HomeMy WebLinkAboutUGB Expansion - US Forest ServiceCommunity Development Department
Planning Division Building Safety Division Environmental Health Division
117 NW Lafayette Avenue Bend Oregon 9770 1-1925
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.is/cdd/
MEMORANDUM
To: Board of County Commissioners
From: Anthony Raguine, Senior Planner
Date: December 28, 2009
Re: Work Session: PA -09-4, Deschutes National Forest
The Deschutes National Forest (DNF) applied for a plan amendment for a site-specific Bend
Urban Growth Boundary expansion to allow the consolidation of a number of DNF facilities into
a single location. A public hearing was held on November 17, 2009, with the Hearings Officer
decision and recommended approval mailed December21, 2009.
Per DCC 22.28.030(B), in the absence of an appeal or review initiated by the Board, the Board
shall adopt the Hearings Officer decision. Therefore, the purpose of this work session is for the
Board to determine whether to call up this file for review.
There was no opposition or controversy during the review of the proposed plan amendment.
Attachment: Hearings Officer decision
Quality Services Performed with Pride
DECISION OF DESCHUTES COUNTY HEARINGS
FILE NUMBER:
APPLICANT/
PROPERTY OWNER:
REQUEST:
STAFF REVIEWER:
HEARING DATES:
RECORD CLOSED:
PA -08-4
Deschutes National Forest
Charles Kurtz, Office Projects Manager
1001 S.W. Emkay Drive
Bend, Oregon 97702
The applicant requests approval of a comprehensive plan
amendment to expand the Bend UGB to include a 26 -acre portion
of the former Bend Pine Nursery site in order for it to be developed
with offices for the Deschutes National Forest supervisor and
Bend -Fort Rock Ranger District, as well as warehouse,
maintenance facilities and crew quarters in a consolidated location.
Anthony Raguine, Senior Planner
December 16, 2008 and November 17, 2009
November 18, 2009
I. APPLICABLE STANDARDS & CRITERIA:
A. Title 19 of the Deschutes County Code, the Bend Urban Growth Boundary Zoning
Ordinance
1. Chapter 19.12, Urban Area Reserve Zone
2. Chapter 19.116, Amendments, Appeals and Procedures
* Section 19.116.010, Amendments
B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.28, Land Use Action Decisions
* Section 22.24.140, Continuances or Record Extensions
* Section 22.28.030, Decision on Plan Amendments and Zone Changes
C. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan
1. Chapter 23.48, Urbanization
* Section 23.48.030, Urban Growth Boundary Policies
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D. Bend Area General Plan
E. Oregon Revised Statutes (ORS)
1. ORS Chapter 197, Comprehensive Land Use Planning Coordination
* ORS 197.298, Priority of Land to be Included within Urban Growth
Boundary
F. Oregon Administrative Rules (OAR) Chapter 660, Land Conservation and
Development
1. Division 15, Statewide Planning Goals
* OAR 660-015-000, Statewide Planning Goals and Guidelines No. 1
Through No. 14
* OAR 660-015-005, Statewide Planning Goal and Guideline No. 15
* OAR 660-015-010, Statewide Planning Goals and Guidelines No. 16
Through No. 19
2. Division 24, Urban Growth Boundaries
* OAR 660-024-0000, Purpose and Applicability
* OAR 660-024-0020, Adoption or Amendment of a UGB
* OAR 660-024-0030, Population Forecasts
* OAR 660-024-0040, Land Need
* OAR 660-024-0050, Land Inventory and Response to Deficiency
* OAR 660-024-0060, Boundary Location Alternatives Analysis
II. FINDINGS OF FACT
A. Location: The subject property is located at 63095 Deschutes Market Road, Bend, and is
further identified as Tax Lot 1800 on Deschutes County Assessor Map 17-12-23.
B. Zoning and Plan Designations: The subject property is zoned Urban Area Reserve
(UAR-10) and is designated Urban Area Reserve on the Deschutes County
Comprehensive Plan Map.
C. Site Description: The subject property is a 26 -acre portion of the former Bend Pine
Nursery site which originally consisted of 210 acres. The Deschutes National Forest
(hereafter "DNF") sold 184 acres of the original Pine Nursery to the Bend Metro Park
and Recreation District (hereafter "park district") for development with public parks. The
park district then conveyed 15 acres to the Bend -La Pine School District for the Pine
Nursery School. The 26 -acre parcel subject to this plan amendment application is
generally level, irregular in shape, and developed with twelve buildings. Water is
available to the subject property from the Avion Water Company (hereafter "Avion") and
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city sewer facilities are located nearby. The subject property has direct access from
Deschutes Market Road, a designated major collector road.
D. Surrounding Zoning and Land Uses: The subject property is bounded on the north and
west by the Pine Nursery Community Park, on the east by Deschutes Market Road, and
on the south by the Bend Urban Growth Boundary (UGB), Bend city limits, and the
North Unit Irrigation Canal. Land to the east of Deschutes Market Road is zoned UAR-
10 and developed with residential uses. Land south of the North Unit Irrigation Canal is
within the city limits and is zoned Urban Standard Residential (RS) and developed with
residential uses.
E. Procedural History: This application was submitted on August 29, 2008 and accepted as
complete on September 28, 2008. Because the application involves a plan amendment, it
is not subject to the 150 -day period for issuance of a final local land use decision under
ORS 215.427. A similar application was submitted to the City of Bend on August 29,
2008. On October 30, 2008 the Planning Division mailed notice of the proposed UGB
amendment to DLCD. A public hearing on the county application was scheduled for
December 16, 2008. By a letter dated December 12, 2008, the applicant requested that the
application be "suspended" and that the public hearing be scheduled for mid-November,
2009. A similar request was made to the city. However, because the continuance request
was submitted after notice of the county's public hearing was published, pursuant to
Section 22.24.140(A) of the county's land use procedures ordinance, former county
Hearings Officer Anne Corcoran Briggs opened the public hearing and continued it on
the record to a date to be determined.
The continued city public hearing was held on November 16, 2009. The continued county
public hearing was held on November 17, 2009. At the continued county hearing, the
Hearings Officer received testimony and evidence, closed the written record, and allowed
the applicant through November 24, 2009 to submit final argument pursuant to ORS
197.763. By an electronic mail message dated November 18, 2009 the applicant waived
its right to submit final argument and the record closed on that date.
F. Proposal: The DNF's Bend operations currently occupy four sites: the DNF headquarters
on Emkay Drive, the Bend -Fort Rock Ranger District on N.E. 3rd Street, the Scott Street
Work Center on S.W. 2nd Street, and the Bend Pine Work Center on the subject property.
In 2007 the DNF began exploring the possibility of consolidating its Bend operations in
order to improve its efficiency and to eliminate the increasing cost of leasing private
office space. The record indicates the DNF considered twelve potential sites prior to
selecting the subject property as a potential location for its consolidated operations. John
Allen, DNF Supervisor, authorized the proposed development of the subject property
through a "Decision Notice" dated January 17, 2008, that selected Alternative 2 of the
"Environmental Assessment for the Collocation of the Bend -Fort Rock Ranger District
Office, Forest Headquarters Office, and Work Center."
The subject application would amend the county comprehensive plan by expanding the
Bend UGB to include the 26 -acre subject property in order to develop the site at urban
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density. The DNF's development ultimately would include 42,000 square feet of office
space, a 12,000 -square -foot fire management building, a 17,000 -square -foot warehouse,
10,000 square feet of shop space, a 5,600 -square -foot crew quarters for seasonal
employees, and approximately 7.5 acres of paved parking areas, access drives and
pedestrian walkways. Three existing buildings (the packing shed, office, and north pre -
cooler) would be removed. The consolidated site would employ approximately 330
people.
G. Public/Private Agency Comments: The Planning Division sent notice of the applicant's
proposal to a number of public and private agencies and received responses from: the
Deschutes County Road Department and Senior Transportation Planner; and the Bend
Community Development and Fire Departments. 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 Deschutes County Assessor, Building
Division, Road Department, and Environmental Health Division; the Bend Engineering
and Public Works Departments; the Swalley Irrigation District; the Oregon Department
of Land Conservation and Development (LCDC); and the U.S. Bureau of Reclamation.
H. Public Notice and Comments: The Planning Division mailed individual written notice
of the applicant's proposal and the public hearings to the owners of record of all property
located within 250 feet of the subject property. In addition, notices of the public hearings
were 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 no letters from the public. No members of the public
testified at the public hearings.
J. Lot of Record. As discussed above, the subject property is part of the former USFS Bend
Pine Nursery. In this Hearings Officer's decision approving a UGB amendment for the
Pine Nursery School (PA -07-5), I made the following findings:
"After the USFS decided to close the pine nursery the parcel was
determined to be suitable for transfer into private ownership. The U.S.
Congress passed the Pine Nursery Conveyance Act in 2004 authorizing
the transfer of the property, and by a deed dated December 17, 2004 the
entire parcel was conveyed to the park district with a requirement that the
park district transfer a portion of the parcel to the Bend -La Pine Schools
for a school site."
The subject property is the 26 -acre remainder parcel following the transfer to the park
district authorized by the Pine Nursery Conveyance Act. The applicant has not requested
approval of a land division or a lot -of -record determination for the portion of the original
Bend Pine Nursery site proposed for inclusion in the UGB.
In this Hearings Officer's decision approving an amendment to the Sisters UGB to
include a 4 -acre portion of a surplus USFS parcel referred to as "Section 9" that had been
conveyed to the City of Sisters (PA-08-2/ZC-08-2/MA-08-8), I raised the question of
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whether that site must be a lot of record before it could be included in the Sisters UGB. I
made the following findings on that issue:
"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 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.
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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."
As was the case with regard to the Sisters UGB amendment, the DNF has not requested
subdivision or partition approval in conjunction with this proposed UGB amendment.
However, in contrast to the Sisters UGB amendment circumstances, the property at issue
in this application remains in federal ownership. Therefore, in accordance with previous
county decisions, I find the provisions of FLPMA preempt the county's
subdivision/partition ordinance. In addition, I adhere to my holding in the Sisters UGB
amendment decision that in any case the subject property need not be a legal lot of record
for me to approve the proposed UGB amendment.
III. CONCLUSIONS OF LAW
PROCEDURAL POSTURE
FINDINGS: This application requests approval of an expansion of the Bend UGB to include the
subject property which is adjacent to the current UGB boundary. Pursuant to a February 24, 1998
joint management agreement between Bend and the county, land use actions adjacent to the
Bend UGB in the Urban Area Reserve are handled through a cooperative process in which the
city and county share responsibility for processing UBG expansion requests. Pursuant to this
agreement, quasi-judicial UGB amendment applications are reviewed by both city and county
hearings officers, and both the Deschutes County Board of Commissioners (hereafter "board")
and the Bend City Council (hereafter "city council") hold public hearings on and adopt
implementing ordinances to enact the UGB expansion.
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As discussed in the Findings of Fact above, the city's hearings officer conducted a public hearing
on the applicant's proposal on November 16, 2009, and this Hearings Officer conducted a public
hearing on November 17, 2009. If the proposed UGB amendment is approved and adopted by
both the city and county, the amendment will be transmitted to DLCD for acknowledgement of
compliance with applicable state land use laws. In addition, the record indicates the applicant has
requested approval of a zone change from UAR-10 to Public Facilities (PF) which would be
acted on following approval of the UGB amendment and the city council's approval to annex the
subject property into the Bend city limits.
UGB AMENDMENT STANDARDS AND PROCEDURES
B. Oregon Administrative Rules (OAR) Chapter 660
1. Division 24, Urban Growth Boundaries
a. Section 660-024-0000, Purpose and Applicability.
(1) The rules in this division clarify procedures and requirements
of Goal 14 regarding local government adoption or amendment
of an urban growth boundary (UGB).
* * *
(3) The rules in this division are effective April 5, 2007, except as
follows:
(a) A local government may choose to apply this division
prior to April 5, 2007;
(b) A Local government may choose to not apply this
division to a plan amendment concerning the evaluation
or amendment of a UGB, regardless of the date of that
amendment, if the local government initiated the
evaluation or amendment of the UGB prior to April 5,
2007;
FINDINGS: These rules became effective April 5, 2007. The subject application was submitted
to the county and city on August 28, 2008, and therefore these rules apply.
b. 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
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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);
FINDINGS: The Hearings Officer finds the Goal 2 exceptions process is not applicable to the
subject UGB amendment because the applicant has not requested an exception to any statewide
goals.
(b) Goals 3 and 4 are not applicable;
FINDINGS: The Hearings Officer finds Goals 3 and 4 are not applicable to the proposed UGB
amendment because the subject property is not designated or zoned for agriculture or forest use.
(c) Goal 5 and related rules under OAR chapter 660,
division 23, apply only in areas added to the UGB,
except as required under OAR 660-023-0070 and 660-
023-0250;
FINDINGS: The Hearings Officer finds Goal 5 applies to the applicant's proposed UGB
amendment because it would add land to the UGB. The proposal's compliance with Goal 5 is
addressed in the findings below.
(d) The transportation planning rule requirements under
OAR 660-012-0060 need not be applied to a UGB
amendment if the land added to the UGB is zoned as
urbanizable land, either by retaining the zoning that
was assigned prior to inclusion in the boundary or by
assigning interim zoning that does not allow
development that would generate more vehicle trips
than development allowed by the zoning assigned prior
to inclusion in the boundary (emphasis added);
FINDINGS: The applicant's burden of proof and the staff report address the transportation
planning rule (TPR) in OAR chapter 660, Division 12. However, the subject property is
designated Urban Area Reserve and zoned UAR-10 and therefore constitutes urbanizable land.
And as discussed in the findings above, the applicant has submitted an application to the city for
a zone change from UAR-10 to PF that would occur following city and county approval of the
proposed UGB amendment and city approval to annex the subject property into the city limits.
Therefore, the current UAR-10 zoning would be retained until the UGB amendment, annexation
and zone change have been approved. For these reasons, the Hearings Officer finds that under
this paragraph it is not necessary for me to consider the TPR in evaluating the proposed UGB
amendment.
(2) The UGB and amendments to the UGB must be shown on the
city and county plan and zone maps at a scale sufficient to
determine which particular lots or parcels are included in the
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UGB. Where a UGB does not follow lot or parcel lines, the map
must provide sufficient information to determine the precise
UGB location.
FINDINGS: The Hearings Officer finds that if the board and the city council approve the
applicant's proposed UGB amendment, the enacting ordinances will include a legal description
of the subject property, and the amended maps will show the UGB has been amended to include
the subject property as identified by its parcel lines.
c. Section 660-024-0030, Population Forecasts
(1)
Counties must adopt and maintain a coordinated 20 -year
population forecast for the county and for each urban area
within the county consistent with statutory requirements for
such forecasts under ORS 195.025 and 195.036. Cities must
adopt a 20 -year population forecast for the urban area
consistent with the coordinated county forecast, except that a
metropolitan service district must adopt and maintain a 20 -
year population forecast for the area within its jurisdiction. In
adopting the coordinated forecast, local governments must
follow applicable procedures and requirements in ORS
197.610 to 197.650 and must provide notice to all other local
governments in the county. The adopted forecast must be
included in the comprehensive plan or in a document
referenced by the plan.
FINDINGS: The record indicates that on September 8, 2004 by Ordinance 2004-12 the county
adopted a coordinated population forecast through 2025. The record also indicates the city
adopted the same population forecast.
d. Section 660-024-0040, Land Need
(1) The UGB must be based on the adopted 20 -year population
forecast for the urban area described in OAR 660-024-0030,
and must provide for needed housing, employment and other
urban uses such as public facilities, streets and roads, schools,
parks and open space over the 20 -year planning period
consistent with the land need requirements of Goal 14 and this
rule. The 20 -year need determinations are estimates which,
although based on the best available information and
methodologies, should not be held to an unreasonably high
level of precision.
FINDINGS: The staff report states the city and county are engaged in a process to evaluate all
of the above -referenced needs as part a larger legislative UGB expansion plan that currently is
under review by LCDC. The applicant's burden of proof states delays in this legislative UGB
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expansion process necessitated the filing of this quasi-judicial, need -specific UGB expansion
request authorized by Subsection 3 of this section, discussed in the findings below.
(2) If the UGB analysis or amendment is conducted as part of a
periodic review work program, the 20 -year planning period
must commence on the date initially scheduled for completion
of the appropriate work task. If the UGB analysis or
amendment is conducted as a post -acknowledgement plan
amendment under ORS 197.610 to 197.625, the 20 -year
planning period must commence either:
(a) On the date initially scheduled for final adoption of the
amendment specified by the local government in the
initial notice of the amendment required by OAR 660-
018-0020; or
(b) If more recent than the date determined in subsection
(a), at the beginning of the 20 -year period specified in
the coordinated population forecast for the urban area
adopted by the city and county pursuant to OAR 660-
024-0030, unless ORS 197.296 requires a different date
for local governments subject to that statute.
FINDINGS: In this Hearings Officer's decision approving the UGB amendment for the Pine
Nursery School (PA -07-5), discussed in the Findings of Fact above, I found this criterion did not
apply because the proposed quasi-judicial UGB amendment was not part of a periodic review
work program. I adhere to that holding here and find the applicant's quasi-judicial UGB
amendment is not subject to this criterion.
(3)
A local government may review and amend the UGB in
consideration of one category of land need (for example,
housing need) without a simultaneous review and amendment
in consideration of other categories of land need (for example,
employment need).
FINDINGS: The applicant has requested approval of a UGB amendment to address a specific
public facility need as authorized by this subsection.
(4) The determination of 20 -year residential land needs for an
urban area must be consistent with the adopted 20 -year
coordinated population forecast for the urban area, and with
the requirements for determining housing needs in Goal 10,
OAR 660, division 7 or 8, and applicable provisions of ORS
197.295 to 197.314 and 197.475 to 197.490.
FINDINGS: The Hearings Officer finds this criterion does not apply because the applicant's
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proposed UGB expansion is not to address residential land needs.
(5)
Except for a metropolitan service district described in ORS
197.015(14), the determination of 20 -year employment land
need for an urban area must comply with applicable
requirements of Goal 9 and OAR 660, division 9, and must
include a determination of the need for a short-term supply of
land for employment uses consistent with OAR 660-009-0025.
Employment land need may be based on an estimate of job
growth over the planning period; local government must
provide a reasonable justification for the job growth estimate
but Goal 14 does not require that job growth estimates
necessarily be proportional to population growth.
FINDINGS: The Hearings Officer finds this criterion does not apply because the applicant's
proposed UGB expansion is not to address employment land needs.
(6) The determination of 20 -year land needs for transportation
and public facilities for an urban area must comply with
applicable requirements of Goals 11 and 12, rules in OAR 660,
divisions 11 and 12, and public facilities requirements in ORS
197.712 and 197.768. The determination of school facility needs
must also comply with ORS 195.110 and 197.296 for local
governments specified in those statutes.
FINDINGS: The proposal's compliance with Goals 11 and 12 is addressed in the findings
below. ORS 197.712 and 197.768 require that an analysis of general public facilities such as
sewer and water be included in city and county comprehensive plans, and the record indicates
both the Bend and Deschutes County plans include the required analyses.
e. Section 660-024-0050, Land Inventory and Response to Deficiency
(1) When evaluating or amending a UGB, a local government
must inventory land inside the UGB to determine whether
there is adequate development capacity to accommodate 20 -
year needs determined in OAR 660-024-0040. For residential
land, the buildable land inventory must include vacant and
redevelopable land, and be conducted in accordance with OAR
660-007-0045 or 660-008-0010, whichever is applicable, and
ORS 197.296 for local governments subject to that statute. For
employment land, the inventory must include suitable vacant
and developed land designated for industrial or other
employment use, and must be conducted in accordance with
OAR 660-009-0015(3).
FINDINGS: As discussed in the findings elsewhere in this decision, the applicant's proposed
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UGB amendment has been submitted to address a need to co -locate multiple DNF facilities and
functions, and not to address housing or employment land needs. In addition, as discussed in
findings elsewhere in this decision, the city and county currently are engaged in a legislative
process to expand the Bend UGB in part to ensure a 20 -year land supply for all other needs.
(5)
When land is added to the UGB, the local government must
assign appropriate urban plan designations to the added land,
consistent with the need determination. The local government
must also apply appropriate zoning to the added land
consistent with the plan designation, or may maintain the land
as urbanizable land either by retaining the zoning that was
assigned prior to inclusion in the boundary or by applying
other interim zoning that maintains the land's potential for
planned urban development until the land is rezoned for the
planned urban uses. The requirements of ORS 197.296
regarding planning and zoning also apply when local
governments specified in that statute add land to the UGB.
FINDINGS: As noted in foregoing findings, the proposed expansion area is currently zoned
UAR, and has a Plan designation of Urban Reserve Area. Consistent with the specific need to
provide land for an expanded public facility, the applicant is concurrently proposing a zone
change to Public Facilities (PF) with their amendment application with the city.
f. Section 660-024-0060, Boundary Location Alternatives Analysis
(1) When considering a UGB amendment, a local government
must determine which land to add by evaluating alternative
boundary locations. This determination must be consistent
with the priority of land specified in ORS 197.298 and the
boundary location factors of Goal 14, as follows:
(a) Beginning with the highest priority of land available, a
local government must determine which land in that
priority is suitable to accommodate the need deficiency
determined under 660-024-0050.
FINDINGS: The subject property is designated Urban Area Reserve which constitutes exception
land. The Hearings Officer has found that although this land is classified as "second priority"
land it is the highest priority land available to accommodate the identified need.
(b) If the amount of suitable land in the first priority
category exceeds the amount necessary to satisfy the
need deficiency, a local government must apply the
location factors of Goal 14 to choose which land in that
priority to include in the UGB.
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FINDINGS: As discussed in the findings below concerning compliance with Goal 14, the
Hearings Officer has found there are no available "first priority" lands.
(2) Notwithstanding OAR 660-024-0050(4) and subsection (1)(c) of
this rule, except during periodic review or other legislative
review of the UGB, a local government may approve an
application under ORS 197.610 to 197.625 for a UGB
amendment proposing to add an amount of land less than
necessary to satisfy the land need deficiency determined under
OAR 660-024-0050(4), provided the amendment complies with
all other applicable requirements.
FINDINGS: The DNF's proposed quasi-judicial UGB amendment is requested to address a
specific need and would not satisfy the 20 -year land need. Nevertheless, as discussed in the
findings below concerning compliance with Goal 14, the Hearings Officer has found the city and
county are engaged in a legislative UGB amendment process that includes an evaluation of the
amount of land necessary to satisfy the 20 -year land need as required by this subsection.
(3)
The boundary location factors of Goal 14 are not independent
criteria. When the factors are applied to compare alternative
boundary locations and to determine the UGB location, a local
government must show that all the factors were considered and
balanced.
FINDINGS: The boundary location factors under Goal 14 are addressed in findings below.
(4) In determining alternative land for evaluation under ORS
197.298, "land adjacent to the UGB" is not limited to those lots
or parcels that abut the UGB, but also includes land in the
vicinity of the UGB that has a reasonable potential to satisfy
the identified need deficiency.
FINDINGS: The DNF's alternative sites analysis is discussed in detail in the findings below,
and incorporated by reference herein. Based on those findings, the Hearings Officer finds the
applicant's proposal is consistent with this subsection.
(5)
If a local government has specified characteristics such as
parcel size, topography, or proximity that are necessary for
land to be suitable for an identified need, the local government
may limit its consideration to land that has the specified
characteristics when it conducts the boundary location
alternatives analysis and applies ORS 197.298.
FINDINGS: As discussed in the findings below concerning compliance with Goal 14, the DNF
identified specific characteristics it used to evaluate the alternative sites, and the Hearings
Officer found those characteristics were reasonable considering the nature and operating
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characteristics of the DNF's proposed consolidated administrative facility.
(6) The adopted findings for UGB adoption or amendment must
describe or map all of the alternative areas evaluated in the
boundary location alternatives analysis. If the analysis involves
more than one parcel or area within a particular priority
category in ORS 197.298 for which circumstances are the
same, these parcels or areas may be considered and evaluated
as a single group.
FINDINGS: The findings below concerning compliance with Goal 14 describe in detail the five
alternative sites evaluated by the DNF, and these sites are mapped in the DNF's EA and burden
of proof for the UGB amendment.
(7)
For purposes of Goal 14 Boundary Location Factor 2, "public
facilities and services" means water, sanitary sewer, storm
water management, and transportation facilities.
FINDINGS: The availability and accessibility of water, sewer, and transportation facilities is
discussed in the findings below concerning compliance with Goal 14 and are incorporated by
reference herein.
(8) The Goal 14 boundary location determination requires
evaluation and comparison of the relative costs, advantages
and disadvantages of alternative UGB expansion areas with
respect to the provision of public facilities and services needed
to urbanize alternative boundary locations. This evaluation
and comparison must be conducted in coordination with
service providers, including the Oregon Department of
Transportation with regard to impacts on the state
transportation system. "Coordination" includes timely notice
to service providers and the consideration of evaluation
methodologies recommended by service providers. The
evaluation and comparison must include:
(a) The impacts to existing water, sanitary sewer, storm
water and transportation facilities that serve nearby
areas already inside the UGB;
(b) The capacity of existing public facilities and services to
serve areas already inside the UGB as well as areas
proposed for addition to the UGB; and
(c) The need for new transportation facilities, such as
highways and other roadways, interchanges, arterials
and collectors, additional travel lanes, other major
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improvements on existing roadways and, for urban
areas of 25,000 or more, the provision of public transit
service.
FINDINGS: The applicant's burden of proof includes a "will serve" letter from Avion that
indicates the company can provide water service for the DNF's proposed consolidated
administrative facility. The burden of proof also states there is an existing 36 -inch diameter city
sewer line the DNF could extend and connect to for the proposed facility. The Hearings Officer
finds any necessary improvements to existing water, sewer and/or storm water control facilities
would be addressed during the city's site plan review process at the time development permits
are sought for the proposed facility. In addition, as discussed elsewhere in this decision, any
required improvements to affected transportation facilities would also be addressed by the city
during development review. Finally, the Bend Fire Department supports the proposed UGB
expansion. For these reasons, the Hearings Officer finds the applicant's proposal is consistent
with this subsection.
2. Division 15, Statewide Planning 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 DNF facility. I held a public hearing on the subject application and a public
hearing or meeting will be held by the Deschutes County Board of Commissioners before the
plan amendment can be approved. Owners of record of property located within 250 feet of the
subject property received individual written notice of the proposal and the public hearings, and
the public hearings also were noticed through publication in the "Bend Bulletin" newspaper and
by posting the subject property. In addition, the City of Bend held a public hearing on the
applicant's parallel city plan amendment application, and the Bend City Council will hold a
public hearing or meeting before the plan amendment can be approved.
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 Bend'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 Hearings Officer finds this goal is not applicable because the subject site is not
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designated or zoned for forest use.
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 Goal 5
resources inventoried by the county and included in the comprehensive plan. In addition, the
record includes the aforementioned "Environmental Assessment for the Collocation of the Bend -
Fort Rock Ranger District Office, Forest Headquarters Office, and Work Center" (hereafter
"EA") that concludes after an exhaustive review of natural and cultural resources that no such
resources exist on the subject property. 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
will have no effect on water or land resources quality, and any impact on air or water quality
from the proposed DNF 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 applicant does 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.
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 DNF facility
would allow the DNF to consolidate its Bend operations at a single location to improve the
efficiency and reduce the cost of its operations. The record indicates the consolidated facility
would have approximately 330 employees. The Hearings Officer finds the applicant's proposal
will be served by urban -density development within the Bend city limits and UGB. 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
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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 subject 26 -acre
site within the Bend UGB will facilitate the establishment of a consolidated DNF facility that
will increase and improve the efficiency of DNF's Bend operations currently are spread among
four sites. The consolidated facility will be served by city sewer service and Avion water, and
will have access to public streets. Therefore, the Hearings Officer finds the applicant's proposal
is consistent with this goal.
12. Goal 12, Transportation
FINDINGS: This goal is implemented by the TPR. As discussed in the findings above, the
Hearings Officer has found the TPR is not applicable to the applicant's proposed UGB
amendment because the property's current UAR-10 zoning will be retained until the UGB
amendment is approved and the subject property is annexed to the city.
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 property to be developed with a consolidated
DNF facility within the Bend UGB and ultimately within the city limits, facilitating energy
conservation by consolidating the DNF's four current facilities into one facility and reducing
vehicle trips and travel times for the DNF's employees.
14. 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.
15. Goal 14, Urbanization
FINDINGS: Goal 14 is applicable to the applicant's proposal because it would result in bringing
urban reserve land into the Bend UGB for the purpose of urban development. The proposal's
compliance with the goal and guidelines is addressed in the findings below.
To provide for an orderly and efficient transition from rural to urban 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
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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 on
which to consolidate its Bend operations currently employing approximately 330 people and
spread among four separate sites including the subject property. This facility ultimately would be
located within the city limits and would be zoned PF. The consolidated facility would include:
42,000 square feet of office space, a 12,000 -square -foot fire management building, a 17,000 -
square -foot warehouse, 10,000 square feet of shop space, a 5,600 -square -foot crew quarters for
seasonal employees, and approximately 7.5 acres of paved parking areas, access drives and
pedestrian walkways. In addition, the applicant would remove three existing buildings (the
packing shed, office, and north pre -cooler).
The EA included in this record describes the DNF's needs in relevant part as follows:
"There is a need to locate all Forest Service administrative functions near the
City of Bend at one site. Current Regional policy and direction is to collocate
facilities when those facilities are within 35 miles of each other. Currently
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administrative functions are divided between four sites: * * *. The greatest
distance between sites is between the Forest Headquarters Office and the BPWC
site [the Bend Pine Work Center on the subject property], a distance of
approximately seven miles.
Cost for maintaining four administrative sites have been rising. Both the Forest
Headquarters and BFR [Bend -Fort Rock Ranger District] offices are leased
offices, which are costing a combined total of approximately $1,000,000 per year
in rental payments. The BFR office lease will expire in 2009, and the Forest
Headquarters Office fixed term lease will be up for renewal in 2010. Continuation
of either or both leases would be expected to result in continued increases in
contract lease costs. The Forest budget has steadily declined and is expected to
continue to decline in the foreseeable future for all activities. Increased lease
costs will reduce the amount of money available for other functions.
The Forest Service owns the 26 acre PBWC site and the 6.4 acre Scott Street
Work Center. The commercial value of the Scott Street site is complicated by a
reversionary clause in the property deed covering 5 acres that stipulates should
the property no longer be used for forest management, ownership transfers to the
Bend Chamber of Commerce. Ownership of these reversionary rights has been
purchased from the Bend Chamber of Commerce by a private party.
Many employees, particularly those working at the BFR office, park vehicles and
store equipment and supplies at either the Scott Street or BPWC sites. This
requires additional commuting time between sites and also results in increased
consumption of fuel with little or no measurable benefit. Many employees in both
the Forest Headquarters and BFR offices also regularly attend meetings in the
other facility, requiring additional expenditures of time and fuel in travel. With
increasing development and population growth in both the City of Bend and
Deschutes County, this is resulting in increasing travel times and risk from heavy
unsafe traffic conditions during the work day.
The location of the combined administrative site needs to be within the Bend
urban growth or urban reserve boundary * * *. Having access to existing
utilities — water, sewer, electric, gas — reduces development costs. Access, for
both employees and the public, is enhanced by the presence of or easy access to,
major arterial roads or highways. Areas outside of these boundaries are less
likely to have road access or utilities, resulting in increased costs and
complexities for development. Costs associated with development, particularly for
infrastructure such as roads and utilities, can me more easily spread among a
multitude of nearby developments common within those boundaries."
The applicant's burden of proof states twelve sites were considered for co -location of the DNF's
facilities. However, the burden of proof states that because of the high cost of real estate, the
USFS Regional Forester and the DNF Supervisor decided to consider only sites already owned
by the USFS. This decision eliminated seven sites from further consideration. The Hearings
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Officer finds there is nothing in the applicable standards for UGB amendments that precludes the
applicant or the county from considering land cost in determining the suitability of alternative
sites.
The five remaining sites are identified in the EA as:
1. the Bend Pine Work Center on the subject property;
2. the Scott Street Work Center;
3. the Cascade Lakes site, located on the Cascade Lakes Highway southwest of Bend near the
Entrada Lodge;
4. a site near the Knott Road/Baker Road interchange on Highway 97 south of Bend; and
5. a site off China Hat Road located southeast of Bend.
The applicant's burden of proof notes the DNF identified the following criteria for finding a
suitable site on which to locate a new consolidated facility:
• the ability to locate all DNF administrative functions at one site;
• location within the Bend UGB or Urban Reserve areas;
• easy access to major arterial roads or highways;
• costs and level of complexity of development; and
• a minimum size of 10 acres.
The Hearings Officer finds these criteria are reasonable in light of the nature and operating
characteristics of the proposed use.
The applicant concluded that of the five USFS-owned sites identified in the EA, four sites were
considered not to be suitable for the proposed consolidated facility for the reasons discussed in
the findings below.
1. Scott Street Work Center. This site is the only USFS-owned site located within the Bend
UGB. However, the applicant rejected this site because it has only 6.4 acres and therefore is not
large enough to accommodate the applicant's proposed consolidated facility.
2. Cascade Lakes Site. The applicant rejected this site because although it is large enough, it has
relatively poor access to Highway 97 which is four miles away and the most direct route to the
highway requires travel largely on local roads, it does not abut the Bend UGB, and does not have
access to municipal sewer and water service.
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3. Knott Road/Baker Road Site. The applicant rejected this site because although it is large
enough, it currently does not have any road access and would require the acquisition of
easements through private property, does not abut the Bend UGB, and does not have access to
municipal sewer and water service.
4. China Hat Road Site. The applicant rejected this site because although it is large enough, it
does not abut the Bend UGB and does not have access to municipal sewer and water service.
The subject property was considered a suitable site because it meets all of the identified criteria.
It is 26 acres in size and so is large enough to accommodate all of the consolidated facility. It is
located in the Urban Area Reserve adjacent to the Bend UGB and city limits. Urban
infrastructure is located adjacent to and/or near the subject property making it feasible to extend
and connect to such facilities, thereby reducing the cost and complexity of development the site.
And the subject property has access to Deschutes Market Road, a designated major collector
road.
The Hearings Officer finds the applicant's analysis of potential alternative sites adequately
demonstrates the four sites other than the subject property are not suitable for development with
the proposed consolidated DNF facility considering its site requirements and operating
characteristics, and the proposed facility cannot be accommodated within the existing Bend UGB
and/or city limits.
Boundary Location
The location of the urban growth boundary and changes to the boundary shall be
determined by evaluating alternative boundary locations consistent with ORS
197.298 and with consideration of the following factors:
1. Efficient accommodation of identified land needs;
FINDINGS: The purpose of the applicant's proposed UGB expansion is to allow the
consolidation of the DNF's administrative functions at a single site in order to improve
operational efficiency and reduce operational costs. The subject property, because of its location
adjacent to the Bend UGB, would have access to required urban infrastructure including city
sewer service and Avion water, and would have easy access via Deschutes Market Road, a
designated major collector road, to Empire Avenue, a designated arterial street, and Highway 97.
In addition, the 26 -acre subject property is large enough to accommodate all of the DNF's
administrative functions.
2. Orderly and economic provision of public facilities and services;
FINDINGS: As discussed in the findings above, urban infrastructure and public facilities and
services are available to the subject property, including city sewer service at the subject
property's south boundary and Avion water which already serves the existing buildings on the
site. In order to develop the subject property with the consolidated DNF facilities, the applicant
would extend and connect to the existing utilities. The subject property has frontage on and
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direct access to Deschutes Market Road, a designated major collector road. The record indicates
the subject property lies within the boundaries of the Bend Rural Fire Protection District and
would be served by the Bend Fire Department which submitted comments in support of the
applicant's proposed UGB expansion.
As discussed in the findings above, the Hearings Officer has found it is not necessary to evaluate
the proposal's compliance with the TPR because the subject property's current UAR-10 zoning
would be retained until the UGB amendment is approved by the city and county and the subject
property is annexed to the city. Nevertheless, the record includes a February 2008 traffic impact
study prepared by Ferguson & Associates, Inc. that concludes development of the subject
property with the consolidated DNF facilities would generate a total of 1,394 average daily
vehicle trips (ADTs) of which 164 trips would be p.m. peak hour trips (between 4:00 and 6:00
p.m. weekdays). The traffic study concluded that two nearby intersections — Deschutes Market
Road/Butler Market Road, and 27th Street/Butler Market Road — would not satisfy the city's
operational standards for p.m. peak hour traffic with or without the additional traffic generated
by urban -density development of the subject property. The traffic study identified the following
mitigation would be required for the function of these two intersections to satisfy the city's
operational standards:
1. a southbound right -turn lane on Deschutes Market Road at the Butler Market Road
intersection; and
2. widening 27th Street to five lanes at its intersection with Butler Market Road and
extending 27th Street north to connect with Empire Avenue. The added capacity of a
five -lane cross section on 27th Street would offset anticipated traffic impacts.
The applicant's burden of proof states the applicant would pay its proportionate share of the cost
of these mitigation measures in conjunction with development of the subject property. The staff
report questions the adequacy of these mitigation measures, and notes that no comments had
been received from the city at the time the staff report was written. However, in a letter dated
October 30, 2009, the city's Current Planning Manager Colin Stephens stated in relevant part:
"Butler Market Road/Deschutes Market Road Intersection
* * * The applicant is proposing mitigation to this intersection that would
allow the intersection to operate in compliance with City of Bend operations
criteria with the added Forest Service site trips. In order to mitigate this
significant effect, the applicant will construct improvements on the southbound
approach of Deschutes Market Road to Butler Market Road to separate the
southbound right turns from the southbound left turn lands. This mitigation will
allow the intersection to function at an acceptable level of service with the
addition of the Forest Service trips through the planning horizon.
Butler Market/27th Street Intersection
* * * The City's planned improvement for this intersection, which is included in
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the City's TSP [Transportation System Plan] and CIP [Capitol Improvement
Plan], is the construction of a multi -lane roundabout. Because the City is
collecting 'pro -rata share' contributions for the construction of this planned
facility, ORS 660-012-0060(4)(b)(B) and (E) allow the City to find that the TPR is
satisfied because it is reasonably likely that the planned facility will be provided
by the end of the planning period.' It is anticipated that at build -out of the Forest
Service site, the pro -rata share fee will be approximately $98, 441 in today's
dollars. This calculation is based on the Forest Service's TIA which projected 124
trips through the 27`h/Butler Market intersection
'Bend Development Code (BDC) section 4.7.400C requires a development to pay a
proportionate share of the cost of a final transportation improvement. The proportionate
share contribution methodology is established in BDC 4.7.500B and is designed to
collect sufficient contributions from the build -out of inventoried lands during the
planning period to fund the final improvement by the end of the planning period:" (Bold
and underscored emphasis in original.)
The Hearings Officer finds Mr. Stephens' letter provides substantial, credible evidence from
which I can find the DNF's proposed UGB expansion will result in the orderly and economic
provision of public facilities and services.
3. Comparative environmental, energy, economic and social consequences;
FINDINGS: The DNF's EA provides an extensive review of the consequences of its decision to
proceed with development of consolidated administrative functions on the subject property. This
review includes the following findings:
Environmental: The 26 -acre subject property is level and currently developed with the Bend
Pine Work Center which includes a number of existing structures. No known rare or endangered
species occupy the site, and the site does not possess as any significant natural features such as
wetlands, waterways (the North Unit Canal borders the site to the south), or rimrock.
Energy: The subject property is not known to contain energy resources such as known deposits
of oil and natural gas, or geothermal resources. The availability of other potential energy sources,
such as wind and solar, is equal on any other property in the surrounding area. Since the site
would allow the co -location of numerous administrative and operational functions at a single
site, this would eliminate employee trips between the four existing sites.
Economic: Both the DNF Headquarters and BFR offices are leased. The combined lease
payment for these two locations is approximately $1,000,000 per year. The DNF Headquarters
lease is up for renewal in 2010, and the BFR lease expires in 2009. The proposed UGB
expansion and co -location would allow the DNF to save that money for its operations. In
addition, the proposed co -location would reduce travel time and costs associated with DNF
personnel commuting between the four current DNF sites.
Social: The statewide planning goals define "social consequences" as follows:
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The tangible and intangible effects upon people and their relationships with the
community in which they live resulting from a particular action or decision.
As discussed elsewhere in this decision, development of the subject property with DNF's
proposed consolidated administrative facility would increase traffic which is a tangible social
effect. In addition, development of the consolidated facility would be at a density greater than
current development on the subject property, which is an intangible social effect. However,
following approval of the UGB amendment, the subject property would be annexed into the city
and zoned PF to allow greater development density, and as discussed in the findings above the
applicant would contribute to the cost of transportation facility improvements.
The Hearings Officer finds the review in the EA is sufficient to demonstrate the comparative
environmental, energy, economic and social consequences of the applicant's proposal were
considered.
4. Compatibility of the proposed urban uses with nearby agricultural and
forest activities occurring on farm and forest land outside the UGB.
FINDINGS: The subject property is not located near agricultural or forest activities. It is
surrounded by the Pine Nursery Community Park, Deschutes Market Road, the North Unit
Canal, and residential uses at and below urban density. For these reasons, the Hearings Officer
finds the applicant's proposed UGB amendment will allow development that will be compatible
with nearby agricultural and forest activities on land outside the UGB.
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.
FINDINGS: Both Bend and the county have developed comprehensive plans and implementing
ordinances to manage the use and division of urbanizable land in order to maintain its potential
for planned urban development. These plans and their implementing measures are discussed in
the findings below, and the Hearings Officer has found the applicant's proposal is consistent
with these plans.
Unincorporated Communities
FINDINGS: The Hearings Officer finds this guideline is not applicable because the applicant's
proposed UGB expansion would not occur within an unincorporated community.
Single -Family Dwellings in Exception Areas
FINDINGS: The Hearings Officer finds this guideline is not applicable because the applicant's
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proposed UGB expansion will not facilitate the development of any single-family dwellings.
Rural Industrial Development
FINDINGS: The Hearings Officer finds this guideline is not applicable because the applicant's
proposed UGB expansion does not contemplate rural industrial development.
Guidelines
FINDINGS: These guidelines identify the factors to consider when planning for creation of a
city's initial UGB boundary and expansions thereto. The staff report states, and the Hearings
Officer agrees, that these guidelines were intended to be used in connection with legislative
rather than quasi-judicial UGB expansions and therefore are not applicable to the applicant's
proposal.
For the foregoing reasons, the Hearings Officer finds the applicant's proposed UGB expansion to
include the 26 -acre subject property is consistent with Goal 14 and its guidelines.
C. 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: Although the subject property is designated Urban Area Reserve on both the Bend
and county comprehensive plan maps, the record indicates these reserve lands were not
designated as such under ORS 195.145. Rather, they were designated prior to implementation of
ORS chapter 195. Therefore, the Hearings Officer finds there are no first priority lands within
the Bend city limits or UGB.
(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.
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FINDINGS: Because the subject property was not designated Urban Area Reserve pursuant to
ORS 195.145, as discussed in the findings above, it is considered an exception area and therefore
constitutes second priority land that is the highest priority land available to include within the
Bend UGB.
(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 not designated or zoned for agriculture or forest uses, and
therefore there is no 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.
FINDINGS: The EA included in the record indicates the soils on the subject property "are
mainly Deskamp series," described as loamy sands for which wind erosion and high permeability
are concerns. The EA states "manure and chemicals were added to the soils during the former
nursery operations." Finally, the EA states that with the proposed development of the site,
approximately 10 acres of soil would be placed in a non-productive state due to construction of
buildings, and the remaining approximately 16 acres would be landscaped and irrigated to
maintain soil productivity. The record does not indicate the National Resource Conservation
Service (NRCS) capability rating or classification for these soils or how those ratings compare
with ratings for soils on other potential sites. Nevertheless, the Hearings Officer finds that
because the subject property is not designated or zoned. for agriculture or forest use, but rather is
designated and zoned for urban development, it is likely the soil capability of the subject
property is equal to or lower than that of any of the four alternative sites considered by the DNF.
(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;
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(b) Future urban services could not be provided to the higher
priority due to topographical or other physical constraints; or,
(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 there is no first -priority land, and the subject property constitutes second -
priority land and the highest priority land available.
For the foregoing reasons, the Hearings Officer finds the subject property is the site that will best
accommodate the proposed consolidated DNF administrative facility based on the identified site
criteria and the facility's operating characteristics. I also find inclusion of the 26 -acre site in the
Bend UGB will result in the maximum efficiency of land uses within the UGB by locating the
proposed facility adjacent to the existing UGB where it will have access to a public street and to
Avion water and city sewer service. Therefore, I find the applicant has demonstrated its proposal
satisfies the priorities under ORS 197.298 for inclusion of land in the UGB.
PLAN AMENDMENT STANDARDS
D. Title 19 of the Deschutes County Code, the Bend Urban Growth Boundary Zoning
Ordinance
1. Chapter 19.116.010, Amendments
* * *
B. Any proposed quasi-judicial map amendment or change shall be
handled in accordance with the applicable provisions of DCC Title 22.
FINDINGS: The Hearings Officer finds the applicant's proposed UGB amendment has been
handled in accordance with all applicable provisions of Title 22 of the Deschutes County Code.
E. Title 23 of the Deschutes County Code, the Deschutes County Year 2000
Comprehensive Plan
1. Chapter 23.48, Urbanization
A. Section 23.48.030, Urban Growth Boundary Policies
1. Urbanization. Urbanization policies refer to an unincorporated
urban growth areas within an urban growth boundary but
outside the boundaries of a city, and are intended to assist in
the decision making about the _conversion of rural to urban
uses, and to help in the development of consistent urban area
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plan. More detailed policies for the urban areas of Bend,
Redmond and Sisters are specified in the urban area plans and
they shall be the primary documents for coordination and land
use decisions in their respective areas.
* * *
b. Urban growth boundaries shall be established or
expanded based upon the following:
FINDINGS: The Hearings Officer finds the above -underscored language indicates the intent
that the policies that follow were intended to constitute mandatory approval criteria for quasi-
judicial UGB amendments.
1. Demonstrated need to accommodate long-range
urban population growth requirements
consistent with LCDC goals;
FINDINGS: As discussed elsewhere in this decision, the applicant's proposed quasi-judicial
UGB amendment addresses a specific land need rather than a region -wide land need, the latter
need being addressed by the city's and county's current legislative UGB amendment process.
The Hearings Officer finds this policy addresses legislative rather than quasi-judicial UGB
amendments.
2. Need for housing, employment opportunities and
livability;
FINDINGS: The Hearings Officer finds the applicant's proposal is consistent with this policy
because the proposed UGB amendment would allow consolidation of the DNF's current
facilities, assuring continued employment opportunities.
3. Orderly and economic provision for public
facilities and services;
FINDINGS: As discussed elsewhere in this decision, the applicant's proposed UGB amendment
would allow the consolidated DNF operations at the subject property to extend and connect to
existing city water and sewer service on adjacent land.
4. Maximum efficiency of land uses within and on
the fringe of the existing urban area;
FINDINGS: As discussed above, the purpose of the applicant's proposed UGB amendment is to
maximize the efficiency of the DNF's Bend operations by allowing them to be consolidated on a
single site rather than spread among four sites. The nature of the DNF's operations on the subject
property would be urban in nature and therefore appropriate within the UGB and Bend city
limits.
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5. Environmental, energy, economic and social
consequences;
FINDINGS: As discussed in the findings above, incorporated by reference herein, the
applicant's EA contains a thorough review of these consequences from the proposed UGB
expansion and the type of development on the subject property it would facilitate.
6. Retention of agricultural land as defined, with
Class I being the highest priority for retention
and Class VI the lowest priority; and,
FINDINGS: The Hearings Officer finds this policy is not applicable because the subject
property is not designated or zoned for agriculture.
7. Compatibility of the proposed urban uses with
nearby agricultural activities. (Emphasis added.)
FINDINGS: As discussed above, there are no nearby agricultural activities, and the Hearings
Officer has found the applicant's proposed UGB amendment and the type of development of the
subject property it will facilitate will be compatible with agricultural activities. Specifically, I
find the nature of the proposed use, the large size of the site, and the proximity to public facilities
and services including public streets will make possible development of the subject property in a
manner that is compatible with surrounding agricultural activities.
8. Facilities and services.
a. Efforts should be made over a sustained
period of time to place utility lines
underground in existing and new
residential areas.
b. Parks should be located within walking
distance of every dwelling unit in the
community. Parks should be centrally
located and easily accessible to the areas
they are intended to serve (see
Recreation).
c. Certain private recreational uses such as
golf courses or riding stables can be
successfully integrated into residential
areas provided the location, design and
operation are compatible with
surrounding residential developments.
d. Fire protection in the planning area
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should be considered as a common
problem by the City, County, water
district and the fire protection district,
and equipment should reflect the
character of land uses in the community.
e. Efforts should be made to encourage
Federal and State agencies to locate in
urban areas.
f. Efforts should be made to group public
offices in a more or less common location
as a convenience to the public.
FINDINGS: The staff report states, and the Hearings Officer agrees, that in light of the nature
and operating characteristics of the applicant's proposed facility — and the generally aspirational
language used therein -- these policies are not relevant.
F. Bend Area General Plan
1. Preface to the Bend Area General Plan
Format of the Plan
At the end of each chapter are policies that address issues discussed in the
chapter. The policies in the General Plan are statements of public policy, and
are used to evaluate any proposed changes to the General Plan. Often these
statements are expressed in mandatory fashion using the word "shall."
These statements of policy shall be interpreted to recognize that the actual
implementation of the policies will be accomplished by land use regulations
such as the city's zoning ordinance, subdivision ordinance and the like * * *.
FINDINGS: The Hearings Officer finds that in contrast with the county comprehensive plan
policies discussed above, the language of the city's comprehensive plan preface makes clear the
city's plan goals and policies are not intended to constitute mandatory approval criteria for the
applicant's proposed quasi-judicial plan amendment to amend the Bend UGB to include the
subject property.
G. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.28.030, Land Use Action Decisions
Decision on plan amendments and zone changes.
* * *
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B. In considering all quasi-judicial zone changes and those quasi-judicial
plan amendments on which the Hearings Officer has authority to
make a decision, the Board of County Commissioners shall, in the
absence of an appeal or review initiated by the Board, adopt the
Hearings Officer's decision. No argument or further testimony will be
taken by the Board.
FINDINGS: The subject application is a quasi-judicial plan amendment application and
therefore is subject to these provisions. A public hearing with the County Hearings Officer is
scheduled for December 16, 2008. As necessary, a meeting with the Board would be scheduled
subsequent to the Hearings Officer decision.
UAR-10 ZONE STANDARDS
H. Title 19 of the Deschutes County Code, the Bend Urban Area Zoning Ordinance
1. Chapter 19.12, Urban Area Reserve Zone
FINDINGS: The staff report states, and the Hearings Officer agrees, that the applicant's
proposed consolidated DNF facility is neither an outright nor conditionally permitted use in the
UAR-10 Zone. As discussed in the Findings of Fact above, the applicant has requested city
approval of a zone change from UAR-10 to PF that would occur following approval of the
proposed UGB amendment and annexation of the subject property into the Bend city limits.
COMPLIANCE WITH OTHER ADMINISTRATIVE RULES
I. OAR 660-012, Transportation Planning Rule
1. OAR 660-12-060, Plan and Land Use Regulation Amendments
(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
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(3)
meet travel needs through other modes.
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;
(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.
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: As discussed in the findings above concerning the statewide planning goals, the
Hearings Officer has found that under the provisions of OAR 660-024-0020(1)(d), it is not
necessary for me to consider the TPR in evaluating the applicant's proposed UGB amendment
because the property will retain its current Urban Area Reserve plan designation and UAR-10
zoning until the city and county approve the UGB amendment and the city annexes the subject
property into the city limits.
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 Bend UGB to include the subject property.
Dated this /7 a-ae, day of December, 2009.
Mailed this /day of December, 2009.
Karen H. Green, Hearings Officer
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