person(s) and
address(es) set forth on the attached list.
Dated this 20th day of August, 2010.
COMMUNITY DEVELOPMENT DEPARTMENT
By: Sher Buckner
Bank of Whitman
P.O. Box 270
Colfax, WA 99111-0270
Paul Dewey
1539 NW Vicksburg Av.
Bend, OR 97701
Tia M. Lewis
Schwabe, Williamson & Wyatt
360 SW Bond Street, Suite 400
Bend, OR 97702
Heidi Kennedy
64180 Old Bend Redmond Highway
Bend, OR 97701
David R. Williams, PLS
Hickman, Williams & Associates
1201 NW WaII St., Ste. 100
Bend, OR 97701
Addison L. Johnson
Wildfire Risk Management
2350 NE 8th Street
Bend, OR 97701
Quality Services Performed with Pride
DECISION OF DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBERS: MP -02-12
APPLICANTS/
PROPERTY OWNERS:
ATTORNEYS:
REQUEST:
STAFF CONTACT:
HEARING DATE:
RECORD CLOSED:
Matthew and Rachel Thomas
P.O. Box 5519
Bend, Oregon 97709
Tia M. Lewis
Merrill O'Sullivan, LLP
1070 N.W. Bond Street, Suite 303
Bend, Oregon 97701
Attorney for Applicants
Paul D. Dewey
1539 N.W. Vicksburg
Bend, Oregon 97701
Attorney for Opponent Sisters Forest Planning Committee
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Bill Kloos
Law Office of Bill Kloos, PC
576 Olive Street, Suite 300
P.O. Box 11906
Eugene, Oregon 97401
Attorney for Opponent Sisters Forest Planning Committee
The applicants are requesting approval to partition a 482 -acre
parcel located west of Bend into a 322 -acre parcel and two 80 -acre
parcels. The property is zoned Forest Use (F-1) and Wildlife Area
Combining Zone.
Catharine Tilton, Associate Planner
July 2, 2002
July 26, 2002
I. APPLICABLE STANDARDS AND CRITERIA:
A. Title 17 of the Deschutes County Code, the Subdivision Ordinance
1. Chapter 17.08, Definitions and Interpretation of Language
* Section 17.08.030, Definitions Generally — "Partition," "Series Partitioned
Lands," "Subdivide Land," "Tract"
2. Chapter 17.22, Approval of Tentative Plans for Partitions
* Section 17.22.020, Requirements for Approval
3. Chapter 17.36, Design Standards
Thomas
MP -02-12
1
* Section 17.36.040, Existing Streets
* Section 17.36.160, Easements
* Section 17.36.170, Lots — Size and Shape
* Section 17.36.180, Frontage
* Section 17.36.210, Solar Access Performance
* Section 17.36.260, Fire Hazards
* Section 17.36.290, Individual Wells
4. Chapter 17.44, Park Development
* Section 17.44.010, Dedication of Land
* Section 17.44.020, Fee in Lieu of Dedication
5. Chapter 17.48, Design and Construction Specifications
* Section 17.48.170, Road Development Standards — Partitions
B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.36, Forest Use (F1) Zone
* Section 18.36.070, Fire Siting Standards for Dwellings and Structures
* Section 18.36.080, Fire Safety Design Standards for Roads
* Section 18.36.090, Dimensional Standards
2. Chapter 18.88, Wildlife Area Combining Zone (WA)
* Section 18.88.050, Dimensional Standards
C. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.24, Land Use Action Hearings
* Section 22.24.140, Continuances or Record Extensions
H. FINDINGS OF FACT:
A. Location: The subject property has an assigned address of 18400 Bull Springs Road,
Bend, and is further identified as Tax Lot 4300 on Deschutes County Assessor's Map 17-
11-00.
B. Zoning and Plan Designation: The subject property is zoned Forest Use (F-1) and
Wildlife Area Combining Zone (WA). The property is designated Forest on the
comprehensive plan map.
C. Site Description: The subject property is 482 acres in size and irregular in shape. Its
topography varies from level to mildly sloping near the northern border. The record
indicates the property historically has been used for commercial forestry operations. The
property is vacant, has no water rights, and is covered with native vegetation consisting
of ponderosa pine trees, brush and grasses. The subject property lies east of Johnson
Road, a county -maintained road, and Bull Springs Road, a private road. A U.S. Forest
Service (hereafter "USFS") road called the Sisters Mainline Road (also known as USFS
Road 4606) runs north from Skyliners Road to the Sisters area and forms a small portion
Thomas
MP -02-12
2
of the subject property's southern boundary.
D. Surrounding Zoning and Land Uses:
All of the surrounding property to the north, west and south is zoned F-1. The
surrounding property to the east is zoned F-2. To the north are Sections 9 and 10 in
Township 17. Some large parcels in these sections are vacant and owned by the State of
Oregon or Crown Pacific Limited (hereafter "Crown Pacific"). The east half of Section
10 consists of parcels ranging in size from 20 to 100 acres, privately owned and
developed with single-family residences. To the east is the east half of Section 15 in
Township 17. This property consists of six parcels, each approximately -40 acres in size,
privately owned and developed with single-family residences. Further to the east is the
Saddleback Subdivision zoned RR -10 and developed with residential lots ranging in size
from one-half to 5 acres. To the west is a vacant 320 -acre parcel is private ownership.
Further to the west is Section 17 which is vacant and owned by Crown Pacific. To the
south is a vacant 327 -acre parcel in private ownership. Further to the south is a 1,907-
acre parcel owned by Tweedfam Investments and recently approved for a three -lot
partition (A-02-6/MP-01-16/MA-02-4; hereafter Tweedfam). To the southeast is a 250 -
acre parcel in private ownership and located in Sections 15 and 22.
E. Procedural History: The subject property consists of Parcel 1 of Partition 2001-56 that
divided a 1,129 -acre parent parcel into three parcels (MP -01-13), each approximately
320-325 acres in size. The subject partition application (MP -01-16) was filed on April 26,
2002. By letter dated May 9, 2002, the county advised the applicants that the application
was incomplete. The applicants submitted the missing information on May 31, 2002, and
the county accepted the application as complete on that date. Therefore, under ORS
215.427, the 150 -day period for issuance of a final local land use decision would have
expired on October 28, 2002. A public hearing on the application was held on July 2,
2002. At the hearing, the Hearings Officer received testimony and evidence. That
evidence included a number of documents from the Tweedfam record submitted by
opponent Sisters Forest Planning Committee (hereafter "SFPC").1 With the applicants'
consent, the Hearings Officer left the written evidentiary record open through July 19,
2002, and allowed the applicants through July 26, 2002, to submit final arguments
pursuant to ORS 197.763(6)(e). The record closed on July 26, 2002. Under Section
22.24.140(E) of the county's procedures ordinance, the 150 -day period was tolled during
the 17 -day period the record was extended with the applicants' consent. In addition,
under ORS 197.763(6)(d), the 7 -day period for submission of final argument does not
count against the 150 -day period. Therefore, the 150 -day period was tolled for 24 days
and now expires on November 21, 2002. As of the date of this decision there remain 51
days in the 150 -day period.
F. Proposal: The applicant proposes to partition the 482 -acre subject property into a 322 -
acre parcel (Parcel A) and two 80 -acre parcels (Parcels B and C). Primary access would
be from the south via Skyliners Road, Sisters Mainline Road and permanent easements.
Secondary access would be from the east via Johnson Market Road, Bull Springs Road
and permanent easements. The applicants' burden of proof identifies the proposed uses of
The applicants objected to the inclusion of Tweedfam documents that are duplicative and/or relate only
to the Tweedfam application. The Hearings Officer concurs that such documents should not be included in
this record.
Thomas
MP -02-12
3
the parcels as forestry and residential. No development applications were submitted with
the partition application.
G. Public/Private Agency Comments: The Planning Division sent notice of the applicants'
proposal to a number of public and private agencies and received responses from: the
Deschutes County Assessor, Road Department, Property Address Coordinator and
Environmental Health Division; and City of Bend Fire Department. These comments are
set forth verbatim at pages 3-4 of the Staff Report. The following agencies either had no
comment or did not respond to the county's notices: the Oregon State Fire Marshal; the
Oregon Department of Water Resources, Watermaster-District 11; the Oregon
Department of Fish and Wildlife ("ODFW"); the Tumalo Irrigation District; the USFS;
Pacific Power and Light; and Qwest Communications.
H. Public Notice and Comments: The Planning Division mailed individual written notice
of the application and public hearing to the owners of record of all property located
within 750 feet of the subject property. In addition, notice of the initial public hearing
was published in the "Bend Bulletin" newspaper, and the subject property was posted
with a notice of proposed land use action sign. As of the date the record closed, the
county had received one letter from opponents Kelly and Karen Smith, and letters and
memoranda from opponent SFPC in response to these notices. In addition, four members
of the public testified at the public hearing.
L Lot of Record: The subject property is a legal lot of record as Parcel 1 of Partition 2001-
56.
III. CONCLUSIONS OF LAW:
A. Title 17 of the Deschutes County Code, the Subdivision Ordinance
1. Chapter 17.22, Approval of Tentative Plans for Partitions
a. Section 17.22.020, Requirements for Approval
A. No application for partition shall be approved unless the
following requirements are met:
1. Proposal is in compliance with Oregon Revised Statutes
Chapter 92, the applicable comprehensive plan and
applicable zoning ordinance. A proposed partition is
not in compliance with the zoning ordinance if it would
conflict with the terms of a previously issued approval
for land use on the property or would otherwise create a
non -conforming use on any of the newly described
parcels with respect to an existing structure or use.
FINDINGS: The Hearings Officer finds the provisions of ORS Chapter 92 are implemented
through Title 17 of the Deschutes County Code, and therefore if the proposal satisfies the
provisions of Title 17 it also complies with ORS Chapter 92. The proposal's compliance with the
applicable provisions of Title 18, the zoning ordinance, is discussed in the findings below. I find
the proposed partition will not create a non -conforming use on any of the three proposed parcels
with respect to an existing structure because the property is vacant. I further find the proposed
partition will not conflict with the previously issued partition approval -- MP -01-13 -- that
created the subject property as Parcel 1 of Partition 2001-56. Therefore, I find the applicants'
Thomas
MP -02-12
4
proposal satisfies this criterion.
2. Proposal does not conflict with existing public access
easements within or adjacent to the partition.
FINDINGS: The submitted tentative partition plan shows several road and utility easements
within and adjacent. to the subject property, including half of the right-of-way for Sisters
Mainline Road. The Hearings Officer finds the only one of these easements that provides "public
access" is Sisters Mainline Road. However, I find the proposed partition will not conflict with
this easement. Therefore, I find the applicants' proposal satisfies this criterion.
3. The partition is accessed either by roads dedicated to
the public or by way of United States Forest Service or
Bureau of Land Management roads where the applicant
has submitted a written agreement with the appropriate
land management agency providing for permanent legal
access to the parcels and any required maintenance.
This provision shall not be subject to variance;..
FINDINGS: The applicants propose primary access from Skyliners Road, a road dedicated to
the public, via Sisters Mainline Road, a USFS Road. At the outset, the Hearings Officer finds the
applicants' access proposal differs from that presented in Tweedfam in one significant respect. In
Tweedfam, each partition parcel took direct access from a USFS road -- i.e., each parcel had
frontage on Sisters Mainline Road. In contrast, the applicants here propose that only Parcel A
have frontage on Sisters Mainline Road. Parcels B and C would take access from and have
frontage on easements coming off Sisters Mainline Road.
In Tweedfam, the Hearings Officer found the purpose of the access requirement in this section is
to assure that any new parcels created by a partition have permanent legal access. Roads
dedicated to the public clearly achieve this purpose through dedication to and acceptance by the
county, and through ordinance provisions establishing minimum right-of-way and improvement
standards for public roads. USFS roads can achieve this purpose if the access proposed from
them satisfies the requirements of this section — i.e., a written agreement providing for permanent
legal access and any required maintenance. Easements may not provide permanent legal access.
However, it is not clear from the language of this section whether each partition parcel must
have direct access from a USFS Road. This section states the "partition" must be accessed by a
USFS road. Section 17.08.030 defines "partition" as:
. . . the act of partitioning land or an area or tract of land partitioned." (Emphasis
added.)
The Hearings Officer finds the underscored language is ambiguous. It could mean either the
parent parcel or each partitioned parcel. Under the former interpretation, the access requirement
in this section would require that only the parent parcel have direct access from a USFS road.
Under the latter interpretation, each partitioned parcel must have direct access from the USFS
road.
Section 17.36.180 addresses street frontage and provides in pertinent part:
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Each lot or parcel shall abut upon a public road for at least 50 feet, except for Tots or
parcels fronting on the bulb of a cul-de-sac, then the minimum frontage shall be 30
feet, and except for partitions off U.S. Forest Service or Bureau of Land
Management roads. (Emphasis added.)
The Hearings Officer finds the underscored language in this definition also is ambiguous. It
could mean that no frontage on a USFS road is required for each partition parcel. Or it could
mean that something less than 50 feet of frontage on a USFS road is required for each parcel.
However, because the exception for USFS and BLM roads does not include a specific frontage
length, like the 30 -foot exception for cul-de-sac lots, I find the former interpretation is more
plausible — that is, there is no frontage requirement for partitions of USFS roads. And I find that
reading the access language in Section 17.22.020(A)(3) together with the "partition" definition in
Section 17.08.030 strongly suggests the county did not intend to require that each partition parcel
have direct access from — i.e., frontage on — the USFS road proposed to provide access.
Therefore, I find the applicants' proposed partition Parcels B and C need not take direct access
from Sisters Mainline Road.
Opponent SFPC also asserts the phrase "the partition is accessed" in this section means the
partition must have actual as well as legal access from Sisters Mainline Road. SFPC argues this
means Sisters Mainline Road must be improved to minimum county road standards whether or
not the applicants or their successors actually use Bull Springs Road to reach the parcels. The
applicants respond that this section requires only that they have the legal right of access from
Sisters Mainline Road. The Hearings Officer finds this ordinance language also is ambiguous.
However, I find the right of access from Sisters Mainline Road would be meaningless if physical
access is not possible due to the condition of the road. Therefore, I concur with SFPC that in
order to assure the proposed partition is "accessed" from Sisters Mainline Road, the segment of
the road from Skyliners Road to the southern boundary of the subject property must be improved
to the county's minimum road standards — i.e., 20 feet of all-weather surface capable of
supporting a 50,000 pound emergency vehicle. To the extent it is not improved to those
standards, the applicants will be required as a condition of approval to make such
improvements.2
The Hearings Officer finds the remaining question presented by the access proposed in this
application is the same as that presented in Tweedfam — that is, have the applicants documented
permanent legal access and any required maintenance through a "written agreement" with the
USFS? As in Tweedfam, I find this requirement has three components: 1) submission of a written
agreement with the USFS; 2) that establishes permanent legal access; and 3) that establishes
responsibility for any maintenance of the access road required by the USFS. Each of these
components is addressed separately in the findings below.
1. Written Agreement.
The applicants assert that no written agreement with the USFS is required because: 1) the USFS
2 At the public hearing, the applicants' attorney stated the applicants do not object to such an
improvement requirement.
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does not require a written agreement or permit for the applicants' use of Sisters Mainline Road to
access their property; and 2) federal law allows private property owners like the applicants to use
Sisters Mainline Road to access their property. The Hearings Officer rejected identical
arguments in Tweedfam. There, I found that because the plain language of this section requires a
written agreement and prohibits a variance to this requirement, the applicants must submit such
an agreement regardless of whether federal law requires or authorizes a written access
agreement. I found the evidence relied upon by the applicants in Tweedfam — and on which the
applicants here rely — was not persuasive. That evidence consisted of statements from Walter
Schloer, District Ranger for the Bend -Fort Rock Ranger District of the Deschutes National
Forest, concerning USFS "public use" roads, and provisions of the United States Code and the
Code of Federal Regulations3 guaranteeing access to private "in -holdings" — i.e., private land
surrounded by USFS land. Here, as in Tweedfam, the record indicates the boundaries of the
Deschutes National forest do not encompass the subject property.4
In response to opponent SFPC's argument that a written agreement is required under this section,
the applicants in Tweedfam submitted three recorded easements covering the segment of Sisters
Mainline Road from Skyliners Road to the northern boundary of the Tweedfam property -- the
southern boundary of the subject property. The Hearings Officer held these easements
constituted "written agreements" providing permanent access and any required maintenance for
the proposed parcels.5
The applicants here rely on the same three easements presented in Tweedfam to support their
partition application. These easements (identified as Easement 1, Easement 2 and Easement 3)
and a map showing their locations are included in this record as Exhibits D, E and F to the
applicants' Second Supplemental Burden of Proof Statement. The relevant provisions of the
easements are discussed below.
a. Easement 1. This easement covers the segment of Sisters Mainline Road from Skyliners Road
north to the southern boundary of Section 34. It is dated October 19, 1982, and is between the
USFS as grantor and Diamond International Corporation (hereafter "Diamond"), a commercial
timber company, as grantee. The easement states the USFS grants to Diamond, "its successors
and assigns, and successors in interest to any lands now owned or hereafter acquired by"
Diamond, "a perpetual easement for a road" 66 feet in width. Paragraph A of the easement states
in pertinent part:
3 These provisions are found at Title 16, Chapter 51, Subchapter VI, Section 3210 of the United States Code and
at Title 36, Chapter II, Part 212, Section 212.6 of the Code of Federal Regulations.
4 The applicants here cited a decision from Wyoming for the proposition that the federal regulations are
applicable to land not entirely surrounded by USFS land. The Hearings Officer concurs with opponent
SFPC that the plain language of the federal regulations and the weight of authority make clear the federal
right of access is granted only to those privately -owned parcels landlocked by USFS land.
' In so holding, the Hearings Officer followed the county's previous practice of recognizing access
easementsbetween the USFS and private parties for use of USFS roads as constituting "written
agreements" for purposes of this section.
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"This grant is made subject to the following terms, provisions, and conditions
applicable to [Diamond], its permittees, contractors, assignees, and successors in
interest:
A. Except as hereinafter limited [Diamond] shall have the right to use the
road for all purposes deemed necessary and desirable by [Diamond] in
connection with the protection, administration, management and
utilization of [Diamond's] lands or resources, now or hereafter owned or
controlled, subject to such traffic -control regulations and rules as [USFS]
may reasonably impose upon or require of other users of the road without
reducing the rights herein granted: ... [Diamond] shall have the right to
construct, reconstruct, and maintain roads within the premises."
Paragraph 1 of the easement reserves to the USFS essentially the same right of access as granted
to Diamond. The easement refers to the "Deschutes Road Right -of -Way Construction and Use
Agreement dated March 18, 1975" and describes it as governing all aspects of the use of the
road, including "construction, reconstruction and maintenance." This agreement is not included
in the record. The easement also states:
"The Chief Forest Service, may terminate this easement, or any segment thereof,
(1) by consent of [Diamond], (2) by condemnation, or (3) after a five (5) year
period of nonuse, by a determination to cancel after notification and opportunity
for hearing as prescribed by law; provided the easement, or segment thereof
shall not be terminated for nonuse so long as the road or segment thereof is
being preserved for prospective use."
Paragraph E of the easement states with respect to maintenance:
"The costs of road maintenance shall be allocated on the basis of respective uses
of the road
During periods when either party uses the road or [the USFSJ permits use of the
road by others for hauling of timber or other materials, the party so using or
permitting such use will perform or cause to be performed, or contribute or cause
to be contributed that share of maintenance occasioned by such use of the road
On any road maintained by [Diamond], [it] shall have the right to charge
purchasers of National Forest timber and other commercial haulers, or to recover
from available deposits held by the [USFS] for such purchasers or haulers,
reasonable maintenance charges based on the ratio that said hauling bears to the
total hauling on such road [USFS] shall prohibit noncommercial use unless
provision is made by [USFS] or by the noncommercial users to bear
proportionate maintenance costs."
In summary, the Hearings Officer finds Easement 1 gives Diamond and its successors a
perpetual right to use the pertinent segment of Sisters Mainline Road for whatever purpose they
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deem necessary and desirable. It also gives them the right to construct and maintain the road and
the right to demand road maintenance cost-sharing from other users of the road. It also allows
both parties to terminate the easement with mutual consent, and allows the USFS to terminate it
for nonuse and by condemnation.
b. Easement 2. This easement covers the segment of Sisters Mainline Road from the southern
boundary of Section 34 to the intersection of Sisters Mainline Road and another USFS road that
runs through proposed Parcel 3. It is dated December 14, 1966, and is between Brooks -Scanlon,
Inc. (hereafter `Brooks -Scanlon"), a commercial timber company, as grantor and the United
States as grantee. Brooks -Scanlon grants to the U.S. "a perpetual easement for a road" 66 feet
wide. The relevant language of this easement is similar to Easement 1 in most respects. It
reserves to Brooks -Scanlon the right to use Sisters Mainline Road for all purposes deemed
necessary and desirable, provides for road maintenance cost-sharing, and authorizes the Regional
Forester to terminate the easement in the event of five years of nonuse or a "determination that
the road, or any segment thereof, is no longer needed for the purposes granted." Like Easement
1, Easement 2 refers to another agreement described as the "Road Right -of -Way Construction
and Use Agreement dated October 2, 1963," governing use and maintenance of the road. This
agreement also is not included in the record.
c. Easement 3. This easement covers the segment of Sisters Mainline Road from its intersection
with the other USFS road to the northern boundary of the subject property. It is dated October 2,
1963, and is between Brooks -Scanlon as grantor and the U.S. as grantee, and creates a 66 -foot -
wide easement. The relevant provisions of this easement are similar to Easements 1 and 2 with
respect to use, termination and maintenance cost-sharing.
The Hearings Officer finds all three of these easements constitute "written agreements," and
together they comprise a written agreement for the segment of Sisters Mainline Road providing
access to the subject property. I further find these easements are written agreements "with the
appropriate land management agency" — i.e., the USFS. I find the U.S. and the USFS are the
same entity for purposes of this analysis. The remaining question under the "written agreement"
component of this section is whether these easements constitute a written agreement between the
applicants and the USFS. I find the answer to that question turns on whether the applicants are
successors in interest to Diamond International and Brooks -Scanlon. In support of their argument
that they are, the applicants submitted "chain of title" evidence consisting of a summary of
recorded instruments affecting the subject property prepared by Western Title & Escrow Co.,
and copies of those instruments. The applicants also submitted a letter dated June 27, 2002, from
Cal Applebee, Assistant Vice President of Western Title, stating "we would ... be able to
provide access [insurance]coverage based on those easements." I have reviewed the chain of title
summary and concur with the applicants that they are successors in interest to Diamond
International and Brooks -Scanlon.
Opponent SFPC argued in Tweedfam, and renews the argument here, that the evidence submitted
by the applicants is not sufficient to establish the applicants' status as successors to Diamond's
and Brooks-Scanlon's interest in the Sisters Mainline Road easements for three reasons. First,
SFPC asserts there are gaps in the easements due to a subsequent land exchange that transferred
ownership of a significant portion of Easement 2 to the USFS. SFPC argues all of the private
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owners' interest in the property subject to the easement was transferred through this land
exchange. The applicants respond that while the access easement granted to the USFS by
Easement 2 was terminated by the doctrine of merger, the road easement reserved to the private
property owner was not transferred and remains in full force and effect. The Hearings Officer
concurs with the applicants and finds the easement granted to the applicants' predecessor was not
terminated by the land exchange.
Second, SFPC asserts that portion of Easement 1 crossing Section 21 is no longer valid because
that section was transferred from the USFS to Crown Pacific which SFPC states is not a
successor in interest to Diamond. The Hearings Officer finds no merit to this argument because
the record indicates Sisters Mainline Road does not cross Section 21.
SFPC asserts the applicants have failed to demonstrate they are successors in interest to Diamond
and Brooks -Scanlon because they did not submit a title report showing the three easements are
still in effect. As in Tweedfam, the Hearings Officer agrees that under the circumstances
presented here a title report would be very helpful in outlining the complex history of Sisters
Mainline Road. Nevertheless, I find the evidence from the title company submitted by the
applicants is substantial, credible evidence from which I can find the applicants are successors to
Diamond's and Brooks-Scanlon's interests in Sisters Mainline Road.
Finally, SFPC argues the easements don't constitute written "agreements" for access because
they are not executed by both parties and therefore there was no "meeting of the minds"
necessary to create an agreement. The Hearings Officer disagrees. I find each of the easement
documents expressly recites that the grantor grants an easement "for and in consideration of the
reciprocal easements received by" the grantor, and describes the nature of the reciprocal
easements. Accordingly, I find each easement has the requisite quid pro quo to create an
agreement for purposes of the partition access requirement.
For the foregoing reasons, the Hearings Officer finds the three easements constitute a "written
agreement" between the USFS and the applicants.
2. Permanent Legal Access.
All three easements described above grant and reserve to the parties what is called a "perpetual
easement for a road." Because the easements are in writing, signed by both parties and recorded,
the Hearings Officer finds they provide for "legal" access — that is, access that is legally
enforceable. The remaining question is whether the easements establish "permanent" access. I
find that in the context of this section, which authorizes partitions with access from either
dedicated public roads or federal roads by written agreement, the term "permanent access"
means access that is equivalent to that provided from a dedicated public road.
As discussed above, all three easements state they are subject to federal rules and regulations for
"traffic control." In addition, all three easements state they may be terminated by the federal
government if certain conditions arise. The Hearings Officer is aware that the USFS may close
its roads to all traffic in the event of a fire or other emergency, and may restrict or prohibit travel
on its roads by certain types or weights of vehicles. However, access via dedicated public roads
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to use Sisters Mainline Road is subject to federal rules and regulations.
For the foregoing reasons, the Hearings Officer finds the three easements provide for any
required maintenance.
4. An access permit can be obtained from either the
County Public Works Department, the City Public
Works Department or the State Highway Division.
FINDINGS: The Hearings Officer finds this criterion is not applicable because neither Sisters
Mainline Road nor Bull Springs Road, from which the applicants proposed partition access, are
subject to city, county or state jurisdiction. Sisters Mainline Road is a USFS road, and Bull
Springs Road is a private road.
5. Each parcel is suited for the use intended or offered,
considering the size of the parcels, natural hazards,
topography and access; ...
FINDINGS: The Hearings Officer finds the purpose of this criterion is to assure that parcels
created by partition can be used as authorized in the county's zoning ordinance. The applicants'
burden of proof states the intended uses of the proposed parcels are forestry and residential use.
The question under this section is whether the proposed parcels . are suitable for these uses
considering the parcels' size, natural hazards, topography and access. Each of these factors is
discussed separately in the findings below.
1. Parcel Size.
a. Residential Use. The F-1 Zone allows three types of single-family dwellings — "lot -of -record,"
"large tract" and "template." The Hearings Officer finds none of the proposed lots would qualify
for a "lot -of -record" dwelling under Section 18.36.050(B) because they were not created prior to
January 1, 1985. The only prerequisite for a "large tract" dwelling is a minimum lot size of 240
acres. Since proposed Parcel A would be 322 acres in size, it would qualify for a large tract
dwelling. With respect to Parcels B and C, each of which would be 80 acres in size, the only type
of dwelling they would qualify for is a "template" dwelling. The approval criteria for a "template
dwelling" require the applicant to demonstrate that there are at least 3, 7 or 11 other dwellings —
depending on the subject parcel's soil capability — located on lots or parcels that are within a
160 -acre square centered on the center of the subject parcel. Proposed Parcels B and C are
located adjacent to six 40 -acre parcels zoned F-2, at least some of which are developed with
dwellings. Therefore, it is theoretically possible that one or both of these parcels could qualify
for "template dwellings" if they have the requisite soil capability. However, there is not
sufficient evidence in this record to make that determination.
In addition to meeting the approval criteria for a large tract dwelling (Parcel A) and a template
dwelling (Parcels B and C), the proposed parcels must satisfy fire siting standards requiring fuel
removal and reduction within a 130 -foot radius of the dwelling. The Hearings Officer finds the
proposed parcels are of sufficient size to allow dwellings to be sited so that the fuel reduction
requirements can be satisfied entirely on each parcel.
For the foregoing reasons, the Hearings Officer finds proposed Parcel A is suitable for residential
use considering its size. However, because the ability of proposed Parcels B and C to satisfy the
approval criteria for template dwellings is so speculative, I find it does not provide a sufficient
basis for me to find these two parcels are suitable for residential use considering their size.
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b. Forestry., The proposed parcels will continue to be zoned F-1. The Hearings Officer finds the
subject property's F-1 Zoning reflects the county's determination that it is suitable for forestry.
Section 18.36.090 establishes 80 acres as the minimum lot size in the F-1 Zone. I find this
minimum lot size reflects the county's determination that forestry operations can be conducted
successfully on parcels as small as 80 acres. Since proposed Parcel A would be well over the
minimum lot size, I find it will be suitable for forestry use considering its size. With respect to
the suitability for forestry of proposed Parcels B and C, the applicants submitted a letter dated
June 27, 2002, from Earl Nichols, a professional consulting forester. Based on the education and
experience described in his letter, I find Mr. Nichols is an expert in forestry. His letter states the
applicants have retained him to develop a management plan for the subject property. His letter
goes on to state in pertinent part:
"During the course of developing the Forest Stewardship Management Plan, I
have studied all aspects of the Thomas property and the surrounding lands. In my
professional opinion, the parcel sizes proposed in the present partition (one 322 -
acre parcel and two 80 -acre parcels) are of sufficient size and configuration to
allow for proper forest management and the uses permitted outright and
conditionally in the F-1 Zone. Consistent with state law, Deschutes County has
established an 80 -acre minimum lot size for the zone thereby recognizing that
parcels of 80 acres can be effectively managed for forest uses.
Past history of this area indicates most of the bigger pine trees were removed in
the 1920's; several subsequent logging operations removed the balance of the old
growth, then a final cut was made that took most of the trees down to 12 inches. A
tree thinning operation thinned out the most densely scattered tree groups,
removing more than was necessary. A 26 -acre clearing was planted about twelve
years ago; only one-fourth has satisfactory stocking. The balance is almost a
complete failure. The proposed reduction in parcel size will support the more
intensive management activities needed to restock and reforest this area and to
efficiently and effectively conduct fire suppression and control activities."
The Hearings Officer finds Mr. Nichols' letter, along with the county's decision to set the
minimum lot size in the F-2 Zone as 80 acres, provides substantial, credible evidence from which
I can find all three proposed parcels are suitable for forestry considering their size.
2. Natural Hazards.
a. Residential Use.
b. Forestry.
The Hearings Officer finds that wildfire and snow accumulation are potential natural hazards that
must be considered in evaluating the applicants' proposed partition. With respect to fire, there is
no question that dwellings in the forest zones create new wildfire ignition sources — e.g.,
structure fires, fireplaces, barbecues, lawnmowers, use and storage of flammable liquids and
fireworks. In addition, the presence of such dwellings may cause firefighting efforts to be shifted
from protecting timber and forestry equipment to protecting residential structures and people.
Nevertheless, state statutes and administrative rules and the county's zoning ordinance allow
dwellings in the F-1 Zone as long as they can satisfy the fire siting and design standards in
Sections 18.36.070 and 18.36.080, and the conditional use approval criteria in Section 18.36.050.
The latter provisions require the applicant for a dwelling in the F-1 Zone to demonstrate, among
other things, that the dwelling will not "significantly increase the fire hazard, fire suppression
costs or risks to fire suppression personnel."
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The applicants have not submitted concurrent development applications for the proposed parcels.
Therefore, the conditional use approval and siting criteria for dwellings do not yet apply.
However, because the Hearings Officer found the purpose of the "suitability" standard is to
assure parcels created by partitions can be developed with uses permitted in the F-1 Zone, in
Tweedfam I held it is appropriate to evaluate the suitability of the proposed parcels for the
intended residential and forestry uses by examining whether dwellings on the parcels could meet
the applicable fire siting and conditional use criteria. I adhere to the holding in this matter.
The Hearings Officer has found the proposed parcels are of sufficient size to allow dwellings to
be sited so that the fire siting standards requiring fuel reduction can be satisfied entirely on each
parcel. In a recent decision (Tumalo Irrigation District, CU -02-25), I held a proposed large tract
dwelling could satisfy the conditional use approval criteria if the dwelling were located in a fire
protection district or were required to have on-site firefighting water and equipment. Comments
from the Bend Fire Department in the record indicate the subject property is located outside the
boundaries of Deschutes County Rural Fire Protection District #2, and suggests the applicants
explore annexation to the district or obtaining fire protection from the State Fire Marshal. The
record indicates the subject property has no water rights. I am aware that, like the property at
issue in Tweedfam, the closest fire station is located several miles east within the Bend City
Limits. Considering the size and location of the proposed parcels, any dwellings would be
located a considerable distance from both Johnson Road and Skyliners Road, increasing the
response time for fire trucks. Nevertheless, in light of the fire department's comments, and
because the subject property is located near rural residential subdivisions on either side of
Johnson Road, I find dwellings on the proposed parcels could satisfy the conditional use criteria
through annexation to the nearest fire district, through a fire protection contract for forest land, or
through the provision of on-site firefighting water and equipment.
With respect to snow hazards, the Hearings Officer finds snow removal will be necessary from
time to time to assure access to dwellings on the proposed parcels by passenger vehicles and fire
trucks. As discussed in the findings above, I have found the easements providing access to the
parcels from Sisters Mainline Road contemplate the applicants can obtain a USFS permit to plow
the road. Therefore, I find the applicants are responsible for plowing this road to provide
emergency vehicle access. As discussed above, the applicants propose secondary access to the
parcels from Johnson Road via Bull Springs Road, a small segment of Sisters Mainline Road and
an easement to proposed Parcels B and C. In order to assure emergency vehicle access to the
proposed parcels from both the primary and secondary access roads, I find the applicants will be
required as a condition of approval to improve and maintain both access roads to minimum
county standards — 20 feet of all-weather surface adequate to support a 50,000 pound fire truck.
For the foregoing reasons and with imposition of the conditions of approval described above, the
Hearings Officer finds the proposed parcels will be suitable for residential and forestry use
considering natural hazards.
3. Topography.
The tentative partition plan shows the topography of the subject property ranges from relatively
level to gently sloping near the northern boundary. Therefore, the Hearings Officer finds the
proposed parcels are suitable for forestry and residential use considering topography.
4. Access.
As discussed in detail in the findings above, the Hearings Officer has found the easements relied
upon by the applicants provide for permanent legal access from and any required maintenance
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for Sisters Mainline Road as required by Section 17.22.20(A)(3). The applicants propose access
to Parcels B and C from an easement running north from Sisters Mainline Road. However, the
tentative partition plat does not show this easement. Therefore, I find the applicant will be
required as a condition of approval to submit a revised tentative plat showing the location and
width of this easement. With imposition of this condition, I find the proposed parcels are suitable
for residential or forestry use considering access.
Opponents John and Nancy Lowas argue the proposed partition parcels are not suitable for
residential use considering the winter road closure imposed on roads within the Tumalo Deer
Winter Range. They argue the access road to the proposed partition parcels would be closed
during winter months, preventing access to any dwellings developed on the parcels. The
Hearings Officer finds road closures within deer winter ranges do not affect the rights of private
property owners like the applicants to access their property. Rather, they are enforced to prevent
public use of roads within the winter range.
For the foregoing reasons, the Hearings Officer finds Proposed Parcel A is suitable for both the
intendedforestry and residential uses, and that proposed Parcels B and C are suitable for the
intended forestry use.
6. All required utilities, public services and facilities are
available and adequate and are proposed to be provided
by the petitioner.
FINDINGS: The applicants have not submitted development plans with this partition
application. The applicants have stated they propose to serve any dwellings on the subject
property with private wells and on-site sewage disposal systems. The record indicates electric,
natural gas and telephone service are available to the subject property. The applicants propose
access to the partition parcels from two public roads — Skyliners Road via Sisters Mainline Road,
and Johnson Road via Bull Springs Road. The Hearings Officer finds the minimal amount of
traffic that would be generated by development of three dwellings on the subject property would
not be sufficient to justify requiring the applicants to construct improvements to these public
roads. As discussed above, the subject property is located outside the boundaries of Deschutes
Rural Fire Protection District #2. However, it appears the subject property could be annexed to
the district, or the applicants could obtain fire protection through the State Fire Marshal's office.
For these reasons, I find the applicants' proposal satisfies this criterion.
7. A water rights division plan, reviewed and approved by
the appropriate irrigation district or the Watermaster's
Office, if water rights are associated with the subject
property.
FINDINGS: The record indicates the subject property does not have any water rights. Therefore,
the Hearings Officer finds this criterion does not apply.
8. For partitions or portions thereof within one-half mile
of SM zones, the applicant shows that a noise or dust
sensitive use, as defined in Title 18 of the Deschutes
County Code, can be sited consistent with the
requirements of Chapter 18.56 of Title 18, as
demonstrated by the site plan and accompanying
information required to be submitted under Section
17.28.010(C).
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FINDINGS: The record indicates a small portion of the subject property at the southern
boundary is located in the Surface Mining Impact Area Combining Zone (SMIA) to protect
Surface Mining Site 296 located on the abutting property to the south. However, because the
applicants are not proposing to develop the subject property with a dust- or noise -sensitive use as
part of this partition application, the Hearings Officer finds this criterion does not apply.
B. If the Planning Director determines that the proposed partition
constitutes series partitioning, or if series partitioning has
occurred in the past, then the Planning Director may refer the
application to the hearings officer for a determination as to
whether the application should be subject to the requirements
of DCC 17.36.300, Public Water Supply System, and DCC
17.48.160, Road Development Requirements for Subdivisions.
FINDINGS: Section 17.08.030 defines "series partition" as follows:
"Series partitioned lands" and "series partition" means a series of partitions of land
resulting in the creation of four or more parcels over a period of more than one
calendar year.
The Staff Report states the proposed partition constitutes a "series partition" because the subject
property is Parcel 1 of a previous three -lot partition approved in 2001 (MP-01-13/Partition Plat
2001-56. Staff also notes the property was the subject of an earlier two -lot partition (MP-91-
55/Partition Plat 1994-7). On July 19, 2002, staff reviewer Cathy Tilton submitted a
memorandum addressing the series partition issue. She stated that while the proposed partition
constitutes a "series partition," the Planning Director did not refer this issue to the Hearings
Officer pursuant to Section 17.22.20(B). Therefore, I find the issue of whether the proposed
partition should be served by paved access roads and a public water system is not before me.
Section 17.08.030 defines "subdivide land" as:
... to divide an area or tract of land into four or more lots within a calendar year.
Section 17.08.030 does not define "area or tract of land." Section 18.04.030 defines tract for
purposes of the zoning ordinance in pertinent part as follows:
"Tract" as used in DCC 18.16, 18.36 and 18.40, means one or more contiguous lots
or parcels in the same ownership.
As discussed in the findings above, the Hearings Officer recently approved a three -lot partition
for the property abutting the subject property to the south. Consequently, if that property were
considered part of the same "tract" as the subject property, the proposed partition would
represent the dividing of the tract into four or more lots within a calendar year. In the absence of
a definition of "tract" in Title 17, I find it appropriate to look to the definition of "tract" in Title
18 for guidance. That definition requires all contiguous lots or parcels in the tract to be "in the
same ownership." The applicants argue, and I agree, that the subject property should not be
considered part of the same "tract" as the abutting property to the south because they are not in
the same ownership. Therefore, I find the applicant's proposal does not constitute a subdivision.
2. Chapter 17.36, Design Standards
a. Section 17.36.040, Existing Streets
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Whenever existing streets, adjacent to or within a tract, are of
inadequate width to accommodate the increase in traffic expected
from the subdivision or partition or by the county roadway network
plan, additional rights of way shall be provided at the time of the land
division by the applicant. During consideration of the tentative plan
for the subdivision or partition, the Planning Director or Hearings
Body, together with the Public Works Director, shall determine
whether improvements to existing streets adjacent to or within the
tract, are required. If so determined, such improvements shall be
required as a condition of approval for the tentative plan.
Improvements to adjacent streets shall be required where traffic on
such streets will be directly affected by the proposed subdivision or
partition.
FINDINGS: The applicants propose primary access to the partition parcels from Skyliners Road
via Sisters Mainline Road. The record indicates Sisters Mainline Road is classified by the USFS
as a "collector" road. As discussed in the findings above, the applicants are responsible for
obtaining permits from the USFS to maintain the road above the level maintained by the USFS.
The record indicates the USFS does not require any additional improvements to Sisters Mainline
Road. The record also indicates the county road department did not recommend . any
improvements to Bull Springs Road. However, as also discussed above, the Hearings Officer has
found the applicants will be required as a condition of approval to improve Sisters Mainline
Road, Bull Springs Road and the easement providing access to proposed Parcels B and C to the
county's minimum standards for partition roads to assure adequate access for emergency and
passenger vehicles. With imposition of this condition, I find the applicants' proposal satisfies this
criterion.
b. Section 17.36.160 Easements
A. Utility Easements. Easements shall be provided along property
lines when necessary for the placement of overhead or
underground utilities, and to provide the subdivision or
partition with electric power, communication facilities, street
lighting, sewer lines, water lines, gas lines or drainage. Such
easements shall be labeled "Public Utility Easement" on the
tentative and final plat; they shall be at least twelve feet in
width and centered on lot lines where possible, except utility
pole guyline easements along the rear of lots or parcels
adjacent to unsubdivided land may be reduced to ten feet in
width.
FINDINGS: The tentative partition plan shows there is an existing utility easement at the
southeast corner of the subject property through which electric and telephone lines could be
extended onto the subject property and to the proposed parcels. The Hearings Officer finds that
as a condition of approval the applicants will be required to label this easement a "public utility
easement" on the final partition plat.
c. Section 17.36.170, Lots - Size and Shape
The size, width and orientation of lots or parcels shall be appropriate
for the location of the land division and for the type of development
and use contemplated, and shall be consistent with the lot or parcel
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size provisions of Titles 18 through 21 of this code, ...
FINDINGS: For the reasons discussed in the findings above, incorporated by reference herein,
the Hearings Officer finds the proposed Parcel A is suitable for its intended forestry and
residential uses considering its size, width and orientation. I find proposed Parcels B and C are
suitable for their intended forestry use considering their size, width and orientation.
d. Section 17.36.180, Frontage
A. Each lot or parcel shall abut upon a public road for at least 50
feet, except for lots or parcels fronting on the bulb of a cul-de-
sac, then the minimum frontage shall be 30 feet, and except for
partitions off U.S. Forest Service or Bureau of Land
Management roads.
FINDINGS: As discussed in the findings above, incorporated by reference herein, the Hearings
Officer has found the most plausible interpretation of this ambiguous provision is that partition
parcels with access from a USFS road are not required to have frontage on that road.
e. Section 17.36.210, Solar Access Performance
A. As much solar access as feasible shall be provided each lot or
parcel in every new subdivision or partition, considering
topography, development pattern and existing vegetation. The
lot lines of lots or parcels, as far as feasible, shall be oriented to
provide solar access at ground level at the southern building
line two hours before and after the solar zenith from
September 22nd to March 21st. If it is not feasible to provide
solar access to the southern building line, then solar access, if
feasible, shall be provided at ten feet above ground level at the
southern building line two hours before and after the solar
zenith from September 22nd to March 21st, and three hours
before and after the solar zenith from March 22nd to
September 21st.
FINDINGS: The Hearings Officer finds each of the proposed parcels is of sufficient size to
assure adequate solar access for any structures to be located on the parcels.
f. Section 17.36.260, Fire Hazards
g.
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Whenever possible, a minimum of two points of access to the
subdivision or partition shall be provided to provide assured access
for emergency vehicles and ease resident evacuation.
Section 17.36.290, Individual Wells
In any subdivision or partition where individual wells are proposed,
the applicant shall provide documentation of the depth and quantity
of potable water available from a minimum of two wells within one
mile of the proposed land division. Notwithstanding Section 17.36.300,
individual wells for subdivisions are allowed when parcels are larger
than 10 acres.
FINDINGS: The record includes two well logs for neighboring properties that document the
depth and quantity of potable water. Therefore, the Hearings officer finds the applicants'
proposal satisfies this criterion.
3. Chapter 17.44, Park Development
a. Section 17.44.010, Dedication of Land
B. For subdivisions or partitions outside of an urban growth
boundary, the developer shall set aside a minimum area of the
development equal to $350.00 per dwelling unit within the
development, if the land is suitable and adaptable for such
purposes and is generally located in an area planned for parks.
b. Section 17.44.020, Fee in Lieu of Dedication
A. In the event there is no suitable park or recreation area or site
in the proposed subdivision or partition, or ,adjacent thereto,
the developer shall, in lieu of setting aside land, pay into a park
acquisition and development fund a sum of money equal to the
fair market value of the land that would have been donated
under 17.44.010 above.
For the purpose of determining the fair market value, the
latest value of the land, unplatted and without improvements,
as shown on the county assessor's tax roll shall be deposited
with the County Treasurer and be used for acquisition of
suitable area for park and recreation purposes or for the
development of recreation facilities. Such expenditures shall be
made for neighborhood or community facilities at the
discretion of the Board of County Commissioners and/or
applicable park district.
FINDINGS: Although the language of Section 17.44.010 makes the park dedication provisions
of Sections 17.44.010 and 17.44.020 applicable to partition applications, both the dedication and
fee -in -lieu requirements are based on . the number of dwelling units. Therefore, the Hearings
Officer finds that unless the only intended or possible use of the partition parcels is residential,
the park dedication provisions do not apply to partitions. As discussed above, I have found the
size of the proposed parcels make them suitable for forestry - a use that does not require a
dwelling. Therefore, I find the applicants will not be required as a condition of approval to
dedicate park land or pay a fee in lieu of dedication.
4. Chapter 17.48, Design and Construction Specifications
a. Section 17.48.170, Road Development Requirements- Partitions
Road improvements within a partition and to a road maintained by a
public agency shall be constructed prior to final approval of the
partition, depending on the maximum parcel size as follows:
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A. For a parcel size of ten acres or larger, the minimum road
improvement standard shall be twenty feet wide with five
inches of aggregate surfacing (cinders are acceptable), the
centerline which coincides with the centerline of the right of
way.
FINDINGS: The applicants propose to provide access to the partition parcels from both Sisters
Mainline Road/Skyliners Road and Johnson Road/Bull Springs Road. Section 17.36.260 does not
require that the secondary access be provided by either a dedicated public road or a written
agreement. It can be created through a private easement as long as it meets the minimum
improvement standards in Section 17.48.170. To assure that both the primary and secondary
access roads to the proposed partition parcels provide access for emergency and passenger
vehicles, the Hearings Officer finds that as a condition of approval the applicants will be required
to improve both the segment of Sisters Mainline Road between Skyliners Road and the subject
property, and Bull Springs Road and the easement to proposed Parcels B and C, to the county's
minimum road standards for partitions.
B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.36, Forest Use Zone — F-1
a. Section 18.36.090, Dimensional Standards
In an F-1 Zone, the following dimensional standards shall apply:
A. The minimum lot size is 80 acres; ...
FINDINGS: Each proposed parcel is at least 80 acres in size, therefore satisfying this criterion.
2. Chapter 18.88, Wildlife Area Combining Zone - WA
a. Section 18.88.050, Dimensional Standards
In a WA Zone, the following dimensional standards shall apply:
A. In the Tumalo, Metolius, North Paulina and Grizzly deer
winter ranges designated in the Comprehensive Plan Resource
Element, the minimum lot size for new parcels shall be 40 acres
except as provided in subsection D of this section.
FINDINGS: The proposed parcels are at least 40 acres in size, therefore satisfying this criterion.
W. DECISION:
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby
APPROVES the proposed partition, SUBJECT TO THE FOLLOWING CONDITIONS OF
APPROVAL:
1. This approval is based upon the submitted tentative partition plan, burden of proof
statements and supplemental material. Any substantial changes to the approved plan will
require a new land use application and approval.
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PRIOR TO FINAL PLAT APPROVAL
2. The applicants shall submit a revised tentative plat submit a revised tentative plat
showing the location and width of the easement from Sisters Mainline Road to Parcels B
and C.
3. The applicants shall obtain approval from the Deschutes County Property Address
Coordinator for addresses for all three partition parcels.
4. To the extent they are not already improved to the county's minimum road standards, the
applicants shall improve with a minimum of 20 feet of all-weather surface adequate to
support a 50,000 pound fire truck: (a) the segment of the road from Skyliners Road to the
southern boundary of the subject property; (b) Bull Springs Road; and the easement to
proposed Parcels B and C.
WITH FINAL PLAT APPROVAL
5. The applicants shall prepare the final plat in accordance with Title 17 of the county code.
The plat shall be prepared by a licensed land surveyor. All property corners and public
rights-of-way shall be located and monumented, and the final plat shall be submitted to
the Deschutes County Surveyor.
6. The final plat shall include the exact lot sizes for each of the parcels.
7. The final plat shall show all existing and proposed easements, rights -of -ways and public
utility easements. Public utility easements shall be labeled as such on the final plat.
8. The applicants shall pay all ad valorem taxes, fees and other charges that have become a
lien upon the entire parcel shall be paid. The final plat shall be signed by the County
Assessor and the County Treasurer.
9. The applicants shall submit a title report.
AT ALL TIMES
10. The applicants shall maintain the segment of Sisters Mainline Road from Skyliners Road
to the southern property boundary, including snowplowing as necessary, to assure access
to the partition parcels from this road.
Dated thiso day of October, 2002.
Mailed this day of October, 2002.
Karen H. Green, Hearings Officer
THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS
TIMELY APPEALED.
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M V1CVV1-v
LEGAL COUNSEL
•
F DESCHUTES COUNTY BOARD OF COMMISSIONERS
FILE NUMBERS: A -02-10/A-02-11
APPLICANTS/
PROPERTY OWNERS: Matthew and Rachel Thomas
P.O. Box 5519
Bend, Oregon 97709
APPLICANT Tia M. Lewis
ATTORNEY: Merrill O'Sullivan, LLP
1070 N.W. Bond Street, Suite 303
Bend, Oregon 97701
Attorney for Applicants
OPPONENT Paul D. Dewey
ATTORNEY: 1539 N.W. Vicksburg
Bend, Oregon 97701
Attorney for Opponent Sisters Forest Planning Committee
REQUEST: This matter involves two appeals of a Decision of the Hearings
Officer approving a request for a partition to divide a 482 -acre parcel
located west of Bend into a 322 -acre parcel and two 80 -acre parcels.
The property is zoned Forest Use (F-1) and Wildlife Area Combining
Zone. Both the applicant and the opponent Sisters Forest Planning
Committee appealed the Hearings Officer Decision.
APPLICABLE STANDARDS AND CRITERIA:
A. Title 17 of the Deschutes County Code, the Subdivision Ordinance
1. Chapter 17.08, Definitions and Interpretation of Language
* Section 17.08.030, Definitions Generally — "Partition," "Series Partitioned
Lands," "Subdivide Land," "Tract"
2. Chapter 17.22, Approval of Tentative Plans for Partitions
* Section 17.22.020, Requirements for Approval
3. Chapter 17.36, Design Standards
* Section 17.36.040, Existing Streets
* Section 17.36.160, Easements
* Section 17.36.170, Lots — Size and Shape
* Section 17.36.180, Frontage
* Section 17.36.210, Solar Access Performance
* Section 17.36.260, Fire Hazards
* Section 17.36.290, Individual Wells
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4. Chapter 17.44, Park Development
* Section 17.44.010, Dedication of Land
* Section 17.44.020, Fee in Lieu of Dedication
5. Chapter 17.48, Design and Construction Specifications
* Section 17.48.170, Road Development Standards — Partitions
B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.36, Forest Use (F1) Zone
* Section 18.36.070, Fire Siting Standards for Dwellings and Structures
* Section 18.36.080, Fire Safety Design Standards for Roads
* Section 18.36.090, Dimensional Standards
2. Chapter 18.88, Wildlife Area Combining Zone (WA)
* Section 18.88.050, Dimensional Standards
C. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.24, Land Use Action Hearings
* Section 22.24.140, Continuances or Record Extensions
II. FINDINGS OF FACT:
A. Location: The subject property has an assigned address of 18400 Bull Springs Road, Bend,
and is further identified as Tax Lot 4300 on Deschutes County Assessor's Map 17-11-00.
B. Zoning and Plan Designation: The subject property is zoned Forest Use (F-1) and Wildlife
Area Combining Zone (WA). The property is designated Forest on the comprehensive plan
map.
C. Site Description: The subject property is 482 acres in size and irregular in shape. Its
topography varies from level to mildly sloping near the northern border. The record
indicates the property historically has been used for commercial forestry operations..The
property is vacant, has no water rights, and is covered with native vegetation consisting of
ponderosa pine trees, brush and grasses. The subject property lies west of Johnson Road, a
county -maintained road, and Bull Springs Road, a private road. A U.S. Forest Service
(hereafter "USFS") road called the Sisters Mainline Road (also known as USFS Road 4606)
runs north from Skyliners Road to the Sisters area and forms a small portion of the subject
property's southern boundary.
D. Surrounding Zoning and Land Uses:
All of the surrounding property to the north, west and south is zoned F-1. The surrounding
property to the east is zoned F-2. To the north are Sections 9 and 10 in Township 17. Some
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large parcels in these sections are vacant and owned by the State of Oregon or Crown
Pacific Limited (hereafter "Crown Pacific"). The east half of Section 10 consists of parcels
ranging in size from 20 to 100 acres, privately owned and developed with single-family
residences. To the east is the east half of Section 15 in Township 17. This property consists
of six parcels, each approximately 40 acres in size, privately owned and developed with
single-family residences. Further to the east is the Saddleback Subdivision zoned RR -10 and
developed with residential lots ranging in size from one-half to 5 acres. To the west is a
vacant 320 -acre parcel is private ownership. Further to the west is Section 17 that is vacant
and owned by Crown Pacific. To the south is a vacant 327 -acre parcel in private ownership.
Further to the south is a 1,907 -acre parcel owned by Tweedfam Investments and recently
approved for a three -lot partition (A-02-6/MP-01-16/MA-02-4; hereafter Tweedfam). To the
southeast is a 250 -acre parcel in private ownership and located in Sections I5 and 22.
E. Procedural History: The subject property consists of Parcel 1 of Partition 2001-56 that
divided a 1,129 -acre parent parcel into three parcels (MP -01-13), each approximately 320-
325 acres in size. The subject partition application (MP -02-12) was filed on April 26, 2002.
By letter dated May 9, 2002, the County advised the applicants that the application was
incomplete. The applicants submitted the missing information on May 31, 2002, and the
county accepted the application as complete on that date. A public hearing before the
County Hearings Officer was held on July 2, 2002. With the applicants' consent, the
Hearings Officer left the written evidentiary record open through July 19, 2002, and allowed
the applicants through July 26, 2002, to submit final arguments pursuant to ORS
197.763(6)(e). The record closed on July 26, 2002. The Hearings Officer issued a decision
approving the partition with certain conditions on October 2, 2002. The applicants filed an
appeal to the Board on October 14, 2002 requesting de novo review of Condition No. 4(a) of
the Hearings Officer Decision requiring road improvements to a Forest Service road known
as the Sisters Mainline Road. Opponent Sisters Forest Planning Committee also filed an
appeal to the Board on October I4, 2002 asking the Board to reverse the Hearings Officer
Decision on the basis that the proposal does not meet the applicable access, frontage and
suitability criteria. By letter dated November 7, 2002, the applicants agreed to toll the 150 -
day deadline within which the County has to issue a decision in this matter until 5 p.m. on
January 29, 2003. The Board accepted both appeals for de novo review and a hearing before
the Board was held on December 10, 2002. Following that hearing, the Board left the record
open until December 17, 2002 for new evidence, then December 31, 2002, for rebuttal
testimony and evidence, and finally, a 7 -day rebuttal period for the applicants expiring on
January 7, 2003. During the second open record period, Applicants submitted new evidence
in rebuttal to opponent's evidence submitted during first open record period. SFPC objected
to the submission of Applicants' new evidence, arguing that it violated the directive by the
Board. The Board finds, however, that the minutes reflect that the second open record
period was for rebuttal "testimony." Therefore, the Applicants' new evidence was
appropriately submitted. SFPC's remedy would have been to request an extension of the
record to allow time to rebut the evidence. No such request was submitted.
F. Proposal: The applicants propose to partition the 482 -acre subject property into a 322 -acre
parcel (Parcel A) and two 80 -acre parcels (Parcels B and C). The applicants' burden of
proof identifies the proposed uses of the parcels as forestry and residential. No development
applications were submitted with the partition application.
G. Public/Private Agency Comments: The Planning Division sent notice of the applicants'
proposal to a number of public and private agencies and received responses from: the
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Deschutes County Assessor, Road Department, Property Address Coordinator and
Environmental Health Division; and City of Bend Fire Department. These comments are set
forth verbatim at pages 3-4 of the Staff Report. The following agencies either had no
comment or did not respond to the county's notices: the Oregon State Fire Marshal; the
Oregon Department of Water Resources, Watermaster-District 11; the Oregon Department
of Fish and Wildlife ("ODFW"); the Tumalo Irrigation District; the USFS; Pacific Power
and Light; and Qwest Communications.
H. Public Notice and Comments: The Planning Division mailed individual written notice of
the application and public hearing before the Hearings Officer to the owners of record of all
property located within 750 feet of the subject property. In addition, notice of the initial
public hearing was published in the "Bend Bulletin" newspaper, and the subject property
was posted with a notice of proposed land use action sign. As of the date the record closed,
the county had received one letter from opponents Kelly and Karen Smith, and letters and
memoranda from opponent SFPC in response to these notices. In addition, four members of
the public testified at the public hearing.
I. Lot of Record: The subject property is a legal lot of record as Parcel 1 of Partition 2001-56.
Ill. CONCLUSIONS OF LAW:
A. Title 17 of the Deschutes County Code, the Subdivision Ordinance
1. Chapter 17.22, Approval of Tentative Plans for Partitions
a. Section 17.22.020, Requirements for Approval
A. No application for partition shall be approved unless the
following requirements are met:
1. Proposal is in compliance with Oregon Revised Statutes
Chapter 92, the applicable comprehensive plan and
applicable zoning ordinance. A proposed partition is not in
compliance with the zoning ordinance if it would conflict
with the terms of a previously issued approval for land use
on the property or would otherwise create a non-
conforming use on any of the newly described parcels with
respect to an existing structure or use.
FINDINGS: The Board finds the provisions of ORS Chapter 92 are implemented through Title 17
of the Deschutes County Code, and therefore if the proposal satisfies the provisions of Title 17 it
also complies with ORS Chapter 92. The proposal's compliance with the applicable provisions of
Title 18, the zoning ordinance, is discussed in the findings below. The Board finds that the proposed
partition will not create a non -conforming use on any of the three proposed parcels with respect to
an existing structure because the property is vacant. The Board further finds that the proposed
partition will not conflict with the previously issued partition approval -- MP -01-13 -- that created
the subject property as Parcel 1 of Partition 2001-56. Therefore, the applicants' proposal satisfies
this criterion.
2. Proposal does not conflict with existing public access
easements within or adjacent to the partition.
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FINDINGS: The submitted tentative partition plan shows several road and utility easements within
and adjacent to the subject property, including half of the right-of-way for Sisters Mainline Road.
The Board finds the only one of these easements that provides "access" is Sisters Mainline Road.
However, the Board finds that the proposed partition will not conflict with this easement. Therefore,
the applicants' proposal satisfies this criterion.
3. The partition is accessed either by roads dedicated to the
public or by way of United States Forest Service or Bureau
of Land Management roads where the applicant has
submitted a written agreement with the appropriate land
management agency providing for permanent legal access
to the parcels and any required maintenance. This
provision shall not be subject to variance; . .
FINDINGS: The applicants have submitted evidence establishing three points of access to the
subject property. The first is via a private easement running along the property's eastern boundary
south to Bull Springs Road then to Johnson Road. The evidence in the record shows that Johnson
Road is a County road dedicated to the public while Bull Springs Road is a private road over which
the applicants, among others, have an easement. The second point of access is via the Sisters
Mainline Road running along the southern boundary of the subject property to Bull Springs Road
and then to Johnson Road. The evidence in the record shows that the Sisters Mainline Road is a
Forest Service Road (Road 4606) over which the applicants have easements. The third point of
access is via the Sisters Mainline Road south to Skyliner Road. The evidence in the record shows
that Skyliner Road is a dedicated public road.
The Board agrees with the Hearings Officer that the purpose of the access requirement in the above
section is to assure that any new parcels created by a partition have permanent legal access. The
Board also agrees with the Hearings Officer that the above criterion requires actual, physical access
for emergency and passenger vehicles from a Forest Service, BLM or dedicated public road.
Further, the Board agrees with the Hearings Officer, and incorporates those findings herein, that the
easements submitted by the applicants for the Sisters Mainline Road constitute the written
agreements providing for permanent, legal access with any required maintenance as contemplated
by the above criterion. However, the Board disagrees with the Hearings Officer's ultimate decision
to allow use of the Sisters Mainline Road with the imposition of road improvement requirements.
The Board finds that the presence of the deer winter range, the winter road closure in effect on the
Sisters Mainline Road, and the condition of the road south of Section 28 all create a situation where
the Sisters Mainline Road south of Bull Springs Road does not provide the required access and,
therefore, will not satisfy this criterion.
Nevertheless, the Board finds that the proposal can satisfy the above criterion through the public
dedication of Bull Springs Road. The evidence in the record shows that the applicants have an
easement to use the segment of the Sisters Mainline Road from the southern property boundary to
Bull Springs Road. Evidence in the record shows the applicants have an easement along Bull
Springs Road that includes the right to require the underlying fee title holder of the road to seek to
dedicate it to the public. The evidence, however, is not conclusive on whether the applicant can
dedicate the road because of other easement holders along Bull Springs Road. However, based on
the applicants' representation and analysis, the Board finds this option possible. Therefore, the
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Board finds that if the applicants are able to dedicate Bull Springs Road to the public, the proposal
meets the above criterion because: 1) the subject property will be accessed from a Forest Service
road, 2) the applicants have a written agreement providing for permanent legal access and any
required maintenance on this Forest Service road; and 3) the Forest Service road provides a direct
connection to a dedicated public road (i.e. Bull Springs Road).
Opponents SFPC and Kelly and Karen Smith raised several issues regarding the proposed access.
Most of these issues relate to the use of the Sisters Mainline Road south to Skyliner Road as the
primary access.' The Board agrees with opponents that the presence of the deer winter range and
the voluntary public use closure on the Sisters Mainline Road eliminates that portion of the road as
access for this property. Because the Board is not approving use of the Sisters Mainline Road south
to Skyliner Road as the primary access, it need not address most of the access arguments raised by
opponents. However, opponents also argue that the public dedication of Bull Springs Road is not
appropriate because of underlying easements and the need for consent to the dedication from the
underlying easement holders. The Board finds that the public dedication process for Bull Springs
Road is the appropriate forum within which to address these concerns of the opponents as the public
dedication of Bull Springs Road is a quasi-judicial process pursuant to ORS 368.073 et seq. in
which opponents will have the opportunity to raise all issues and present evidence in opposition to
the dedication.
Based on the above, the Board finds that the proposal can satisfy the above criterion through the
imposition of a condition of approval requiring the public dedication of Bull Springs Road from
Johnson Road to the Sisters Mainline Road.
4. An access permit can be obtained from either the County
Public Works Department, the City Public Works
Department or the State Highway Division.
FINDINGS: The Board agrees with the Hearings Officer that this criterion is not applicable
because the Sisters Mainline Road, from which the applicants will take access, is a Forest Service
road and is not subject to city, county or state jurisdiction.
5. Each parcel is suited for the use intended or offered,
considering the size of the parcels, natural hazards,
topography and access; ...
FINDINGS: The Board agrees with the findings of the Hearings Officer on this criterion and
incorporates those findings by reference herein.
Opponents SFPC and Karen and Kelly Smith argue that there is insufficient evidence in the record
to establish that the two 80 acre parcels are suitable for residential use because they would not meet
the County's test for template dwellings. The Board finds that the question presented by the above
criterion is not whether the proposed parcels would qualify for dwellings under the applicable
I In addition to its arguments related to use of the Sisters Mainline Road, SFPC also argues that the above criterion
requires that each parcel rather than the partition itself be accessed by (or have frontage on) a Forest Service, BLM or
dedicated public road. The Board will address this argument in the findings under the applicable frontage criterion at
DCC Section 17.36.180 of this Decision.
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conditional use or other criteria established for dwellings in the F -I zone. The County does not
require development or conditional use applications contemporaneously with partition applications
and the time to submit evidence related to whether or not the parcels meet those criteria is at the
time those applications are made. The Board finds that the question presented by the above
criterion is whether the proposed parcels are suitable for the uses intended based on four factors:
size, natural hazards, topography and access. The evidence in the record shows that the intended
uses are forestry and residential. The Hearings Officer found sufficient evidence to conclude that
parcel A was suitable for forestry and residential and that parcels B and C were suitable for forestry.
The Board agrees with the Hearings Officer and adopts those findings herein.
6. All required utilities, public services and facilities are
available and adequate and are proposed to be provided
by the petitioner.
FINDINGS: The applicants have not submitted development plans with this partition application.
The applicants have stated they propose to serve any dwellings on the subject property with private
wells and on-site sewage disposal systems. The record indicates electric, natural gas and telephone
service are available to the subject property. With the imposition of the condition of approval
requiring public dedication of Bull Springs Road, access will be via the Sisters Mainline Road to
Bull Springs Road. The Board agrees with the Hearings Officer that the minimal amount of traffic
generated by development of up to three dwellings on the subject property would not be sufficient
to justify requiring the applicants to construct improvements to these public roads (except as
required under the road dedication process) because the record contains testimony from the County
Road Department that these roads are currently improved with either gravel or asphalt and are at
least 20 feet wide, meeting the minimum County road development standard for partitions. As
discussed above, the subject property is located outside the boundaries of Deschutes Rural Fire
Protection District #2. However, it appears the subject property could be annexed to the district, or
the applicants could obtain fire protection through the State Fire Marshal's office. For these reasons,
the Board finds the applicants' proposal satisfies this criterion.
7. A water rights division plan, reviewed and approved by
the appropriate irrigation district or the Watermaster's
Office, if water rights are associated with the subject
property.
FINDINGS: The record indicates the subject property does not have any water rights. This
criterion does not apply.
FINDINGS: The record
is located in the Surface
Site 296 located on the
proposing to develop the
application, this criterion
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8. For partitions or portions thereof within one-half mile of
SM zones, the applicant shows that a noise or dust
sensitive use, as defined in Title 18 of the Deschutes
County Code, can be sited consistent with the
requirements of Chapter 18.56 of Title 18, as
demonstrated by the site plan and accompanying
information required to be submitted under Section
17.28.010(C).
indicates a small portion of the subject property at the southern boundary
Mining Impact Area Combining Zone (SMIA) to protect Surface Mining
abutting property to the south. However, because the applicants are not
subject property with a dust- or noise -sensitive use as part of this partition
does not apply.
• •
B. If the Planning Director determines that the proposed partition
constitutes series partitioning, or if series partitioning has
occurred in the past, then the Planning Director may refer the
application to the hearings officer for a determination as to
whether the application should be subject to the requirements of
DCC 17.36.300, Public Water Supply System, and DCC 17.48.160,
Road Development Requirements for Subdivisions.
FINDINGS: The record indicates that the Planning Director did determine that the proposed
partition constituted series partitioning because the subject property is Parcel 1 of a previous three -
lot partition approved in 2001 (MP-01-13/Partition Plat 2001-56). The record also shows that the
Planning Director concluded that the potential impacts do not justify a public water system or
application of the subdivision road standards. The Board agrees and finds that while the proposal
does constitute series partitioning, the impacts from the three -lot partition do not justify a public
water system or application of the subdivision road standards.
2. Chapter 17.36, Design Standards
a. Section 17.36.040, Existing Streets
Whenever existing streets, adjacent to or within a tract, are of
inadequate width to accommodate the increase in traffic expected from
the subdivision or partition or by the county roadway network plan,
additional rights of way shall be provided at the time of the land division
by the applicant. During consideration of the tentative plan for the
subdivision or partition, the Planning Director or Hearings Body,
together with the Public Works Director, shall determine whether
improvements to existing streets adjacent to or within the tract, are
required. If so determined, such improvements shall be required as a
condition of approval for the tentative plan. Improvements to adjacent
streets shall be required where traffic on such streets will be directly
affected by the proposed subdivision or partition.
FINDINGS: The primary access to the partition parcels is from the Sisters Mainline Road to Bull
Springs Road, the latter of which must be dedicated to the public as a condition of approval. The
record indicates Sisters Mainline Road is classified by the USFS as a "collector" road. The record
indicates the USFS does not require any additional improvements to Sisters Mainline Road. As a
condition of approval discussed in the findings under Section 17.48.170 herein, the Board will
require the applicants to improve the relevant segment of the Sisters Mainline Road from the
southern boundary of the subject property to Bull Springs Road to the County's minimum road
standards. The record also indicates the County road department did not recommend any
improvements to Bull Springs Road. However, as also discussed above, the Board has found the
applicant will be required as a condition of approval to dedicate Bull Springs Road to the public
through the public dedication process. With the imposition of the condition that the applicants
dedicate Bull Springs Road to the public, the Board finds that the proposal satisfies this criterion.
b. Section 17.36.160 Easements
A. Utility Easements. Easements shall be provided along property
lines when necessary for the placement of overhead or
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underground utilities, and to provide the subdivision or partition
with electric power, communication facilities, street lighting,
sewer lines, water lines, gas lines or drainage. Such easements
shall be labeled "Public Utility Easement" on the tentative and
final plat; they shall be at least twelve feet in width and centered
on lot lines where possible, except utility pole guyline easements
along the rear of lots or parcels adjacent to unsubdivided land
may be reduced to ten feet in width.
FINDINGS: The tentative partition plan shows there is an existing utility easement at the southeast
corner of the subject property through which electric and telephone lines could be extended onto the
subject property and to the proposed parcels. The Board finds that as a condition of approval the
applicants will be required to label this easement a "public utility easement" on the final partition
plat.
c. Section 17.36.170, Lots - Size and Shape
The size, width and orientation of lots or parcels shall be appropriate for
the location of the land division and for the type of development and use
contemplated, and shall be consistent with the lot or parcel size
provisions of Titles 18 through 21 of this code, ...
FINDINGS: For the reasons discussed in the findings above, incorporated by reference herein, the
Board agrees with the Hearings Officer that the proposed Parcel A is suitable for its intended
forestry and residential uses considering its size, width and orientation and that proposed Parcels B
and C are suitable for their intended forestry use considering their size, width and orientation.
d. Section 17.36.180, Frontage
A. Each lot or parcel shall abut upon a public road for at least 50
feet, except for lots or parcels fronting on the bulb of a cul-de-sac,
then the minimum frontage shall be 30 feet, and except for
partitions off U.S. Forest Service or Bureau of Land Management
roads.
FINDINGS: The applicants argue, and the Hearings Officer agreed, that the above criterion
contains an exception that exempts partitions off Forest Service or BLM roads from a frontage
requirement. Conversely, opponents argued that the above criterion, when read in conjunction with
the access criterion at DCC 17.22.020A(3) requiring "permanent legal access to the parcels", did
require each parcel to have frontage. The Board agrees with the opponents and finds that the above
criterion was intended to exempt partitions off Forest Service and BLM roads from the 50' length
but not from the frontage requirement altogether. Instead, the frontage length for partitions off
Forest Service or BLM roads is more appropriately determined on a case-by-case basis depending
on the location of the property, the condition of the Forest Service or BLM road and the orientation
of the proposed parcels. In the present case, the Board finds that the 20 -foot road standard to which
the applicants are required to improve the relevant segment of the Forest Service road (required in
findings under Section 17.48.170 herein) is the appropriate minimum frontage width for each
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• 1
proposed parcel. As a condition of approval, the Board will require the applicants to submit a
revised tentative plat showing proposed parcels B and C reconfigured into flag lots with the flag
poles extending down the eastern property boundary to the Sisters Mainline Road, containing a
minimum of 20 feet of road frontage for each proposed parcel.
e. Section 17.36.210, Solar Access Performance
A. As much solar access as feasible shall be provided each lot or
parcel in every new subdivision or partition, considering
topography, development pattern and existing vegetation. The lot
lines of lots or parcels, as far as feasible, shall be oriented to
provide solar access at ground level at the southern building line
two hours before and after the solar zenith from September 22nd
to March 21st. If it is not feasible to provide solar access to the
southern building line, then solar access, if feasible, shall be
provided at ten feet above ground level at the southern building
line two hours before and after the solar zenith from September
22nd to March 21st, and three hours before and after the solar
zenith from March 22nd to September 21st.
FINDINGS: The Board agrees with the Hearings Officer that each of the proposed parcels is of
sufficient size to assure adequate solar access for any structures to be located on the parcels.
f. Section 17.36.260, Fire Hazards
g.
Whenever possible, a minimum of two points of access to the subdivision
or partition shall be provided to provide assured access for emergency
vehicles and ease resident evacuation.
Section 17.36.290, Individual Wells
In any subdivision or partition where individual wells are proposed, the
applicant shall provide documentation of the depth and quantity of
potable water available from a minimum of two wells within one mile of
the proposed land division. Notwithstanding Section 17.36.300,
individual wells for subdivisions are allowed when parcels are larger
than 10 acres.
FINDINGS: The record includes two well logs for neighboring properties that document the depth
and quantity of potable water. Therefore, the proposal satisfies this criterion.
3. Chapter 17.44, Park Development
a. Section 17.44.010, Dedication of Land
B. For subdivisions or partitions outside of an urban growth
boundary, the developer shall set aside a minimum area of the
development equal to $350.00 per dwelling unit within the
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development, if the land is suitable and adaptable for such
purposes and is generally located in an area planned for parks.
b. Section 17.44.020, Fee in Lieu of Dedication
A. In the event there is no suitable park or recreation area or site in
the proposed subdivision or partition, or adjacent thereto, the
developer shall, in lieu of setting aside land, pay into a park
acquisition and development fund a sum of money equal to the
fair market value of the land that would have been donated under
17.44.010 above.
For the purpose of determining the fair market value, the latest
value of the land, unplatted and without improvements, as shown
on the county assessor's tax roll shall be deposited with the
County Treasurer and be used for acquisition of suitable area for
park and recreation purposes or for the development of
recreation facilities. Such expenditures shall be made for
neighborhood or community facilities at the discretion of the
Board of County Commissioners and/or applicable park district.
FINDINGS: Although the language of Section 17.44.010 makes the park dedication provisions of
Sections 17.44.010 and 17.44.020 applicable to partition applications, both the dedication and fee -
in -lieu requirements are based on the number of dwelling units. Therefore, the Board agrees with
the Hearings Officer that unless the only intended or possible use of the partition parcels is
residential, the park dedication provisions do not apply to partitions. As discussed above, the size of
the proposed parcels make them suitable for forestry — a use that does not require a dwelling.
Therefore, the applicants will not be required to dedicate park land or pay a fee in lieu of dedication
as a part of this application process.
4. Chapter 17.48, Design and Construction Specifications
a. Section 17.48.170, Road Development Requirements- Partitions
Road improvements within a partition and to a road maintained by a
public agency shall be constructed prior to final approval of the
partition, depending onthe maximum parcel size as follows:
A. For a parcel size of ten acres or larger, the minimum road
improvement standard shall be twenty feet wide with five inches
of aggregate surfacing (cinders are acceptable), the centerline
which coincides with the centerline of the right of way.
FINDINGS: The partition parcels will be accessed from the Sisters Mainline Road to Bull Springs
Road to Johnson Road. To satisfy this criterion, the applicants will be required as a condition of
approval to improve the segment of the Sisters Mainline Road from the southern boundary of the
subject property to Bull Springs Road to the above standard.
B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.36, Forest Use Zone — F-1
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• •
a. Section 18.36.090, Dimensional Standards
In an F-1 Zone, the following dimensional standards shall apply:
A. The minimum lot size is 80 acres; ...
FINDINGS: Each proposed parcel is at least 80 acres in size, therefore satisfying this criterion.
2. Chapter 18.88, Wildlife Area Combining Zone - WA
a. Section 18.88.050, Dimensional Standards
In a WA Zone, the following dimensional standards shall apply:
A. In the Tumalo, Metolius, North Paulina and Grizzly deer winter
ranges designated in the Comprehensive Plan Resource Element,
the minimum lot size for new parcels shall be 40 acres except as
provided in subsection D of this section.
FINDINGS: The proposed parcels are at least 40 acres in size, therefore satisfying this criterion.
IV. DECISION:
Based on the foregoing Findings of Fact and Conclusions of Law, the Board AFFIRMS the
Decision of the Deschutes County Hearings Officer, SUBJECT TO THE FOLLOWING
MODIFIED CONDITIONS OF APPROVAL :
1. This approval is based upon the tentative partition plan as revised pursuant to Condition 2,
burden of proof statements and supplemental material. Any substantial changes to the
approved plan will require a new land use application and approval.
PRIOR TO FINAL PLAT APPROVAL
2. The applicants shall submit a revised tentative plat showing the reconfiguration of Parcels B
and C into flag lots with the flagpole for each parcel running along the property's eastern
boundary south to the Sisters Mainline Road and with each 80 -acre parcel having a
minimum of 20' of frontage on the Sisters Mainline Road.
3. The applicants shall obtain approval from the Deschutes County Property Address
Coordinator for addresses for all three partition parcels.
4. The applicants shall dedicate Bull Springs Road to the public.
5. To the extent it is not already improved to the County's minimum road standards, the
applicants shall improve with a minimum of 20 feet of all-weather surface adequate to
support a 50,000 pound fire truck: (a) the segment of the Sisters Mainline Road from the
southern boundary of the subject property to Bull Springs Road, and (b) Bull Springs Road.
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WITH FINAL PLAT APPROVAL
6. The applicants shall prepare the final plat in accordance with Title 17 of the county code.
The plat shall be prepared by a licensed land surveyor. All property corners and public
rights-of-way shall be located and monumented, and the final plat shall be submitted to the
Deschutes County Surveyor.
7. The final plat shall include the exact lot sizes for each of the parcels.
8. The final plat shall show all existing and proposed easements, rights -of -ways and public
utility easements. Public utility easements shall be labeled as such on the final plat.
9. The applicants shall pay all ad valorem taxes, fees and other charges that have become a lien
upon the entire parcel shall be paid. The final plat shall be signed by the County Assessor
and the County Treasurer.
10. The applicants shall submit a title report.
Dated this ` 'day of January, 2003.
Mailed thi 2 'day of January, 2003.
DESCHUTES COUNTY BOARD OF COMMISSIONERS
Dennis Luke, Chair
Tom DeWolf, Commissioner
Mike Dly, Commissioner
arilzex- -(,g,<_c tdc-i_
THIS DECISION BECOMES FINAL UPON MAILING. PARTIES MAY APPEAL THIS
DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE
ON WHICH THIS DECISION IS FINAL.
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