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HomeMy WebLinkAboutSisters Rezone DocsSisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 1 of 33 DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: PA-08-2/ZC-08-2/MA-08-8 APPLICANT/ PROPERTY OWNER: City of Sisters 520 East Cascade Street Sisters, Oregon 97759 REQUEST: The applicant requests approval to change the plan designation of the subject property from Forest to Urban Reserve, to amend the Sisters UGB to include the property, and to change the zoning of the property from F-1 to UAR-10.1 The purpose of this request is to facilitate the establishment of a four-acre fire training facility for the Sisters/Camp Sherman Fire District. STAFF REVIEWER: Will Groves, Senior Planner HEARING DATES: August 19 and September 30, 2008 RECORD CLOSED: October 10, 2008 I. APPLICABLE STANDARDS AND CRITERIA: A. 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 18.08, Basic Provisions * Section 18.08.010, Compliance 3. Chapter 18.12, Establishment of Zones * Section 18.12.020, Location of Zones * Section 18.12.040, Zone Boundaries 4. Chapter 18.36, Forest Use – F-1 Zone * Section 18.36.020, Uses Permitted Outright 1 The applicant’s burden of proof states it also requests an exception to Goal 4, Forest Lands. However, as discussed in the findings below, the Hearings Officer has concluded no goal exception is required for the proposed UGB amendment. Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 2 of 33 * Section 18.36.030, Conditional Uses Permitted 5. Chapter 18.136, Amendments * Section 18.136.030, Resolution of Intent to Rezone B. Title 21 of the Deschutes County Code, the City of Sisters Urban Area Zoning Ordinance 1. Chapter 21.72, Amendments * Section 21.72.010, Amendments * Section 21.72.020, Standards for Zone Change C. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.28, Land Use Action Decisions * Section 22.28.030, Decision on Plan Amendments and Zone Changes D. PL-16, the City of Sisters Urban Area Comprehensive Plan E. Oregon Revised Statutes (ORS) 197.298, Priority of Land To Be Included Within Urban Growth Boundary F. Oregon Administrative Rules, Chapter 660 1. Division 12, Transportation Planning Rule * OAR 660-12-060, Plan and Land Use Regulation Amendments 2. Division 15, Statewide Planning Goals and Guidelines 3. Division 24, Urban Growth Boundaries II. FINDINGS OF FACT: A. Location: The subject property does not have an assigned address. It is located on the east side of South Locust Street, 460 feet south of the southern Sisters Urban Growth Boundary (UGB), and 451 feet north of a portion of city land included within the Sisters UGB and city limits by previous land use approvals and a “cherry-stem” annexation. The subject property is identified as a portion of Tax Lot 1002 on Assessor’s Map 15-10-09. B. Zoning and Plan Designation: The subject property is designated Forest on the Deschutes County Comprehensive Plan and is zoned Forest Use (F-1). C. Site Description: The subject property is approximately 106 acres in size and is part of a Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 3 of 33 160-acre parent parcel known as “Section 9” formerly owned and managed by the United States Forest Service (USFS). Section 9 was conveyed to the City of Sisters (city) in August of 2000. A 40-acre portion of Section 9 was added to the Sisters UGB in 2000, was developed with the city’s sewage treatment facility and effluent dispersal area, and is identified as Tax Lot 1000 on Assessor’s Map 15-15-09. An approximately 14-acre portion of Section 9 abutting the sewage treatment facility site was added to the Sisters UGB in September of 2005, and will be developed with the city’s public works field storage site following annexation. The portion of the subject property covered by the applicant’s proposed plan amendment and zone change (hereafter “site”) is four acres in size and roughly rectangular in shape. It is north and west of the sewage treatment plant and public works site. The site abuts and has access from Locust Street on the west, which constitutes part of the aforementioned “cherry stem” annexation. The site currently is developed with storage sheds, material storage and a gravel access road. It is relatively level, has a vegetative cover of mature ponderosa pine trees and native shrubs and grasses, and is part of the sewage effluent dispersal area.2 D. Soils: According to Natural Resources Conservation Service (NRCS) maps of the area, the subject property is composed of two soil types: Ermabell Loamy Fine Sand, Mapping Unit 47A, 0-3 percent slopes. The NRCS rates this soil as having a woodland productivity classification of 4 and is capable of producing 69 cubic feet per acre per year of wood fiber. The NRCS rates this soil as having an agricultural capability rating of 6c without irrigation and no capability rating with irrigation. This soil is well drained with the composition being 90% inclusions and 10% contrasting inclusions. Permeability is rapid with available water capacity of about 5 inches. The major management limitations are identified as climate and permeability. According to the Soil Interpretations Record contained in the NRCS soils inventory, trees common to Unit 47A are ponderosa pine and western juniper. Approximately 30 percent of the subject site is composed of this soil. Lundgren Sandy Loam, Mapping Unit 85A, 0-3 percent slopes. The NRCS rates this soil as having a woodland suitability productivity classification of 3 and is capable of producing 46 cubic feet per acre per year of wood fiber. The NRCS rates this soil as having an agricultural capability rating of 6s without irrigation and no capability rating with irrigation. This soil is well drained with the composition being 90% inclusions and 10% contrasting inclusions. Permeability is moderately rapid with available water capacity of about 5 inches. The major management limitations are climate, low fertility, susceptibility to compaction, surface texture and permeability. According to the Soil Interpretations Record contained in the NRCS soils inventory, trees common to Unit 85A are ponderosa pine. Approximately 70 percent of the 40-acre site is composed of this soil. E. Surrounding Zoning and Land Use: The subject site is surrounded on the north, east and south by land zoned Forest (F-1) that constitutes portions of the original 160-acre Section 9 conveyed to the city by the USFS. Abutting F-1 land to the north and south is undeveloped and being used for effluent dispersal. Land further to the southeast is developed with the sewage treatment facility and public works field storage site. Land 2 The record indicates the subject site in fact may not have received effluent dispersal. Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 4 of 33 south of the treatment facility is zoned F-1 and owned and managed by the USFS. Further to the north are residential subdivisions within the Sisters city limits. Further to the east is land zoned Exclusive Farm Use/Sisters-Cloverdale Subzone (EFU-SC) and engaged in farm use. Land to the west across Locust Street is undeveloped private land zoned F-1. Further to the west is land zoned EFU-SC and engaged in farm use. F. Procedural History: In July of 1999 the USFS made the decision to convey Section 9 to the city. On August 10, 2000 the property was conveyed to the city by a quitclaim deed recorded in the Deschutes County Book of Records at Book 2000, Page 32344. A copy of the deed is included in the record. In May of 2000 the city and the USFS applied for a plan amendment and zone change in order to include within the UGB the 40-acre portion of Section 9 to be developed with the city’s sewage treatment plant and effluent dispersal area. By a decision issued in August of 2000 (PA-00-5/ZC-00-2), this Hearings Officer approved these applications, and subsequently the Deschutes County Board of Commissioners (board) approved the UGB and plan amendments and zone change. The sewage treatment facility site is identified as Tax Lot 1000 on Assessor’s Map 15-10-09. On September 9, 2005 the board approved an ordinance amending the Sisters UGB to include approximately 14 acres of Section 9 abutting the sewage treatment facility on the north and rezoning this land from F-1 to UAR-10. This acreage was included in the UGB in order for it to be annexed to the city and developed with the city’s public works field storage site. On June 16, 2008 the city submitted the subject applications for a plan amendment and zone change from F-1 to UAR-10 and expansion of the UGB for the subject four-acre site (PA-08-2/ZC-08-2). The applications were deemed complete on July 17, 2008. Because the proposed zone change is dependent upon approval of the proposed plan amendment, and plan amendments are not subject to the 150-day period for issuance of a final local land use decision under ORS 215.427, the Hearings Officer finds these applications are not subject to the 150-day period. The purpose of the proposed plan amendment, zone change and UGB expansion is to facilitate annexation of the subject site to the city limits and development of the site with a new fire training facility for the Sisters/Camp Sherman Fire District (fire district). A public hearing on these applications was scheduled for August 19, 2008. On August 6, 2008, the city submitted an application to modify the plan amendment and zone change applications to add two acres to the site (MA-08-8). The purpose of the modification was to enlarge the UGB to provide a site for development of a yard debris recycling processing and storage facility for High Country Disposal (HCD), the city’s domestic solid waste and recycling franchisee. The modification application was deemed complete on September 5, 2008. Due to the filing of the modification, at the scheduled public hearing on August 19, 2008, the Hearings Officer continued the hearing to September 30, 2008. At the continued public hearing on September 30, 2008, Senior Planner Will Groves advised the Hearings Officer that the Planning Division’s written requests for public Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 5 of 33 agency comments on the applications had been mailed on September 18, 2008, and requested that the written record remain open an additional week to assure adequate time for agency responses. The Hearings Officer received testimony and evidence at the continued hearing, left the written evidentiary record open through October 14, 2008, and allowed the applicant through October 21, 2008 to submit final argument pursuant to ORS 197.763. By a letter dated October 6, 2008, the city withdrew its modification application stating it had been advised that the proposed yard debris recycling and storage facility is a use permitted in the F-1 Zone and does not require a plan amendment or zone change. Accordingly, this decision addresses only the applications for a plan amendment, zone change and UGB expansion for the original four-acre site.3 The record in this matter closed on October 10, 2008 when the applicant submitted its final argument. G. Proposal: The city requests approval of a plan amendment from Forest to Urban Area Reserve, a zone change from F-1 to UAR-10, and an expansion of the Sisters UGB for the subject site to provide a location within the UGB and ultimately within the city limits on which the fire district may establish a new fire training facility. The record indicates the city has an intergovernmental agreement with the fire district to provide a location within the city limits for such a facility by August of 2009. The record also indicates that following approval of these applications the city intends to place on the May 2009 election ballot a proposal to annex the subject site into the city, and following annexation to rezone the site to Public Facility (PF). According to the applicant’s burden of proof and the public hearing testimony of Ryan Karjala, training officer for the fire district, the training facility would consist of a building in which to store a fire engine, a two-story fire training tower, security fencing, and paved areas. Activities on the site would include training up to 5 firefighters at a time through 2-hour-per-week training sessions between the hours of 8:00 a.m. and 5:00 p.m. The training activities would include practice extricating victims from structures and vehicles, pulling hoses in simulated structure and wildland fires, accomplishing forced entry through a metal door, and firefighting on multiple levels of a structure. Activities would not include live fires except for small controlled fires with flammable liquids. The facility would use large quantities of water. The applicant estimates the facility would generate approximately 10 vehicle trips per day during weekday activities and approximately 30 vehicle trips per day during weekend activities. Mr. Karjala testified the fire district currently does its training exercises on a city street behind its existing fire station on Elm Street. This location is close to residences and other occupied structures, and because of very limited available space and safety considerations requires the fire district to close the public street during training exercises. H. Public/Private Agency Comments: The Planning Division mailed notice of the applicant’s plan amendment, zone change and modification applications to a number of public and private agencies and received responses from the Deschutes County Road 3 Because the applicant withdrew the modified application concerning the recycling site the Hearings Officer will not address that application and related issues. Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 6 of 33 Department (road department), Senior Transportation Planner, Forester, and Property Address Coordinator. These comments are included in the record. The following agencies either had no comment or did not respond to the notices: the Oregon Departments of Land Conservation and Development (DLCD), Forestry and Transportation (ODOT); the Oregon Department of Water Resources, Watermaster-District 11; the USFS, Sisters Ranger District; and the United States Fish and Wildlife Service (USFWS). I. Public Notice and Comments: The Planning Division mailed individual written notice of the applicant’s proposal and the initial 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 in this matter closed the Planning Division had received six letters in response to these notices. In addition, seven members of the public testified at the public hearing. Public comments are addressed in the findings below. J. Lot of Record. The subject site is part of an approximately 160-acre tract of land formerly known as Section 9 that was transferred to the city by the USFS in August of 2000. As discussed above, since the city acquired Section 9, the county has approved two amendments to the Sisters UGB that included 40 acres and 14 acres. The subject proposal, if approved, would remove another four acres from Section 9 for inclusion in the UGB. The city has not requested approval of a land division or a lot-of-record determination for the portions of Section 9 included, or proposed for inclusion, in the Sisters UGB. The question is whether the subject site must be a lot of record before it can be re-designated, rezoned and included in the Sisters UGB. The answer to that question turns on the history of the subject site, as well the effect of county code provisions governing plan amendments and zone changes and state law governing UGB amendments. At the time Section 9 was conveyed to the city in August of 2000, Title 17 of the Deschutes County Code, the subdivision and partition ordinance, required subdivision or partition approval to create new lots or parcels. The record indicates no subdivision or partition approval was obtained by the USFS prior to conveying Section 9 to the city. In addition, in 2000 Section 18.04.030 of the county’s zoning ordinance defined “lot of record” to include a lot or parcel created by a deed, but only where the lot or parcel “conformed to all zoning and subdivision or partition requirements, if any, in effect on the date the lot or parcel was created.” Because Section 9 was created by a deed but did not conform to the county’s land division requirements, the Hearings Officer finds Section 9 did not constitute a lot of record. Although Section 9 was not a lot of record, the Hearings Officer nevertheless finds it was lawfully created when it was conveyed to the city. That is because the USFS was not required to obtain partition or subdivision approval prior to conveying Section 9 to the city. The USFS conveyed Section 9 to the city under the authority of the Federal Lands Policy Management Act (FLPMA). In Thompson (LR-07-52, April 29, 2008), Hearings Officer Kenneth Helm concluded language in FLPMA conflicts with the county’s land division regulations because it requires the federal government only to give notice to Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 7 of 33 affected local governments prior to any conveyance of federal land. Hearings Officer Helm found that in light of this conflict, the FLPMA preempted the county’s partition requirements. However, Hearings Officer Helm found the legal effect of this preemption terminated when the federal land was conveyed into private ownership, and therefore subsequent uses of the land would be subject to the applicable county land use regulations. I find the reasoning in the Thompson decision is equally applicable here because the USFS conveyance of Section 9 to the city was authorized by the Townsite Act of July 31, 1958 (7 U.S.C. 1012) which was amended in October of 1976 by the FLPMA. The subject site clearly is not a lot of record since it was not created by a partition or subdivision, and is not exempt from the county’s land division requirements since the federal preemption terminated when Section 9 was transferred to the city. The remaining question, then, is whether the subject site must be a lot-of-record to be re-designated, rezoned and included in the Sisters UGB. Section 18.04.030 defines “lot” as “a unit of land created by a subdivision of land” and defines “parcel” as a “unit of land created by a partitioning of land.” Section 18.08.010(A) states “a lot may be used * * * only as DCC Title 18 permits.” This language read in conjunction with the lot-of-record definition could be interpreted to mean no lot may be “used” unless it is a lot of record as defined in Section 18.04.030 However, the provisions of Chapter 18.136 governing plan amendments and zone changes, discussed in detail in the findings below, do not use the terms “lot” and “parcel,” and do not require that land be a lot of record in order to be re-designated and/or rezoned. Moreover, the provisions of Goal 14 and its guidelines and implementing administrative rules governing UGB amendments, also discussed in detail in the findings below, do not require that land to be included within a UGB constitutes a lot of record. In fact, these provisions of state law limit UGB amendments to only that amount of land demonstrated to be adequate and necessary to meet the identified need for urban land, thus contemplating that only a portion of an existing lot, parcel or area might be included in a UGB amendment – as has occurred with previous UGB amendments involving portions of Section 9. For the foregoing reasons, the Hearings Officer finds the subject site is not a lot of record, but that it need not be in order to be re-designated, rezoned and included within the Sisters UGB. III. CONCLUSIONS OF LAW: A. Preliminary Issues: FINDINGS: Opponents raised several issues not directly related to the applicable approval criteria for the proposed plan amendment and zone change. These issues are addressed below. 1. Intent of USFS Land Conveyance. Opponents argue the Hearings Officer should deny the city’s proposal because they believe the USFS transferred Section 9 to the city for the sole Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 8 of 33 purpose of providing a location for the city sewage treatment plant and effluent dispersal areas. However, the quitclaim deed from the USFS to the city contains no such limitation. It does include the following boilerplate conveyance language: “This instrument will not allow use of the property described in the instrument in violation of applicable land use laws and regulations. Before signing or accepting this instrument, the person acquiring fee title to the property should check with the appropriate City or County Planning Department to verify approved uses and to determine any limits on lawsuits against farming or forest practices as defined in ORS 30.930.” The Hearings Officer finds there is no basis in the record from which I can conclude the applicant’s proposal is contrary to the conveyance or the federal law under which it was authorized. And in any event, I find the terms of the conveyance and/or authorization must be enforced by the grantor – the USFS – and not the county. 2. Other Uses on USFS Land. Opponents argue the city should develop the remaining acreage in Section 9 with uses other than the proposed fire training facility, such as affordable housing. The Hearings Officer finds I cannot consider other potential uses of the subject site because the only use that is properly before me in this proceeding is the proposed fire training facility. 3. Precedent for Other Uses on Site. Opponents argue the Hearings Officer should deny the city’s proposal because approval would set a precedent for the development of other types of uses on Section 9 that they believe would not be appropriate. I disagree. The applicant has proposed a plan amendment and zone change for 4 acres of Section 9 in order ultimately to annex this site and rezone it to PF. Following such annexation and rezoning, uses on the subject site would be limited to those permitted outright or conditionally in the PF Zone. The remainder of Tax Lot 1002 would remain designated and zoned F-1, and uses on that land would be limited to those permitted outright or conditionally in the F-1 Zone.4 4. Potential Adverse Impacts from Fire Training Facility. Opponents argue the Hearings Officer should deny the city’s proposal because the fire training facility will have adverse impacts on surrounding property, such as smoke drifting into surrounding residential neighborhoods. I find the specific impacts from the proposed fire training facility and potential mitigation of those impacts will be addressed after the subject site is annexed and the city or fire district seeks approval of a zone change from UAR-10 to PF and site plan approval for the fire training facility. These actions will be undertaken through one more public land use proceedings in which neighboring property owners may participate. 5. “Bias” of Hearings Officer. Opponent Rick Francis argues the Hearings Officer was biased against opponents because in his opinion I was not willing to listen to both sides concerning the issue of need for the proposed fire training facility. Mr. Francis is correct that during the public hearing I discussed whether the need for the proposed facility is relevant under the applicable approval criteria. To the extent that my comments during the hearing suggested need is not a 4 The applicant’s October 10, 2008 submission states the city has no immediate plans to further expand the PF Zone in the near future. Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 9 of 33 relevant consideration I misspoke. However, such comments did not reflect bias on my part against opponents or in favor of the applicant, but rather my failure to clearly articulate the applicable standards. Moreover, Mr. Francis and other opponents did raise the issue of need in their oral and written testimony which I have read and which, as discussed in detail in the findings below, I have considered in reaching this decision. F-1 ZONE STANDARDS B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.36, Forest Use – F-1 Zone a. Section 18.36.020, Uses Permitted Outright The following uses and their accessory uses are permitted outright, subject to applicable siting criteria set forth in this chapter and any other applicable provisions of this title. * * * I. Towers and fire stations for forest fire protection. b. Section 18.36.030, Conditional Uses Permitted The following uses and their accessory uses may be allowed in the Forest Zone, subject to applicable provisions of the Comprehensive Plan, Section 18.36.040 of this title and other applicable provisions of this section. * * * J. Fire stations for rural fire protection. FINDINGS: The Hearings Officer finds the initial question before me is whether the proposed fire training facility is a use allowed in the F-1 zone without the need for a plan amendment and zone change. The term “fire station” is not defined in Title 18. The ordinary definition of the term “station” is “a building, etc., at which a service, etc. is provided (police station).” Webster’s New World Dictionary and Thesaurus, Second Edition. Based on this definition, I find a “fire station” is a building or location at which fire prevention and protection services are provided. As discussed in the Findings of Fact above, the fire district has a fire station on Elm Street a few blocks west of the subject site that houses fire and emergency vehicles, firefighting equipment, quarters and offices for firefighters, and the types of communication/dispatch facilities found in a typical fire station. The record indicates the proposed new training facility would not have these features. Rather, it would provide the district’s firefighters with a location off a public street and away from residences and other occupied structures at which they could engaged in a variety of training exercises designed to prepare them for the types of fires and other emergencies the fire district encounters – e.g., structure, vehicle and wildland fires, medical emergencies, and Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 10 of 33 handling of hazardous substances. This new training facility would not be the location from which actual firefighting services would be dispatched or provided or where the majority of the district’s fire and emergency vehicles and equipment would be housed. Therefore, I find the proposed training facility cannot reasonably be considered a “fire station.” Even assuming for purposes of discussion that the proposed facility could be considered a “fire station,” the record indicates it would not provide training or services exclusively or primarily for forest fire protection, and therefore the Hearings Officer finds it would not fall within the fire station use permitted outright in the F-1 Zone. With respect to the conditional use in the F-1 Zone, the record indicates the fire district provides both “urban” fire protection within Sisters and Camp Sherman and “rural” fire protection in the rural areas within the district’s boundaries which may include both structure and brush/forest fires. Nevertheless, given the purpose of the F-1 Zone to conserve forest lands, and the significant restrictions on uses in the zone, I find the proposed training facility could not reasonably be considered a “fire stations for rural fire protection” since ultimately it would be sited within the city limits and would provide training in urban fire protection techniques. For the foregoing reasons, the Hearings Officer finds the proposed fire training facility is not a use permitted either outright or conditionally in the F-1 Zone. UGB AMENDMENT STANDARDS C. Oregon Administrative Rules (OAR) Chapter 660, Division 24, Urban Growth Boundaries 1. OAR 660-024-0020, Adoption or Amendment of a UGB (1) All statewide goals and related administrative rules are applicable when establishing or amending a UGB, except as follows: (a) The exceptions process in Goal 2 and OAR 660, division 4, is not applicable unless a local government chooses to take an exception to a particular goal requirement, for example, as provided in OAR 660-004-0010(1); (b) Goals 3 and 4 are not applicable; * * *. FINDINGS: The Hearings Officer finds that because under this rule Goal 4, Forest Land, is not applicable to the applicant’s request to amend the Sisters UGB, no exception to Goal 4 is required. 2. OAR 660, Division 15, State-wide Planning Goals and Guidelines (14) # 14, Urbanization To provide for an orderly and efficient transition from rural to urban Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 11 of 33 land use, to accommodate urban population and urban employment inside urban growth boundaries, to ensure efficient use of land, and to provide for livable communities. Urban Growth Boundaries Urban growth boundaries shall be established and maintained by cities, counties and regional governments to provide land for urban development needs and to identify and separate urban and urbanizable land from rural land. Establishment and change of urban growth boundaries shall be a cooperative process among cities, counties and, where applicable, regional governments. An urban growth boundary and amendments to the boundary shall be adopted by all cities within the boundary and by the County or counties within which the boundary is located, consistent with intergovernmental agreements, except for the Metro regional urban growth boundary established pursuant to ORS chapter 268, which shall be adopted or amended by the Metropolitan Service District. Land Need Establishment and change of urban growth boundaries shall be based on the following: 1. Demonstrated need to accommodate long-range urban population, consistent with a 20-year population forecast coordinated with affected local governments; and 2. Demonstrated need for housing, employment opportunities, livability or uses such as public facilities, streets and roads, schools, parks or open space, or any combination of the need categories in this subsection (2). In determining need, local government may specify characteristics, such as parcel size, topography or proximity, necessary for land to be suitable for an identified need. Prior to expanding an urban growth boundary, local governments shall demonstrate that needs cannot reasonably be accommodated on land already inside the urban growth boundary. (Emphasis added.) FINDINGS: The applicant submitted the subject applications in order to provide a location for a fire training facility for the fire district. This facility ultimately would be located within the city limits a few blocks southeast of the district’s existing fire station on Elm Street and would be zoned PF. The applicant’s burden of proof asserts there is a need for this new fire training facility and the public facilities land on which it would be located due to a number of changes within the Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 12 of 33 city limits and the fire district’s boundaries since the subject property was zoned F-1 and since the city’s last periodic review. These include: 1) a significant increase in the city’s population; 2) an associated increase in demand for fire prevention and protection facilities and services including training facilities; and 3) the lack of suitable existing PF-zoned land within the city limits to accommodate the need. The proposed fire training facility would include a building in which to store a fire engine, a two- story fire training tower, security fencing, and paved areas. Activities at the facility would consist of training fire district staff in firefighting and emergency response techniques and use of equipment to address the types of fires and other emergencies encountered within the district’s boundaries. The proposed facility would not use live fires except for small controlled fires with flammable liquids. The fire district currently does its training exercises at the back of the existing fire station on Elm Street, close to residences and other occupied structures, and requiring that a public street be closed during training exercises. The applicant’s burden of proof states that considering the operational characteristics of the proposed fire training facility, the city and the fire district identified the following criteria for a new fire training facility site: • city or fire district ownership or jurisdictional control of the facility property; • 3 to 5 acres in size; • in a location compatible with surrounding land uses; • served by public infrastructure including paved access and city sewer and water; • in a location adjacent to the UGB and/or city limits to facilitate urban service connections; and • securable to prevent access by the general public. The Hearings Officer finds these criteria are reasonable in light of the nature of the proposed use. It is understandable that the city and fire district would require ownership and/or control of the site so it can secured from access by the general public. And considering the facility’s need for large quantities of water I find it reasonable to specify a 3- to 5- acre site at a location close enough to existing public facilities so it can be served by city water, but far enough from dwellings and other occupied buildings and public streets to avoid or minimize potential adverse impacts. The applicant’s burden of proof states the city examined the following eight alternative sites zoned PF and within the existing Sisters UGB that were considered potential candidates for the proposed new training facility in light of these factors: • Barclay property (53 acres) – owned by the USFS; • East Portal Triangle property (14.5 acres) – owned by the USFS; • Old City Hall property (less than 1 acre) – owned by the city; • Public works property (7 acres) – owned by the city; • Sisters High School property (90 acres) – owned by the Sisters School District; • Sisters Junior High School property (40 acres) – owned by the school district; Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 13 of 33 • Village Green Park (1.2 acres) – owned by the city; and • The combined Sisters School District Administration and Sisters Elementary School properties – owned by the school district. The applicant concluded that none of these alternative sites was suitable for the proposed fire training facility for the reasons discussed in the findings below. Barclay and East Portal Triangle properties. These parcels currently are being offered for sale by the USFS as “future development property,” the sale proceeds from which would fund construction of a new headquarters facility for the Sisters Ranger District. The applicant’s burden of proof states the city would not be able to purchase these properties because it cannot compete on the purchase price with private developers. In addition, the city notes these parcels are located west of the populated areas of Sisters which therefore would be downwind of any smoke that might be generated at the fire training facility. The record indicates the prevailing wind is from the west and northwest. Old City Hall property. This parcel is less than one acre in size, is developed with a structure currently being leased by Habitat for Humanity, and is located in the center of the Sisters downtown area surrounded by residential and commercial uses. Public Works property. Although this parcel is seven acres in size, the city has identified it as the site for a public works facility and future expansions thereto, and it is located considerably further from Locust Street and existing public services making access to city water more difficult. Junior and Senior High School properties. These parcels, although they are over 5 acres in size, already are developed with schools, are owned by the Sisters School District, and are located west (upwind) of the populated areas of Sisters. Village Green Park. This property is only 1.2 acres in size, is fully developed with a park, and is located in the center of Sisters and surrounded by dwellings. School District Administration and Sisters Elementary School properties. Although these parcels are over five acres in size, they already are developed with a school administration building and school, they are located near the center of Sisters, and they are near many dwellings and commercial buildings and upwind from some. The staff report states, and the Hearings Officer agrees, that the city’s analysis of existing PF- zoned land within the Sisters UGB demonstrates these properties are not suitable for development with the proposed fire training facility considering its site requirements and operating characteristics, and therefore the proposed facility cannot be accommodated on PF- zoned land already inside the UGB. Opponents argue the city’s alternative sites analysis also should have included industrial-zoned land within the UGB. In response, the city argued in its October 10, 2008 submission that the proposed fire training facility is not permitted in the IL Zone for the following reasons: Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 14 of 33 “* * * In fact, the light industrial zone appears to be a poor fit for this use, given the parameters of uses permitted in this zone. For comparison’s sake, we have listed the uses permitted that are ‘near fits’ to the training facility use for the IL Light Industrial Zone, and for the PF Public Facility Zone. Sisters Development Code, Chapter 2.3, IL Light Industrial Zone, Table 2.3.110A, subsection 3, lists the uses that appear to be the closest to the fire training facility use as follows: a. Government facilities (e.g., public safety, utilities, school district bus facilities, public works yards, transit and transportation, and similar facilities); b. Utilities (e.g., natural gas, electricity, telephone, cable, and similar facilities); c. Special district facilities (e.g., irrigation district, and similar facilities); d. Uses similar to those listed above. Table 2.4.110A, Public Facility Zone, Permitted Uses, lists the following uses: 4. Public buildings, structures and/or yards, excluding correctional facilities 7. Public reservoirs, well sites, pump stations, and similar utility buildings or structures. Sewerage facilities. 8. Public or private schools. 11. Accessory uses and buildings customarily used to support a permitted use or an approved conditional use (CU). 12. Minor repairs and maintenance to any permitted or conditional use. 14. Public utility maintenance facilities and operation yards with outdoor storage of materials and supplies (CU). (Emphasis added.) The training facility may in the future house a fire truck, but will never house staff, and cannot accurately be regarded as a ‘public safety’ use. Rather, the use is more of a hybrid of a school that provides specific public safety training opportunities that are reserved for firefighters and those in related fields. The applicant believes that the use is clearly better suited, if not exclusively suited, for land having PF Public Facility zoning.” Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 15 of 33 The Hearings Officer finds the use descriptions underscored above in the IL and PF Zones are quite similar. And I concur with the city that the proposed fire training facility would fall within the PF Zone use of “public buildings, structures or yards.” However, I also agree with opponents that the proposed facility would fall within the IL Zone use of “government facilities (e.g., public safety, utilities, school district bus facilities, public works yards, transit and transportation, and similar facilities).” I am not persuaded by the city’s argument that the proposed fire training facility could not reasonably be considered a “public safety” facility simply because it would not house firefighters. The training of firefighters clearly is a “public safety” function. And the description of the “government facilities” use permitted in the IL Zone does not support the limitation suggested by the city. To the contrary, I find the proposed fire training facility is very similar to the listed examples of “government facilities.” For these reasons, I concur with opponents that the city erred in not including IL-zoned sites within the UGB in its alternative sites analysis. The question is whether there is sufficient evidence in this record and in public records from which the Hearings Officer can determine whether the proposed fire training facility reasonably can be accommodated on IL-zoned land in the UGB considering the city’s site criteria. I have examined the official Sisters zoning map published on the city’s website. It shows all zoning districts as well as parcel and/or tax lot boundaries, and shows the city’s IL zoning district is located in the northeast quadrant of the city. The Hearings Officer finds it is reasonable to assume all parcels in the IL Zone have city water and sewer service and access to public streets because they are within the city limits. However, the zoning map shows that only one or possibly two of the IL-zoned tax lots or parcels are at least 3 acres in size, and therefore only these two IL-zoned parcels would satisfy the city’s and fire district’s minimum site size criterion. The zoning map does not indicate whether these two parcels are in public or private ownership. Assuming they are in public ownership or it is feasible for the city to acquire them, I find these parcels are located in an area with which fire training activities – such as the use of large quantities of water and drifting smoke – likely would be incompatible. These two parcels are surrounded by other smaller IL-zoned parcels as well as smaller commercial-zoned parcels in the North Sisters Business Park District to the north and the Sun Ranch Tourist Commercial District to the east. Lands further to the north and south of these IL-zoned parcels are residential districts. For this reason, I find these two IL-zoned parcels would not reasonably accommodate the proposed fire training facility considering its operating characteristics. Finally, I find that because these two parcels are located across town from the existing fire station on Elm Street, locating the proposed fire training facility on one of these two parcels would significantly reduce the operating and energy efficiency of the fire training facility compared with the subject site which is just a few blocks east of the existing fire station. For the foregoing reasons, the Hearings Officer finds the proposed fire training facility cannot reasonably be accommodated on either PF- or IL-zoned land within the Sisters UGB. Boundary Location The location of the urban growth boundary and changes to the boundary shall be determined by evaluating alternative boundary Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 16 of 33 locations consistent with ORS 197.298 and with consideration of the following factors: 1. Efficient accommodation of identified land needs; 2. Orderly and economic provision of public facilities and services; 3. Comparative environmental, energy, economic and social consequences; 4. Compatibility of the proposed urban uses with nearby agricultural and forest activities occurring on farm and forest land outside the UGB. FINDINGS: As discussed in the findings above, incorporated by reference herein, the Hearings Officer has found the proposed fire training facility cannot reasonably be accommodated on PF- or IL-zoned land within the UGB based on the applicant’s alternative sites analysis and my analysis of IL-zoned land. I find the subject site will efficiently accommodate the proposed use and will provide orderly and economic provision of public facilities and services because the site: (a) is adjacent to and will have access from Locust Street, a public street; (b) will be annexed to the UGB; and (c) it is located close enough to the existing UGB boundary to permit the economic connection to existing public facilities and services, including city water and sewer and public streets. The Hearings Officer also finds the subject site, which is located a considerable distance from the nearest residential and commercial development, will allow the fire training facility to be located where it will have minimal if any impact on surrounding land and uses. I also find the applicant’s alternative sites analysis, and my analysis of IL-zoned sites, demonstrate the subject site is superior to alternative PF- and IL-zoned sites considering comparative environmental, energy, economic and social consequences. That is because the subject site is located further from potentially incompatible land uses and closer to the existing fire station. Finally, with respect to impacts on farm and forest activities, the record indicates the abutting F-1 zoned property is not engaged in forest activities, and the EFU-zoned parcels in the vicinity of the site, while engaged in farm use, are sufficiently distant from the site to assure an adequate buffer from any incompatible uses at the training facility. Urbanizable Land Land within urban growth boundaries shall be considered available for urban development consistent with plans for the provision of urban facilities and services. Comprehensive plans and implementing measures shall manage the use and division of urbanizable land to maintain its potential for planned urban development until appropriate public facilities and services are available or planned. Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 17 of 33 FINDINGS: Both the city and county have developed comprehensive plans and implementing ordinances to manage the use and division of urbanizable land to maintain its potential for planned urban development. These plans and their implementing measures are discussed in the findings below and with which the Hearings Officer has found the applicant’s proposal is consistent. For the foregoing reasons, the Hearings Officer finds the applicant’s proposed UGB expansion to include the 4-acre subject site is consistent with Goal 14 and its implementing guidelines and administrative rule. D. Oregon Revised Statutes (ORS) Chapter 197, Comprehensive Land Use Planning Coordination 1. ORS 197.298, Priority of Land To Be Included Within Urban Growth Boundary (1) In addition to any requirements established by rule addressing urbanization, land may not be included within an urban growth boundary except under the following priorities; (a) First priority is land that is designated urban reserve land under ORS 195.145, rule or metropolitan service district action plan. FINDINGS: The record indicates there is no available land within the designated Sisters Urban Area Reserve that has not already been brought into the UGB, and therefore the Hearings Officer finds there is no available first-priority land. (b) If land under paragraph (a) of this subsection is inadequate to accommodate the amount of land needed, second priority is land adjacent to an urban growth boundary that is identified in an acknowledged comprehensive plan as an exception area or non-resource land. Second priority may include resource land that is completely surrounded by exception areas unless such resource land is high-value farmland as described in ORS 215.710. FINDINGS: The record indicates there are exception areas located outside the UGB consisting of lands zoned Rural Residential (RR-10) and developed with rural residences and small-scale farms. In addition, these exception areas abut land within the UGB that is developed with residential and commercial uses with which the proposed fire training facility could be incompatible considering its operating characteristics. The applicant argues, and the Hearings Officer agrees, that for these reasons none of these exception areas is adequate for the proposed fire training facility. The record indicates there is no resource land adjacent to or near the Sisters UGB that is completely surrounded by exception areas. Therefore, I find there is no available second-priority land. Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 18 of 33 (c) If land under paragraphs (a) and (b) of this subsection is inadequate to accommodate the amount of land needed, third priority is land designated as marginal land pursuant to ORS 197.247 (1991 Edition). FINDINGS: Deschutes County is not a marginal lands county and therefore the Hearings Officer finds there is no available third-priority land. (d) If land under paragraphs (a) to (c) of this subsection is inadequate to accommodate the amount of land needed, fourth priority is land designated in an acknowledged comprehensive plan for agriculture or forestry or both. FINDINGS: The subject site is designated and zoned F-1, Forest Land, and therefore the Hearings Officer finds it constitutes available fourth-priority land. (2) Higher priority shall be given to land of lower capability as measured by the capability classification system or by cubic foot site class, whichever is appropriate for the current use. FINDING: As discussed in the Findings of Fact above, the record indicates the subject site consists of two soil types -- Soil Units 47A and 85A.The NRCS data in the record indicate Soil Unit 85A soil has a woodland productivity classification of 3 and is capable of producing 46 cubic feet per acre per year of wood fiber, and an agricultural capability rating of 6s without irrigation and no rating with irrigation. Approximately 70% of the subject 4-acre site is composed of this soil unit. The NRCS data indicate Soil Unit 47A soil has a woodland productivity classification of 4 and is capable of producing 69 cubic feet per acre per year of wood fiber, and an agricultural capability rating of 6c without irrigation and no rating with irrigation. Approximately 30% of the subject 4-acre site is composed of this soil. As discussed above, the Sisters UGB abuts resource land consisting of land zoned F-1 and EFU- SC. The applicant’s burden of proof includes an analysis of the relative farm and forest capability of following five farm- and forest-zone parcels adjacent to or near the Sisters UGB: • City-owned land in Section 9 north of the new Public Works facility site zoned F-1 -- a portion of Tax Lot 1002 on Assessor’s Map 15-10-09; • Lazy Z Ranch property zoned EFU-SC – Tax Lot 200 on Map 15-10-15; • Five Pine property zoned F-1 – Tax Lot 1000 on Map 15-10-9A; • BLM property zone EFU-SC– Tax Lot 1000 on Map 15-10-9; and • Leithauser property zoned EFU-SC – Tax Lot 1202 on Map 15-10-4. Each of these parcels is addressed separately in the findings below.5 5 The city also analyzed the McKenzie Meadow Village property. However, the applicant’s burden of proof states that parcel was brought into the Sisters UGB. Therefore it does not constitute resource land. Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 19 of 33 City land in Section 9 north of the Public Works facility (zoned F-1). The city concluded it would be possible to utilize 4 acres of this land for the proposed fire training facility. However, the city land consists exclusively of Soil Unit 47A soil which has a higher forestry capability rating than the Soil Unit 85A soil which is the predominant soil on the subject site (Class 3 vs. Class 4). Therefore, this land would have higher productivity than the combined soils on the subject site and consequently would have a lower priority than the subject site for inclusion in the UGB. Lazy Z Ranch (zoned EFU-SC). The record indicates the city owns a portion of this property and therefore theoretically could site the proposed fire training facility here. However, the record indicates this property is engaged in farm use and the portion owned by the city consists exclusively of Soil Unit 47A soil which has the same agricultural capability rating without irrigation – Class 6 – as the subject site. Therefore, the Lazy Z Ranch property would have a priority for UGB inclusion equal to the subject site. Five Pine property (zoned F-1). The record indicates this property is privately owned and also consists exclusively of Class 3 Soil Unit 47A soil. Therefore, this property has a higher forestry capability rating than does the subject site – which includes both Class 3 and Class 4 soils – and consequently would have a lower priority than the subject site for inclusion in the UGB. BLM property (zoned F-1). This property is owned and managed by the BLM, and the record indicates it consists entirely of Class 4 Soil Unit 85A soil which has a comparable forestry capability rating to the subject site – which includes both Class 3 and Class 4 soils – and therefore would have a priority equal to the subject site. Leithauser property (zoned EFU-SC). This property is in private ownership, and the record shows it consists of approximately 50 percent Soil Unit 85A soil and approximately 50 percent Soil Unit 47A soil – roughly equivalent to the subject site – and therefore would have a priority equal to the subject site for inclusion in the UGB. For the foregoing reasons, the Hearings Officer finds the subject site is of equal or lower capability than the five F-1 and EFU-zoned parcels adjacent to the Sisters UGB, and therefore none of those parcels has a higher priority for inclusion in the UGB than the subject 4-acre site. (3) Land of lower priority under subsection (1) of this section may be included in an urban growth boundary if land of higher priority is found to be inadequate to accommodate the amount of land estimated in subsection (1) of this section for one or more of the following reasons; (a) Specific types of identified land needs cannot be reasonably accommodated on higher priority lands; (b) Future urban services could not be provided to the higher priority due to topographical or other physical constraints; or, Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 20 of 33 (c) Maximum efficiency of land uses within a proposed urban growth boundary requires inclusion of lower priority lands in order to include or to provide services to higher priority lands. FINDINGS: As discussed in the findings above, incorporated by reference herein, the Hearings Officer has found the identified land needed for the proposed fire training facility cannot reasonably be accommodated on first- through third- priority lands. Among the fourth priority lands, I have found based on the city’s alternative sites analysis and my analysis of IL-zoned sites within the UGB that the subject site is the site that will best accommodate the proposed training facility based on the identified site criteria and the facility’s operating characteristics. I also find inclusion of the 4-acre site in the Sisters UGB will result in the maximum efficiency of land uses within the UGB by locating the proposed fire training facility adjacent to the existing UGB where it will have access to a public street and to city water and sewer service. For the foregoing reasons, the Hearings Officer finds the applicant has demonstrated its proposal satisfies the priorities under ORS 197.298 for inclusion of land in the UGB. PLAN AMENDMENT STANDARDS E. PL-16, the Sisters Urban Area Comprehensive Plan 6 1. Part VI. Implementation Programs and Policies Comprehensive Plan Review Adoption, Amendments * * * Any changes should be consistent with the goals, objectives, policies and statements of intent of the plan or these guidelines should first be changed or amended to reflect the new policies. This should be true of both changes resulting from periodic Planning Commission review and from individual petitions. Hearings on plan amendments shall follow the amendment procedures set forth in the ordinance adopting the Plan. (Plan, page 108.) FINDINGS: The applicant proposes to change the plan designation of the subject 4-acre site from Forest to Urban Area Reserve. The applicant has identified a number of plan policies as applicable to the proposed plan amendment. However, the Hearings Officer finds it is necessary first to determine to what extent these plan policies constitute mandatory approval criteria for this quasi-judicial plan amendment application. Whether a plan policy constitutes such a criterion depends not only on the language of the policy but also on the function the plan assigns to the policy. Von Lubken v. Hood River County, 104 Or App 683, 689, 803 P2d 750 (1990), adhered to 106 Or App 226, rev den 311 Or 349 (1991). Schellenburg v. Polk County, 21 Or LUBA 425 (1991). 6 The applicant’s burden of proof states, and the Hearings Officer agrees, that the county’s comprehensive plan is not applicable because the applicant proposes to include the subject property within the Sisters UGB which by intergovernmental agreement is governed by PL-16. Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 21 of 33 The city’s comprehensive plan includes the following language describing its purpose: The comprehensive plan provides the foundation for the planning process by establishing long-range goals and objectives and by providing, through its various elements, an integrated view of future public and private development patterns in the community. It is not the last word, nor is it the first * * *. The comprehensive plan is not the zoning plan * * *. The plan recommends appropriate uses for various areas and attempts to provide a maximum range of choice in the urban area within the limits of community living. (Plan, page 2; emphasis added.) The plan must be implemented if it is to be of value to the community. It requires * * * the administration of appropriate codes and ordinances which influence development * * *. The Comprehensive Plan provides basic guidelines with which the community can chart a course for change * * *. (Plan, page 3; emphasis added.) The Comprehensive Plan policies are based on the established general goals and objectives described in Part III and are supported by adequate findings * * *. The Plan maps and text are intended as a statement of public policy encompassing development objectives of and for the urbanizing area of Sisters * * *. (Plan, Page 56; emphasis added.) In this Hearings Officer’s decision approving the UGB amendment that included the 40-acre sewage treatment facility site (PA-00-5/ZC-00-2), I found the above-underscored language suggests the plan and its policies were intended only to be recommendations and statements of broad public policy rather than to establish mandatory approval criteria for quasi-judicial land use applications. Nevertheless, I also found that some plan policies are written in mandatory terms, suggesting they were intended to be more than mere recommendations or statements of policy. I found that in the absence of a clear statement in the plan that its policies are not intended to apply to quasi-judicial plan amendment applications, I must examine each plan policy identified by the city as applicable in order to determine its applicability. I adhere to that holding here and review the following plan policies identified by the applicant and planning staff. Chapter 4 – Forest Lands (page 30) Plan Findings: * * * 2. When forested lands are converted from rural to urban use, or from Deschutes County to City of Sisters jurisdiction, lands will not be used for the commercial growing or harvesting of timber. Large-scale forest management and harvesting practices are not appropriate within the City limits. Plan Policies Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 22 of 33 * * * 2. When forest-zoned lands are included in the Sisters UGB, they shall be rezoned to an appropriate zoning designation that prevents commercial forestry practices. (Emphasis added.) FINDINGS: The Hearings Officer finds the above-underscored language requiring rezoning of forest-zoned lands is mandatory in nature. Nevertheless, I find this language does not obviate the need for the applicant also to demonstrate compliance with the applicable zone change criteria discussed in the findings below. The applicant proposes to redesignate and rezone the subject 4- acre site to Urban Area Reserve and UAR-10, respectively, which do not allow commercial forest practices. In addition, following annexation of the subject site into the Sisters city limits the site would be rezoned to PF which also does not allow commercial forestry operations. Therefore, I find the applicant’s proposal is consistent with this plan policy. Chapter 7 – Natural Disasters (page 37) Plan Goal: To protect people and property from natural hazards. Plan Policies * * * 4. Portions of the City are contiguous with National Forest lands and are at risk from forest fires. 5. Sisters/Camp Sherman Rural Fire Protection District provides fire protection and emergency services to the City. FINDINGS: The Hearings Officer concludes these findings simply identify current conditions and therefore do not establish approval criteria. Chapter 14 – Urbanization (page 93) Policies 1. The City shall promote development within the UGB to minimize the cost of providing public services and infrastructure and to protect resource land outside the UGB. * * * 3. The Urban Growth Boundary is the official area for which to plan all land uses, public facilities, and annexations. Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 23 of 33 4. The City shall provide for an orderly and efficient conversion of urbanizable land to urban land, the City will manage the UGB to maintain the potential for planned urban development on urbanizable lands. 5. The establishment and change of the Urban Growth Boundary shall be based upon considerations of the following factors: a. Demonstrated need to accommodate long-range urban population growth requirements consistent with LCDC goals; b. Need for housing, employment opportunities, and livability; c. Orderly and economic provision for public facilities and services; d. Maximum efficiency of land uses within and on the fringe of the existing urban area; e. Environmental, energy, economic and social consequences; f. Retention of agricultural land as defined, with Class I being the highest priority for retention and Class VI the lowest priority; and g. Compatibility of the proposed urban uses with nearby agricultural activities. FINDINGS: The Hearings Officer finds Policy 3 simply states broad planning policy and does not establish an approval criterion for the proposed plan amendment. I find Policies 1 and 4 are written in mandatory terms and require that development within the UGB be provided with adequate public facilities and services. For the reasons discussed in the findings above, incorporated by reference herein, I find inclusion of the subject 4-acre site within the Sisters UGB will be consistent with these policies because the site is adjacent to the existing UGB and will have access to a public street (Locust Street) and to city water and sewer. I find Policy 5, while including mandatory language, merely requires consideration of the listed factors in changing the UGB. As discussed in detail in the findings below, these factors have been considered extensively in determining the proposal’s compliance with Goal 14 and its guidelines and implementing administrative rules. For the foregoing reasons, the Hearings Officer finds the applicant’s proposal satisfies the applicable plan amendment criteria in the city’s comprehensive plan. ZONE CHANGE STANDARDS F. Title 21 of the Deschutes County Code, the Sisters Urban Area Zoning Ordinance 1. Chapter 21.72, Amendments Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 24 of 33 This title may be amended by changing the boundaries of districts, or by changing any other provisions thereof as set forth in this chapter * * *. a. Section 21.72.020, Standards for Zone Change The burden of proof is upon the applicant. The applicant shall in all cases establish: 1. Conformance with the Comprehensive Plan. FINDINGS: The applicant proposes to change the zoning of the subject property from F-1 to UAR-10. The burden of proof states that once the site is annexed to the city it will be rezoned to PF. As discussed in the findings above, incorporated by reference herein, the Hearings Officer has found the applicant’s proposal is consistent with applicable policies in the city’s comprehensive plan. Therefore, I find the applicant’s proposed zone change satisfies this approval criterion. 2. Conformance with all applicable statutes. FINDINGS: The Hearings Officer has found the applicant’s proposal is consistent with the provisions of ORS 197.298 governing the priorities for inclusion of land within a UGB. No other statutes have been identified as applicable. Based on my previous findings under ORS 197.298, incorporated by reference herein, I find the applicant’s proposal satisfies this zone change approval criterion. 3. Conformance with Statewide Planning Goals wherever they are determined to be applicable. FINDINGS: The proposal’s conformance with Goal 14 is discussed in the findings above. Compliance with the remaining applicable statewide planning goals is discussed in the findings below. The Hearings Officer has found the applicant’s proposal is consistent with all applicable goals. Therefore, I find the applicant’s proposal satisfies this zone change approval criterion. 4. That there is a public need for a change of the kind in question. FINDINGS: As discussed in the findings above, the applicant argues the city and the fire district have identified a need for the proposed zone change because of the need for a new fire training facility, and have entered into an intergovernmental agreement through which the city will provide land within the city limits for such a facility. Training of fire district firefighters now takes place behind the existing Sisters fire station close to residences and other occupied structures near downtown Sisters and requiring closure of a public street during training exercises. According to the applicant’s burden of proof and the public hearing testimony of Ryan Karjala, firefighters require training and practice in extricating victims from structures and vehicles, pulling hoses in simulated structure and wildland fires, accomplishing forced entry through a Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 25 of 33 metal door, and firefighting on multiple levels of a structure. Although generally only small controlled live fires are involved in the training, large quantities of water would be used. And in order to provide an adequate and appropriate setting for the necessary training, the facility would require a two-story fire training tower as well as space to store a fire engine and a means of securing the site from general public access. The fire district and the city have determined a four- acre parcel is necessary to assure sufficient space for the training facility. And they have identified the subject site as an appropriate location because it has access to a public street as well as city water and sewer services, it is a considerable distance from the closest residences and other occupied structures, and closure of public streets would not be required for training activities. Opponents argue the city and fire district have not demonstrated a need for the proposed training facility. In particular, they argue the city did not adequately consider the option of sharing a training facility with another fire department or district, or the additional burden on Sisters taxpayers from establishing a new training facility. In response to opponents’ shared facility argument, the applicant stated in its October 10, 2008 submission: “* * * the city believes that the cost efficiency proposed by Mr. Francis (sharing other facilities owned by other jurisdictions) would be cost inefficient given the high costs of fuel that would be used in taking 5 trucks/3 days per week, to either Redmond or Bend for training exercises, and to the additional hour per person per training day that would be spent in transit. According to a conversation with Shift Commander Gary Lovegren of the Sisters/Camp Sherman Fire District, emergency vehicles used by the Fire District on average get between 6 and 10 miles to the gallon depending on the truck, the terrain, and the response code which dictates speeds traveled by the District. Taking the average of 8 miles to the gallon and assuming $4.00/gallon of fuel, each trip to either Redmond or Bend would use $20 of fuel per round trip. Adding cost of each employee (one hour travel time) adds to the overall cost of using another jurisdiction’s facility, coupled with the fact that the Fire District would be remiss in sending its team out of the area, thus leaving little or no coverage in the event of an emergency. Conversely, the travel distance between the Sisters/Camp Sherman Fire Station and the [proposed] training facility is less than a mile.” The applicant also questioned the relevance of opponents’ fiscal impact argument to the applicable approval criteria for a zone change. The Hearings Officer finds the comparative fiscal impact and cost/staff efficiency analyses involved in evaluating competing methods for providing public facilities and services are inherently the sort of policy decisions made by cities, counties and service districts, and within their special expertise and purview. Therefore, I find it is not appropriate for me to second-guess such policy decisions in these proceedings. I find that for purposes of this zone change approval criterion the city and fire district have submitted substantial, credible evidence from which I can find there is a need for a fire training facility on a site other than the existing fire station on Elm Street, and that the subject site will be of adequate size, will accommodate the facility’s unique Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 26 of 33 operating characteristics, and will be at a location that will not require the closure of a public street and will be sufficiently distant from dwellings and other occupied buildings to preclude incompatibility with such uses.7 5. That the need will be best served by changing the classification of the particular piece of property in question as compared with other available property. FINDINGS: The Hearings Officer finds that for purposes of this approval criterion “other available property” means the alternative sites zoned PF and IL, analyzed by the applicant and the Hearings Officer, and discussed in the findings above. I have found the applicant’s alternative sites analysis and my analysis of IL-zoned land indicate there are no lands within the Sisters UGB, or nonresource or lower-priority resource land outside the UGB, that reasonably can accommodate the proposed fire training facility. For the reasons set forth in those findings, incorporated by reference herein, I find the applicant has demonstrated the need for the fire training facility will best be served by including the subject 4-acre site in the Sisters UGB. 6. That there is proof of a change of circumstances or a mistake in the original zoning. FINDINGS: 1. Mistake. The Hearings Officer finds there was no mistake in the original F-1 zoning of the subject property. As discussed above, it is part of a large forested parcel previously owned and managed by the USFS as part of the Deschutes National Forest. It is located outside the Sisters UGB and is composed of soils capable of producing wood fiber, and no exception to the statewide planning goals previously was taken for the property to change its resource designation. 2. Change of Circumstances. The applicant argues the proposed zone change from F-1 to UAR- 10 is justified by changes of circumstance. Specifically, the applicant asserts that at the time the subject property was zoned F-1 the city did not foresee the need for additional PF-zoned land in general, or for a fire training facility in particular. The applicant’s burden of proof suggests the city contemplated that the PF-zoned land owned by the USFS and located on the west side of Sisters would be available for public facilities uses, but recently learned that the USFS intends to market and sell this PF-zoned property for other types of potential development in order to raise sufficient funds to build a new Sisters Ranger District compound. In addition, the Hearings Officer is aware the Sisters population has nearly doubled since the city developed its sewage treatment facility. The applicant argues, and I agree, that this dramatic increase in population has created a similar increased need for public facilities and services including fire prevention and protection. I find these factors constitute changes of circumstance justifying the development of a new fire training facility on the subject site, as well as the proposed zone change from F-1 to UAR-10, in order to bring the site into the UGB for future annexation and rezoning to PF. 7 If the citizens of Sisters believe the cost and efficacy of providing a new fire training facility on the subject site do not justify the site’s annexation into the city, they will not vote to approve the annexation. Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 27 of 33 Therefore, I find the applicant’s proposal satisfies this criterion. 7. That annexation to the City of Sisters will accompany the zone change. FINDINGS: At the public hearing, the applicant’s representative testified the city intends to annex the subject 4-acre site by placing the annexation on the May 2009 election ballot. The applicant argues, and the Hearings Officer concurs, that the requirement of this section will be met by imposition of a condition of approval that the board adopt a resolution of intent to rezone pursuant to Section 18.136.030 and requiring annexation, as discussed in the findings below. G. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance FINDINGS: The Hearings Officer has found the proposed zone change is subject to the approval criteria in Title 21. However, because the proposed zone change, if approved, would leave a remainder parcel within the county zoned F-1, I find certain provisions of Chapter 18.12 of the county code also may be applicable, as discussed in the findings below. 1. Chapter 18.12, Establishment of Zones a. Section 18.12.020, Location of Zones The boundaries for the zones listed in DCC Title 18 are indicated on the Deschutes County Zoning Map which is hereby adopted by reference. The boundaries shall be modified subject to zoning map amendments which shall be adopted by reference. b. Section 18.12.040, Zone Boundaries Unless otherwise specified, zone boundaries are section lines, subdivision lines, lot lines, center lines of street or railroad rights of way, water courses, ridges, or rimrocks, other readily recognizable or identifiable natural features, or the extension of such lines. Whenever uncertainty exists as to the boundary of a zone as shown on the zoning map or amendment thereto, the following rules shall apply: * * * C. If a zone boundary as shown on the zoning map divides a lot or parcel between two zones, the entire lot or parcel shall be deemed to be in the zone in which the greater area of the lot or parcel lies, provided that this adjustment involves a distance not exceeding 100 feet from the mapped zone boundary. DCC Title 18 does not apply to areas zoned flood plain. (Emphasis added.) FINDINGS: The Hearings Officer finds the provisions of Section 18.12.040 were adopted for Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 28 of 33 the purpose of determining the location of existing zoning district boundaries when there is doubt or confusion about their locations. I also find the above-underscored language appears to reflect a policy against so-called “split zoning” where a single lot or parcel has more than one zone. However, this section does not appear to prohibit split zoning. Moreover, the county previously permitted the rezoning of portions of Section 9 for the sewage treatment facility site and the public works field storage site. I find these actions suggest that any policy against split zoning does not apply in cases involving UGB amendments. 2. Chapter 18.136, Amendments a. Section 18.136.030, Resolution of Intent to Rezone A. If from the facts presented and findings and the report and recommendations of the Hearings Officer, as required by this section, the County Commission determines that the public health, safety, welfare and convenience will be best served by a proposed change of zone, the County Commission may indicate its general approval in principal of the proposed rezoning by the adoption of a “resolution of intent to rezone.” This resolution shall include any conditions, stipulations or limitations which the County Commission may feel necessary to require in the public interest as a prerequisite to final action, including those provisions that the County Commission may feel necessary to prevent speculative holding of property after rezoning. Such a resolution shall not be used to justify “spot zoning” or to create unauthorized zoning categories by excluding uses otherwise permitted in the proposed zoning. B. The fulfillment of all conditions, stipulations and limitations contained in the resolution on the part of the applicant shall make such a resolution a binding commitment on the Board of County Commissioners. Upon completion of compliance action by the applicant, the board shall, by ordinance, effect such rezoning. The failure of the applicant to substantially meet any or all conditions, stipulations or limitations contained in a resolution of intent, including any time limit placed in the resolution, shall render the resolution null and void automatically and without notice, unless an extension is granted by the board. FINDINGS: In order to establish the proposed fire training facility two events first must take place – i.e., annexation of the site into the Sisters city limits, and rezoning the site from UAR-10 to PF. Therefore, the Hearings Officer finds this is an appropriate case in which to recommend that the board approve the proposed zone change through a resolution of intent to rezone. The resolution would be contingent on: (1) the city’s providing the county with documentation of a favorable vote on annexation of the subject property; and (2) the city’s execution of an Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 29 of 33 intergovernmental agreement with the county whereby the city would agree to rezone the site to PF and to limit uses permitted on the site to the fire training facility. Accordingly, I find approval of the applicant’s proposal will be conditioned on a recommendation that the board adopt such a resolution of intent to rezone. OTHER ADMINISTRATIVE RULE AND GOAL COMPLIANCE H. OAR 660-012, Transportation Planning Rule 1. OAR 660-12-060, Plan and Land Use Regulation Amendments FINDINGS: The Hearings Officer finds this administrative rule – the Transportation Planning Rule (TPR) -- is applicable because the applicant proposes a plan amendment from Forest to Urban Reserve and a zone change from F-1 to UAR-10. (1) Amendments to functional plans, acknowledged comprehensive plans, and land use regulations which significantly affect a transportation facility shall assure that allowed land uses are consistent with the identified function, capacity, and level of service of the facility. This shall be accomplished by either: (a) Limiting allowed land uses to be consistent with the planned function, capacity and level of service of the transportation facility; (b) Amending the TSP [Transportation System Plan] to provide transportation facilities adequate to support the proposed land uses consistent with the requirements of this division; or (c) Altering land use designations, densities, or design requirements to reduce demand for automobile travel and meet travel needs through other modes. 2) A plan or land use regulation amendment significantly affects a transportation facility if it: (a) Changes the functional classification of an existing or planned Transportation facility; (b) Changes standards implementing a functional classification system; FINDINGS: The Hearings Officer finds the proposed plan amendment and zone change, in and of themselves, will not affect transportation facilities. However, if approved they would facilitate development of a fire training facility on the subject property site that will generate additional vehicle traffic on Locust Street from the fire district employee vehicles that will travel to the Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 30 of 33 facility on a periodic basis. However, I find the applicant’s proposal will not change either the functional classification or standards implementing the functional classification of Locust Street. The record indicates it will remain a designated local street. (c) Allows types or levels of land uses which would result in levels of travel or access which are inconsistent with the functional classification of a transportation facility; or (d) Would reduce the level of service of the facility below the minimum acceptable level identified in the TSP. FINDINGS: The Hearings Officer finds these two standards focus on the impact of the proposed plan amendment and zone change on the actual function of Locust Street. The record includes a “trip generation letter” dated September 19, 2008 from Brad Grimm, Sisters Public Works Director. The letter states the existing sewage treatment facility generates 44 average daily vehicles trips (ADTs) on Locust Street by facility employees, and that according to Ryan Karjala of the fire district the new fire training facility would generate up to 10 ADTs three days per week and up to 30 ADTs on weekend days. I find the addition of this minimal amount of traffic on Locust Street will not result in levels of travel inconsistent with the street’s functional classification, reduce the level of service below the minimum acceptable level identified in the Sisters TSP for a local street, or exceed the capacity of Locust Street. For these reasons, I find the applicant’s proposal conforms with the TPR because it will not significantly affect a transportation facility. (3) Determinations under section (1) and (2) of this rule shall be coordinated with affected transportation facility and service providers and other affected local governments. FINDINGS: The county’s senior transportation planner Peter Russell and the county’s road department commented on the applicant’s proposal. The road department noted that Locust Street is a city street over which the county does not have jurisdiction. Mr. Russell stated that in his opinion the minimal additional traffic generated by the proposed fire training facility will not significantly affect Locust Street. Therefore, the Hearings Officer finds this portion of the TPR has been satisfied. I. OAR 660-015, Statewide Planning Goals FINDINGS: The applicant proposes an amendment to the comprehensive plan. Therefore, the Hearings Officer finds the applicant must demonstrate the proposal is consistent with applicable statewide planning goals. I make the following findings concerning compliance with the goals. 1. Goal 1, Citizen Involvement FINDINGS: The Hearings Officer finds the applicant’s proposal is consistent with this goal because the county has provided opportunities for public comment and involvement in the proposed new training facility and public facilities land on which to locate it. I held a public hearing on the subject applications and a public hearing or meeting will be held by the board Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 31 of 33 before the plan amendment and zone change can be approved. Owners of record of property located within 750 feet of the subject property received individual written notice of the proposal and the initial public hearing, and the initial public hearing also was noticed through publication in the “Bend Bulletin” newspaper and by posting the subject property. 2. Goal 2, Land Use Planning FINDINGS: The Hearings Officer finds the applicant’s proposal is consistent with this goal because it has been reviewed under the city’s comprehensive plan and zoning ordinance as well as the county code, and public hearings have been conducted in accordance with the county’s procedures ordinance. 3. Goal 3, Agricultural Lands FINDINGS: The Hearings Officer finds this goal is not applicable because the subject site is not designated or zoned for agriculture. 4. Goal 4, Forest Lands FINDINGS: The subject property is designated and zoned for forest use. As discussed in the findings above, the Hearings Officer has found no exception to Goal 4 is required in order to include the subject site in the Sisters UGB. Therefore, I find the applicant’s proposal is consistent with this goal. 5. Goal 5, Open Spaces, Scenic and Historic Area and Natural Resources FINDINGS: This goal requires the county to inventory and protect significant scenic, historic and natural resources. The record indicates the subject property does not have any inventoried Goal 5 resources. Therefore, the Hearings Officer finds the proposal is consistent with this goal. 6. Goal 6, Air, Water and Land Resources Quality FINDINGS: Goal 6 requires the county and city to protect air and water quality. The Hearings Officer finds the applicant’s proposal is consistent with this goal because the plan amendment and zone change will have no effect on water or land resources quality, and any impact on air or water quality from the proposed fire training facility ultimately developed on the subject site will be addressed through future zone change and land use permit proceedings conducted by the city. 7. Goal 7, Areas Subject to Natural Disasters and Hazards FINDINGS: The record indicates there are no identified natural disasters or hazards on the site. Therefore, the Hearings Officer finds this goal is not applicable. 8. Goal 8, Recreational Needs FINDINGS: The applicants do not propose to use the subject property for a destination resort or other recreational uses. Therefore, the Hearings Officer finds the applicant’s proposal is consistent with this goal. Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 32 of 33 9. Goal 9, Economic Development FINDINGS: This goal requires the county and city to provide adequate opportunities for a variety of economic activities. As discussed in the findings above, the proposed fire training facility would allow fire district staff to train in an adequate and appropriate facility in order to meet the increasing need in Sisters and surrounding areas for fire prevention and protection services. The Hearings Officer finds the applicant’s proposal will serve urban-density development within the Sisters city limits and UGB, which includes a variety of commercial and industrial uses. Therefore, I find the applicant’s proposal is consistent with this goal. 10. Goal 10, Housing FINDINGS: The Hearings Officer finds this goal is not applicable because the applicant’s proposal would neither create housing opportunities nor remove land from the city’s inventory of building residential land. 11. Goal 11, Public Facilities and Services FINDINGS: This goal requires the city and county to plan and develop an orderly arrangement of public facilities and services for urban and rural development. Inclusion of the 4-acre site within the Sisters UGB will facilitate the construction of a fire training facility for the fire district that will increase and improve fire prevention and protection services for the city and surrounding land within the district’s boundaries. Therefore, the Hearings Officer finds the applicant’s proposal is consistent with this goal. 12. Goal 12, Transportation FINDINGS: This goal is implemented through the TPR, discussed in detail in the findings above. For the reasons set forth in those findings, incorporated by reference herein, the Hearings Officer finds the applicant’s proposal is consistent with the rule and therefore satisfies Goal 12. 13. Goal 13, Energy Conservation FINDINGS: This goal requires the city and county to give priority in land use planning to the efficient utilization of energy. The Hearings Officer finds the applicant’s proposal is consistent with this goal because it would allow the subject site to be developed with a fire training facility within the Sisters UGB and ultimately within the city limits, facilitating energy conservation by locating this facility close to the existing Sisters fire station and the population it serves. 14. Goal 14, Urbanization FINDINGS: This goal requires the city and county to assure their land use planning will provide for the orderly and efficient transition from rural to urban land uses. This goal is applicable because the applicant’s proposal would result in bringing rural resource land into the Sisters UGB for urban development. As discussed in detail in the findings above, the Hearings Officer has found the applicant has demonstrated a need for a new fire training facility in order to Sisters UGB PA-08-2/ZC.08-2/MA-08-8 Page 33 of 33 provide increased and improved training for firefighters serving the city and the surrounding area located within the fire district’s boundaries. I have found the applicant has demonstrated the proposed site is suitable and appropriate for conversion from impacted forest land – currently identified for use as an effluent dispersal area for the city’s wastewater treatment facility – to a site for fire training. For the reasons set forth in the findings above concerning Goal 14’s guidelines and implementing administrative rules, incorporated by reference herein, I find the applicant’s proposal satisfies Goal 14. 15. Goals 15 through 19 FINDINGS: The Hearings Officer finds these goals are not applicable to this proposal because they address river, ocean, and marine resources not located on or near the subject property. IV. DECISION: Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby APPROVES the applicant’s proposal to expand the Sisters UGB to include the subject site, to change the subject site’s plan designation from Forest to Urban Reserve, and to change the subject site’s zone from F-1 to UAR-10, SUBJECT TO THE CONDITIONS OF APPROVAL SET FORTH BELOW. 1. This approval is conditioned on adoption by the Deschutes County Board of Commissioners of a resolution of intent to rezone the subject site from F-1 to UAR-10. The resolution would make rezoning the subject site contingent on the city submitting to the county documentation of annexation of the subject site, and the city’s execution of an intergovernmental agreement with the county whereby the city agrees to rezone the site to PF following annexation and to limit uses permitted on the site to the fire training facility. 2. The city shall submit to the Planning Division a metes-and-bounds description of the subject site. Dated this _________ day of December, 2008. Mailed this ________ day of December, 2008. ___________________________ Karen H. Green, Hearings Officer Under Section 22.28.030(A) of the county’s land use procedures ordinance, because this decision involves a proposed plan amendment and zone change this application also must be approved by the Deschutes County Board of County Commissioners.