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HomeMy WebLinkAboutHO Decision - Tree Farm 1DECISION OF RLE NUMBERS: APPLICANT' PR 0 P E RTY 0' APPLICANT'S ATTORNEY: OPPON ATTO REQ u E R NTS' NEYS: ST: STAFF RVI H EA Rt N 1 EWE ER: R: G DATES: RECORD CLOSED: Tree Farm 1, 247 4-000242- E CHI TES COUNTY HEAR I GS OFFICER 247 -14 -000242 -CU, 247 -14 -000243 -TP The Tree Pare LLC 409 N.W. Frankllin Avenue Bend, Oregon 97701 Miller Tree Farm 110 N.E. Greenwood Avenue Bend, Oregon 97701 Jeffrey G. Condit- Miller Nash L.L. 111 S.W. 51h Avenue. Suite 3400 Portland, Oregon 97204 P Myles A. Conway u Marten Law 404 S.W. Columbia Street, Suite 212 Bend; Oregon 97702 Attorney for Rio Lobo Investments Paul Dewey - Central Oregon 50 S.W. Bond Street, Ste. 4 Bend, Oregon 97702 Attorney for Central Oregon La Landatch ndWatch The applicant requests conditionaluse, tentative plan and site plan approval for a ten -lot cl€.€ster/planned `> unit development on a 105.3 -acre parcel' in tk e UAR-10, RR -10 and WA Zones north of Skyliners Road and west of Skyline Ranch Road on the west side of Be -id. This proposal is identified as "Tree Farm 1." It is part, of a proposed 50 -lot cluster PUD on five contiguous legal` lots totali g approximately 533 acres. identified as `The Tree Farm. The applicant submitted' four other applications for The Tree Farm (Tree Farms 2 through 5), with the following file numbers: Tree Farm 2' 247 -14 -000244 -CU, 247 -14 -000245 -TP Tree Farm 3. 247 -14 -000246 -CU, 247 -14 -000247 -TP Tree Farm 4; 247 -14 -000248 -CU, 247 -14 -000249 -TP Tree Farm 5. 247 -14 -000250 -Cts. 247 -14 -000231 -TP. Anthony Rag uine, enior Planner November 6 and 20, 2014 January 13, 201 U, 247-1 4 -000243 -TP Page 1 of 116 APPUCABLE` T. NDARD AN'D CP.ITFRIA A. Title 17 of the Deschutes County Code, the Su bdivisionIPartition Ordinance: Chapter 17.06, Definitions and interpretation of Langu *>>Section 17.06:036, Definiti ns G Chapter 17016, Ap Development Plans ener&l prow l of Subd ivi ikn Tentative Plans and Master * Section 17.16.106, Required Findings for Appr aval * Section 17.16,106, Access to Subdivisions * Section 17,16,115, Traffic Impact Studies 3. Cha pter 17,36, Design Standards * Section *',,Section * Section * Section *,Section * Section * Section * Section *>,Section *,Section * Section * Section *,Section *,Section * Section * 'Section *,Section * Section *>,Section * Section *'Section * Section 17,36.00, Streets 17.36.040, Existing Streets 17.36.050, Continuation of Streets 17,36,060, Minimum Right -of -Way and Roadway Width 17.36.070, Future Resubdivision 17.36.080, Future Extension of Streets' 17,36.100, Frontage Road, 17.36.110, Streets Adjacent to Railroads, 17,36.120, Street Names 17.36.130, Sidewalks 17.36.140, Bicycle, Pedestrian and Transit Requirements 17.36.160, Blocks 17.36.160, Easements 17,36.170, Lots _ Size and Shape 17.36.160, Frontage 17,36,1 0, Through Lots 17.36.200, Corner Lots 17,36.21 , Solar Access Performance ance 17.36.220, Underground Facilities 17.36.260, Are Hazards 17.36.280, Water and',. Sewer Lines 17°36.290, Individual Wells Freeways and Parkways * Section 17.36.300, Public '+ date r System Chapter 17.44, Park Development *Section 17.44, * Section 17.44. 010 020 Chapter 17,46 Section 17.49,140 Dedication of Land , Fee in Lieu of Dedication; Desig ns nd Cor stru Bikeways * Section 17.48.160, Road Development Requirements — Standard * Section 17.49,130, Private Roads ctio n Spec fication 5 Tree Farm;;,1, 247-14-s000242 CU, 247 -14 -000243 -TP 9 'age ? of 116 Ti *Section 17°48°190, 18 of the Desch Drainage es County Codd, the Deschutes County Zoning Ord Chapter 18x04, Title, Purpose and D *' Section 18.04.030, Definitions Cha efinitions pter 18.60, Rural Residential Zone RR -10 *> Section 10.00,030, Conditional Uses permitted * Section 18.60.060, Dimensional Standards Cha pter 18.8 8, Wild life Area Combining Zon e WA * Section 18,88.01 0, Purpose * Section 18.88.020, Application of Provisions *Section 18.88.040, Uses Permitted Conditionally * Section 18.88.050, Dimensional Standards *Section 18.88.060, Siting Standards * Section 18.88.070, Fence Standards Ch a pter 18.12 8, Gond it1 ona Uses • Section 18.128 015, General Standards Governhig Conditional U *Section 18.128.040, Specific Use Standards * Section 18.120,200, Cluster Development (Single -Family Resin Only) • Section 18.12 .210, Panned Development Title 19 of the Deschutes County Code, the Bend U 1. Cha pter 19.12, U * Sect * Secti * Sect rban Area Zo rban Area Reserve Zone — UA -10 on 19.12.030, Gond itional Uses on 19.12.040, Haight Reg 0 n 19.12.050, Lot Reg €.r i uirements rements Chapter 19.76, Site Plan Review * 8 c action 19.76.0 ectinn 19,75.0 ha 70, Site Plan Criteria pter 19.10 80, Required Minimum Standards 0, Co r d it1€nal €1 5 e Permits m"Section 19.100,€ 30, General Conditional Use Criteria Chapter 19.104, Planned Uni * tD Section 19.104.010, Purpose eval€ pine Section 19.1040040, Minimum Sze fry Tree Farm 1, 247 -14 -000242 -CU, 247-14-0 0 r nt ,App Plan royal mance: ses ing Ord ntial Use Mance ned Unit Developments 5 0243 -TP Page 3 of 116 I * Section 19,104.070, * Section 19.014,00, S e22oft 1. Cha tandards for Approval tandards and Reuira e nts Deschutes County Code, the Development pter 22.04, Introduction and • Section 22,04,020, Definitions Chapte r 22,68, Gen Definitions eral Provisions, Procedures Ordinance * Section 22.06,020, Acceptance of Application Section 22.06.030, Incomplete Applications * Section 22.06.030, False Statements on Application and Documents • Section 2.08.070, Time Computation Chapter 22/0, Review of La *Section 22.20.055, M nd U se Action A p plications odification of Application 4. Chapter 22/4, Land Use, Action H *'''Section 2.4.140, Continua arincgs noes a Deschutes County Comprehensive PI Be nd c h pter 2, Reso an urce Management Area General Plan 1, Chapter 6, Housing and''Resid Oregon Administr . Development Comm tivp nd Record Extensions ential"Lands Rules (OAR) Chapter 66 ission 1. Division 4, Goal 2>.Exceptions Process, • OAR 6604004-0040(7), Application of GoaJ Residential Areas ivision 11, Public Faciliti *OA R>660-011-00 es Planning R porti i 9 0, Land Conservation and 14 (Urb 65, Water Service to Rural Lands a nizatiion to Ru ra ll FINDINGS S OF'' FACT A, Location: The Tree Farrincluding Tree Farm 1 has an assigned address of 18900 Skyliners Road, Bend. The Tree Farm consists of Tax Lots 6202, 6205, 6207, 6208,, 6209, 6210, 6211 and 6213 on Deschutes County Assessors Map 17-11 Tree Farr 247 -14 -000242 -CU, 247 -14.000243 -TP' Page 4>;1 116 Zoning and Plan Designation: The western approximately 393 acres of The Tree Farm are zoned Rural Residential (RR -10) and Wildlife Area Combining,, Zone (WA) associated with the Tumalo Deer Winter Range, and are designated Rural Residential Exception Area (R EA) on the Deschutes County Comprehensive plan map. The eastern approximately 140 acres of The Tree Farm are zoned Urban Area Reserve (UAR-10) and are designated Urban Area Reserve (UAR) on the Bend Area General Ilan map. Tree Farm 1, the most eastern of the five proposed cluster; planned unit developments (PUDs), is zoned UAR-10, RR -10 and WA and is designated UAR and RREA. Site Description: The Tree Farm, of which the proposed Tree Farm 1 is a part, is approximately 533 acres in size, irregular in shape, vacant, and with varying topography. The dominant topographical feature of The Tree Fara property is a ridge running from southwest to northeast forming the southeast rim of''Tumalo Creek Canyon. The top of this ridge is generally flat to rolling, with steeper slopes in the northwest where it drops offtoward Tu€€halo Creek, and also on the southeast -facing slopes in the middle of the property, There are views of the Cascade Mountains from the western part of this central ridge and views of Bend from the southeast side of the central ridge. The property has scattered rock outcrops. Elevation ranges from approximately 3,700 feet above mean see level (AMSL) on the east side of the property to approximately 4,000 feet AMSL in the center of the property. The western part of the property drains west to Tumalo Creek; the eastern part drains east to the Deschutes River.''' The western portion of The Tree Farm is covered with a mature forest consisting of por€derosa pine and western juniper trees and native brush and grasses. The record indicates The Tree, Farm property has been managed, for timber production. The applicant's burden of proof states, and the Hearings Officer's site visit observations confirmed, that there is very little old growth timber on The Tree Farm. Mich of the eastern part of The Tree Farm is covered with sage -steppe vegetation and few trees. This part of the property was burned in the 1990 Awbrey Hail Fire. Portions of the burned area have been replanted with trees, although my site vi 'sit observations confirmed these trees are too small to be harvested. The property is traversed by dirt roads that were part of a logging road network. These roads can be seen on aerial photographs included in the record and 1 observed them during my site visit. The applicant proposes to obliterate much of this dirt road network and to revegetate the old road beds. The property has wire fencing, most of which would be removed Tree Fan m€ 1 is 105. '' acres in size and the rrros t eastern of the five cluster/PUDs making up The Tree Farm. It abuts property owned by Miller Tree Farm on the east, Skyli ers Road on the south, Tree Farm 2 on the west, and undeveloped UAR-10 zoned property on the north. Surround ng Zoning and Land Uses. West, Abutting The Tree Farm on the west is Shevlin Park, a 652 -acre regional park consisting of open space, an extensive trail network, and some developed amenities. Shevlin .Park is owned and managed by the Bend Metropolitan Perk and Recreation District (park district), and is zoned Open Space and Conservation (OS&C). Near the, southwest corner of the subject property is the City of Bend's Outback Water Facility, The Tree Farm topography is described in detail in December 8, 2014, and included in the record, Tree Farm 1, 247 -14 -000242 -CU 24f -t4-00 Hearings Officer': visit report dated 0243 -TP Page 5 of 116 consisting of groundwater wells, pumps, above -ground water storage facilities, , and water pipes conveying water into the city. Existing utility poles, and overhead lines run along the north side of Skyliners Road to serve this facility. To the west and southwest across Skyliners Road is public forest land zoned Forest Use (F-1) and '''€ managed by the USFS as part of the Deschutes National Forest (DNF). West of Shevlin Park is private forest land zoned F-1, As of the date the record in this matter dosed, the largest part of this private forest land, approximately 33,000 acres in multiple tax lots, was owned and managed by Cascade Timberlands Oregon LLC (Cascade Timberlands). Other private forest -zoned parcelsto the northwest of Shevlin Park are much smaller. North. To the north of The Tree Farm is a 376 -acre tract of vacant land zoned LIAR -'10 and owned by Rio Lobo Investments LLC (Rio Lobo). East. To the east is vacant land owned by Miller Tree Farm and zoned UAR-10. Farther east are three public' schools within the Bend-LaPine School District (school district) - Miller Elementary School,Pacific Crest diddle' School (under construction), and Summit High School. The schools are located within the Bend Urban Growth Boundary (UGB) and city limits and are zoned Public Facilities (PF). Also to the east within the Bend UGB is North Vest >Crossing, a minced -use development ' including residential, commercial, industrial, and public'' facility uses on land within multiple city zoning districts; South. To the southeast across 'Skyliners Road is The Highlands at Broken Top PUD, zoned UAR-10 and developed with thirty-seven roughly 10 -acre lots with dwellings. Farther southeast is the Tetherow Destination Resort developed with dwellings, a golf' course, and a lodge. Land Use History: The Tree Farm property has been owned by the Miller family since the 1950's. The record indicates this property historically was managed for timber production as part of the larger Miller' Tree Farm. including periodic harvesting and thinning, activities. The eastern portion of Tree Farm 1 was in the path of the 1990 Awbrey Hall Fire which burned several thousand acres between the northern edge of Shevlin Park and U.S, H ig hway 97 to the southeast. In June, 20€14,, the applicant obtained 'lot -of -record determinations for The Tree Farm property recognizing five legal lots of record (LR -14-16, LFA -14-17, LR -1448,, LR -14-19, LR -14-20). The applicant also obtained approval of ten lot line adjustments reconfiguring boundaries for the five legal lots of record (LLL14n17 through LL -14-26). Deeds reflecting the adjusted boundaries of the five legal lots were recorded on October 17, 2014, Procedural Hist°ry:', The Tree Fare applications were submitted on August 5, 2014. The Planning Division sent the applicant an incomplete letter on September 9, 2014, identifying certain missing information and <allowing the applicant 30 days to submit additional information. The applicant submitted the missing information on September 19, 2014. However, the staff report states that because the incomplete letter was not provided to the applicant within 30 days of the date the applications were submitted, as required by ORS 215 427(2) and Section 22 08 030 of the Development r&endures Ordinance, the county considers the applications to have been deemed complete on September 5, 2014, Therefore, the 150 -day period for issuance of a final local land use decision under ORS 215.427 would have expired on February 2, 2014. Tree Farm 1, 247-14-000242-Ctl, 247 14-0i o243-7 Page 6of116 A consolidated public hearing on the five Tree Farre applications was scheduled for November 6, 2014. On November 4, 2014, the Hearings Officer conducted a>site visit to the subject property accompanied by Senior Planner Anthony Raguine. Due to work occurring on the nearby utility lines, some roads adjacent to and within the Tree Farm were not accessible, so the site visit was terminated' By a letter dated November 4, 2014, the applicant requested that the hearing be continued to November 20, 2014. At the November 6, 2014, hearing the Hearings Officer disclosed my limited observations from the abbreviated site visit, received testimony and evidence, and continued the hearing to November 20, 2014. At the continued public hearing, the Hearings Officer announced my intention to conduct another site visit and to issue a written site visit report. I also received testimony and evidence, left' the written evidentiary record open through December 23, 2014, and allowed the applicant through December 30, 2014 to submit final argument pursuant to ORS 197.703. On December 3, 2014 the Hearings Officer conducted another site visit to the subject property and vicinity, again accompanied by Mr. Raguine, and on December 8, 2014, issued a written site visit report. On December 19, 2015, Mr. Raguine issued a staff memorandum addressing the status of the proposed private roads in the Tree Farm. By a letter dated December 22, 2014, the, applicant requested that the written record be extended to allow additional time to respond to the staff memorandum. By an order. dated December 23, 2014, the Hearings Officer extended the written evidentiary record through January 6, 2015, and allowed' the applicant to submit final argument through January 13, 2015. The applicant submitted final argument on January 13, 2015 and the record dosed on that date. Because the applicant requested that the public hearing be continued from November 6 to November 20, 2013 (a period of 14 days), and agreed to leave the written record open from November 20, 2014, through January 13, 2015 (a period of 54 days), under Section 22.24.140 the 150 -day period was tolled for 60 days and now expires on April'' 13, 2015.2 As of the date of this decision there remain 27 days in the extended 150 -day period, Proposal: The applicant requests conditional use, site plan, and tentative plan approval to establish a 0 -lot cluster/PUD to be called The Tree Farm on approximately 533 acres west of the Bend UGB. The Tree Farm would include five <contiguous cluster/PUDs with a total of 100 acres of residential lots, 422.8 acres of open space tracts, and 10.6 acres of road right-of-way. The, boundaries of the five clusterfPUDs coincide with the boundaries of the five legal lots of record recently reconfigured through the aforementioned lot line adjustments. Each cluster/PUD would have ten 2 -acre residential lots, an open space tract, segments of the public and private road system, and mixed- use trails connecting to trails in Shevlin Park and the DNF. Tree Farms 1 through 4 would include land in the AJAR -10, RR -10 and WA Zones. Tree Farm 5 would be located entirely within the RR -10 and WA Zones, The subject application is for Tree Farrn 1, the most eastern of The Tree Farm clustertPUDs.`'it would consist of"1050'"acres "with ten dwellings on ten 2 -acre lots (Lots 1-'10) clustered near the northeast corner of The Tree Farm. Tree Farm 1 would have an 2 Because the 150' day falls on Saturday April 11, 2015, and becaus weekends and holidays are excluded from time computations, the 15O ' day is Ap Tree Farm 1. 247 -14 -000242 -CU, 247.14 -000243 -Tl Section 22.08.070 1a; 2015. Page _ of '116 81.1 -acre open space tract and 4.2 acres of right-of-way.3 The residential lots would' have access to Skyliners Road, a county collector road, via two new private roads, Tree, Farm Drive and Rigeli€ne Drive, over which the applicant proposes to dedicate permanent public access easements. Tree Farm Drive and Ridgeline Drive would run through Tree Farms 2 and 3 before connecting to Skyliners Road, and therefore the applicantproposes to develop Tree Farms 1, 2 and 3 concurrently. The applicant also proposes to construct a gated temporary emergency access road on an easement extending from the southern terminus of Sage Steppe Drive at the southern boundary of Tree Farm ''1 south across the adjacent Miller Tree Farm property to Crosby Drive, a public street within the Bend UGB that connects to Skyliners Road The emergency access would operate until the Miller Tree Farm property is developed with public roads to which Sage Steppe'Dnve would connect. The tentative plan for Tree Farm 1 also shows potential right-of-way for future extension of Skyline Ranch Road, a designated county collector road that has been dedicated and >.improved in segments north and south of the Miller Tree Farm and Rio Lobo properties. The potential right -of- way would extend north from Crosby Drive through the Miller Tree Farm property and the northeast corner of Tree Farm 1 and onto the Rio Lobo property, Lots in Tree Farm 1 would be served by on-site sewage disposal syst ms. They would'' receive domestic water from one of three alternative sources: (1) extension of and connection to the City of Bend water system; (2) service from Avian Water Company; or water pumped from one or more private groundwater wells on The Tree Farm anchor the adjacent Miller Tree Farm property. Tree Farm 1 dwellings would have fire protection from the Bend Fire Department and police protection from the Deschutes County Sheriff; The applicant proposes that the entire Tree Farm development would comply with the "Firewise Community' standards for fire, prevention. The Tree Farm 1 open space tract would be subject to deed restrictions preventing future development thereon. 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 (road department), Property Address Coordinator, Budding,' Division, Senior Transportation Planner, and Forester; the City of Bend Fire Department (fire department); the park district; and the Oregon Department of Fish and Wildlife (ODFW). These comments are set forth verbatim at pages 3-9 of the Tree Fan 1 staff report and are included in the record. The following agencies either did not respond to the request for comments or submitted "no comment' responses: the Deschutes County Environmental Soils Division, Assessor, and Surveyor; the City of Bend Planning Division, Engineering Division, and Public Works Department (public works); the USFS DNF; the Oregon Department of Water Resources, Watermaster- 3 Tree Farms 2, 3; 4 and 5 would have the following characteristics: Tree Far€n 2: Lots 11-20; 1€ 4.2 acres total; 82.8 acres of open be in the ::RR -1 OMIA Zones', and 1 4 acres of ngnt-cf-way Tree Farm 3. Lots 21-30, 106,9 acres total; 83.8 acres of open in the RR -1 J,WA Zones, and 3.1 acres of right-of-way; ® Tree Farm 4: Lots 31-40; 109.5 acres total; 87.7 acres of open s be in the RR-10/WA Zones; and 1.7 acres of right-of-way; and Tree Farm 5: Lots 41-50; 107.6 acres total; 87.4 acres of open space; al RR-10NVA Zones; and 0.2 acres of right-of-way. p e. of which 67.7 acres would;;% pace, of which 82 or would be •e. of which 85.7 acres wora€d Tree Fara 1, 24- 14-33 0242-C U, 247-14-0 of which would be in the Page8of-116 District 11; the school district; Bend Broadband; Cascade Natural Gas; enturyLink; and Pacific Power. Agency comments are addressed in the findings below. Public 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, lobated within 250 feet of the subject property's boundaries. The record indicates this notice was mailed to the owners of twenty-six tax lots. 1n 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 county had received thirteen letters from the public in response to these notices. In addition, four members of the public testified at the continued public hearing. Public comments are addressed in the findings below. Lot of Record: The county determined Tree Farm 1 is a legal lot of record pursuant to a 2014 lot -of -record determination (LFA -14-16). The current configuration of Tree Farm 'I is the result of a series of 2014 lot line adjustments (LL -14-17 through LL -14-26). IIt'' gpticLusioNs OF''L .` k SUMMARY: The Hearings Officer has found that with two significant exceptions, Tree Farm 1 satisfies, or with imposition of conditions of approval will satisfy, the applicable approval criteria in the relevant administrative rules and the provisions of Titles 17, 18, 19 and 22 of the Deschutes County Code. I have found the applicant has not demonstrated compliance with a number of criteria related to wildlife habitat and wildfire risks. Specifically, I have found the applicant's proposed W"yildl fe Assessment and Management Plan (WMP) and Wildfire Protection and Management Plan (wildfire plan) are net adequate, and cannot be made adequate through imposition of conditions of approval, to demonstrate the risk of wildfire can be reduced to an acceptable level while protecting, winter deer range habitat.. For these reasons, I cannot approve the application for Tree Farm 1. However, I anticipate this decision will be appealed to the Board of County Commissioners (board). Therefore, in order to assist the board and county staff in the event of such appeal, I have included in this decision findings of fact and c nclusions of law on all applicable standards and criteria, as well as recommended conditions of approval. B. PRE LUMINARY ISS Co UES: plleteness and Status of Application. FINDINGS: In June of 2014, the county issued lot -of -record' determinations written by Associate' Planner Cynthia Snnidt and confirming the existence of five legal lots of record comprising The Tree Farm ((LFA -14-16 through LRw14-20). Ms. Smidt also issued a series of decisions approving lot line adjustments for the five legal lots of record creating the current configurations of the five Tree Farm developments (LL -14-17 through LL•14F26). Each of the lot -line -adjustment' decisions included the following six coriditions for final approval. a) obtaining g;approv sl rf all lot line adjustments; (b) obtaining surveys of the reconfigured lots and filing the surveys with the Deschutes County Surveyor; (3) submitting to the Planning Division legal descriptions of the newly reconfigured lots; (4) recording new deeds reflecting the new lot configurations; (5) paying, all property taxes for the affected tax lots; and (6) complying with all development setbacks from the reconfigured lot lines, The record does not indicate whether or to what extent these Tree Fan a€ 1. 247-14-0 00242- 247 -14 -000243 -TP Page 9 of 116 conditi record ons of approval had been met at the t The Tree Form applicationere filed and the for the applications dosed. The record indicates the deeds required pursuant to Condition 4 of the lot -line -adjustment decisions' were recorded on October 17, 2014, nearly ten weeks after the applicant submitted its Tree Farm applications and nearly six weeks after the applications were deemed complete. Mr. Raguine's;,September 9, 2014 incomplete letter for The Tree Farm applications does not refer to compliance with the lot -line -adjustment conditions of approval. The record does include a copy of an October 29, 2014 electronic mail message from the applicant' ' representative Romy Mortensen to Ms. Smidt, copied to Mr. Raguine, stating the deeds had been recorded. The burden of proof for each of the five Tree Farm applications states the property subject to the application is a legal lot of record as configured on the submitted tentative plan. However, those statements were not correct because not all lot line adjustment conditions of approval''' had been satisfied and therefore the lot line adjustments were not final. The question is whether these misstatements affect the Hearings Officer's consideration of The Tree Farm applications. Section 22.0 8.035 of the development procedures ord €nance states: If the applicant or the applicant's representative or apparent'repreentative makes a misstatement of fact on the application regarding property ownership, ,, authority to sub - nit the application, acreage, or any other fact material to the acceptance or approval of the application, and such misstatem ent is relied'' upon by the Plann€ng, Director or Hearings Body in making a decision whether to accept or approve the application, the 'planning Director may upon notice to the applicant and subject to an applicant's right to a hearing' declare the application void, The Hearings Officer finds the applicant's misstatements concern facts material to acceptance or approval of the Tree Farm applications * Le., the legal status and configuration of the five lots comprising the five proposed Tree Farm developments, However, the record indicates all five Tree Farm appl cations were deemed complete as required by >law. Moreover, the Planning Director has no declared the applications void, and l find he is not likely to do so since he referred The Tree Farm applications for a hearing, and the required deeds were recorded before the record dosed. For these reasons, 1 find I may consider The Tree Farm applications. Nevertheless, l find that to assure all lot -line -adjustment conditions of approval are satisfied, the applicant will be required as a condition of approval, and before submitting the final plat of any Tree Farm development for approval, to demonstrate to the Planning ' Division that all such conditions have been met. 2. Modification of Ap plication. F'INDINGS: As discussed in the findings below concerning co € €pliance with the PUD requirements in Title 19, the applicant has requested approval of a number of exceptions to the standard regulations for Tree Farm 1. Several exceptions were identified in the applicant's burden of proof, and several additional exceptions were requested through subsequent correspondence from the applicant Section 22.20.055 allows an applicant to modify an application up to the close of the record, but prohibits the Hearings Officer from considering a modification without the filing > of a modification application. Section 22.20.055(D) authorizes me to determine whether an applicant's submission constitutes a modification, defined in Section 22.04,020 as Tr Farm 1, 247 -14 -000242 -CU, 247 -14 -000243 -TP Page 0 of 116 * the applicant's submittal of new information after an application, has been deemed complete and prior to the close of the record on a pending application that would modify a development proposal by, changing one or more of the following previously described corraponents: proposed uses, operating characteristics, intensity, scale, site layout (arrcludang but not limited to changes in setbacks, access points,, building design, >.size or orientation, parking, traffic, or pedestrian circulation plans), or landscaping in a manner that requires the application of new criteria to the proposal or that would require the findings of fact to be changed. It does not mean an aplicaa€t's submission of new evidence that merely clarifies or supports the pending application. The Hearings Officer finds the applicant's requests for exceptions, and its argurents in support, of those request, and submitted following the date the application was deemed complete do not constitute > modifications. That is because they do not change the development proposal. Rather, they seek approval of various aspects of the applicant's proposal as shown on the tentative plans and in the burden of proof statements. I also find they constitute new evidence that clarifies and supports the applicant's proposal. Therefore, I find I can consider all of the applicant's requested exceptions without the need for modification applications; 3. Effect of Split Zoning. FINDINGS: : The Tree > rrnand Tree Farm 1 include brad in three zones, — UAR-10, RR -10 andl WA -- established and governed by two separate zoning ordinances -- Title 18 (RR -1'0 and WA) and Title' 19 (UAR-10). As discussed below,, the Hearings Officer previously has considered,' development applications on split -zoned property. However, because of the complexity of The Tree Farm applications and the large number of applicable standards---'I'''find it is appropriate at the outset to address how these zones will be applied to The Tree Farm and Tree Farm 1. Permitted Uses. Sections 18.60,030(E) and (F) Zone "planned development"' and "cluster develo respectively, permit conditionally in the R pment," defined in Section 18.04.030 a s• R-10 "Custer developmernt'" means a development permitting the clustering of single or multi -family residences on a part of the property, with individual lots of not less than two acres in size and not exceeding three acres in size. No commercial or industrial uses not allowed by the applicable zoning ordinance are permitted "Planned development" means the dev acres in size for a number of avenin elopae according to a plan which does not ne type of dwelling, density, lot coverage, o regulations otherwise required by DCC Title 18, and of'''resident ial units. n t of an area of 'l'a g units, commercial cessarily corres r required o nd at least 40 or 'industrial uses, k or ndard tering pond in lot size, hu pen space to the sta visually featuring a cdus "Planned unit development," see "planned development." Section 18.88.040 provides that uses permitted conditionally in the zone with which the WA Zone is cbnnbined are permitted conditionally in the WA Zone. Section 19.12.030(N) permits conditionally in the UAR-10 Zone "planned unit development," defined in Section 10.04.040 as follows. Tree Fa rm 1, 247 -14 -000242 -CU, 247-14-00 243 -TP Page 11 16 "Planned unit development" means the development of an area of land as a single entity for a number of units or number of uses, according to a plan which does, not necessarily correspond In lot size, bulk or type of dwelling, density,, lot' coverage or required open space to the standard regulations otherwise required by DCC Title 19 Although "planned unit development" in the UAR-1 O 7one does not expressly permit clustering, of dwellings, the Hearings Officer finds clustering is the type of deviation from standard regulations contemplated in a PUD. Ali `> proposed Tree F developments will be at lest 48 ac has requested cluster/PU arm lots will be regulations under Tit es at lest two acres in size, and all five Tree Farm res in size. As discussed in the findings below, the applicant D approval in order to deviate in several respects from the standard 18 and 19. For the foregoing reasons, the Hearings Officer finds The Tree Farm and Tree Farm 1 fall within the definitions of "cluster development,"" "planned development,' and, "planned unit development" in Titles 18 and 19. Because the proposed clusterIPUDs are permitted conditionally in all three zones, l find the split -zoning does not preclude approval of The Tree Farm or Tree Farm '1 on the subject property. See. Era#a Glen Neighborhood,Assoc v. City of Salem, 25 Or LUBA 672 (1993) (residential subdivision allowed on property's split rural residential and rural agricultural zones where use permitted in both zones); Roth v. Jackson Countyy, 38 Or LUBA 894 (2000) (winery allowed on split -zoned property's agricultural zone, but not on its suburban residential zone where winery is not a permitted use). Effect of Zone Tree Farms 1 through 4 straddle the boundary between the UAR-, 10 and RR-10/WA Zones which is the, line between Sections 33 and 34. As a result, the proposed lots, open space tracts, roads, and trails are located in all three zones.4 As a general rule, regulations applicable to a specific zone are not applied outside the boundaries of that zone. The Hearings Officer finds application of that general rule is particularly appropriate in the case of overlay or combining zones established to protect identified resources with specific geographic or site boundaries, such as the WA Zones As discussed in the findings below under the WA Zone, Section 18.88.020 applies that zone to areas designated "winter deer range," an identified resource with mapped boundaries. The WA Zone provisions are directed at protecting that specific habitat and minimizing conflicting uses therewith. For these reasons, l find the WA Zone regulations do not apply to the areas of The Tree Farre and Tree Farm 1 located outside the WA Zone boundaries. With respect to base zones such as the RR -10 and'''UAR-10 Zones, the Hearings Officer finds, there are circumstances in which application of the general rule, that zoning regulations do not apply outside the zone boundaries, may not be appropriate. For example, in Eo!a Gen, cited above, LUBA appears to have found that because the proposed residential subdivision was 4 it appears from the aforementioned lot -line -adjustment decisions that this spit zoning existed in the original configuration €a 'the five iega lots= record compriming -The Tree l=am.). Examples of similar geographically specific overlay or combining zones in Title 18 are: (a) the Landscape Management (LM) Zone ,n Chapter 18.84 (protecting designated scenic roads and ys0; (b) the Sensitive Bird and Mammal Habitat (SBMH) Zone in Chapter 18 90 (protecting bird nuts and breeding grounds), and (c) the Airport Safety (AS) Zone in Chapter 18.80 (protecting airport approach zones). Tree 'Panni 1 247 -14 -000242 -CU, 247 4-0 024 5 -TP Page 12 of 116 permitted in both zones on the property, review and approval of the proposal could be based on application of requirements in both zones This Hearings Officer reached a similar conclusion in my 2006 decision in Hodgen (Cts -06-53, SP -06-19. L Iwo -73, ''Llw..-O6-48). In that case, the applicant requested conditional use and site plan approval to establish a private fishing lodge on property zoned F-1 and F-2. The applicant also requested a lot line adjustment that would create a split -zoned parcel on which some of the fishing lodge facilities would be located. I' made the following relevant findings: "Split zoi ing generally is not favored because it may complicate application of land use regulations to development on the property. However, 'where., as here, the regulations governing the F-1 and F-2 Zones are very similar, the proposed private fishing accommodations are allowed conditionally in both zones, and the standards for this conditional use are identical in each zone, the Hearings Officer finds such split zoning is appropriate." As in Hodgert, The Tree Farm applications propose cluster/PUDs permitted in both the UAR-10' and RR -10 Zones. The general conditional use standards applicable to clusteriPUDs under Sections 18.128.015 and 19.100.030 are very similar. However, as discussed below; the specific conditional use standards applicable to cluster developments and PUDs in Title 18 differ in many respects from, the specific PUD standards in Title 19. Therefore, the question is whether applying the standards in Titles 18 and 19 only to those portions of Tree Farms 1 through 4 located within the RR -10 and UARR-1 O Zones, respectively, would allow meaningful review of each cluster/PUD as a who e.6 he Hearings Office r finds it would not because such segmented review would artificially segregate portions of these developments based solely on the location of a section line, and without regard to the nature and scope of the standards applicable to cluster/PUDs. Accordingly; I find that to the extent feasible, l will apply the applicable provisions of the RR -10 and UAR-10 Zones to the proposed Tree Farm 1 in its entirety. ADMINISTRATIVE R ULES B Oregon Adtiistrative Rules,C Commission Division 4 Goal 2 Excep hap 6 0a Land Conse tions process OAR 6604004-0040, A (1) pplica n and tion€ of Goal 14 to Rura Development Residential Areas The purpose of this rule is to specify how Statewide Planning;, Goal 14, Urbanization, applies to rural lands in acknowledged exception areas planned for residential uses. 2) (a) This rule applies to lands that are not 'within an urban growth boundary, that are planned and zoned primarily for residentialuses, and for which an exception to Statewide Planning Goal 3 (Agricultural Lands), Goal 4 (Forest Lands), or both has been taken. . Such lands are referred to in this as rural residential areas. 6 As ated,above, Tree Farm 5 is not split zoned a t is located entirelywithin the e Farm ; 1, 247 -14 -000242 -CU. 247-14-0co243-TP FRF -10 Zone Page 3 of 11 (b) Sections (1) to (8) of this rule do not apply to the creation of a lot or parcel, or to the development or use of one single- family home on such lot or parcel, where the application for partition or subdivision was, filed with the local government and deemed to be complete an accordance with ORS 215A27(3) before the effective date of Section (1) to (8) of this rule. (c) This rule does n through (H) of this su (A) land inside boundary; (B) land inside community lou Chapter 660, Div of apply to types CA bsection: an a ack nowledged n acknowledged ndary established pu ision 022° l u d listed in (A) rban C) land in an acknow edged u established pursuant to OAR C 021; rb with unincorporated rs t to OA an reserve pter 660, D ha a lids rea ion (D), land in acknowledged destination resort establish pursuant to applicable land use statutes and goals; (E) (F) resource land, as d efined in OAR 6 t1 0 04-00 05(2); nonresource land, as defined in OAR 660-004-0005(3); (G) marginal Edition, la nd, as defi ned in 0 (H) and planned and zoned prima commercial or public use. RS 197.47, 19 rily for raga 1d us 91 trial, FINDINGS; The applicant and staff identified this administrative rule a applicable to The Tree Farm in general, and to Tree Farm 1 in particular, because the proposed cluster/PUDs are on and located outside the Bend UGB, zoned UAR-10, RR -10 and WA, and designated UAR and RREA. The Hearings Officer is aware the county's RR -10 zoned lands were acknowledged as exception, areas at the time the county's comprehensive %,plan initially was acknowledged in 1979. Therefore, l find the RR -10 zoned land within The Tree Farm constitutes a 'rural residential area" subject to this administrative rule because it is not included in any of the exceptions in Paragraph (2) (c). With respect to land Within Tree Farm 1 zoned UAR-10, the record indicates this urban reserve area was acknowledged but was not established pursuant to Division 21 of OAR Chapter 660. In 2003, former county hearings officer Tia Lewis issued a decision approving the nearby The lli hlands at Broken Top PUD on UAR-16 zoned land (Cascade Highlands (CU-02-73/TP-02- 931)), CU-02-73/TP-0 -931)). Ms. Lewis concluded'' this administrative rule was applicable to the UAR-10 Zone west of Bend based on the follow ng findings: Tr :e Farm 1, 247 -14 -000242 -CU, 247 14 OO 243 -TP Page 14 of 116" 'The Hearings Officer agrees with Starr that the subject property is located neither ''inside an acknowledged urban growth boundary nor inside an acknowledged unincorporated o rr ity. In addition, although located in the urban reserve area the record indicates that the Countjjs urban reserve area l$ as 6stablishedl in 1979 prior to the $tate : #r iri zf r sIty`rtMr'0m,ent of urbai reserve ,,areas. Further, the land is not an acknowledged destination resort, resource land, nonresource land, nargirtall or zoned for rural industrial commercial or public use. Therefore the Hearings Officer finds this rule is applicable to the applicant' prop() " (Emphasis added.) The Hearings Officer agrees with Ms, Lewis" analysis and finds tt is ad applicable' to the portion of Tree Farm 1 zoned and designated U AR. (7) nistrative rue also is (a) The creation of any new lot or parcel smaller than two acres in a rural residential area shall be considered an urban use. Such a lot or parcel may be created only if an exception to Goal 14 is taken. This subsection shall not be construed to imply that creation of new lots or >parcels two acres or larger always complies with Goal 14. The question of whether the creation of such lots or parcels complies with Goal'' 14 depends upon compliance with all provisions of this rules (b) Each local government must specify a minimum area for any new lot or parcel that is to be created in a rural residential area. For the purposes of this rale, that min mum area shall be referred to as the minimum lot size. (c) If. on the effective date of this rule, a Decal government's land use regulations specify a minimum lot size of two acres or more, the area of any new lot or parcel shall equal or exceed that nrin mum'lot size which is already in effect. (d) if, on the effective date of this rule a local government's land use regulations specify a minimum lot size smaller than two acres, the area of any new lot or parcel created shall equal or exceed two acres. (e) A local government may authorize a planned'' unit development (PUD), specify the size of lots or parcels by averaging density across a parent parcel, or allow clustering of new dwellings in a rural residential area only If all conditions set forth in paragraphs (7)(e)(A) through (7)(e)(H) are met: A. The number of new dwelling units to be clustered or developed as a PUD does not exceed 10. FINDINGS: ; Each of the ten proposed residential lets in Tree Farm 1 Would be at least two acres, in size, and the lots would be clustered near the northeast corner of Tree Farm 1. As discussed above, Tree Farrn ould be one of five contiguous clusterIPUDs comprising The Tree Farm, and establishing a total of 50 dwellings on approximately 533 acres, Tree Faun>.1, 247-14-00€ 242 -CU, 247.14- 243 -TP Page 15of1 The applicant'sfive burden of proof statements assert each subdivision can be approved as a stand-alone development. The Hearings Officer disagrees. '''I find the five cluster/PUDs effectively would function as a single development because each cluster/PUD is dependent on one or more of the other cluster!PUDs for roads and other infrastructure, For example, Tree Farm 1 lots will not have access to Sk liners Road without concurrent development of Tree Farms 2 and 3, and the applicant's proposed utility plan shows city lwater service connections to Tree Farm 1 lots' must be made through Tree Farms 2 through 5.:' The applicant appears to have chosen to develop The Tree Farm through five separate cluster!PUDs in order to maximize the number of dwellings on the property. Although this approach is somewhat unconventional, the Hearings Officer finds nothing in the county's land use regulations that prohibits it. Each individual Tree Farm development`' is a legal lot of record,7 and the applicant is entitled to develop each legal lot of record consistent with applicable zoning ordinance(s) and the subdivision/partition ' ordinance. I am not aware of any code provision that requires the applicant to consolidate its five legal lots as a prerequisite to cluster/PUD development. Neither have I found any prohibition against developing a cluster/PUD where, as here, roads and other infrastructure necessary to serve the new subdivision lots are dependent upon extension of and connection to such facilities on contiguous or nearby land. In such cases, subdivision approval may be conditioned°, on extension of and connection to existing roads and other infrastructure before final plat approval, For the foregoing reasons, the Hearings Officer finds Tree Farre 1 does not exceed the maximum number of dwelling units for a cluster/PUD under this administrative rule. 6. The number of not exceed 10. oats or parcel s to be created does FINDINGS: The applicant proposes ten new residential lots in Tree Farm 1. Staff questioned whether the applicant's proposed open space tract €Mast be counted as a lot for purposes of the maximum density calculation. Staff discussed this question with the applicant and with Jon Jinnings, Community, Services Specialist with the Department of Land Conservation and Development (DLCD). Based on those conversations, staff concluded the 'ten -lot maximum applies only to new residential lots and not to the proposed open;, space tract. In an October 27, 2014 electronic' mail message, the applicant's attorney Jeffrey Condit agreed with staff's interpretation, offering the following analysis:) 'There are two rules of statutory construction that cone into play: First, a statute i construed based upon text and context (i.e its relationship to other provisions in the ordinance). Second, if possible, a statute should be construed to avoid a conflict rather than create one. The rule (subsection 7(0) allows up to ten dvvellings on up to ten ne€'v lots, so that assumes that there can be up to ten buildable lots. The rule (subsection 7(h)) also contemplates that there could be are 'open space lot, parcel, or tract.' If the open space tract is as counted as a lot for the purposes of subsection 7(e)(B), then an applicant will never be able to construct more than 9 dwellings, which will violate the express text of the rule. if will be possible, of course, to include the common > area within the boundary of ' As discussed above; the Heanngs Officer has found the applicant will be required as a condition of approval to demonstrate the Planning Division that all conditions of approval for the lot line adjustments creating the proposed configurations for Tree Farms 1 through 5 have been met before final plat approval for any of the Tree Farm developments. Tr 24 -14-0002 42 -CU, 24 i-' -001241--TP Page 16 sof 116 one of the ten parcels, and limit the development on the open space portion via venant, but what is the policy basis for allowing that and not allowing the open, space to be located on a separate unit of land as long as it can't, be developed? (Particularly considering haat the latter arguably provides better long-term protection to the open space parcel.) I think' the better reading, which doesn't create a conflict or a distinction without a difference, is that the ten parcel limit in Subsection 7(e) (B), when read in context with the 7(e) (A) dwelling unit limit, €,^ a, intended as a limit of up to ten buildable parcels, and that subsection 7(h) allows an additional unbuiidable 'lot, parcel or tract' restricted to open space as long as the requirements in that section are met. This is the only interpretation that reconciles potential conflicts and makes overall sense when read in context. I think similar reasoning applies to the County Code interpretation The issue arose in the context of Tree Farm #1, which is proposed for a 105 acre property. Under the existing UAR4O zoning, the property could be divided into ten lots' each with a house on it. The Tree Farm's proposal under the county PUD statute is to cluster this development on ten two -acre, lots and preserve the remainder of the property as open space in a separate tract, " First, the express purpose of the PUD is to allow exceptions from the standard requirements of the zone in order to `accrue benefits to the County and the general public in terms of need, convenience, service and appearance.' DCC 19 .104;070. The preservation of, the vast majority of the property in an open space tract is the chief public benefit that justifies the exception to the standard, Second, DCC 19,104.070 provides that Pi planned unit development shall not be approved in any R zone if the housing density of the proposed development will result in an intensity of land use greater than permitted by the Comprehensive !Man.' As the underscored language' indicates, the PUD ordinance is not concerned about number of parcels, but about overall housing density. Under the current zoning, no more than ten dwelling units can be sited on the 105 --acre property. Under the PUD as proposed in Tree Farm 1, no more than ten dwelling units can be sited on the 105 -acre property. The fact that the open space is being preserved in a separate tract does not affect compliance with the requirements of the PUD Code (and is a very common practice in planned developments)," The Hearings Officer concurs with Mr. Condit's analysis. find the proposed open space tract in Tree Fara 1 is not counted in the ten -lot maximum, and therefore the applicant'sProposal for ten residential lots does not exceed that maximum. Tre N C. None of the ne r lots o two acres. parcels gill be sal er than GS: All residential lots in Tree Farm 1 will be two acres in size, satisfying this cnter€on D. The development is not to be sery community sewer system. ed by a new The development nt is not to be served by any new extension of a sewer system from within an urban growth boundary or from within an unincorporated corn munityo Far€ 1, 24;`;T14 -000242 -CU, 247 s4 -000243 -TP Page 17 116 FINDINGS: The applicant proposes to serve the ten residentia individual, on-site septic systems, therefore satisfying these criteria. in Tree Farrr� h F'. The overall density of, the development will not exceed one dwelling for each unit of acreage 'specified in the local government's and use regulations on the effective date of this >.rule as the minimum lot size for the area. FINDINGS: The RR -10 and UAR-10 Zones in which Tree Farm 1 is located establish a general density of one lot per ten acres through Sections 18.60.60 and 10,12.50, respectively. Both zones perm higher density for cls€sten/PUDs through Sections 1£3.00.00 and 10.104:040, respectively. As discussed above, the Hearings Officer has found the 10 -lot maximum density in the administrative rule applies to residential lots and does not include open space tracts. Therefore, I Flnd the applicant's proposal complies a rith this requirement. G. Any group or cluster of two or more dwelling units not force a significant change in accepted farm or forest practices on nearby lands devoted to fare or forest use and will not significantly increase the cost of accepted farm or forest practices there. RN D ING Farm User The record indicates there are no nearby lands devoted to farm use and no farm practices occurring on nearby lands. Therefore, the Hearings Officer finds Tree Farm 1 w t not force a significant change in, or significantly increase the cost of, accepted farm practices on nearby lands devoted to farm use. Forest Use; Required Analysis. The Hearings Officer finds this paragraph requires me to determine; (1) whether nearby forest -zoned land is "devoted to forest use," (2) if so, what €s the nature of that forest use; and (3) whether that forest use conflicts, or has the potential to conflict, with residential uses in the proposed cluster/PUD to the degree that the residential uses will significantly affect, or significantly increase the cost of, accepted forest practices on the nearby forest -zoned lands.5 Study Area. The record indicates' public forest land in the DNF' is located southwest across Skyliners Road. In addition, private forest land'' is located west and northwest of Shevlin Park. The DNF forest lands are managed by the USFS and extend west to the crest of the Cascade ° Section 18.04.080 defines "forest lands' and "forest uses" as fellows:' "Forest lands" means lands which are suitable for commercial forest uses including adjacent or nearby lands which are necessary to permit forest operations or practices and other forested "lands that maintain soil, air, water and fish and wildlife resources, "Forest uses", include production of trees and the processing of forest products; open space; buffers from noise and visual separation of conflicting uses; watershed protection and wildlife and fisheries habitat; sail protection from wind and water; maintenance of dean air and water; outdoor recreational activity and related support seavlces and wilderness values compatible with these uses; and grazing for livestock. Tree Farm 1, 247 14 -000242 -CU, 247 -14 -000243 -TP Page 18 of 16 Mountains. The private forest lands west and northwest of>.Shevlin Park were once part of the "Buil Springs Tock" of public forest land conveyed by the USFS to private owners. The largest of these private forest land holdings was owned and managed by Cascade Timberlands,, and according to Assessor's data consists of 17 tax lots totaling approximately 33,000 acres.9 Assessor's data indicate there are several smallerprivate forest -zoned parcels northwest of Sheviin Park, some ofwhich have dwellings.' The Hearings Officer finds 1 roust establish a "study are for the analysis required by this rule I agree with the argument presented by Central' Oregon LandWatch (LandWatch), that because impacts from certain forest practices, such as smoke from prescribed burns, can extend beyond adjacent properties, the appropriate study area should include both DNF lands and private forest lands west and northwest of Shevlin Park. However, the administrative rule requires an analysis of impacts on"nearby' lands devoted to forest use. The ordinary definitions of "nearby" and "near" are: 'close at hand;" "at a short distance in space or time; close in distance or time; close in relationship." Webster's New World Dictionary and Thesar , Second Edition. In light' of these definitions, 1»find the appropriate study area should include public and private forest - zoned parcels located in whole or in part within one mile of the western boundary of The Tree Farm." The record indicates that because of the large size of hese parcels, this study area includes thousands of forested acres in public and private ownership. Accep ted Forest Practices on Nearby Lands Devoted to Forest Use. 1. Deschutes National Forest. The applicant's burden of proof for Tree Farm 1 notes the, portion of''the DNF southwest of The Tree Farm includes the heavily -used "Phil's Trail" mountain biking trail net ark. The burden of proof goes on to state: 'The 1990 Deschutes National Forest plan (as amended) identifies the lands adjacent to The Tree Farm property as Managerrnent Area 9 u-- Scenic Views. The goal of this management area is to provide visitors with scenic vistas representing the natural character of central Oregon. Specifically, landscpes which are visible from selected travel routes and places which are frequently visited will be managed to maintain or enhance their appearance. The proposed trail network will provide a variety of scenic vistas for visitors. The proposed homesites m The Tree Fara project overall and in Tree Fara 1 specifically are all located well away from, the travel, corridor of Skyliners Road within the Deschutes National Forest, and thus will have no negative visual impact on the forest use identified in the Forest Plan. In addition, tsa of the PUD to cluster development allows homesites to be sited at a further distance from the boundary than would development of ten -acre lots. The open space tract must rer rein in that state and will be subject to deed restrictions.' s The Hearings Officer is aware that after the close of the record Cascade Timberlands sold its Deschutes County holdings.;;l will continue to refer to these lands as Cascade Timberlands property. °The Hearings Officer finds 1 may take official notice of data collected and maintained by the Deschutes County Assessor concerning real property in Deschutes County This study area is equivalent to the county='s one -mile -radius study area for non-farm dwelling conditional use approval requiring a similar analysis of the impact from such a dwelling on accepted farm practices in the surrounding area. Tree Fa rrri 1 247 -14 -000242 -CU, 247 -14.000243-TP' Page 1 9 of 11 $ The Hearings Officer finds that under the broad, definition of "forest use in Title 18, the DNF is land "devoted to forest use.=, I find the uses occurring on and planned for that land — recreational, and preservation of open space and scenic vistas are of relatively low intensity compared with timber harvesting. I>.also find the nature of these existing and planned uses for this portion of the DNF reflects the land's proximity to the Bend urban area and its function as a gateway to millions of acres of public recreational land west of Bend. Nevertheless, in his November 21, 2014 comments on the applicant's proposal, County Forester Ed Keith stated. "1 would note that the Forest Service does have an approved project caller/ West' Bend' that will be active for the coming several years on lands immediately west of the property. Planned activities include commercial and non-commercial thinning, brush mowing, pile and broadcast burning." In his December 10, 2014 comments in support of the applicant's proposal attached to Jeffrey Condit's December 11, 2014 letter, , Gary Marshall, former City of Bend Fire Marshal, stated the UFS has begun implementing the "West Bend Plan" which he describes as involving the restoration of 26,000 acres of the DNF adjacent to The Tree Farm for the dual purposes of improving wildlife habitat and reducing wildfire risk. Mr. Marshall stated the methods utilized in the "West Bend >Plan' are essentially the, same as those previously employed,, and proposed to be continued, on The Tree Farm property. Based on this information, the Hearings Officer finds it appropriate to assume these nearby DNF lands also will be managed for Brest health and fire prevention through periodic thinning by loping and controlled burns. Impacts from these higher -intensity forest practices would include noise from tree cutting, noise and drifting dust from log truck traffic on unpaved roads, and drifting of chemicals and smoke from prescribed burns and pile/slash bums. On behalf of LandWatch, Paul Dewey claims the presence of homes in The Tree 'Farm will cause the DNF to abandon forest practices such as "aggressive fuel treatment and fire suppression techniques," He cites a research paper on wildfire risks from Headwaters Economics, included in the record as Exhibit "E" to Mr. Dewey's November 19, 2014 submission. This paper is based on case studies of eight communities, none of which includes Bend or Central Oregon. Although these studies provide useful general information, the Hearings Officer finds they are not a substitute for site-speicific analysis of the impact of the ten proposed dwellings in Tree Farm 1 on DNF lands within the study area. Moreover, the evidence in this record does not support Mr. Dewey's assertion that the DNF is undertaking, or planning to undertake, "aggressive fuel treatment and fire suppression techniques." Mr. Dewey acknowledges that since the management plan for the DNF lands closest to The Tree Farm;, includes preservation of scenery, any logging will be done'In a more visually -sensitive way * than in the General Forest," which the record indicates is located approximately five miles southwest of The Tree Farre .12 Finally, Mr. Keith stated that in his opinion; « * rather than restricting management because of development, this project ["West Bend] is going on because of development and the recognition of risk that the current condition of these lands pose to the greater Bend area." 12 Included as Exhibit 'H' to Mr. Condit's December 11, 2014 DNF west and southwest of The Tree Farm, and showing the Forest" — i.e., the area planned for timber production. Tree Farm 1, 24i-14-0002 €2 --CU, 247-14-000243-1-' is a color -coded' map depicting the distant location of the DNF `Genera Page 20 c 116 Existing development near the DNF includes both Shevlin Park and two large rural residential developments — The Highlands at Broken Top and Tetherow. Based on Mr. Keith's comment, the Hearings Officer believes it is appropriate to assume the ma agement plans for the nearby DNF lands already have been influenced to a significant degree by the presence of these land uses, as well as nearby developments within he Bend UGB. The record indicates that at its closest points the portions of the DNF engaged in. and planned for, scenic preservation and recreation are mated between 4,0€00 and 5,000 feet from Tree Farm 1 Lot 7, the most southwestern lot. T e staff report suggests, and the Hearings Officer agrees, that because of the combination of the intervening distance and the low -intensity uses on the nearest DNF lands, current and planned management practices on nearby DNF lands will result in few if any, impacts on Tree Farm 1 residential uses. 1 find the lack of comment on The Tree Farm from the USFS strongly suggests it has no concerns about the impact of dwellings,'' in Tree Farm 1 on Its management practices. For the foregoing reasons, the Hearings Officer finds Tree >>Farm > 1 and its residential uses will not force a significant' change in, or significantly increase the cost of, accepted forest practices on DNF lands in the study area. Private Forest Land. The private forest lands west and northwest of Shevlin Park are part of the "Bull Springs Block' that was once part of the DNF. These lands were transferred to Crown Pacific, and following its bankruptcy were conveyed to other' owners including Cascade Timberlands. They form much of the forest land visible to the west of Bend. The record indicates that before Cascade Timberlands sold its Deschutes County holdings, the company and other stakeholders had discussed long-term planning for this land ® referred to as "Skyline Forest" to include a combination of preservation of open space and scenic views, recreation, and ss€stainable timber production, not unlike the plan for nearby DNF lands. The record does not indicate what types of uses currently are occurring on the Cascade Timberlands property or on the smaller private forest -zoned parcels northwest of The Tree Farm. In the Hearings Officer's previous decision in Taylor (MP -05-31, CU -05-106, M€AN05 41, MA 06-1, MA -06-8), involving an application for a large -tract dwelling on a forest -zoned parcel northwest of The Tree Farm, 1 made the following findings concerning accepted forest practices on the Cascade Timberlands property: :`LandWatch argues that although, current forest practices in the study area are of low intensity, the Hearings Officer should include within the `accepted forest practices' in the study area much more intensive practices that could occur in the future if reforestation, occurs on a large scale and mature trees are harvested in, greater- rrumbers. LandWatch`s predecessor Sisters Forest Planning Committee (SFPC) mac1 the same argurent lir J-logensen. In that decision, 1 made the following pertinent findings: The Hearings Officer concurs with the appellant that it is reasonable t.� assume the terrn `accepted' forest practices includes not only those practices currently taking place, but those that could occur in tl e future. Nevertheless, 1 find it is not reasonable to speculate from this record that all land in the study area will be reforested and harvested to the most intense degree possible particularly where, as here, the record indicates Crown Pacific [the predecessor of Cascade Timberlands] has been selling tracts of its forest -zoned land for residential development purposes Tree Farm 1, 24-1 4 -000242 -CU, 247.14 -000243 -TP' Page 21, of 116 rather than for timber , €arnagarent and harvest. Therefor appropriate to evaluate the impacts of the proposed dwelling' on those Barest practices that are most prevalent currently and in the recent past — i.e., selective harvesting of trees, log hauling, slash and prescribed burring, and, some chemical spraying,' These findings vera challenged by SFPC and upheld on appeal. Sisters Forest,' Planning Committee v. Deschutes County. "the Hearings Officer adheres to these findings here;" On, appeal of the Hearings Officer's decision in 'Taylor (Central Oregon LandWatch v, Desc County 53 Or LUBA 290 (2007), LUBA found that the scope and intensity of accepted practices is a "fact -specific inquiry," and upheld my findings. There is no evidence In this record that Cascade Timberlands continued its predecessor's practice of selling individual forest -zoned parcels for residential use. However, it appears from this record that in the ten years since my Taylor decision the general nature of accepted forest practices on the Cascade Tirnberlands property has not changed. Therefore, l find it is appropriate to assume accepted forest practices on these lands would include selective harvesting of trees, log hauling, &ash and prescribed burning, and some chemical spraying. t have found potential impacts from such uses include noise from logging, noise and drifting dust from operating log trucks on unpaved roads, drifting of chemicals, and drifting of smoke from prescribed burns and pile/dash burns. The tentative plan for Tree Farm 1 shows its most western lot, Lot 7, would be located more than 7,500 feet fro in the nearest point on the >> Cascade Timberlands land and farther from the nearest smaller pr vote forest -zoned parcels to the northwest. The intervening land includes large open space tracts in the western portion of The Tree Farm as well as Shevlin Park, As with the nearby DNF lands„ the Hearings Officer finds it is likely the presence of Bhevlin Park has influenced, and will continue to influence, the intensity of forest practices on the nearby private forest lands. l find impacts, if any, on Tree Farre 1 from forest practices on the nearby private forest lands would be significantly attenuated by distance and intervening open space. For the foregoing reasons, the Hearings Officer finds Tree Fan i 1 gill' not force a significant change in, or significantly increase the cost of, accepted forest practices on the nearby private forest lands. Therefore, l find the applicant's proposal satisfies this rule requirement. H. For any open space or common area provided as a part of the duster or planned unit development under this subsection, the owner shall submit proof of nonrevocable deed restrictions recorded in the deed records. The deed restrictions shall preclude all future rights to construct a dwelling on the lot, parcel, or tract designated as open space or con mon area for as long as the lot, parcel, or tract remains outside an urban growth boundary. FINDINGS: The applicant proposes to make the Tree Farm 1 open space tract subject to deed restrictions as depicted in Exhibit "L to its burden of proof. However, the sarnple deed restrictions included in this exhibit do not state they would permanently prohibit development of the open space tracts, Rather, they use language similar to that set forth above in Paragraph (H) --- i.e., development of the open space tract would be prohibited for so long as the property is outside the Bend UB. As discussed in findings throughout this decision, the applicant has Tree Fart r 1, 247 -14 -000242 -CU€, 24714 -000243 -TP Page 22 of 116 ted it intends that The Tree Farm and Tree Farm 1 never will be included in the Bend UGB, and `> has proposed that the development create a "permanent" transition area between urban uses to the east and Sheviin Park and forest land to the west. Accordingly, tHearings Officer finds the applicant will be required as a condition of approval to record nonrevocable deed restrictions for the Tree Farm 1 open space tract stating that no portion of the open space tract will be used for a dwelling or any other use in perpetuity. In addition, the applicant will be required as a condition of approval, and prior to submitting for final approval any plat for Tree Farm development, to provide to the Planning Division for county review and approval a copy of the required deed restrictions, as well as copies of the recorded deed restrictions after recording. I find that with imposition of these conditions of app roval ''the applicant's intent will be accomplished and the open space tract in Tree Farm 1 will be preserved as open space as required by this paragraph. (f) Except as provided in subsection (e) of this section, a Vocal government shall not allow more than one permanent single- family in le -family dwelling to be placed on a lot or parcel in a rural residential area. Where a medical hardship creates a need for a second household to reside temporarily on a lot or parcel where one dwelling already exists, a local government may authorize the temporary, placement of a manufactured dwelling or recreational vehicle. FINDINGS: The applicant proposes one single-family dwelling per reside satisfying this criterion. Tree 2e Division 11, 'public Facilities Panni OAR 66 00111-00 rig 65, Water Service to Rural Lands ntlal Iot, therefore (1) As used in this rule, unless the context requires of erwis : (a) "Establishment" means the creation of a new water system and all associated physical components, including systems provided by public or private entities;, (b) "Extension s; of a watersystem" means the extension of a pipe, conduit, pipeline, main, or other physical component from or to an existing water system in order to provide service to a use that was not served by the system on the applicable date of this rule, reardless of whether the use is inside the service boundaries of the public or private service provider. (c) "Water system" shall have the same meanirig as provided in Goal 11, and includes all pipe, conduit, pipeline, mains, or other physical components Of such a system (2) Consistent with Goal 11, local >land use re:= ulations a licable to ands that are outside urban growth boundaries and unincorporated co rraurnitis., tlarlp shall not: Farm 1, 247 14 -000242 -CU, 247 -14 -000243 -TP Pa 23. of 116 (a) Allow an increase in a base density in a residential zone due, to the availability of service from a water system; b) ,Allowa h icer denait for residential development served by ......... water system than will be <authorized without such service; or c AIlo an increase in the allowable density of residential development due to the presence, establishment, or extension of a water system. Applicable ptoviaiorns of this role, rather than conflicting provisions of local acknowledged `> zoning ordinances, shall immediately apply to local land use decisions filed subsequent to the effective date of this rule. (Emphasis added.) FINDINGS: The applicant proposes to provide domestic water to the Tree Farm 1 lots through one of three options: (1) extension of City' of Bend water service; (2) securing water service from Avion Water Company; or (3) pumping water from one or more wells on The Tree Farm or adjacent property. The Hearings Officer finds both Bend's and Avian's water systems constitute "water systems" for purposes of this rule. The base density of the UAR-10 Zone will allow the creation of up to ten new residential lots in Tree Farm 1, as proposed by the, applicant. The Hearings Officer finds the applicant's proposal wiI l not allow an increase in the UAR-10 base density, allow higher residential density than would be authorized without water service, or all a'n increase in allowable density due to the presence or extension of a water system. Therefore, I find the applicant's proposal satisfies this criterion. For the foregoing reasons, the Hearings Officer finds the applicant's proposal' satisfies, or with imposition of the conditions of approval described above will satisfy, all applicable provisions of the administrative rules in Divisions 4 and 11 of OAR Chapter 660, C. Title 18 of the Deschutes County Code, the Deschutes Co RR -10 ZONE STANDARDS Chapter 18.60, Rura s,Section 18 The f I Residential Zone — RR -10 .60.030, Conditional U ses Pe Linty Zo rmitted ng Ordi llowing uses may be allowed subject to DCC 18.12 Cluster development 8: nance FINDINGS: The Tree Farm 1 tentative plan shows only, the most southwestern part of the, proposed open space tract would be located within the RR -10 Zone, The Hearings Officer has found the proposed cluster/PUD is a use permitted conditionally in both the RR -10 and UAR-10 Zones under Sections 18.6 .030(E) and (F) and 19.12.030(N), respectively, The staff report Tree F s 247 -14 -666242 -CU, 247-14-000246FTP Pa ja 24 116> states the RR -10 Zone provisions applicable to residential lots are not applicable to Tree Farm 1 because its residential lots are not located in the RR -10 Zone, However, as discussed above, I have found that, to the extent feasible, I will apply the provisions of both the RR -1 D and UAR-1 O Zones to Tree Farms '1 through 4 in their entirety rather than segmenting enting my review based on the zone boundaries, Therefore, 1 find the provisions of the ''RRn1 O Zone are applicable to Tree Farm 1 as a whole., The proposal's compliance with the provisions of Chapter 18,128 is discussed in findings below under that chapter b. Section 18.6 In a * 0.0 60 , Dim n RIR-10 Zone, th ensional Stan e following di dards ensional standards shall ap ply; Minimum lot size shall be 10 acres, except planned and cluster developments ,shall be allowed an equivalent density', of one unit' per 7.6 acres. Planned and duster deve opments ithin one mile of an acknowledged urban growth boundary shalt be allowed '' a five acre minimum lot size or equivalent density. For parcels separated by new arterial rights of way, an exemption shall be granted pursuant to DCC 18 120 020. FINDINGS: The Hearings Officer has found the applicant's proposal satisfies the maximum density under OAR 6$0-004-0040, which allows lots as small as two acres, The applicant proposes ten 2 -acre residential lots and one 81.1 -acre open space tract for Tree Fano 1. As discussed in the findings >below under the WA Zone, Section 18.88.050 requires that all residential lots within the WA Zone be clustered and, a minimum of 80 -percent open space be preserved. The burden of proof for Tree Farm 1 states the applicant chose to plat all residential lots in The Tree Farm — including all lots in Tree Farms 1, 2, and 3, and Lots 31-36 and 38 in I ree Farm 4 in the UAR-10 Zone -- at two acres in size, and to cluster the residential lots, in order to € aximi e open space and to create a consistent development pattern throughout The Tree Farm in spite of its split zoning. For the foregoing reasons, the Hearings Officer finds the applicant."s proposa applicable criteria in the RR -10 Zone, WA ZONE STANDARDS 2, Chapter 18.88, Wil dlife Area Com Section 18.88.010 hi Purpose nin g Zon e — WA satisfies The purpose of the Wildlife Area Combining Zone is to conserve important wildlife areas in Deschutes County; to protect an important envir runental, soda and economic element of the area; and to permit: development compatible with the protection of the wildlife resource. Section 18..8.02 0, Ap plication of Provis on s Tree Fare 1, 247" -14 -000242 -CU, 247 -14 -000243 -TP Page: 25 t f 116 The provisions of DCC 18.88 shall apply to all areas identified in the Comprehensive plan as a winter deer rar e, significant elk habitat, antelope range or deer .....migration corridor, Unincorporated communities are exempt from the provisions of DCC 18.88. (Emphasis added.) FINDINGS: The tentative plan for The Tree Farre shows the western 333 acres of the entire development, and the western 40.5 acres of Tree Farm 1, are within the WA, Zone associated with Tum€alo deer winter range. The Hearings Officer has found that because the WA Zone is an overlay zone protecting a specific geographically -defined and mapped resource, 1 will apply the WA Zone only to those portions of Tree Farms 1 through 4 located within the WA Zone. ,a Therefore, 1 find the WA Zone provisions apply only to the portion of Tree Farm 1 located in the WA Zone, consisting of open, space and a segment of Tree Farm Drive, FINDINGS: S: Cluste they are allowed development sta Section 18.88.040, Uses permitted Conditionally A. Except as provided in, DCC 18.8&.040(8), in a zone with which the WA Zone is, combined, the conditional, uses permitted shall''' be those permitted conditionally by the underling zone subject to the provisions of the Comprehensive Plan, DCC 18,128 and other applicable sections of this title. r developments are permitted conditionally in the RR -10 Zone and therefore conditionally in the WA Zone. Compliance with the specific cluster rds in Chapter 18,128 is addressed in the findings below. nda Section 18.88.050, Dl In a WA Zone, th mensional Stand ards e following dimensional stand eras shall a ply''' A. In the Tumalo, l etolhus, North paling and Grizzly deer winter ranges designated in the Comprehensive Plan Resource Element, the minimum lot size for new parcels shall be 40 acres except as provided in DCC 18.88.050(D). FINDINGS: Section 18.04.03€0 defines '"Parcel`"' as a unit of land created by a partitioning of land." The applicant does not propose the creation of any new parcels, and therefore the Hearings Officer finds this criterion is not applicable. in any case, Tree Farm 1 would be 105.3 acres in size, and the portion of Tree Farm 1 in the WA Zone would be 40.5 acres, exceeding the minimum lot size for new parcels, 1 Residential land divisions, including partitions, in deer winter range where the underlying zone is RR -10 or l UA -10, shall not be permitted except as a planned development or cloister development conforming to the following standards: FINDINGS: The applicant pro cluster/PUD on property zoned R poses a residential land division consisting of a ten -lot R-10 and UAR 10, therefore satisfying this criterion, 13 As noted E:bove, Tree Farms 2, 3. and 4 silo have split zoning between UAR-1 and R Tree Farm 1, 247.14 -000242 -CU, 247-14-000243FTP R-'10/WA Pa ge26of116`` N IN : According to t res, 40.5 acres of which m area standard.14 h The rein um area for a planned or cluster development shall be at least 40 acres, submitted tentative plan, Tree Farm 1 would consist of 105 3 would be located'''' within the WA Zone, therefore satisfying this The planned or cluster development '' shall retain a minimum of 80 percent open space and conformwith the provisions of DCC 18.12 .200 or 210. FINDINGS: According to the submitted tentative plan, Tree Farm 1 olid have 20 acres of residential lots (ten 2 -acre lots), 81.1 acres of open space, and 3,6 acres of right-of-way The tentative plan shows 39,9 acres of the open space and 0.6 acres of the right-of-way would be located within the WA Zone. Based on this acreage, 77 percent of the entire Tree Farm 1, and approximately 98 percent of the NA -zoned portion of Tree Farm 1, would be open space. Th applicant's burden of proof states the 80 -percent open space should be calculated includin only the VVA-zoned land, based on the following analysis: :`Overall, the 5 separate PUD/Cluster Development proposal within The Tree Farre will result in fifty 2 -acre homesites totaling 100.1 acres on 533,5 combined' acres. Open space will comprise 422.8 total acres, or 79% of the total project (the remaining 10,6 .6 >acres are within the new street rights of way.). While this is just under 80% open space for the entire project, the applicant notes that only.. 393 acres of the project'' is zoned RIO JWA) and« :art a..tto the Q r Gent, the term` irgi3T p t g zpl d L12!.1,03-10 which_ has n€ sut:?...specific open space requirement. Of the 193 acres in the RR --1£l( `A), 962.7 acres (92%) will be preserved as permanent open space. This is accomplished by concentrating the developed homesites in the UAr -9O portion of the property in order to maximize the amount of open space to be preserved in the deer winter range." e g; The Hearings Officer agrees with the applicant that land outside the A Zone not included in the open space calculation, and therefore I find Tree Farm 1 satisfies the um 80 percent open space requirement in the WA Zone 3 Notwithstanding the 'provisions of 210, or DCC 18.60.060(C), .060(C), the residences in a chaster develorne the density permitted "in the underly DCC 16.1 8.200 or total number of nt may not exceed ing zone. FINDINGS: The general density in the RR --10 Zone is one dwelling per ten acres. The applicant proposes that the 105.3 acre Tree Farm 1 be developed with 10 residentia lots and one open td The Hearings Officer addressed a similar issue in my Taylor decision, cited above. There, the applicant proposed creation of an 80 -acre parcel comprised of 40 acres, zoned F-1 and 40 acres zoned Surface t+�lir�ln (3M). Section 18.86.090 establishes an 80 -acre minimum lot size `in the F-1 Zone." l held the quoted language meant the 80 -acre minimum lot size must be met enflrely,;within the F-1 Zone. The language establishing the minimum lot size in the WA Zone is identical to the language in F-1 Zone at issue in Taylor: Tree Farm 1, 247 -14 -000242 -CU, 24;% -14 -000243 -TF Paoe27of11 6 space tract. The Hearings Officer has found the open space, tract is not included in the, residential' density calculation, and therefore Tree Farm 1 satisfies this standard. d. Section 18 80 6 0„ Siting Standards A. Setbacks shall be those described''' in th with which the WA Zone is combined. e un d erlying zone FINDINGS: The Hearings Officer>finds this provision applies to setbacks between structures and lot lines. Because all 10 residential lots and dwellings in Tree Farm 1 would be located outside the WA Zone, 1 find this criterion is not applicable to Tree Farm 1 The footprint, including decks and porches, for new dwellings shall, be located entirely within 300 feet of public roads, private roads or recorded easements for vehicular access existing as of August 5, 1992 unless it can be found that: Tree Farm Habitat values (Le., browse, forage, cover, access to water) and migration corridors are afforded equal or greater protection through a different development pattern; or, The siting within 300 feet of such roads or easements for vehicular access will; force the dwelling to be located on irrigated land, in which case, the dwelling shall be located to provide the 'least possible impact on wildlife habitat considering browse, forage, cover, access to water and migration corridors, and minimizing length of new access roads and driveways; or, 3. The d ellling is set back no more than5 edge of a driveway that existed as of Au For purposes of DCC 18.88.060(B): 0 feet from the 0 us t 5, 1992. 1 A private road, easement for vehicular access or driveway will conclusively be regarded as having,, existed prior to August 5, 1992 if the applicant submits any of the following; a A copy of an easement recorded with the County Merit prior to August 5, 1992 establishing a right of ingress and egress for vehicular use; b. An aerial photograph with proof that it was taken prior to August 5, 1992 on which the road, easement or driveway allowing vehic Iar access is visible; , 247 -14 -000242 -CU, 247 -14 -000243 --TP Page 28 of 116 A map published prior to August 5, 1992 or assessors map from prior to August 5, 1992 showing the road (but not showing a mere 'trail or footpath). An applicant may submit any other evidence thought, to establish the existence of a private road, easement for vehicular access or driveway as of August 5, 1992 which evidence need not be regarded as conclusive. FINDINGS: Because no residential lots or dwellings > n Tree Farm 1 will be locatedin the WA Zone, the Hearings Officer finds these &welling'siting criteria are not applicable to Tree Farm 1. e. Section 18.8 L070, Fence Standards The following fencing provisions shall apply as a condition of approval for any new fences constructed as a part, of development' of a property hi conjunction' with a conditional use permit or site plan review. A. New fences in the Wildlife Area Combining Zone shall be designed to permit wildlife passage. The following standards and guidelines shall apply unless an alternative fence design which provides equivalent wildlife passage is approved by the County after consultation with the Oregon Department of Fish andWildlife: The distance between the ground and the bottom strand or board of the fence shall be at least 15 inc The, height of the fence shall not exceed above ground level. 4 hes. nc hes Smooth wire and wooden fences that allow passage of wildlife are preferred. Woven wire fences are discouraged. B. Exemptions 1. Fences encompassing less than 10,000 square feet which surround or are adjacent to residences or structures are exempt from the above fencing standards. Corrals used for working livestock. FINDINGS: : The applicant does not propose any new fencing for Tree Farr? 1, and therefore the, Hearings' Officer finds these criteria are not applicable. However, to assure compliance with these standards, I find that as a condition of approval the applicant will be required to install any fencing in the WA -zoned portion of Tree Farm 1 in accordance with these standards. As noted above, the applicant proposes to remove most of the existing wire fencing on The Tree Farm. Tree Fara 1, 247-14- 00242 -CU, 247-14-0 243 TP Page 29 of 116 For the fore standards in going reason the WA Zone. the Hea r€ gs Officer finds CONDITIONAL USE APPROVAL CRITERIA; Chapter 18.128 Conditional Use Sectio n 18.128.010, 0 pera tions Tree Farm atlsfii al applicable A. A conditional use listed in DCC Table 18 shall be per pitted,, altered or denied in accordance with the standards and procedures of this title; DCC Title 22, the Uniform Development Procedures Ordinance; and the Comprehensive Plano b. Section 1&128O15, General Standards Governing Conditional U see Except for those conditionai uses permitting individual sing e family dwelling., condtionai uses shall comply with the following standards in addition to the standards of the zone in which the conditional use is located and any other applicable standards of the cha pter: FINDINGS: The applicant argues the general conditional use standards in this section dnot apply to Tree Farre 1 because the proposal `''includes individual'' single-family dwellings. The Hearings Officer disagrees. ! find these criteria are applicable to Tree Farm 1 because the proposed conditional use is a duster development, not an "individual single-family dwelling.,,6 Th U e site under consideration shall be determined to be itable for the proposed use based on the following factors: FINDINGS: At the outset,; staff ,questions what constitutes the "site" for purposes of the suitability <analysis under this paragraph in light of the split zoning of Tree Farm 1. As discussed above, the Hearings Officer' has found that in order to conduct a meaningful review of Tree Farm 1 as a whole, 1 p Ili apply the standards in both Titles 18 and 19 — vvith the exception of the WA Zone in Title 18 Hw to the entire cluster/PUD. Therefore, I find the site for evaluation of the proposed cluster/ Pu D is t he entire Tree Farm 1. Site, des na nd ope sting characte nstics of the use; Site. Tree Farm 1 would be 105.3 acres in size, it is very irregular in shape,, the result of the irregular shape of The Tree Farm and the configuration of its five legal Iots of record. The topographical information on The Tree Farm tentative plans shows the configuration of Tree Farms 1 through 5 generally follows the contours of the property, and in particular the central ridge that runs generally in a southwest -to -northeast direction. Tree Farm `l is the most eastern legal lot in The Tree Farm, and the closest to the Bend UGB. It extends from the northeast corner of The Tree Farm in a generally southwest direction to Skyliners Road. The topography 15 The applicant did not address these criteria in its burden of proof for Tree Farre 1, but in response to the staff report submitted a memorandum dated October 29, 2014, addressing the criteria. Tree Farm 1 247-14- 242 -CU, 247-14-€ O0243 -T1 Pare 3 of 11 of Tree Farm 1 varies from higher, relatively level ground near- its northern boundary to steeper; slopes in the center of the site and within the open space tract. Vegetation consists of scattered pine and juniper trees in the western portion of the site and mostly shrub steppe vegetation In the eastern portion. The site has frontage on Skyliners Road. R is separated from the Bend UGB by a vacant parcel owned by Miller Tree Farm Design and Operating Characteristics. The, proposed ten residential lots in Tree Farm 1 would be clustered in the northeast corner of the development on higher, relatively level ground All, lots would have frontage on Ridgeline Drive. Four lots also would have frontage on Sage Steppe Drive. The northeast terminus of Ridgeline Drive would be a cul-de-sac on Ridgeline Court near the northeast corner of Tree Farm 1. Ridgeline Drive would extend west and southwest into Tree Farms 2 and 3'' and vvould connect with Tree Farm Drive in Tree Farm 3, the primary duster/'PUD road which intersects with S€cyliners Road at the southern property, boundary. The 'applicant proposes to develop Tree Farms 1, 2 and 3 concurrently to provide access from Skyliners Road to the lots in those three cluster/PUDs. The topographical information on the tentative plans shows the private roads will be constructed primarily on the central ridge, thus minimizing steep road cuts and grades. A gated temporary emergency access road would extend from the southern terminus of Sage Steppe Drive in Tree Farm 1 south across the adjacent Miller Tree Farm property to Crosby Drive in the Bend UGB. This secondary access would be i place until the adjacent Miller Tree Farr- property is developed with paved streets to which Sage Steppe Drive could connect. Sage Steppe Drive would be a dedicated public road with 68 feet of right-of-way and would be stubbed off at the northern boundary of Tree Farm 1 to provide future road access to the ad acent Rio Lobo property. The applicant proposes that each dwelling would be constructed within a designated building envelope, would be served by an onsite septic system, and would receive water from the City of Bend, Avion Water Company, or one or more groundwater wells. The majority of Tree Farm 1 (81.1 acres) wound be set aside as permanent open space. The public would have access to this open space through a combination of a permanent trail ` easement on the primary trails within The Tree Farm and a license granted by The Tree Farm homeowners' association (HOA) for use of trails within the resident€al lot areas. The multi -use trail trail system in Tree Farm 1 would connect with train in the rest of The Tree Farm and Shevlin Park and the DNF to the west and southwest. The Hearings, Officer finds the site for Tree Farris 1 is suitable for the, proposed ten -lot cluster/PUD because of the nature of the site and the design and operating characteristics of the proposed development. I find the property is large enough to accommodate the proposed residential lots, open space tract, and private and public roads. 1 find the clustering of dwellings near the northeast corner of Tree Farm 1 will preserve the maximum amount of open space and will allow' the dwellings to be sited on some of the most level ground on the site. l find the design of the public and private roads in Tree Farm 1 has taken Into account the site's topography so the roads can be constructed without steep slopes or road cuts and tight curves. As discussed'' in the findings immediately below, I have found soils on the site are suitable for installation of on-site septic systems. 1 also have found the proposed dwellings will have adequate access to Skyliners>Road with concurrent development of Tree` Farms 1, 2 and 3. For the foregoing reasons, the Hearings Officer finds the site of proposed ten -lot cluster/PUD considering the site and the d of the proposed development,, Tree i arm 1, 247.14 -000242 -CU, 247 -14 -000243 -TP Tree Farm 1 is suitable for the esigrl and operating characteristics Page31 of 116 Ad eq uacy of transportation>;access to the site; and FINDINGS: Access to Tree Farm 1 will be from Skyliners Road via a system of public and private roads, The main access road, Tree Farm Drive, will connect with all other Tree Farm roads at an intersection in Tree Farm 3 The segment of Tree Farm Drive from Skyliners Road north to a point near this intersection would be unproved with a 26 -foot -wide paved surface to accommodate' both vehicular and pedestrian bicycle traffic, The remaining segment of Tree Farm Drive and the other Tree Farm Roads would be improved with 20 feet of paved surface. The applicant proposes a gated temporary emergency access road from the southern end of Sage Steppe Drive, a dedicated public road, south through the adjacent Miller Tree Farm property to Crosby Drive, a dedicated pubic street within the Bend UGS. This secondary access would be in place until the adjacent Miller Tree Farm property is developed with paved streets to which Sage Steppe Drive could connect. Traffic Study. In support of The Tree Farm proposal, the applicant subnnitted a traffic impact analysis ("traffic study") prepared by Kittelson & Associates. dated July,, 2014, and included in the record as Exhibit " "H" to the burden of proof statement for Tree Farm 1. The traffic study indicates the Institute of Transportation Engineers Trip Generation Manual, 9th Edition (ITE Manual) predicts each single-family dwelling;,; will generate 9.5 average daily vehicle trips (ADTs). Accordingly, the traffic study predicts the 50 single-family dwellings proposed for entire Tree Farm would generate 476 ADTs, of which 50 would be during the p.m. peak hour (4:00 p.m, to 6:00 p.m. weekdays). The traffic st€ dy analyzed the impact' of this traffic on the proposed Skyliners Road/Tree Farm Drive intersection, and found sight distance at this intersection would be adequate in both directions. The traffic study recommended the placement of a stop sign on Tree Farm Drive at Skyliners Road and maintenance of clear vision areas at this intersection. The traffic study also analyzed` Tree Farm traffic im intersections on the west side of Bend: Skyliners Road and Crosby Drive; O Skyliners Roadand Skyline' Ranch Road; O Skyliners Road and Mt. 'ashir • Mt. Washington Drive and Bort M t. Washington Drive an d Sim pacts o gton Drive; hwest Crossing Drive; and "son Avenue, n the folio in five existi3 9 The traffic study found these existing intersections currently operate at acceptable levels of service, and that with the add tion traffic generated by The Tree Farm, and including traffic volume growth of three percent and additional traffic anticipated from development in progress (including the new Pacific Crest Middle School and a large church under construction, and continuing development of Northwest Crossing), these intersections will continue to operate at acceptable levels of service in 2€ 17 and 2022, In its comments on the applicant's proposal, the road department did not identify any concerns or recommend any improvements to Skyliners Road or other existing roads to handle traffic generated by The Tree Farm, In his August 29, 2014 comments on the applicant's propsal, Senior Transportation Plwiner Peter Russell stated he had reviewed the applicant's traffic study and agreed with its methodology and conclusions, Several opponents argued traffic from The Tree Farm would cause unacceptable levels of congestion on affected streets and intersections on the west side of Bend, and would cause serious deterioration to Skyliners Road. The Hearings Officer finds no merit to these arguments Tree Farm 1, 247-14-000242 CU, 247 -114 -000243 -TP Page 32 of116> in light of the traffic study's conclusions and the ack of road improver €ent reco€ rr endations from the road department. Opponent Connie Peterson suggested the traffic study should have included in Its analysis traffic generated from a future Oregon State University (OSU) Cascades campus near the Mt Washington Drive/Simpson Avenue intersection. The Hearings', Officer is aware the city's approval of a ten -acre >;OSU Cascades campus is on appeal to LUBA and the approval therefore is not final. For this reason, I find the OSU development and its potential traffic impacts are too speculative to be includedin The Tree Farm traffic study. Opponent Rio Lobo submitted a memorandum dated December 11, 2014 from its traffic engineer, Lancaster Engineering, suggesting the applicant's traffic study was deficient in failing to include projected traffic from urban -density development of the adjacent 376 acre Rio Lobo property, Rio Lobo's engineer predicted up to 1,100 dwellings could be developed on the property, and they would generate over 9,000 ADTs and 948 p.n, peak hour tripsThe Rio Lobo property is outside the Bend U D,, has no county land use approvals for the type of low-density residential development permitted in the UAR-10 Zone — i.e., up to 37 dwellings and has limited road access.1 6 Therefore, l find potential traffic impacts from urban -density development of the Rio Lobo property also are too speculative to be included in the traffic analysis for The Tree Farm. Emergency Access, The applicant proposes a gated temporary emergency access road from the southern terminus of Sage Steppe Drive south through the adjacent Miller Tree Farm property to Crosby Drive, a public street in the Bend UGB. Sage Steppe Drive would be a public road within a dedicated S0 -foot right-of-way and improved with a 20 -foot -wide paved surface. The emergency access road would be gated at both ends, and constructed with an all-weather surface meeting the fire department's standards for emergency vehicles. In his November 20, 2014 comments on the applicant's proposal, County Engineer George Kolb stated the emergency access road must have a 24 -foot -wide surface, and on that date the applicant submitted a revised tentative plan'' for Tree Farm 1 showing the emergency access road would be 24 feet wide. Crosby Drive provides access to the three nearby public schools --- Summit High School. Miller Elementary School, and the new Pacific Crest middle school under construction. The tentative plan for Tree Farm 1 shows the proposed route of this emergency access road across the adjacent property, and the topographical information on the tentative plan indicates that for the most part the route would be on level or slightly sloping ground. The exception is a small area ist north of Skyliners Road where there is a steep ridge. However, the proposed road alignment appears to skirt the steepest part of that ridge. In an October 31, 2014 electronic mail message, the applicant stated the emergency access road will be constructed with grades not exceeding 8.5 percent, less than the 12 -percent maximum slope permitted for emergency vehicle access. In his November 20, 2014 comments,, George Kolb stated the proposed emergency access would require a county gate permit. At the public hearing, the Hearings Officer questioned how the locked access gates would operate and whether residents and guests would be able to open the gates. Gary Marshall stated such gates generally' are designed to be operated by the fire department with "Knox" locks. but UIat :additional options are available '; for "residential access: including special keys, key codes and automatic gates. I find the applicant will be required as a condition of approval to 16 In his December 19, 2014 comments on the applicant's proposal, Peter Russell correctly noted that without any land use approvals ar current applications for development of the Rio Lobo property, 'the potential trip generation from the Rio, Lobo property is zero." Tree Parra 1, 247 -14 -000242 -CU, 24:%-14-990243 1`P Page 33 of 116 install one or more of these "residential access" €area s .€re s on the Tree Farm side of the abate at the southern terminus of Sage Steppe Drive. At the public hearing, the clearings Officer also questioned, whether the proximity of the three schools would cause ''Crosby Drive to become so congested during a large-scale emergency evacuation, such as for a wildfire, that Tree Farm residents would not be able to use the emergency road for egress. In his January 6, 2€ 15 submission, Mr. Dewey stated the applicant's proposed secondary emergency' access is "fundamentally inadequate" '' for evacuations because it must be assumed all three schools and all Tree Farm residents will be evacuated at the same time, Mr. Marshall responded to these concerns in a letter dated December 10, 2014, included in the record as Exhibit "B"to Mr. Condit's December 11, 2014, letter. Mr. Marshall stated that in his opinion such congestion would not occur because>. it is highly unlikely every person in the three schools and every resident in The Tree Farm would' vacUate at the same time and by the same roads. The Hearings Officer agrees with Mr. hall's assessment. The Tree Fara would have two points of egress — Tree Farm Drive and the secondary emergency road _T and the record indicates the schools have several points of access. I'' find the existence of multiple points of egress for The Tree Farm and for the schools wld serve to reduce congestion in the event all three schools and The Tree Farm were evacuated simultaneously. Moreover. I find that in light of Mr. Marshall's extensive experience, including " dealing with wildfires on the west side of Bend, his opinion concerning likely evacuation scenarios is credible and reliable. ars Ina November 4, 2014 letter, included in the record as Exhibit "P" to Pau Dewey's November 19, 2014 submission, LandWatch's fire expert Addison Johnson suggested the secondary emergency access road should be constructed to run in the opposite direction from the main PUD access road — i.e., to the northeast., However, as discussed elsewhere in this decision, the tentative plan for Tree Farrn 1 shows there is steep terrain northeast of Tree Farm 1, and there are no existing public roads with which such a secondary access road could connect. Therefore, I find an emergency access road to the northeast Rely vtould not be feasible. Skyline Ranch Road. The tentative plan;, for Tree Farm 1 shows "potential future Skyline Ranch Road right-of-way" running from Crosby Drive north and northwest across the adjacent Miller Tree Farm property and the northeast corner of Tree Farm 1 east of the coil -de -sac bulb for Ridgeline Drive. In his August 28, 2014 comments on the applicant's ,proposal, George Kolb questioned how this alignment was determined and whether the road could be constructed to county road standards in light of the steep topography depicted in that area on the tentative plan. Mr. Kolb stated the applicant would be required to show both a horizontal and vertical` design for this right-of-way to assure the road could be built in the proposed location. In his August 29, 2014 comments, Senior Transportation Planner Peter Russell stated the proposed alignment does not appear on the county's Transportation System Plan (TSP), a the applicant would be required to address the proposed right-of-way in the context of the TSP. InaS eptembe r 19, 2014 letter on behalf of the, applicant, R only Mo rtensen stated: "The potential future Skyline Ranch Road right-of-way was shown on the Tree Farre 1 tentative plan not to indicate with any certainty the location of the future alignment, but rather to identify a possible future adjustment required to the open space area for Tree Farm 1, The area of right-of-way that c..ould be adjusted out of the open space is 5,000 square feet or 0.115 acres. The inmpact to the overall open space acreage of 105.28 acres will not reduce the acreage below requirements," Tree Fame, 247_14-' 0242 -CU, 217 14 -.000243 -TP` Page 34 of 116 Considering this explanation, the Hearings Officer finds it would be more appropriate for the final plat for Tree Farrn 1 simply to include a notation stating possible adjustments to the open space and right-of-way calculations if a segment of Skyline Ranch Road is dedicated in Tree Farm 1. find the applicantwill be required to make such a notation on, and to remove the potential right-of-way alignment fro€, the final plat for Tree Farm 1 .17 For the foregoing reasons, and with imposition of the condition of approval described above, the Hearings Officer finds Tree Farm 1 is suitable for the proposed ten -lot clusteriPUD considering the adequacy of transportation access to the site. The natural and physical features of the site, including,, but not limited to, genera topography, natural hazards and natural resource values, F ND! N GS: General Topography. The Tree Farm tentative plans show, and the Hearings Officer's site visit observations confirmed, that the Tree Farm 1 site has varying topography. The dominant feature of Tree Farm 1 is the central ride running from southwest to northeast. The applicant's burden of proof states, and my site visit observations confirmed, that the higher ground atop this ridge is relatively level to rolling, with steeper slopes in the northwest where the terrain drops toward Tumalo Creek and on the southeast -facing slopes in the middle of the property. Topographical information for The Tree Farm indicates the central' ridge in Tree Farrhs 4 and 5 slopes down to the west at grades ranging from 10 to 20 percent and lots in Tree Farms 4 and 5 include sloping terrain. However, the topographical information on the Tree Farm 1 tentative plan shows slopes from the central ridge to the east in Tree Farm 1 are less steep and the residential lots have little if any slope. As discussed above, the public and private road segments in Tree Farm 1 would align with the natural topography rather than cutting across slopes. For these reasons, l find the site is suitable for Tree Farm 1 considering its genera topography, Natural Hazards. The identified natural hazard affecting The Tree Farre' is wildfire, There is no dispute The Tree Farm is in a wildfire hazard area, `8 R is located in the "Wildland Urban Interface"" (WU) — i.e., the transition area between human development and wildland, in this case Barest lands. The eastern half of The Tree Farm was in the path of the 1990 Awbrey''Hal'l fire that burned approximately 3,500 acres from the north end of Sheviin Park southeast to a point hear Highway 97. The June, 2014 Two Pulls Fire burned several thousand acres of 7 `Roth Rio Lobo and the owner of the property to the north, Anderson Ranch;;, Holding Company (Anderson Ranch), objected to the proposed Skyline Ranch Road alignment. Rio Lobo submitted an analysis of potentia alignrnents and their challenges prepared by Hickman, Williams & Associates, and d to Miles Conway's January 6, 2015 letter on behalf of Rio Lobo. Anderson Ranch objected to the proposed alig l,ment because it believes an alignment straight along the eastern border of the Rio Lobo and Anderson Ranch properties would be less expensive and would better match exiting topography. For the reasons discussed above, the Hearings Officer finds I need no consider the proper alignment for a Skyl€€i -= Ranch Rood extension E,,1 -1-1I6 't lee e Farm appikcatians. .18 The parties disagree as to the degree of that hazard. Paul Dewey describes it as "extreme." The applicant notes the Greater Bend CWPP (Community Wildfire Protection Plan) Boundary Map, included in the record in Exhibit "0" to Mr. Dewe 's November 19, 2014 submission, categorizes The Tree Farm and surrounding land as 'high risk" — the lowest category of risk -- while other areas on the map are categorized as higher risk —1.e,, `extreme' and high density extreme." Tree Fare 1 47-1 4 -000242 -CU, 247 -14 -000243 -TP' Page of 116 Cascade Timberlands property west and northwest of Shevlin Park. The Hearings Officer finds the nature of the wildfire hazard is two -fold: (a) residential uses in The Tree Farm could ignite a fire that spreads to adjacentland: and (b) wildfire ignited elsewhere in the WU, such as in the DNF, could spread to residential uses in The Tree Fel m, diverting fire -fighting resources to The Tree Farm. The applicant's burden of proof states the Awbrey Hall, Fire removed ouch of the forest overstory in the eastern part of The Tree Farm including Tree Farm 1, resulting in that area having fewer trees and primarily shrub steppe vegetation. The applicant states that since the Awbrey Hall Fire, Miller Tree Farm has worked with the Oregon Department of Forestry (DF) and others to reduce fire fuels on the entire Tree Farm property, including tree thinning and brush removal. '''I observed evidence of this thinning activity during my site visit. However, as I noted in my site visit report, I observed that the forested part of The Tree Farm retains a relatively' dense tree cover. visible in aerial photographs in the record 19 The photos show the interface between the denser forest and the more open shrub steppe runs roughly along the line between Sections 33 and 34 and the RR -10 and UAR-10 Zones. The denser forest also covers a small portion of UAR-10 zoned, property in Tree Farms 2 and 3 and the most southwestern portion of Tree Farm 1, The mostly] shrub steppe vegetation in Tree Farms 1, 2 and 3 continues north onto the Rio Lobo property and east onto the Miller Tree Farm property. LandWatch argues that rro part of The Tree Farm property or Tree Farm 1 is suitable for the proposed'''cluster/PU©s considering the risk of wildfire. Paul Dewey describes The Tree Farm as "not a safe place to build" and "an inappropriate place for people to 'live." He states further development in the WUl is not appropriate because "no development can be made `safe' in the face of catastrophic wildfires." In support of his position, Mr. Dewey submitted into the record several letters from LandWatch's fire expert Addison Johnson, as well as dozens of pages of articles, studies, and research papers discussing the risks of wildfire in theW'U1, In response, Mr. Condit argues in his December 30, 2014 letter that' 'The Tree Farm properties are zoned for moral development, and the applicable criteria have to be construed in that context." In his January 6, 2015 final argument, Mr. Condit stated;' "irl�lrile ]the applicant's proposed wildfire plan]" will obviously not eliminate all risk from wildfires, it does not, however, follow that all development should be prohibited. Descs County regulates developments in areas subject to natural hazards (including wildfires) pursuant to Statewide Land Use Planning Goal 7, which provides that #l]ooal governments shall adopt comprehensive plans '" * * to reduce risk to people and property from natural hazards.' There is no r quirer e t that all risk be >elirrrinated.' indeed, such risk would be impossible to eliminate in the Bend area. The greater Bend' area Community Wildfire Protection Plan Boundary. attached as the last page of Exhibit 0 to LandWatch's November' 19, 2014, submittal shows that The Tree Farm , properties, the territory within the City of Bend, ;.and most of the surrounding territory are rated 'high' for wildfire risk And there are significant areas near the City rated `extreme` or `high- ensk .extreme' fo? wildfire ask, The The hazard risk within the City and on most of the surrounding territories is thus the sarin or even higher than on The Tree Farre properties.' Condit g on to state E.g., the Tree Farm Master Pan, Exhibit °A" to the Tree Tree Farr 'l , 247.14 Cita 242 -CU, 247 -14 -000243 -TP Farm burden of roof Pag 4,1 «By requesting and obtaining an exception to Goals 3 and 4 to designate The Tree Parra properties as Rural Residential or Urban Area Reserve in 1988. the County made the policy decision that these are developable lands, This decision was acknowledged to be in compliance with the State Land Use Planning Goats, including Goal 7That doesn't mean The Tree Farm doesn't have to comply with the applicable criteria. See PGE!Gaines, citedin the Applicant's prior testimony," r. Dewey argues that, because the Applicant cannot guarantee absolute protection from wildfires, no development should he allowed. Such a reading would swallow the Gode." The Hearings Officer agrees the county made a policy decision that the R-1=VA zoned lands' west of the Bend UGB are developable. Any change to the uses permitted in the RR 10 and UAR-10 Zones west of Send — e.g., eliminating dwellings due to fire risk ww would require legislative action by the county, such as a text amendment to Titles 18 and 19, and cannot be accomplished through individual quasi-judicial land use decisions. However, The Tree Farm proposal includes land divisions providing for multiple dwellings; and therefore is subject to the subjective and discretionary standards in Title 17 — e.g., contributing to "orderly development" — and the equally subjective and discretionary conditional use and cluster/PUD standards in Titles 18 and 19. Section 18,128.€ 1£t (A), set forth above, makes clear the county may deny a conditional use application if it finds the proposal does not satisfy the applicable approval criteria. In addition, Section 18.128.020 authorizes the county to impose conditions of approval in order to assure compliance with the approval criteria. Nevertheless, the Hearings Officer finds nothing in Title 18, 19. or 22 that requires the county to impose conditions in order to make a proposed conditior€al' use approvable. Accordingly, I find the question before me is not whether the residential development should be prohibited on The Tree Farm or Tree Farm 1 site. Rather, it is whether the site for Tree Farm 1 is suitable for the proposed, cluster/PUD considering the wildfire hazard The unusual configuration of Tree Farm 1 restricts placement of dwellings to either the higher ground near the northern property boundary where there a -e significant views, or the lower" ground near the southern property boundary and S yliners Road. The applicant proposes to cluster the dwellings on the high ground, and to address wildfire risk through its wildfire plan, included in the record as Exhibit "J" to the Tree Farm 1 burden of proof. The Hearings Officer agrees with Mr. Condit that in order to find compliance with this conditional use approval' criterion' I need not find the wildfire plan eliminates all fire risk for these dwellings. Rather, I must determine whether the wildfire plan, in its design and implementation, will reduce that risk to a sufficient degree that the Tree Farm 1 site and configuration are suitable for the proposed '10 -lot` cluster/PUD considering the risk of wildfire. The applicant's wildfire plan consists of a two-page narrative to which are attached nine pages of information concerning the "Firewise Communities '''Program" (Firewise) and the "Fire Adapted Communities Program.' The narrative describes the wildfire plan's goals as: f rther reduction of ladde thinning of juniper and sm d Tree Fa eve p en tofafire ad fuels: all ponderosa trees; ptive e csysterr to preserve old' 1 247 -14 -000242 -CU, 247 -14 -000243 -TP Pa 37 of116 r aintena damaged e of a healthy tree stand and reduction of the threat of beetle kill and fire rees; and enhancement of the support wildlife. The wild fire landscape with native plan identifies the foil owing n can rasses for a natural landscape and to s to accomplish' these goals: 1. wildland fuel, treatments completed by the current property owner will; continue to be maintained by the developer and future HOA through a requirement written into the community's governing documents and guidelines, and will "enhance open space, structure 'survivability, and firefighter safety;" 2. The Tree Farm € will co€m€ply>.with all applicable criteria in the Deschutes'County code relative to community safety from fire; 3. The Tree Farm will become a nationally recognized FlrewiseiU A Community viewed as a model HOA -managed neighborhood that uses wildfire mitigation principles to manage combustible vegetation and incorporates structure fire resistant features and materials to reduce the threat and intensity of wildfire to personal property and the adjacent forest; 4. The Tree Farm will incorporate into its governing documents and architectural and landscape guidelines' the requirement tip �.€ss fi e r es€slant malai €c lJ ; .t i t€res; g.t€ .>F tF ye nts to reduce the threat of wildfire within the boundaries of the neighborhood and to create a' fuel break to slow or stop an approaching wildfire to adjacent properties; 5. The Tree Farm developer and HOA will make an annual commitment to maintain recognition as a Firewise/USA Coni€€unity, 6, residents and visitors € I las m€jr r -with. the count 2'• \ ' addition to The Tree Farm Fvpcuat€pan _PlAn.; and uatipn.-_Plan, in 7. The Tree Farm's governing documents will addre . sources of l u€Wars caused ignitions and prohibit burning of debris and the use of fireworks. (Emphasis added.) In his written public hearing testimony, Gary Marshall stated the applicant proposes to use the National Fire Protection Association (NFPA) standards in conjunction with regulations from the Oregon Fire Code and the Oregon State Residential Code "which will greatly reduce the risk of home ignition from wildfire." Attached to Mr. Marshall's testimony are several lengthy NFPA and Firewise documents, including the 4 -page 2008 edition of the NFPA's `standards for Reducing Structure Ignition Hazards from Midland Fire;' However, Mr. Marshall's testimony does not indicate which of the Firewise or NFPA standards would apply to The Tree Farm, or when, how, where, or by whom, they would be implemented. And indicated in the above -underlined language, most of the wildfire plan's proposed implementation measures are general, and aspirational. LandWatch questions the effectiveness of the applic each of which is addressed in the findings below, nt"s wildfire plan fo two princi P on 1. Reliance on Firewise and NFPA Standards. In his November 21, 2104 col merits on the applicant's proposal, Ed Keith noted that to obtain Firewise recognition, The Tree Farm would need to obtain a w=fildfire risk assessrnent from € 'GIF or the Bend Fire Department, form a board Tree Farm 1, 247` -14 -000242 -CU, 47> -14 -000243 -TP 'age ; 8 4f 1:6 or committee to identify priorities, and create and implement an action plan. Mr, Keith stated that "since communities are dynamic and vegetation grows back," Firewise recognition must be renewedannually "so the community shows they are continually working on their priority issues." For these reasons, LandWatch argues Firewise recognition does not constitute a meaningful wildfire plan for The Tree Farm. ' it h respect to NFPA standards, in his December 11, 2014 submission, Mr. Dewey notes these standards begin with disclaimers concerning the need for local evaluation of "products, designs, or installations" and local enforcement. He also notes, and the Hearings Officer agrees, that the NFPA standards included in the record are extensive. technical, and detailed. However,, applicant's wildfire plan does not identify which NFPA standards apply to The Tree Farm, where, when, how, or by whom the NFPA standards would be implemented, or how and by whom they would be enforced and their effectiveness evaluated. Although Mr, Marshall's written testimony, provided in several letters, does include some specific recommendations for implementation of the Firewise program and NFPA standards, these recommendations are not described in the applicant's submitted wildfire plan. Rather, the plan appears merely to incorporate the Firewise program and NFPA standards by reference. The Hearings Officer finds that is not sufficient to meet the applicant's burden of demonstrating compliance with this conditional use approval criterion€. I also find it is not my responsibility, nor that of planning staff or interested parties, to search through Mr. Marshall's extensive materials — which he describes as "a plethora of fire safety standards" --, in order to identify relevant standards and to craft a comprehensive, and coherent wildfire plan therefrom. Neither do the wildfire plan's mere references to Firewise and the NFPA provide a sufficient basis for me to impose clear and objective conditions of approval. I cannot simply' condition approval on compliance with the Firewise Community recognition process and the NFPA standards, See, Sisters Forest Planning Comm. v. Deschutes County, 48 LUBA 78 (2004), 198 Or App 311, 108 P3d 1175 (2005).2° Finally, the wildfire plan's narrative summaries state the developer and the HOA will' undertake certain wildfire plan activities, but they do not clarify if,when the developer would bow out and the HOA would take over. For the foregoing reasons, the Hearings Officer finds the applicant's wildfire plan is not sufficient to demonstrate compliance with this conditional use approve criterion because it simply does not include a meaningful action plan or an explanation of how the plan will be implemented. And it addresses The Tree Farm as a whole although the record indicates there is considerable variation in location, topography, and vegetation in The Tree Farm lots, However, because the Firewise and NFPA standards are nationally recognized, comprehensive and detailed, I believe it is feasible for the applicant to create an adequate wildfire plan based on those standards that, includes the critical information missing from the submitted plan. I find such a plan must include, at a minimum, the following information: identification of each residential I bulid ilig envelope, the extent and nature of the defensible space around each dwelling, and fire fuel treatments on the building envelope and the rest of the lot, the set back from up per edge of tl so pc{s; for each,' building envelope al dwelling; n that appeal, filed, by LandWatch`s predecessor, the Court of Appeals held a condition of approval requiring implementation of the applicant's expert's recommendations was improper where the recommendations were imprecise confusing, hypothetical,, and/or in conflict with county code provisions. Tree 247-`14-0002'42 CU, 247-14-000243 TF Page 39 of 1 16 the fuel treatment, if any, on any slope below each d will occur on open space, what impact it will have on that a drainage, and on wildlife habitat for ots in the WA Zone; !ling, and if such fuel treatment whether and where decks and outbuilding wo€ pen space, on surface water d be permitted on each l'ot', what specific construction methods and building material s will be required dwelling to meet specific, identified NFPA standards; a ,detailed description of how and by, whom the wildfire plan will monitored, and enforced, with particular attention to the transition be and the HOA; a d for each be it p emented, ;en the developer specific, mapped evacuation plan for The Tree Farm and each of the five Tree Farm evelopments,,'''including directions for operation of the gate on Sage Steppe Drive; and a detailed description of when and how residents and wildfire plan requirements and the evacuation plan; guests will be informed of the 2. Inadequate Recognition of Fir'••e Behavior. The parties disagree as to whether the proposed design and configuration of Tree Farm 1 adequately recognize and address wildfire behavior. For example, Mr. Johnson argues placement of dwellings on the central ridge and upland areas above slopes increases wildfire risk because the dwellings would be both up&lope and downwind from a wind -driven wildfire starting in the public and private forest lands or Shevlin Park to the west. Mr- Johnson also argues placement of dwellings in the shrub steppe vegetation on the eastern half of The Tree Farm does not reduce the fire risk because fire in that vegetation can produce flame lengths of 10-12 feet. He claims the previously burned portion of The Tree Farr, including Tree Farm 1, does not create a fuel break between the forested western half of The Tree Farm and the urban and urbanizable lands to the east, as claimed by the applicant, because the Awbrey Hall Fire only changed the type of fuel, reducing the fire risk from "extremely intense to merely intense." As discussed elsewhere in this decision, Mr, Johnson also argues the proposed secondary emergency access road will not allow timely and efficient evacuation of The Tree Farm in, the event of a fire and should be in a different location. Finally, Mr. Johnson questions the adequacy of water available for fire suppression in light of the uncertainty of The Tree»Farm's water supply and pressure. The applicant responds that The Tree Fara configuration and its wildfire plan adequately address and minimize the risk of wildfire, The applicant notes that in his comments on The Tree Farm Ed Keith stated that he doesn't consider the 10-20 percent slopes on the west side of the central ridge to be particularly steep, and that many local subdivisions have been developed on, steeper ground. He stated he believes fire risk can be reduced by setting dwellings and decks veil back from the top of the slopes. The applicant also submitted several letters from Mr. l larshall, discussed in the findings above, identifying measures to be implemented in The Tree Farm. However, as discussed above, the Hearings Officer has found the applicant's wildfire plan does not adequately;,,ider'tify what NFPA standards are applicable to Tree Farm lots and dwellings, how, and by whom those standards will be implemented and enforced, and what>' would be the relative role of the developer and the HOA in implementing the wildfire plan. For the foregoing reasons, the Hearings Officer finds that without a applicant also has not demonstrated the site and configuration Tr€ Farm 1, 247.14 -000242 -CU, 247 -14 -000243 -TP n adequate wild f Tree Farm fi re plan, the sufficiently Page 40 of 1 6 address predicted wildfire behavior affecting residential lots and dwellings. I also find it is neither feasible nor appropriate for me to craft conditions in an effort to make the applicant's proposal approvable. For the foregoing reasons, the He demonstrate the site for Tree Farm 1 hazards. arings Officer finds the applicant ha s suitable for the proposed use conside s rin filed nate to rail Natural Resource Values. The Hearings Officer finds natural resources on the site of Tree Farm 1 consist of native vegetation including predominantly shrub -steppe vegetation, scattered rock outcrops, and wildlife habitat including the Tumalo winter deer range in the most southwestern portion of the site within the RR 10 and WA Zones. a. Vegetation. The majority of the site (77%) will be maintained in permanent open space. As discussedabove, the record indicates the applicant has undertaken regular brush cutting and tree thinning for purposes of fire fuel reduction and intends that such vegetation management will continue within the Tree Fare 1 open space tract, In addition, the applicant proposes that each lot in Tree Farre 1 will have a designated building envelope in which the dwelling must be constructed, preserving native vegetation on the residential'' lots outside the building envelopes. As discussed in the findings below, the applicant's wildlife expert testified that in her opinion, management of vegetation on Tree Farm 1 for fire fuel reduction can and will be accomplished in a manner consistent with preservation of wildlife habitat, h'. ' imro k and Rock Outcrops. At the outset, the Hearings Officer finds it is not clear any .ock outcrops in Tree Farm 1 qualify as "rimrock," defined in Section 18.04.030 as a ledge or outcropping of rock that "forms a face in excess of 45 degrees." In any case, the submitted tentative plan and burden of proof statement for Tree Farm 1 indicate the applicant does not intend to remove or alter existing rimrock or rock outcrops. c. Wildlife Habitat. The Hearings Officer finds Tree Farm 1 contains what are essentially two categories of wildlife habitat. The western 40.5 acres of Tree Farm 1 are located in the Tumalo winter deer range and are subject to the WA Zone established to protect it. The remaining approximately 65 acres of Tree Farm 1 provide wildlife habitat typical of undeveloped' land west of Bend, but this habitat is not designated for special protection. Nevertheless, the applicant proposes to protect this typical habitat in a manner similar to that required in the WA Zone. Specifically, the, ten Tree Farrrn 1 dwellings would be clustered in the northeast portion of the site. all dwellings would be built within a designated building envelope so as to preserve the rest of the residential lots in a natural state, and no new fences would be established. In addition, the Tree Farm 1 burden of proof states the applicant has removed some wire fencing on The Tree Farm, and intends to remove most of the remaining wire fencing and to eradicate and revegetate most of the existing network of dirt logging roads. The Hearings Officer finds that with these protective measures, the portion of Tree Farm 1 outside the WA Zone is 'suitable for Tree Fare 1 considering the typical wildlife habitat outside the winter deer range. The ten ative plan for Tree Farm 1 shows that all of the 40.5 acres within the WA Zone and the whiter deer range would be maintained in permanent open space with the exception of 0.6 acres of right-of-way for a small segment of Tree Fare Drive. No dwellings and no part of the trail system would be located in this part of Tree Farm 1. Therefore, the Hearings Officer finds the impacts from Tree Farm 1 on the winter deer range would be limited to use of Tree Farm Drive and vegetation management practices for fire fuel reduction, Tree Fa 1 1, 24--14-000242-CU, ` 247-14 243 -TP Page 41 of 11 The stated purpose of the WA Zone in Section 18,88,01 g is to "conserve important wildlife areas" while permitting "development compatible with the protection of the wildlife resource." Therefore, the Hearings Officer finds the protective measures established in the WA Zone are, intended to accomplish those dual purposes. As discussed in the WA Zone findings, I have found Tree Farm 1 will satisfy all applicable WA Zone criteria. Nevertheless, in its August 19 and December 11, 2014 comments on the applicant's proposal, ODF\N argued The Tree Farm will not protect the Tumalo winter deer range for the following reasons: development of res€dences in the winter deer range will convert native forest and upland habitats into built structures, including roads, resulting in permanent loss of habitat; homeowners will»be allowed to remove ha deer migration corridors wil bitat on their homesite be blocked by dwellings; trails and open space will promote low impact, recreational, use — e.g,,, bicycling, walking, and wildlife viewing - that will interfere with deer use of winter range if they are not sufficiently dispersed in the Tree Farm; and 0.. the applicant not identified mitigation habitat pursuant to ODFW's administrative easures der con trati o�W 1 9 "no net loss" of At the outset, the Hearings Officer notes no dwellings are proposed in the WA -zoned portion of Tree Farm 1, and therefore the impact of dwellings addressed by ODFVV will not occur in Tree Farm 1. In addition, findODFW's habitat mitigation policy, which includes the "no net loss" standard, does not establish' approval criteria for quasi-judicial land use decisions unless they involve local government land use regulations that require habitat mitigation, or proposed plan amendments or zone changes relating to habitat protection. OAR 635415-0015 and OAR 635- 415-0020. 3541 -0020. I find neither exception applies here. Finally, I' find ODFW's concerns about low- impact recreational use on trails and in open space are not relevant to Tree Farm 1 because no part of the trail system would be located in Tree Farm 1 Consequently, I find the only relevant wildlife issues are development and use of the segment of Tree Farm Drive in Tree Farm 1, and management of the WA -zoned open space for fire fuel reduction LandWatch submitted an article from the USFS Pacific Northwest Research Station (PN RS) entitled "Science Findings' generally addressing the potential impact of residential development on mule deer winter range and migration corridors. The article reviews the work of Jeff Kline, a research forester with PN RS, on general deer migration patterns in Deschutes County, and in particular on anticipated effects on deer migration from potential future development of the Cascade Timberlands property west of The Tree Farm. The article concludes by listing "land management implications" for such development, including recommendations that resource managers work with landowners to consider protective measures such as conservation easements to protect winter deer range and migration corridors; The WMP, dated May 'Ig, 2014, is attached to, the Tree Farm 1 burden of proof a Exhibit "l, and was prepared by Dr. Wendy Wente, an ecologist and biologist with Mason, ,>Bruce and Girard Natural Resource Consultants (MB&G). The VVMPWMP includes an overview of The Tree z ODFW also raised concerns about a proposed pond in The Tree Farm. However; in her letter dated October 10, 2014, Dr. Wente stated the pond has been removed frorn The Tree Farm proposal. Tree Faroe 1, 2414 -000242 -CU 247 -14 -000243 -TP 'aae 42 of 116 Farm property, Dr, lente's methods for investigation and identification of existing wildlife habitat and use, her assessment of the habitat and wildlife use thereon based on her investigation, a number of specific mitigation and conservation measures, and her opinion regarding wildlife habitat on the portion of The Tree Farm zoned WA, including residential > lots and open space tracts. The WMP's assessment and recommendations concerning; the residential lots are addressed in detail in the Hearings Officer's decisions in Tree Farms 4 and which propose dwellings in the WA Zone. At page 8 of the WMP, Dr. Wente'identified The Tree Farm in relevant part as follows: "Mae Deer Habita f nd Migra „gn eral'wildlife u tion Corridor. ization nd "'for mule deer on Deschutes County has designated the Tree Farm West property [the part of The Tree Farm located in the WA Zone] within the PSA {The Tree Farm] (Figure 1) as a mule deer winter range (WA Zone), and deer are also known to migrate through the area, Throughout the field investigation, the MB&G biologist observed signs of diffuse migration through the respective understories of Ponderosa Pine Forests West and East, Wildlife species, especially ungulates, frequently use the PSA in its entirety as evidenced by the presence of deer signs at sample plots and other areas throughout the property. These forested habitats provided minimal evidence of bedding, but they showed signs of significant wildlife use as foraging and corridor habitat, Numerous signs of up-gradiant and down-gradiant'trails/tracks suggest that forested areas within and throughout the PSA serve as diffuse corridors for traveling to resources ''located outside of the PSA and for accessing forage and possibly water resources. Key areas identified as travel corridors for deer included the dry* draw and parallel minor ridges running northeast to southwest between plots H8 and H9 (Figure 2). This corridor extends northward along the property boundary where it parallels Tumalo Creek. Deer are also likely using corridors where they would experience lower gradients, such as along the existing road to the south of plot H7, to move between the Tumalo Creek riparian corridor and upland areas to the east (outside of the WA Zone) that provide bunchgrass and antelope bitter- rush forage. Therefore, the MB&G biologist was able to corroborate the WA Zone designation within the PSA relative to mule deer habitat and use." (Bold emphasis in original.) a ed on the figures and photographs in the WMP, the Hearings Officer understands Dr. Wente to conclude tele deer use and travel corridors are sufficiently diffuse on The Tree Farm property that deer currently move across the southern portion of Tree Farm ''1 and will continue to o so. Based on Dr. Wente's opinion, i find deer would cross the proposed segment of Tree Farm Drive in Tree Farm 1. Dr Wente also submitted a letter dated i ctober 10, 2014 responding to ODF relevant part as follows: ""ODFWcornmented that the deer .i'gration corridor. `could be mpietely eradicated or substantially cut-off [sic], forcing deer to move through the development'''* * : The Tree Parra RR -10 parcel, which is overlain by the deer winter range WA zone, is approximately 393 acres in size. The development plan proposes approximately 30 acres of lots and road right-of-way (combined) within the RR -10 parcel. This maintains the remaining approximately 363 acres (92%) Tree Fe rice t, 247 -14 -000242 -CU, 247-14- 0243 -TP Page 43 o• in 6 as designated open space. The DCC '18.88,050(0)(2) requires the retention of 8O% of an RR -10 zoned area with a WA zone as open space, thus tlris development far exceeds the proportion of open space required by the code for a cluster development within a WA Zone. In addition t ' providing more open space than required by the code for deers winter range on -10, the development team selected a design configuration that would maintain wildlife corridors throughout the open space. The plan provides an extensive corridor along the western boundary, preserving an area where deer would be expected to continue utilizing the Tamalo Creek drainage. The two pods of the cluster development that fall within (TF5) or partially within (TF4) the RR -10 zone are also configured to provide an additional north/south corridor following the natural lay of the land. Finally, the configuration of the development plan supports eastfwest deer movement patterns along the souther portion of the RR -10 zone. This area is clearly maintained as a corridor of habitat between the road [ kyliners Road] and the southernmost cluster [in Tree Farms 3 and 5]. These corridors, and the open space in general, will continue to provide space for deer to move across and to utilize the wildlife habitat provided by the WA zone on the `R-10,' (Bold > emphasis added.) The Hearings Officer understands the above -emphasized language to mean Dr. Wente concluded the proposed open space in the southern portion of The Tree Farm and Tree Farm 1, including the portions of Tree Farm Drive located therein, would' not create a barrier to deer movement or habitat use in that area. The tentative plans for The Tree Farm indicate, and my site visit observations confirmed, that there are a number of existing dirt roads in this area of The Tree Farm as well as on the southern portion of the adjacent Miller Tree Farm property to he east. The record also indicates these roads and the existing dirt trails in The Tree Farr have been, and currently are, used by members of the public. in other words, human use of this habitat already is occurring. The applicant proposes to obliterate and revegetate some of the existing dirt roads in an effort to restore habitat and reduce human use thereon. The applicant also proposes to remove much of the existing wire fence on The Tree Farm property which will reduce the physical barriers to deer movement on the property. The Hearings Officer finds development of The, Tree Farm and construction of Tree Farm Drive are likely' to increase vehicular traffic in the southern portion of The Tree Farm over historic and current use of the existing dirt roads and trails. Nevertheless, considering the relatively' low volume of traffic predicted for Tree Farm Drive at buildout - 476 ADTs — l find the presence of a segment of Tree Farm Drive in Tree Farm 1 will not interfere with use of the winter deer range in genera or migration corridors therein in particular, At the public hearing, the Hearings Officer questioned whether ongoing management on The Tree Farm for fire Biel reduction can be undertaken consistent with the conservation of the Tumalo winter deer range. In response, the applicant submitted a letter dated December 5, 2014 from Dr. Wente stating the WMP and the applicant's fire plan "are designed to provide a coordinated solution to serve two goals that can in some cases be in conflict: maintaining the quality of''vvildlife habitat while also reducing the risk of wildfire,' Specifically, Dr. Wente noted tl�o fuel reduction treatments..�.e ..�. :�. ,... open . ` � ...�.�. a. e �., : . continuation of the treatments \already practiced by Miller Tree Farm on The Tree Farm property. Dr. Wente stated that in her opinion the proposed fuel reduction treatments would not interfere with conservation of the winter deer range for three reasons: (1) The Tree Farm open space provides good winter deer range habitat in spite of histor is and ongoing fuel reduction treatments thereon; (2) the fuels management techniques will simulate the effects of small-scale Tree Farm 1, 247 -14 -000242 -CU, 247 -1€4 -000243 -TP Page 44 of 118 wildlife which is an important component of a healthy ponderosa pine ecosystem: and (3) regular brush cutting and removal of juniper trees encourages the, growth of forbs that make up much of the winter forage for deer. However, as discussed in the findings above and in my decisions in Tree Farms 2, 3, 4, and 5, 1 have found it may be necessary to, implement more aggressive fuel'' management methods, such as clearing vegetation downslope from ridgetop dwellings, in order to reduce the fire risk for those dwellings to a sufficient degree that Tree Farm 1 is suitable for the proposed cluster/PUD and will be compatible with surrounding lands. l' have found some of this clearing may need to occur in The Tree Farm's open space tracts in the WA Zone. I find the WMP does not appear to contemplate or address the impacts to wildlife habitat from, that additional fuel reduction, Finally, the WMP includes at pages 9-12 a number of habitat mitigation and conservation measures, These measures are described as dwelling siting and fencing consistent with the WA Zone not allowing uses prohibited by Title 18, and several specific measures addressing vegetation monitoring, removal of non-native species and juniper, preserving ponderosa pine trees and downed logs, and keeping dogs on leash. However, the Hearings Officer finds WMP' suffers from the same lack of detail and clarity as the applicant's wildfire plan,, particular concerning when, how, and by whom these measures will be undertaken, how their success will be measured, and how and by whom they will be enforced. Rather, for the most part the VVMP' states simply that certain things "will be done" or "will comply." I find that to be effective, and to assure compliance with this conditional use approval criterion, the WMP must include more detail, such as an action plan that identifies specific roles and responsibilities for the developer and HOA, describes how and when the developer will hand off to the HOA, and what specific measures will be undertaken consistent with the wildfire plan to assure more aggressive fuel reduction measures, if required, will not interfere with deer use of the winter range and migration corridors. As with the wildfire plan, I find it is neither feasible nor appropriate for me to craft conditions of approval in an effort to make the applicant's WMP adequate. For the foregoing reasons, the H demonstrate the site for Tree Farm 1 resource va FI ND NGS: lu es, earin€gs Officer finds the applicant is suitable for the proposed use consi has failed to, dering natural The proposed use shall be compatible with existing and projected uses on surrounding properties based on the factors listed in DCC 18.1 8,015i(A . Existing and Projected Uses. Existing discussed in the findings below, and projected uses on surroundin properties are 1. East: Immediately to the east i vacant and zoned t AR -1O and owned by Miller Tree Farm. The Hearings Officer finds that in the short term this property could be developed with ten -acre residential lots or with smaller lots through PUD approval. In the longer term, because this property is included in the urban area reserve, it may be brought into the Bend l.lGB and developed with urban --density residential uses. Farther to the e ,st within the Bend LlGB and city limits are three public schools and Northwest Crossing, a mixed-use development including urban -density residential, commercial, and light industrial devrelopment. The Hearings Officer finds these uses will continue in the future. The applicant's burden of proof states, and I agree, that the design of The Tree Farm, with its clustering of dwellings and large swaths of open space, will be compatible with surrounding lands to the east by placing the dwellings closest to Tree Farm 1, 247 -14 -000242 -CU 247-14-000243-]-P Page 45 cf 116 the UGB and by serving as a permanent transition between the urban and urbanizable lands to the east and Shevlin Park and forest lands the west. 2. West. To the southwest is the portion of the DNF planned and managed for scenic views and recreation, including the "Phil's Trail" mountain biking trail network. Irnmediately to the west is ahevlin Park, a 652 -acre regional park owned and managed by the park district and which ncludes developed amenities, large areas of open space, and an extensive trail system. The Hearings Officer finds it is reasonable to assume these uses will continue in the future. Farther to the west and northwest are private forest lands including the approximately 33,000 -acre Cascade Timberlands property and several smaller parcels, Evidence in the record concerning current uses on these hands is scant, so I`''have found it appropriate for purposes of the suitability criteria addressed above to assume existing uses include those permitted outright in the F-1 Zoite, including some timber harvest. However, as noted above, I am aware long-term plans for the Cascade Timberlands holdings have included a mix of timber production, protection of scenic views, and recreation. The Hearings Officer has 'found Tree Farm 1 will not cause a significant change in, or significantly increase the cost of, accepted forest practices on nearby lands devoted to forest use. The Hearings Officer has found Tree Farm 2 will not cause a significant change in, or significantly increase the cost of, accepted forest practices on nearby lands devoted to forest use. However, as discussed in the findings above, I have found the applicant failed to demonstrate the site for Tree Farm 2 is suitable for the proposed clusterlPUD considering natural hazards and natural resource values due to deficiencies in the wildlife plan and wildfire plan. The question, then, is whether those suitability findings mean Tree Farm 2 will be incompatible with current and projected uses on public and private forest lands to the west and southwest. I find the primary concerns about incompatibility are the risk of a fire spreading into and from The Tree Farm, and the lack of an adequate wildfire plan and implementation of that plan making that risk higher. I believe it is feasible for the applicant to develop an adequate wildfire plan, but unless and until the applicant does so, I find Tree Farm 2 is not compatible with existing and proposed uses on Shevlin Park and nearby forest lands. 3. South. To the south across Skyliners Road is The Highlands at Broken Top PUD zoned tlAR-10 and including 37 ten -acre residential lots and open space. Farther to the south is the Tetherow destination resort including residential lots, open space, a golf course and clubhouse_ The Hearings Officer finds these uses will continue in the future, although because it is zoned UAR-10, The Highlands at Broken Top has the potential to be brought into the Bend UGB and redeveloped at urban density. I find Tree Farm 1 will be compatible with surrounding lands to the south because they are developed with uses similar to what is proposed for The Tree Farm i.e., rural residential subdivisions. 3. North. To the north are large vacant parcels' zoned UAR-1 u, one of which is 376 acres in size and owned by Rio Lobo, The Hearings Officer finds that in the short term these lands could be developed with ten -acre lots or with smaller lots through PUD approval. In the longer term, because these lands are included in the urban area reserve, they may eventually be brought into the Bend UGB and developed, at urban density. Pio Lobo argues The Tree Farm and Tree Farm 1 are not compatible with future development of its property for two reasons. First, in his letter dated December 11, 2014, Rio Lobo's attorney Myles Conway stated the applicant's proposal to create a private road system in The Tree Farm, and to stub off Sage Steppe Drive in Tree Farm 1 at the boundary of Rio Lobo's property, will`»not be sufficient to support additional through traffic generated by future development of Rio Tree Farm 1, 247 -14 -000242 -CU, 47-14-0 00243 -TP Page 46 of 116 Lobo's land, As discussed in the findings above addressing the adequacy of transportation access, Rio Lobo's traffic engineer predicted that buildout of Rio Lobo's 376 -acre property at urban density would include, 1,100 dwellings units generating over 9,000 ADTs. Mr. Conway argues Section 17.30.020(B) requires the applicant to dedicate and construct a public road from The Tree Farm's shared boundary with Rio Lobo's property to Skyliners Road to facilitate future development of Rio Lobo's property. The Hearings Officer disagrees. As discussed in the subdivision and PUD'findins below, I have found the applicant is permitted to develop The Tree Farm with private roads. in addition, I have found Section 17.36.020(B) of the subdivision' ordinance does not require the applicant to dedicate or construct a public road between the Rio Lobo property and Skyliners Road because none is necessary to accommodate present and future through traffic generated by The Tree Farre and/or development of Rio Lobo's property with its current LIAR -10 zoning 22 Second, Mr. Conway argues The Tree Fara and Tree Farm 1 are not compatible with projected uses on Rio Lobo's property because the majorty of Tree Farm dwellings are proposed to be clustered along or near Rio Lobo's southern boundary, and the applicant proposes only one street connection between the properties, the future extension of Sage Steppe Drive, In his January 6, 2015 submission, Mr, Conway asserts this configuration will "adversely affect future development of the Rio Lobo property" and these proposed Tree Farm homesites 'should be subjected to additional setbacks from applicant's northern property boundary to compliance with the compatibility provisions." Mr. Conway argues Tree Farms 1 through 4 must be reconfigured to provide a future road connection at least every, 400 feet along the Rio Lobo property boundary, relying on Section 17.3 .140(l3)(3)(c). However, as discussed in the findings below, the Hearings Officer has found Section 17.30.140(8)(3)(c) of the, subdivision ordinance is not applicable to Tree Farm 1, and therefore the applicant is not required to provide more than one future road connection along the northern boundary of The Tree Farm. Rio Lobo's property and the vacant Miller Tree Farm property adjacent to Tree Farm 1 are zoned LIAR -10 and abut the Bend UGB. Consequently, the Hearings Officer finds the nature and timing of development on these two properties likely will depend on whether and when they are brought into the UGB and when Skyline Ranch Road, a designated collector, is dedicated and developed north of its current terminus near Skyliners Road. Annexation of these properties into the UGB could allow the urban -density development contemplated in Rio Lobo's traffic study. However, I find that as long as the properties remain in the urban area reserve, development will be at much lower density. The applicant's burden of proof states The Tree Farm was conceived as a permanent transition area between urban and urbanizable land to the east and 8hevlin Park and large areas of forest to the west. That transition is created by clustering most of the dwellings in the UART10 zoned portion of The Tree Farm, including ;,all of the dwellings in Tree Farm 1, and placing most of the open space on theRR-10/WA-zoned property near Shevlin Park and forest lands. For these reasons, 1 find that regardless of the ultimate development density on the Rio Lobo and Miller Tree Farm properties, the transition area created by The Tree Farm cluster/PUDs will be compatible with their development, a n a letter dated December 23, 2014, Charley Miller representing Miller Tree Farm LLC stated it'wouid- be be willing to commit to the dedication of public road right-of-way in ;.a mutually agreed upon location cross the adjacent Miller Tree Farm property in the event Rio Lobo obtains county land use approval for either a destination resort or a 37 -lot subdivision or p1J0 on its adjacent property. That dedication would be to allow Rio Lobo to construct the segment of Skyline Ranch Road from the Rio Lobo property across the Miller Tree Farm property to the recently constructed>NorthWest Crossing Drive/Skyline Ranch road intersection adjacent to the new Pacific Crest Middle School. Tree Farre 1, 247--14-000242 CLJ, 247_14 -000243 --TP Page 47 of 116 Opponent Land latch argues the applicant mischaracterizes The Tree Farre as creating a "transition,, area;; because "there are no urban uses for a substantial distance to the east," and therefore the applicant's proposal represents '"an isolated pocket subdivision that doesn't provide a'transit lon to anything." The Hearings Officer disagrees, The properties east and north of The Tree Farm are zoned UAR-1 €J and therefore are planned and zoned for eventual inclusion in the Bend UGB and urban -density development. That these properties are undeveloped does not change the fact that they are urbanizable lands and ultimately may be developed' at much higher density than The Tree Farm, Accordingly, I find the characterization of proposed The Tree Farm as a "transition area" is accurate. For the foregoing reasons, the Hearings Officer finds Tree Farm 1 will be compatible with existing and projected uses on surrounding lands to the north, east and south, but will not be compatible with Shevlin Park and forest lands to the west because of deficiencies in the applicant's wildfire plan and #P. C. These standards and any other standards of DCC 18.128 may be met by the imposition of conditions calculated to insure that the standard will be met. FINDINGS: As discussed throughout this > decision, the Hearings Officer has recommend if the applicant's proposal is approved on appeal, such approval should be subject to conditions of approval designed to assure compliance with applicable standards and criteria, 1. Section 18.128.040, Specific Use Standards A conditional use shall comply with the standards of the zone hi which, it is located and with the standards and conditions set forth in DCC 18.128.045 through DCC 18.1 8.370. FINDINGS: Compliance with the specific use standards for cluster developi en 1 8.128,200 is addressed in the findings immediately below. Section 18.128.20 Uses Only) 0, Cluster Devel 0 P is in Section en t (Single Family Resid A. Such uses may be auth erized as a Gond consideration of the following factors: Rion I use on en 'a ly FINING: The Hearings Officer finds the language of this paragraph means the factors discussed in the findings below do not establish specific approve l standards for Tree Farm '1, but rather identify issues l must consider. Need for residential uses i proposed development. h the it "9rnediate area of the, FINDINGS: : The applicant addressed this factor by submitting as bit "K" to it burden of proof reports identifying the homes, lots > and land currently for sale, pending sales, and actual' sales during the past 12 nnonths in developments in close proximity to The Tree Farm. These developments include NorthWest 'Crossing, Shevlin Commons, The Highlands at Broken Top, Tetherow, and Shevlin Meadows, The report also includes a copy of the June 12, 2014 "Bretton Tree Farm 1, 247 -14 -000242 -CU, 247--14-000243-TP xhi Page 48of116 Report „ a s onthly con pilation of data on Group. The staff >'report summarizes the rep residential, sales complied by the Bratton Appraisal orts in Exhibit "'K'"'as follows: "Out of a total of 131 listings, 81 lots have sold in the past year and nine sales are pending. This translates to 7.5 sales per month. As of the time of the reports, the applicant indicates a standing inventory of 41 properties on the market, or just under 5 % months inventory; The applicant notes that since Januanj 2014, the nurrtler of sales and pending sales has increased to an average of nearly ten per month. Assuming current activity levels, the applicant concludes there is just over a 4 month supply of inventory on the market; Out of a total of 178 single-family home listings priced up to $2,000,000, homes have sold in the past year and 29 are pending, absorbing inventory a over 12 sales per month. Standing inventory includes 33 homes on the market a dozen of which are either under construction or Lombe-builtproviding fewer than three months of single-family homes on the market." Opponents Connie Peterson and 'Christine Herrick argue the applicant should have identified and addressed the need for affordable housing. The Hearings Officer understands these concerns, However, l find use of the broad term "residential uses" in this factor does not specify or require analysis of any particular types of housing. For the foregoing reasons, the Hearings Officer finds the applicant has demonstrated there is a need for residential uses in the immediate area of The Tree Farm, and the proposed dwellings in Tree Farm 1 will address that need. Fl N 9i NGS: 2. Environmental, , social and economic result from the development, includ public facilities such as schools and roa mpacts likely to ing impacts on d s. Environmental Impacts Tree Farm 1 is configured so that the ten proposed dwellings and most of the roads that will serve there are clustered on relatively level, sparsely treed land in the northeast corner of the development in the LIAR -10 Zone. The remainder of Tree Farm 1 will be preserved as open space with the exception of a small area near the southern property boundary on which a segment of Tree Farm Drive will be constructed. The applicant proposes to establish building envelopes on each residential lot in which dwellings must be constructed. Remaining land on the residential lots and the open space tract would be maintained in its natural state except for periodic removal of juniper trees and brush cutting required for fire fuel'' reduction. As discussed in the findings above, the Hearings Officer has found Tree <Farm 1 will not interfere, and will be compatible, with accepted forest practices on nearby public and private forest lands. However, I also have found the applicant failed to demonstrate the site for Tree Farm 1 is suitable for the proposed cluster/PUD considering wildlife habitat and wildfire hazards due to deficiencies in the applicant's wildfire plan and WIMP. In his December 11, 2014 letter,', Paul Dewey argues consideration of environmental factors must not be based on a comparison of the impacts of clustering vsdevelopment of The Tree Farm property with the maxirns.urn five dwellings that would be permitted under its current configuration and zoning, or with alternate development patterns such as a traditional Tree Farm 1, 247 -14 -000242 -CU, 247 -14 -000243 -TP page 49 of 116 subdivision with 1 0 -acre lots and dwellings spread throughout the cre property. His letter goes on to state: 'There are apparently only five lots, so the current alternative would be five houses. Though the zoning allows » a house on a 10 -acre parcel, there is no basis to conclude that 50 10 -acre lots can be created here." (Underscored emphasis ad ded.) The Hearings Officer disagrees. 1 find there are reasons to find a traditional subdivision with ten 10 -acre lots could be approved on each of the five Tree Farm legal lots. First,, a sir rilar> development — The hlands at Broken Top __ was approved immediately south of The Tree Farre. Although this subdivision technically is a PUC} 23 it was approved with 37 mostly ten -acre lots on land zoned UA -10 and adjacent to a large open space area abutting the DNF. Second, traditional` subdivisions do not require conditional use approval in the RR -10 and UAR-10 Zones. They are subject to the 10 -acre minimum lot size in those zones, and to the subdivision standards in Title 17. As discussed in the findings below concerning compliance with Title 17, the vast majority of those standards are clear and objective design standards. The exceptions are the subjective and discretionary standards in Section 17.16.100 that require the developer to demonstrate the subdivision would establish orderly development and land use patterns in the area, provide for the preservation of natural features and resources, and not create excessive demand on public facilities and services, and utilities. I find it is possible for the applicant to satis y those standards with conditions of approval and with the above-described revisions to Its wildfire plan and WtiP. Accordingly, I find there is nothing improper in, comparing the propose cl€:€ster/PUDs to the alternative of a traditional subdivision when weighing the environmental impacts, of The Tree Farm and Tree Farm 1. Land '+latch also argues the applicant has failed to demonstrate The Tree Farre will not have negative environmental impacts on Tumalo Creek. Again, the Hearings Officer disagrees. l find potential impacts on Tumalo Creek would be limited to erosion and runoff from the west side of the central ridge into the creek, and I find the applicant's drainage plan, discussed in detail elsewhere in this decision, demonstrates runoff will be contained on site. Because the Hea€-€ngs Officer has found the applicant failed to demonstrate the site for Tree Farm 1 is suitable for the proposed cluster/PUD considering wildlife habitat and wildfire risk; also find the applicant >'failed `>to demonstrate Tree Farm 1 adequately considers and addresses this cluster development factor, Socia" Impacts. The Hearings Officer has found the applicant demonstrated a need for additional residential uses on the west side of Bend that The Tree Farm will address. Tree Farm 1 will cluster ten dwellings in the UAR-10 Zone relatively close to three public schools and`, cor €rnercial and light -industrial uses in NorthWest Crossing, as well as possible future urban density development on the adjacent Rio Lobo and Muller Tree Farm properties, The configuration will place approximately half of the Tree Farm 1 open space in the RR -10 and WA - Zones closest to Shevlin Park and public and private forest lands to the west. As discussed above, I have found the proposed configuration of The Tree Farm will provide a transition between the Bend urban area and, the vast forested land to the west, l find the proximity of The The Cascade Highlands decision, included in the record as an attachment to Anthony Raguine's November 17, 2014 memorandum, states "tee 37 lots are all about 10 acres in, size (with the exception of proposed Lot 22 that will be 18.05 acres)," and "the remaining acreage [approximately 20 acres] * " will be platted as a separate lot' and designated not a part" of the subdivision. Tree Farm 1, 247 -14 -x}00242 -CU, 247 -14 -000243 -TP Page 0 of 11 6 Tree Farm and Tree Farm 'l to Shevlin Park and to the extensive "Phil's Trail" mountain biking trail network in the DNF will facilitate use of these resources by Tree Farm residents, LandWatch argues The Tree Farm will' have '>,negative social impacts on Shevlin Park. The Hearings Officer finds this argument ignores the record. The park district submitted several, comments in support of The Tree Farm. The only concerns the park district expressed were the need to refine the proposed trail alignments between The Tree Farm and Shevlin Park, and the need to provide for off—street parking for trail access, In his December 11, 2014 comments, SteveJorgensen, the park district's Park and Trail Planner, stated that increasing public access to the south portion of Shevlin Park "is <a positive development'" that will relieve some of the current and future demands on the limited parking areas at the north end of Shevlin Park, and will serve to discourage transient camps on the southern portion of''the park. Mr. Jorgensen recommended several measures to facilitate trail access and off-street parking., These would occur on the adjacent Muller Tree Farm property. Specifically, Mr. Jorgensen recommended the applicant dedicate a 20' -wide "re -locatable `floating' public trail easement" to the park district`' that abuts and runs parallel to the Skyliners Road right-of-way between Crosby Drive and the proposed intersection between Tree Farm Drive and Skyliners Road. He also recommended the applicant improve a new mountain bike trail within that easement in order to provide a connection between the existing West Bend Trail along, Skyliiners Road that terminates on the east side of Crosby Drive and the proposed trail system in The Tree Farm. The Hearings Officer finds that because it appears from the tentative plan for Tree Farm 1 that this easement and the recommended improvements thereto would, be located entirely' within the adjacent Miller Tree Farm property, I lack authority to require the easement and improvements as a condition of approval for Tree Farm 1. Econ ic impacts, The applicant argues, and the Hearings Officer agrees, that The Tree Farm's clustered development pattern is the most cost-efficient manner in which to develop a large rural tract, and much more efficient than providing public facilities and services to widely dispersed ten -acre lots. For example, clustering of dwellings requires shorter extensions of streets and utilities required to serve residential lots. In addition, l find that if the applicant is able to secure domestic water through connection to the City of Bend water system or the Avion Water Company there will be no need for individual on-site wells.24 Public ,Facilities. Comments on the aplicant;'s proposal from Peter Russell and George Kolb indicate no improvements to existing streets or intersections are necessary. No comments on road improvements were received from the city's public works department. As discussed in the findings above concerning the adequacy of transportation access to The Tree Farm, the Hearings Officer has found the development >' will not create an undue burden on affected transportation facilities. Finally, as discussed in the findings below, incorporated by reference herein, the Hearings Officer has found that providing domestic water to The Tree Farm and Tree Farm 1 will not place an undue burden on city water facilities. ``` The applicant argues The Tree Farm also ,will provide economic benefits by having the HOA own and maintain PUD roads, thereby relieving the county of such maintenance expenses. However, in his corrnents on the applicant's proposal, George Kolb noted that the county no longer is accepting roads into its road maintenance network. Tree Farm 1. 247-14-OOO242 CU, 247; -14 -000243 -TP Page 51 of 116 Satfob's. The UAR-10 zoned portion of Tree Farm 1 is located within the boundaries of he Bend -La, Fine School Distri t.25 As discussed above, three of the district's schools -- Mi ler Elementary, Summit High School, and the new Pacific Crest Muddle School under construction are located within a mile of Tree Farm 1. The school district did not submit comments on the applicant's proposal. However, the Hearings Officer is aware the school district responds to growth in student populations by expanding school capacity and/or adjusting school boundaries, and typically requests that private subdivision streets be subject to public access easements to facilitate school bus travel thereon. As disc€.€stied above, the applicant proposes to dedicate public access easements over all private Tree Farm roads. For the foregoing reasons, the economic impacts. Hearin gs >>Officer finds Tree Far Effect of t area. 1 wil have positive »social and he development on the rural character of the FINDINGS: Tree Farm 1 is located in a rural area west of the Bend UGB that is characterized, by: (a) large vacant parcels zoned UAR-1 d to the east and north; (b) large' UAR-1 O zoned parcels to the south across Bkyliners Road with low dens"€ty residential development (The Highlands at Broken Top) and a destination resort (Tetherow); (c) Shevlin Park; and (d) tens of thousands of acres of public and private forest ands to the west. The Hear€ngs Officer has found The Tree Farm will provide a transition between the urban and urbanizable lands to the east and the vast resource lands to the west. The overall density of development in The Tree Farrn will be the same as in The Highlands at Broken Top, The proposed configuration of The, Tree Farm will cluster the majority, of dwellings in the UAR-10 Zone and will locate the majority' of open space in the RR -10 and WA Zones. For these reasons, l find Tree Farm 1 will be consistent with the rural character of the area, 4. Effect of the development on agricultural, forest wilt Ilfe or other natural resource uses lin the area. FINDINGS: The record indicates there are no agricultural uses in the area. As discussed in the findings above, incorporated by reference herein, the Hearings Officer has found Tree Farris 1 will not force a significant change in, or significantly increase the cost of, accepted forest practices on nearby and devoted to forest use, and will be compatible with such uses. With the exception of vegetation management for fire fuel reduction, the applicant proposes to retain all existing vegetation on The Tree Farm open space tracts as well as on the portions of the two - acre residential lots outside the designated building envelopes. The applicant proposes to site dwellings on relatively level ground, thus minimizing the need for significant excavation and fill, and to site the private roads to minimize steep slopes and road cuts. Finally, as also discussed above, the Hearings Officer has found Tree Farm 1 wil comply with all applicable requirements in the WA Zone, However, l'' have found the applicant`' failed' to demonstrate its site is suitable for the proposed cluster/PUD considering wildlife habitat because of deficiencies in the WIMP. For the foregoing reasons, the Hearings Office on agnculture or forestry. However, l have fou r finds Tree Farm 1 wil nd the applicant failed not have a negative effect to demonstrate' Tree Farm 25 The record indicates the RR -10 zoned portion of the Tree Fara is located in the Redmond School District. The applicant's burden of proof states the applicant will request that the Bend and Redmond school districts allow the thirteen Tree Farm homesites in the Redmond School District to be transferred to the Bend -La Pine School District. Tree Farm 1, 247' -14 -000242 -CU, 247-14-OOO243-TP Page 52 of 116 1 Will not have a negative effect on wildlife Tree Farm 1 does not satisfy this criterion. habitat iso the winter deer range. Therefore, find B. The conditional use shall not be granted unless the following findings are mad': All development and alterations of the natural landscape, will be limited to 35 percent of the land and at least 65 percent shall be kept in open space. in cases where the natural landscape has been altered or destroyed by a prior land use, such as surface mining, dam construction or 'timber removal, the County may allow reclamation and enhancement of the open space area if enhancement creates or improves wetlands, creates or improves wildlife habitat, restores native vegetation or provides for agricultural or forestry use of the property after reclamation. FINDINGS: Th , Hearings Officer has found the WA Zone's 8O percent open space requirement' must be met entirely within the WA -zoned portion of Tree Farm 1. Because 39.9 acres of the 46.5 acres of Tree Farm 1 in the WA Zone will be preserved as permanent open space, the applicant's propose l satisfies the ''WA Zone standards. With respect to the ' 5 -percent open space requirement in this paragraph, the applicant's burden of proof states 81.1 acres of the 105.3 acre Tree Farm 1 (77 percent of the site) will be in open space, satisfying this standard. 2. The area not dedicated to open space or co r~brr on use may be platted as residential dwelling lots or parcels that are a rrinlmum of two acres and a maximum of three acres in >>size. ''Their use shall be restricted to single-family use. Single-family use may include accessory uses and County authorized home occupations. Uses permitted in the open space area may include the management of natural resources, trail systems or other outdoor uses that are consistent with the character of the natural landscape. FINDINGS: The applicant proposes that Tree Farm 1 will have ten 2 -acre residential lots with single-family dwellings constructed within designated building envelopes. The applicant proposes that the dedicated open space tracts will b managed for trail systems, wildlife habitat, and forest management consistent with preservation of wildlife habitat and the reduction of fire fuer. For these reasons, the Hearings Officer finds Tree Farm 1 satisfies' this criterion. Fl N DIN 3. In the Wildlife Area Combining Zone, in addition to, compliance with the WA zone development restrictions, uses and activities must be consistent with the required Wildlife Management plan. The 'Pan" shall be approved if it proposes all of the fol owing in the required open space area: GS: As discussed in detail>in the findings above, the Hearings Officer has found the WA ply only to the portion of Tree Farrn 1 zoned WA. Therefore>: 1 find it is Zone requirements ap Tree F rr 1, 24T-14-000242- U, 247-14-00 243 -TP Facie 53 of 116 applicable only to the 40.5 acres of open space and road 'right-of-way in Tree Farm 1 zoned WA. The applicant's WMP proposes that uses 'in the, open space tracts in Tree Farm 1 will be limited to management of vegetation for fire fuel reduction and winter range habitat conservation as well as low -intensity recreation uses such as pedestrian and bicycle trails. Thereofre, 1 find the proposed uses and activities in the open space tracti11 be consistent with the WMP. However, as discussed above, l have found the WMP does not adequately address potential impacts on wildlife habitat from more aggressive fire fuel reduction that may be required to protect ridgetop dwellings from wildland fire Preserves, protects and enhances wildlife habitat for WA zone protected species as specified in the County Comprehensive Plan (DCC Title 23); and FINDINGS: i The portion of Tree Farm 1 in the WA Zone consists of 39.9 acres of open space and 0 6 acres of right-of-way for Tree Farm Drive. As discussed in detail in the findings above, incorporated by reference herein, the Hearings Officer has found the applicant failed to demonstrate the site for Tree Farm 1 is suitable for the proposed cluster/PUD considering wildlife habitat because the WMP is deficient in not addressing potential impacts on habitat from more aggressive fire fuel treatments that may be required for ridgetop dwellings to reduce the risk of fire. However, 1 have found on the basis of the WMP that deer will continue to use the habitat in the open space area for browsing, and the segment of Tree Farm Drive will not obstruct the existing deer migration corridor across the southern portion of Tree Fan . b. Prohibits golf courses, tennis courts, sw pools, marinas, ski runs- or other developed recreational uses of similar intensity. Low intensity recreational uses such as properly located bicycle, equestrian and pedestrian trails, wildlife viewing areas and fitness courses may be permitted; and FINDINGS: : The only developed recreational use the applicant pro open space is the pedestrianibicycle trail system. The Hearings intensity use permitted by this paragraph. poses or the Tree Fa Officer finds this is a low. rm c, Provides a supplemental, private open space area on home lots' by imposing special yard setback of 100 feet on yards adjacent to, required open space areas. In this yard, no structures other than fences consistent with DCC 18.8 .070' may be constructed. The size of the yard may be reduced during development, review if the County finds that, through the review of the wildlife management plan, natural landscape protection or a-dla achieve equal or greater protection through the approval of a reduced setback. In granting an adjustment, the County may require that a specific building envelope be shown on the final plat or may impose other conditions that Tree Farr ;1, 247:.14 -000242 --CU, 247--14-00024, -Tr' Page 4 of 116 assure the natural resource values relied upon to justify the exception to the special yard requirements will be protected. FINDINGS: GS: The tentative plan for Tree Farm 1 shows none of its ten pro posed>residential lots is adjacent to the open space within the WA Zone. Therefore, the Hearings Officer finds this criterion is not applicable. Nevertheless, the applicant has proposed build ng envelopes for ail' residentiallots in The Tree Farm Including the ten lots in Tree Farm 1. Those building envelopes show setbacks of at Nast 100 feet between the adjacent UAR-10 zoned open space and the building envelope. d O' -road motor vehicle use shall be prohibited in the open space area. FINDlNG : The applicant's burden of proof, states no off-road motor vehicle use will be permitted in the open space tracts. The Hearings Officer finds the applicant will be required as a condition of approval to prohibit off-road vehicle use on the Tree Farm 1 open space tract, and to enforce that prohibition, through;. the development's CC&Rs. Adequate corridors on the clu ter allow for wildlife passage th development. property to rough, the FINDING: As discussed in the findings above concerning compliance with the general conditional use standards in Chapter 18.128, the applicant's MAP identified several existing migration corridors in the winter deer range on The Tree Farm, including north -south corridors in the western portion of The Tree Farm outside the boundaries of Tree Farm 1, and an east -west' corridor along the southern part of Tree Farm 1 running parallel to Skyliners Road. Based on the WMP, the Hearings Officer has found the open space tract and the small segment of Tree Farm Drive in the WA zoned portion of Tree Farm ''1 will not create a barrier to deer migration along #his existing corridor, and therefore I find this existing corridor will allow for wildlife passage as required by this criterion. FII DI All lots within the development shall be contiguous to one another except for occasional corridors to allow for human passage, wildlife travel, natural features such as a stream or bluff or development of property divided by a public road which shall not be wider than the average lot width, unless the Planning Director or Hearings Body finds that special circumstances warrant a wider corridor. NGS: The tentative plan for Tree Farm 1 shows all ten resid ential lots will be >>contiguous except for the intervening rights-of-way for l idgeline and Sage Ste Hearings Office€r. finds Tree Farm 1 satisfies this criterion." ppe Drives. Therefore, 26 The record indicates the only gap between residential lots within The Tree Farm — other than th created by roads — is proposed between Lot 37 in Tree Farm 4 and Lot 43 in Tree Fa rr,€ ' The indicates this gap is located at a natural topographic break and existing wildlife corridor between T Creek and, the higher ground on the subject property, Tree Farm >.1, 247 4 -000242 -ACU, 247-14-00i 243 -TP he Page 55 of 116 FINDINGS: . Compliance with tl below. All applicable >subdivision or partition requirements contained in DCC Title 17, the Subdivision/Partition Ordinance, shallbe met. e applicable criteria in Title 17 'is addressed in the findings 6. The total' number of units shall be established by reference to the lot size standards of the applicable zoning district and combining zones. FINDINGS: The RR -10, LIAR -10 and WA Zones establish a general density of one dwelling per ten acres. The applicant proposes ten residential lots on the 105,3 -acre Tree Farm 1 property, therefore satisfying these standards. The open space of the proposed development shall be platted as a separate parcel or in common ownership of some or all of the clustered lots or parcels. For any open space or common area provided as a part of the cluster development, the owner ,shall submt proof of deed restrictions recorded in the County records. The deed restrictions shall preclude all future rights to construct a residential dkvelling on the lot, parcel or tract designated as open space or common area for as long as the lot, parcel or tract remains outside an urban growth boundary, The deed shall also assure that the use of the open space shall be continued in the use allowed by the approved cluster development plan, unless the whole developn anti ' brought inside an urban growth boundary. If open space is to be owned by a homeowner's association or if private roads areapproved, a homeowners association roast be formed to manage the open space and/or road areas. The bylaws of the association must be recorded prior to or concurrent with'the filing of the final plat. If the open space is located within the Wildlife Area Combining Zone, the management plan for the open space must be recorded with the deed restrictions or bylaws of the homeowner's association, FINDINGS: The tentative plan for Tree Farm 1 shows the 81.1 acres of open space would be platted as a separate tract, The Hearings Officer finds that as a condition of approval the applicant will be required to show the Tree Farm 1 open space as a separate tract on the final''' plat. The applicant submitted as ''Exh€bit 'L" -to its burden of proof a draft set''' of deed restrictions for the open space tracts in The Tree Farm, Those deed restrictions would prohibit development within the open space tracts for as, long as The Tree Farm is located outside the Bend UGB. As discussed in the findings above under the administrative rules, the Hearings Officer has found that to carry out the applicant's intent to prevent development on The Tree Farm open space tracts in perpetuity, the applicant will be required as a condition of approval, and prior to Tree Farm 1, 247 -14 -000242 -CU, 247 -14 -000243 -TP' Page 56 of 1'16 submitting for find approval any plat for Tree Farm development, to provide to the Planning Division for county review and approval a copy of the required deed restrictions, and to provide to the Planning Division copies of the recorded deed restrictions after recording The applicant also proposes, and will be required as conditions of approval, to record the WMP along with the required deed restrictions, > to form an HOA to own and manage the open space tracts and roads within The Tree Farm, and to develop bylaws for the HOA.27 8. Notwithstanding any provision to the contrary in other parts of the County's land use regulations, roads within a cluster development may be private roads and>' lots or parcels, may be created that front on private roads only. These roads must meet the private road standards of DCC Title 17, and are not subject to public road standards under DCC Title 17. An agreement acceptable to the Road Department and County Legal Counsel shall be required for the maintenance of private roads. Public roads may be required where street continuation standards of DCC Title 17 call for street connections and the County finds that the benefits of street extension are significant and needed in the future, given the established pattern of street development on adjoining properties and transportation distribution needs. The area dedicated for public road rights of way, within or adjacent to a ptanr ed or cluster development or required ' by the County during duster development review shall be subtracted from the gross acreage of the cluster development prior to calculating compliance with open space requirements. FIN DI N GS: The Hearings Officer finds this subsection establishes the following. a. private roads are permitted in Tree b. private PUD roads mu Farm 1 st meet the county's private road stand ards; c. a road maintenance agreement acceptable to the county must be executed, nd . public road s may be required in the su bdivision where.' street continuation standards in Title 17 call for street connect€o€-€s; and 2! Exhibit "O' to the app`€cant's-burden of proof indicates the applicant has -discussed -potential -acquisition of the most western open space tracts in The Tree Farm by the Trust for public Lands to facilitate future transfer of these tracts to a pudic entity such as the park district or the USFS. Tree Farm open space not so transferred would continue to be managed by the HOA. The Hearings Officer finds that because it is likely any transfer of Tree Farm open space to another entity will require some type of land use approval e . lot line adjustment, modification of conditions — I need not address in this decision the legal effect of such a transfer on conditional use approval of Tree Farm 1 Tree Fare 1. 247 -14 -000242 -CU, 247 -114 -000243 -TP Fag e57of116` the county finds the benefits of street extension are significant and needed in the future, given the established pattern of street development on adjoining properties and transportation distribution needs. The applicant proposes to construct in Tree Farrn 1 two private roads, Ridgeline '''Drive and Ridgeline Court, and one public road, Sage Steppe Drive, and to improve these roads to he applicable county standards for local private and public roads, including 20 feet of paved surface. In addition, the applicant proposes to dedicate to dedicate to the public 60 feet of right- of-way for Sage Steppe Drive in order to provide public road access to the adjoining Rio Lobo property to the north and the adjoining Miller Tree Farm property to the south. Ridgeline Drive will connect with Tree Farm Drive in Tree Farms 2 and 3 to provide access to S yliners Road for the residential lots in Tree Farm 1 The applicant proposes that all Tree Farm roads be owned and managed by The Tree Farm HOA. The Hearings Officer finds the applicant will be required as a condition of approval to execute a road maintenance agreement acceptable to the county and to record such agreement prior to submitting for approval the final plat for any Tree Farm d evelopment. The record indicates there are no existing streets on surrounding ands for which a connection to allow' continuation of such street is required. Section 17.36.020(E3) provides that planned' developments shall include public streets "where necessary to accommodate present and future through traffic." However, as discussed in detail in the findings below, incorporated by reference herein, the Hearings Officer has found this section does not require the applicant to dedicate or construct a public road from Rio Lobo's property to Skyliriers Road because such a public road not necessary to accommodate present and future through traffic within The Tree Farm or from the Rio Lobo property. Ba sed on the foregoing findings, the Hearings Officer finds that with im bed above, Tree Farm 1 will satisfy this criterion, of approval descri position of the cond tons 9. All service connections shall be the minirurn length necessary and underground where feasible. FINDINGS: The preliminary utility{ plan for Tree Farm 1, ' Exhibit :`B:' to the burden of proof, shows all new utility services will be '''located underground within road rights-of-way. The Hearings Officer finds, this proposal will assure service connections are the minimum length necessary, therefore satisfying this criterion. 10. The number of new d ei not,;, exceed 0. The number of n not exceed 10. FINDINGS: The applicant proposes ten resid northeast corner of the development, therefore Tree Farm 1,247- -000242- e II Ing units to be clustered does s or parcels is be created does lots in Tree Fa rre€ 1 clustered near the yng 12. The development is not to, be served, by a ,new, community sewer system or by any new extension of a sewer system from within an urban growth boundary or from within an unincorporated community. , 247 4 -00 243 -TP Page 53 of 1 16;;% FINDINGS: Applicant proposes to serve the resid entia 0 in Tree Farm 1 with ndivid€ual on. site septic systems, therefore satisfying this criterion. 13 The develepme t will not force a significant change in accepted farm or forest practices on nearby lands devoted to farm or forest use, and will not significantly increase the cost of accepted farm or forest practices there° FINDINGS: As discussed in detail in the findings above concerning compliance with the applicable administrative rules in OAR 660.004-040 and the general conditional use standards in Chapter 18.128, incorporated by reference herein, the Hearings Officer finds Tree Farm 1 will not force a significant change in, or significantly increase the cost of, accepted farm or forest practices on nearby lands devoted;. to farm or forest use. FIJI D 14. Al 1' dwellings in setback a minima of an adjacent to clivi ng specia a cluster development must be of 100 feet from the boundary line zoned Exclusive Farm Use that is assessment for faro use. NGS: The Hearings Officer finds this criterion is not applicable because there are no ands usive Farm Use (EFU) adjacent to the subject property. zoned Exc An applications s as 0 be accompanied by following information: 1 A i plan with the plat map meeting all the subdivision requirements of CC Title 17, the Subdivision/Partition Ordinance, A draft of the deed restricti 18.128.200(B)(7). ns req paired by DCC FINDINGS: The applicant submitted a tentative plan for Tree Farm 1 inc tiding a plat map showing all information required under Title 17. In addition, the applicant submitted as Exhibit 'L" to the burden of proof draft deed restriction language for the open space tract. As, discussed in the findings above, the Hearings Officer has found the applicant will be required to submit for county review, and to record. deed restrictions that permanently prohibit development on these tracts. For these reasons, and with imposition of the conditions of approval described above, find Tree Farre 1 satisfies this criterion. 3. A written d ocument establishing an acceptable homeowners association assuring the maintenance of common property, if any, in the deelopaent. The, document shall" include a method for the resolution of disputes by the association membership, and shall be included as part of the b ia:ws. FINDINGS- : The applicant submitted as part of Exhibit "L" to the burden o HOA bylaws, therefore satisfying this criterion. Tree Farm >.1, 247 14 -000242 -CU, 247 -14 -000243 -TP f proof CC Rs and Page of 11$ 4. In the WA Combining Zone, the applicant shall submit an evaluation of the property with a ildlife Management 'plan for the open space area, prepared by a wildlife biologist``that includes the follow rig; A description of the condition of the property, and the current ability' of the property to support use of the open space area by wildlife protected by the applicable WA zone during the periods specified in the comprehensive plan; and A descriptio of the protected species and periods of protection identified by the comprehensive plan and the current use of the open space area; and A management plan that contains prescriptions that will achieve compliance with the wildlife protection guidelines in the comprehensive plan. In overlay zones that are keyed to seasons' or particular tiles of the year, restrictions or protections may vary based on the time of year The management ,plan may also propose protections or enhancements of benefit to other types of wildlife that may be considered in weighing use impacts versus plan benefits. FINDINGS: The, applicant submitted a WMP as Exhibit ,:l:t to the burden of proof. Based findings above concerning the WMP, incorporated by reference herein, the Hearin finds the management plan contains the information required in this subsection. on the gs Officer 5. Photographs and a narrative description of the natural landscape features of the open space areas of the subject property. If the features are to be removed or developed, the applicant shall explain why removal l is appropriate. FINDINGS: The applicant's burden of proof includes aerial photographs of The Tree Farm and surrounding property as well as a narrative description of the natural <landscape features and proposed open space areas in Tree Farm 1. The applicant does' not propose to introduce any andscaping, or to remove any existing landscape features in the open space areas except as necessary for ongoing fire fuels treatment. However, as discussed in the findings above the Hearings ,Officer has found the WMP is deficient in not addressing potential impacts to wildlife habitat from more aggressive fire fuel treatments that may be necessary to protect ridgotop c<we l n; s'. Therefore, €'find the applicant has not fully satisfied th s e terion, A description of the forestry proposed, if any. Tree Farm 1, 247-14-000242- ;U, 247-14-0 ag IC h ral uses 00243 -TP Page 60 of 116 FINDINGS: The applicant's burden of proof states no agricultural uses are proposed for Tree Farm 1, and that the only forestry uses proposed are fire fuels reduction treatment to reduce wildfire risk and to improve wildlife habitat. For the foregoing reasons, the Hearings Officer finds the Tree Farm '1 infornnation required by these criteria. FIN in the D i m ensk nal Standards: proposal provides all Setbacks and height limitations sell be as prescribed In the zone in which the development is proposed unless adequate justification for variation is provided the Planning Director or Hearings Body. DIGS: The setback and height limitetions''in the RR -13 and UAR-10 Zones are discussed findings above and below. The Hearings Officer has found the applicant will be required clition of approval to meet these standards for the dwellings in Tree Farm 1. a s a con Fl d d s MVlinimurrm a determined rea for a cluster development s by the zone in which it is proposed hal be ND1NGS: The 105.3 -acre Tree Farm 1 meets the 40 -acre min€rr urn size for a cluster evelopment in the WA Zone, The RR -10 Zone does not establish a minimum size for chaster evelopments. As discussed in the findings below, Tree Farm 1 satisfies the five -acre min ze for a planned unit development in the UAR-10 Zone E. Conditions for phased development shall be specified and performance bonds shall be required by the Planning Director or Hearings Body to assure comnpletion of the project as stipulated, if required improvements are not completed prior to platting. FINDINGS: The applicant does not propose to develop Tree Farm 1 in phases, and therefore the Hearings Officer finds this criterion is not applicable! However, as discussed above, the applicant ;,propo es to develop Tree Farms 1, 2 and 3 concurrently' to provide road access for all residential ots in those developments. 1 find such concurrent development will be required as a condition of approval for Tree Farms 1, 2and 3. Fp Developments with private roads shalll provide bicycle and pedestrian, facilities that comply with the private road requirements of Title 17. FINDINGS: The applicant proposes to accommodate bicycle and pedestrian traffic via network of paved multi -use trails and native surface recreational mountain biking trails. The applicant proposes that only the southern portion of Tree Farm Drive would be designed to accomrnr_d to bicycle ,. attic ?'othe r but be separate from, the PUD >roads. The applicant proposes, and will be required as a condition of approval, to construct all subdivision roads with the applicable standards in Tule 17 for local public and private roads. Tree Farr i 247 -14.000242• -CU, 247-14-000243 Page 6 of F'IND Plan" N Bicycle and pedestrian connections shall be provided at the ends of cul-de-sacs, at arid -block, between subdivision plats,, etc., in the following situations. Connections shall have a 20 foot right of way, with at least a 10 -foot wide useable surface, shall be as straight as possible, and shall not be more than 400 feet long GS: The applicant submitted as Exhibit "C' to its burden of proof for Tree Farm 1 a "Trail that shows four types of trails within the Tree Fam 1, a 10 -foot -wide paved section of Tree Farm 3; 2. s Drive from Skyliners> Road to a point in Tree Farm eueral 8 -foot -wide `neighborhood trails�' rune€€ig along the private Tree Farm roads; 3. recreation/mountain bike trails leading ,across the open space in the RR-10f\NA zoned portion of The Tree Farm and connecting with the existing trailsystem in Shevlin Park; and 4. existing "perimeter, trails" with "native s€arfac " traversing the open space in the RR-10/WA zoned portion of The Tree Farm between Shevlin Park and the top of the central ridge on The Tree Farm property. The tentative plan for Tree Farm 1 shows a proposed cul-de-sac at the eastern end of Ridgeline Drive at the southern boundary of the adjacent Rio Lobo property. The topographical information on the tentative plan shows a steep slope between the proposed cu -de-sac and the nearest eastern and southern boundaries of Tree Farm 1. As discussed in the findings above:; Sage Steppe Drive in Tree Farm 1 is proposed to be stubbed off at the northern and southern property boundaries of the most northeastern portion of Tree Farm 1, and to be gated at the southern boundary of Tree Farm 1 where it world connect with a temporary emergency access road that would run south through the adjacent Miller Tree Farm property to Crosby Drive. The tentative plan for Tree Farm' 1 shows the three public schools within the Bend UGB are located approximately 2;500 feet southeast of the cul-de-sac in Tree Farm 1.28 For these reasons, the Hearings Officer finds no bicycle connections are required either at the end of the Ridgeline cul- de-sac or mid -block anywhere in Tree Farm 1. 1 Where the addition of a connection will reduce the walking or cycling distance to an existing or planned transit stop, school, shopping center, or neighborhood park by 400 feet and by at least 60 percent over other available routes. For schools or commercial uses where the addition of a connection will reduce the walking or cycling, distance to an existing or planned transit stop, school, shopping center, or neighborhood park by 200 feet or \� t\t .east 50 pe. cent. overother l\\ aia bk .outer., <.. �$ The staff report states the three schools', are located approximately 450 feet from Tree Farm 1 The Hearings Officer finds that calculation is not consistent with the scale shown on the tentative plan. Tree Fe 1 1; 247-14-000242-C , 247 -1 -0O0243 -TP Pa ge62of116 For cul de sacs or dead end streets where a street connection is determined by the Hearings Officer or Planning Director to be unfeasible or inappropriate provided that a bicycle or pedestrian connection is not required where the logical extension of the road that terminates in a cul de sac or dead end street to the nearest boundary of the development will not create a direct connection to an area street, sidewalk or bikeway. The County may approve a cluster development without bicycle or pedestrian connections if connections interfere with wildlife passage through€, the subdivision, harm wildlife habitat or alter landscapeapproved for protection in its natural state. FINDINGS; The Hearings Officer finds construction of a bicycle and pedestrian connection to the nearby schools and beyond to the retail and park uses in NorthWest Crossing would require crossing the adjacent Miller- Tree Farm property to the southeast, which is not a part of the proposed Tree Farm development. For this reason, I find a bicycle and pedestrian connection at the cul-de-sac end of Ridgelne Drive is unfeasible and inappropriate. I note that the proposed trail system in The Tree Farm will connect the cul-de-sac at the western end of Canopy Court in Tree Farm 5 to Shevlin Park and to the DNF to the west. A Conditions of Approval Agreement for the cluster development shall be recorded prior to or concurrent with the final plat for the development. FINDINGS: The Hearings Officer finds the applicant s to record a Conditions of Approval Agreement in accord For the foregoing reasons, the Hearings Officer has satisfy all applicable conditional use criteria in Chapter Title 19 of the D Ordinance 11 be required as a condition of approval ance with this paragraph. 'led to demonstrate Tree Farm 1 will eschutes County Code, the Bend Urban U -10 ZONE STANDARDS 1 Chapter 19.12, Urban Area Reserve Zone w U Sectio n 19.12.010 Pu rp'ose rowth Boundary Zon AR -10 ng;.; To serve as a holding category and to provide opportunity for tax differentials as urban growth takes place elsewhere in the planning area, and to be preserved as longas possible '<a s useful open space until needed for orderly growth. FUNDINGS: Opponent Christine 't-terricis argues the applicant's proposal conflicts with the purpose statement for the UAR-10 Zone which she believes requires the portion of The Tree Farm located in the UARw1 O Zone to rernain in open space "as long as possible." The Hearings Tree Far 1, 247 14 -000242• -CU, 247-14-000243 TP Page 63 of 116 Officer disagrees. Zoning ordinance purpose statements do not establish approval <criteria for quasi-judicial land use applications where such statements are aspirational, or where nothing in the text or context of the purpose statement suggests it was intended to establish approval criteria. SE1U v. City of Happy Valley, 58 Or LUBA 261 (2009). The Hearings Officer finds there is nothing, in this purpose statement that suggests it was intended to apply to quasi-judicial land use applications or to prohibit uses permitted outright or conditionally in the UAR-10 Zone. b. Se ction 1912.03 0. Co d Rion a Uses FINDINGS: Opponents Christine Herrick and Ruth Zdanowicz argue that conditional uses in the UAR-10 Zone "must comply with the Statewide Goals for land use." They are mistaken. The statewide goals are implemented through the county's acknowledged comprehensive plans and coning ordinances, and therefore are not directly applicable, to the applicant's quasi-judicial land use application. The folloin 9 conditional use permit and the provisions of DCC 19.76 and 19.100. conditional uses may be permitted subject to a N. lianas ed unit d evelopment subject to DCC 19.104, FINDINGS: The applicant requests conditional use a Section 19.04.940 defines IPU D as*' pproval to establis h Tree Fan i1 as a PUD, * the development of an area of land as a single entity for a number of units or a number of uses, according to a plan which does not necessarily correspond in, lot size, bulk or type of dwelling, density, lot coverage or required open space to the standard regulations otherwise required by DCC Title 19. The applicant proposes that Tree Farm 1 be approved as a stand-alone subdivision with ten 2 - acre residential lots. an 31.1 -acre open space tract, segments of private roads and multi -use trails. However, the Hearings Officer has found that none of the individual Tree Farm cluster/PUDs can function independently of one another. And the applicant proposes that Tree Farm 1 be developed' concurrently with Tree Farms 2 and 3 to assure access to Skylliners Road for all residential lots in those PUDs. As discussed elsewhere in this decision, the applicant has requested approval to deviate in several respects from the standard regulations for subdivisions. For these reasons, I find Tree Farm 1 meets the definition of PUD and therefore is permitted conditionally in the UAR-10 Zone. And as discussed in the findings above, I have found that in order to conduct a meaningful review of Tree Farm 1 as a whole. 1 will;;, apply the provisions of Title 19 to the entire Tree Farm 1 and not just to those portions of the development zoned UAR- 10. Compliance, with the provisions of Chapters 19.76, 19.100, and 19.104 is addressed in the findings below. Section 19.12.040, H No build structure et ht Regula tions ing or structure shall be hereafter erected, y altered to exceed ree Farm 1, 247 -14 -000242 -CCU 247 4 -000243 -TP 30 feet in height, n d or Page64of116 FINDINGS: The Hearings Officer finds the applicant will be required as a condition of a to assure all dwellings in Tree Farm 1 meet the 30 -foot height limitation. 1' find building he be verified at the time of building plan review, permitting and inspections. d. Section 19.1 .050, Lot The fellowi A. Req uirernents ng requirements shat Lot Area, Each lot shat' I be observed: have a mi nimura area of 10 acr Lot V #'idth, Each lot shall have a minima 3 pprova fight' wil m average width of 00 feet with a minimum street fron tag e of 150 feet. Front Yard. The front yard shall be a minimum of 50 feet from the existing street right of way line or the ultimate street right of way as adopted on the Comprehensive Pan or Oficial Map, except that, any lot of record less than orae acre in size awfully created prior to (effect date of this title shall have a rrainirraura front yard of 30 feet. Sid e''Yard. 'T here shall be a minimum side yard of 10 feet. Rear 'Yard. 'There shall Sola D C be mini m Setback, The solar setbac 19.88.210, res k shall r ya rd of 5 0 fe e t. be as prescribed is FINDINGS: S The applicant proposes exceptions to minimum lot area, average lot width, and street frontage requirements pursuant to the PUD standards in Chapter 19.104, As discussed in the findings below, the Hearings Officer has found the requested exceptions are justified by the benefits provided by The Tree Farm olusterlPUDs.. For the foregoing reasons, the Hearings Officer finds the ap applicable standards in the UAR-10 Zone in Chapter 19.1., SITE PLAN REVIEW 2. Chapter 19.76, Site Pan Review F ND NGS: As se review. Section 19.76,070, Site Plan Criteria orth above, Section 19.12.030 provides tha Approval of a site plan pllcant's proposa 'U satisfies' al U 'aresubject to site plan hall be based on the following criteria. A. Safety and privacy. Residential site plans shall be to provide a safe living environment while a p ppropriate opportunities nities for ublic to private spaces. Tree Farre 1, 247 -14 -000242 -CU, 247 -14.000243 -TP d esigned offering from privacy and transitions Pa ge 65 of 1 6 FINDINGS: As discussed in detail in the findings above, incorporated by reference herein, the, Hearings Officer has found the applicant failed to demonstrate the site for Tree Farm 1 is suitable for the proposed cluster/PUD considering wildfire risk. For those same reasons, l', find;;, the applicant has not demonstrated the site plan for Tree Farm 1 is designed to provide a safe living environment. Therefore, l find Tree Farm 1 does not satisfy this criterion. B. Special Needs € f Disabled. When deemed appropriate, the site plan shall provide for the special needs of disabled persons, such as ramps for wheelch€a rs, drop curbs and disabled parking stalls. FINDING: The applicant's burden, of proof states the paved bicycle/pedestrian', path along Tree Farm Drive and the neighborhood trails within The Tree Farm and Tree Farm 1 will be designed and constructed in accordance with applicable ' requirements of the Americans with Disabilities Act (ADA) to the extent practicable and where required to ensure adequate access. The Hearings Officer understands these private paths may not be inspected for ADA compliance, However, I am aware ADA compliance for dwellings and accessory structures will be determined and verified at the time of building permit plan review, permitting;, and inspections. For these reasons, l find Tree Farm 1 satisfies this criterion. 'preservation of Natural Landscape. The landscape and existing grade shat be preserved to the maximum practical degree, considering development constraints and suitability of the landscape or grade to serve the applicant's functions. Preserved trees and shrubs shall' be protected durin construction. g FINDINGS: The applicant proposes to preserve 81.1 acres of the 105,3 -acre Tree Farm '1 as open space with the only development therein being a small segment of Tree Farm Drive, The tentative plans for Tree Farms 1 through 5 show most of the road rights-of-way have been proposed in locations and alignments where they will follow existing topography. The tentative plans also show the residential lots will be located' primarily atop the central ridge running through The Tree Farm or on other relatively level areas. The dwellings in Tree Farb 1 would be clustered near the northeast corner of the subdivision on relatively level ground; Finally, he applicant proposes to preserve existing vegetation within the open space tract except where removal or modification of vegetation is required as part of fire fuels treatment or to improve wildlife habitat. However, as discussed in the findings above, the Hearings Officer has found neither the appl'icant's wildfire plan nor 'WIMP ' adequately addresses the need for, or impacts from, more aggressive fire fuel treatments that may be required on lots and in open space tracts in order to reduce the fire hazards for ridgetop dwellings such that Tree Farm 1 is suitable for the proposed cluster/PUD and is compatible with surrounding properties. Therefore, I find the applicant has not demonstrated compliance with this criterion, D Pedestrian and Vehicular Circulation and Parking. The location and number of points of access to the site, the interior circulation patterns, designs of parking areas and the separation between pedestrians and moving and parked vehicles shall be designed to promote safety and avoid congestion on adjacent streets. Tree Far€ 1, 247-14-0 242 -CU 247 -14 -000243 -TP Pag 66 o 16 FINDING: The Tree Farm tentative plans show the development will have access from Skyliners''Road via Tree Farm Drive, improved with a 26 -foot -wide paved surface, and with system of public private roads connecting with, Tree Farm Drive and developed with a 20 -foot-, wide paved surface and parallel eight- and ten -.foot wide paved multi -use paths. The applicant, also proposes a gated temporary secondary access road from the southern end of Sage Steppe Drive south across the adjoining Miller Tree Farm property to Crosby Drive. This temporary access will be in place until the adjoining Miller Tree Farm property is developed'' with paved streets to which Sage Steppe Drive can connect, In addition, Sage Steppe Drive would be stubbed at the northern boundary of Tree Farm 1 to provide a future road connection to the vacant Rio Lobo property to the north, Parking would be prohibited on Tree Farm roads, and all> off-street parking would be provided on the residential lots, The Hearings Officer finds the proposed vehicular and pedestrian circulation plan will provide separation between vehicles, bicycles and pedestrians, will promote safety, and willavoid road congestion, therefore satisfying this criterion; E. Buffering and Screening. Areas, structures and facilities for storage, machinery and equipment, services (mail, ref se, utility wires and the like), loading and parking and similar accessory areas and structures shal be designed, located, buffered or screened to minimize adverse impacts to the site and neighboring properties, FINDING: The applicant's burden of proof and tentative plans indicate none of the above- described structures or uses is proposed for Tree Farm 1. Therefore, the Hearings Officer finds this criterion is not applicable. F. Utilities. Ail utility installations above ground, if such are allowed, shall be located so as to minimize adverse impacts on the site and neighboring Iproperties. FINDINGS: The record indicates, and the Hearings Officer's site visit observations confirmed, that there is an existing above -ground electrical facility running east -west near the Tree Farm's southern boundary and serving the city's Outback Water Facility. However, the tentative plan shows no part of that facility is located in Tree Farm 1. The applicant proposes that all new utilities be located underground. Therefore; I find this criterion is not applicable to Tree Farm 1, G. Public Facilities. The proposed use shall not be an undue burden on public facilities, such as the street, sewer or water system, FIN DING' Streets. As discussed in the findings above, the applicant's traffic study, included in the record as Exhibit "1-t" to the applicant's burden of proof, shows traffic predicted to be generated by The Tree Farm will not cause affected transportation facilities to operate below acceptable levels of service. The road department, the county's transportation planner, and the city's public works department did not recommend improvements to existing transportation faciilitie to accommodate Tree Farm traffic; Sewage Disposal. The Tree Farm will be served by indivival on-site septic disposal systems. No connection to the city's sewer system is proposed. The applicant submitted as Exhibit 'F" to Tree arrr1 1; 247-14-000242-CU.r, 247-1+ 243 -TP Page 67 f 6 the Tree Farm 1 burden of proof a se and Tree Farm 1 are suitable for ons ptic bllity study dem ite sewage disposal. onstrating soils on The Tree Farm Water. The applicant'' proposes to provide domestic water to The Tree Farm residential l lots through one of three sources: (1) extension of and connection to the City of Bend water system; (2) extension of and connection to, Avion, Water Company's system; or (3) use of one or more wells on The Tree Farm and/or the adjacent Miller Tree Farm property. The applicant expressed a preference for city water service, and requested that the city perform a water analysisfor serving The Tree Farm with city water. That analysis and supporting documents, dated August 1, 2014. are included in he record as Exhibit °'G" to the Tree Farm 1 burden of proof. In addition, two diagrams labeled "Preliminary Utility Plan" are included in Exhibit "F" to the Tree Farm 1 burden of proof. One of those diagrams is a version of the diagram included in Exhibit "" and the other is a copy of the applicant's submitted "Preliminary Utility Plan." The city's water analysis states the Tree Farm can be served by city, water facilities with a development agreement between the applicant and the city. The analysis states the nearest city water infrastructure is the Outback Water Facility located near the southwest corner of The Tree Farm and described by the applicant as "the primary storage and treatment area for the City's' surface water and [that] also contains several of the City's groundwater wells.' The analysis' states water for The Tree Farm could be provided from the Outback facility through a new connection and the installation of 12 -inch and 24 -inch diameter water mains > within The Tree Farm. However, the analysis cautioned that no such water connection could be made until the city's "Outback Membrane Water Facility" is constructed and operat€anal, and until the Bend City Council approves extension of city water service outside the Bend UGB through a public process. 29 The city's' water system analysis states city standards require the fol,iowing, minimum water pressure and flow for domestic use 40 psi (pounds per square inch) pressure at peak periods; 20 psi residual pressure; and> 2,000 gprn (gallons per minute) for fire flow The color -coded diagrams included in Exhibits "E" and "G" to the Tree Farm 1 burden of proof show that most of the water mains in The Tree Farm could be 24 inches in diameter, but that the mains would need to be 12 inches in diameter along he upper segment ;.of Golden Mantle Loop, and along the segment of Ridgeline Drive east of Sage Steppe Drive, to provide adequate pressure in those areas. The diagrams show all Tree Farm lots would have at least`' 2,000 gp€n for fire flow, but only the ten lots in Tree Farm 1 would have water pressure meeting the 40 psi and 20 psi minimum standards. The other Tree Farm lots would have peak period and residual water pressure falling <below those minimum standards. The city's water analysis states the city cannot guarantee a specific water pressure or flow, and that any water service agreement between the city and the applicant must clearly identify areas of substandard pressure and/or fire flow. The analysis goes on to state that if the property owner finds the available water pressure unsatisfactory, the property owner may install a pressure pump on the downstream side of the city's water meter, at the property owner's own expense and responsibility. The applicant's Preliminary Utility Plan in Exhibit "E" includes a notation that "all homes inclservices with booster pumps." The Hearings understands this note to mean the 29 The H earings Officer understands this facility was under construction when this record dos Tree Farm 1, 247 -14 -006242 -CU, 247 -14 -000243 -TP Page 6 of 116 applicant proposes that water service for each residential lot will have a pump boosting pressure to achieve the minimum psi established in, the city's minimum standards, Based on the city's water analysis, the Hearings Officer finds that if water is provided to The, Tree Farm and Tree Farm 1 through extension of city water service in the manner proposed by the applicant and with all necessary city approvals, The Tree Farm and Tree Farm 1 will not place an undue burden on the city's water facilities. In his December 11, 2014 letter on, behalf of LandWatch, l r. Dewey stated: "Given the uncertainty as to the eventual source of .pater and whether of the possible sources will have adequate pressure, the Applicant should be required to provide more specific information and the public be given the opportunity to commer"tori The Hearings Officer finds the applicant has submitted sufficient information about water service from the City of Bend for me to find that providing water to Tree Farm 1 will not place an undue burden on the city's water facilities. The applicant did not submit; a will serve letter from Avion Water Company in a memorandum dated December 29, 2014, the applicant's engineer Niall Boggs from WH Pacific stated Avion or another private water purveyor would provide water to The, Tree Farm through the city's existing 14 inch or 16 -inch water lines. However, Mr. Boggs stated this system may require a "booster pump station' to provide sufficient water pressure for all Tree Farm lots, And he noted use of the city's water system by a private water purveyor like Avion would require an agreement with the city. The applicant submitted well logs for surrounding properties, included as Exhibit "M" to the burden of proof for Tree Farm 1, demonstrating groundwater is, available in the surrounding area- Mr. Boggs stated in his memorandum that individual wells for Tree Farm lots would require the lot developer or owner to provide the pipe, power and pump. However, >>Mr. Boggs did not analyze or determine whether such wells could produce sufficient water pressure or fire flow to meet the minimum standards identified by the city." Finally, Mr. Boggs noted Miller Tree Farm has a quasi -municipal water right for 350 gpm for property including The Tree Farm. He stated that in order for the applicant to use this water right to create an operational water system for The Tree Farm, water from the well or wells' would have to be pumped to a reservoir site at the highest point on The Tree Farm property near proposed Lot 50 in Tree Farm 5, Water would then go through a community booster pump station before being distributed to residential lots: Mr. Boggs stated such a system would be "feasible=' but would require significantly more capital investment. He did not state whether this quasi -municipal system could produce sufficient pressure and fire flow for the, residential tots. For the foregoing reasons, the Hearings Officer finds that if the applicant elects, or is required to, provide water to The Tree Farm through means other than extension of city water service, the applicant will be required as a condition of approval, and before submitting for approval the final plat for any Tree, Farre development, to provide to the Planning Division a water analysis performed by a registered professional engineer demonstrating that water service from the alternative domestic water source will provide at each residential lot water pressure of at least 40 psi during peak demand periods, 20 psi residual pressure, and >2,000 gpm for fire fiow. 3a The record indicates the 37 lots in The Highlands at Broken Top south acro rued by individual ran -site wells. Skydners Road are Tree Farm 1, 247-114-OOO242-C , 24:% -14 -330243 -TF Page 69 of X 16` For the foregoing reasons, and with it p€ sition of the conditions of approval described above. the Hearings Officer finds Tree Farm 1 satisfies' this criterion Section 19,76,080, Req aired Minimum Standards A. Min mum Landscaping to site plan approval standards for landsca Standards. All developrrments subject shall meet the following minium, pin M A minimum of 15 percent of the area of a project shall be landscaped for multifamily, commercial and lndu trial developments, ts, s bject to site plan approval and the following requirements , FINDINGS: The Hearings Officer finds the 15 -percent landscape Subsection (1) is not applicable to Tree Farm 1 because it not a mu industrial use. a !iLL rea requirement i¢ ily, con rr€ercial or Street Trees. The placement, spacing and pruning of street trees shall be as follows, although the Planning Director or Hearings' Body may adjust the placement standard for special site conditions FINDINGS: The applicant requests an exception to the street tree requirement under Chapter 19.104, As discussed in the findings below, the Hearings Officer has found >this exception is justified by the benefits provided by The Tree Farm. 3. Areas of commercial and industrial zones used for vehicle maneuvering, parking, loading or storage shalE be landscaped and screened as follows:. FINDINGS: The Hearings Officer finds this criterion is not ap does not include multi -family, coma €ercial> or industrial uses. 4. plicable to Tree Farm 1 because it Required landscaping shalt be continuously maintained. Vegetation planted in a site plan shall be mainta assignee. Plants or trees t be replaced and maintained, ccord ance with an approved ned by the owner, any heir or hat die or are damaged shall FINDING: The applicant has requested an exception to these requirements under Chapter 19 104. As discussed in the findings below, the Hearings Officer has found this exception is justified by the benefits provided by The Tree Farm, 6, Shared Areas. ' Usable out oor ''recreation ''space' shall be provided for the shared use of residents and their guests in any apartment residential development as follows FINDINGS: : The Hearings Officer finds this criterion is not applicable to Tree Farm 1 because it is not an apartment residential development. Tree Far € 1, 247 -14 -000242 -CU, 247 -14 -000243 -TP Page 70 of 1 Storage. Areas shall be provided in residential developments for the storage, of articles such as bicycles, barbecues, luggage, outdoor furniture, etc. FINDINGS. The applicant's ;; burden of proof did not address this criterion. However, the, Hearings Officer finds adequate storage for the luted items could be provided on each residential'' lotwithin each dwelling, garage, and/or accessory structure. Therefore, I find the applicant's proposal satisfies this cr€tenon. D. Drai na ge. Surface drainage .hal be contained on site. FINDINGS: The applicant's submitted site plan and burden of proof for Tree Farm 1 show surface water drainage would be contained on site through use of vegetated swales, roadside ditches, culverts, and natural drainage ways. Specifically, the applicant states runoff would shed to vegetated swales with 3:1 slopes for on-site infiltration, or runoff would enter a natural drainage way via a roadside ditch and culvert. Because of the site's topography, natural drainage patterns on The Tree Farm generally are toward Tumalo Creek to the west and to the undeveloped open space to the east. However, the applicant's burden of proof states none of the runoff from impervious areas such as roads and driveways will create any additional' drainage contributions to Tumalo Creek as no surface water will be disposed of off-site. Finally, the applicant has proposed that if hydrological calculations determine additional runoff storage is needed, the applican will construct a catch basin near the main entry to The Tree Farm at Skyliners Road, which appears to be the lowest point in The Tree Farm. The staff report recommends, and the Hearings Officer agrees, that the applicant will be, required as a condition of approval, and prior to submit ing the final plat for any part of The Tree Farre for approval, to submit to the Planning Division a statement from a registered professional engineer stating whether an additional runoff storage basin is necessary, and if such a facility is necessary, the applicant will be required as a condition of approval to show it on the final plat for Tree Farm 1, and to construct it as part of Tree Farm 1 or in such other location as determined by a registered professional engineer. E. Bicycle Parking. The development shall provide the number and type of bicycle parking facility as required in DCC 19.80.080 and 19.80.090. The location and design of bicycle parking facilities shall,>be shown on the site plan. FINDINGS: The Hearings Officer finds Tree Farre 1 is not required to provide bicycle parking because it is not subject to Sections 19.80.080 and 19.80.090. That is because off-street bicycle parking is not required for single-family dwellings, and Tree Farm 1 will not include any of the uses for which off-street bicycle parking is required F. Internal Pedestrian Circulation. Internal pedestrian circulation shall'' be provided in new office parks and commercial developments through the clustering of "`buildings, >" construction of hard surface pedestrian walkway, and similar techniques. Walkways shall connect bui ding entrances to one another and from building entrances to public street and existing or Tree Farm 1, 247 -14 -000242 -CU, 247-14-0002434P Pau e?1of11 p NCI planned transit stops. On site walkways shat connect with, walkways, sidewalks, bikeways, and other pedestrian or bicycle connection on adjacent properties planned or used for cs r rnerolal, institutional or park use, NGS: The Hearings Officer finds these criteria are not applicable to Tree Farm 1 because it is not a new office park or commercial d eveloprment. G. Public Transit Orientation. New retail, office and in tit tional buildings on parcels within 600 feet of existing or planned transit routes shall provide preferential access to transit through the following measures . . FINDINGS: The Hearings Officer finds this crite is not a new retail, office or institutional use. . rion is not applicable to Tree Paan € because it For the foregoing reasons, the Hearings Officer finds the applicant's pro imposition of the conditions of approval''' described above will satisfy, al requirements under Title 19. posal satisfies, or with URBAN AREA Fl ND N GS: CONDITIONAL USE CRITERIA Chapter 19.100, Gond aSection 19.10 itionai Use Permits 0.03 0, Gene ral Con ditilonal U a pplicable site se Criteria plan A conditional use permit may be granted only upon findings by the Planning Director or Hearings Body that the proposal meets all of the criteria in DCC 19.100.030 as well as all other applicable criteria conta ned ira DCC Title 19. The general criteria are: A. That the location, size, design and operating characteristics of the proposed rase are such that it will have r inimal adverse impact on the property value,, livability and permissible development of the surrounding area. Consideration shall be given to compatibility in terms of scale, coverage and density with the alteration of traffic patterns and the capacity of surrounding streets and to any other relevant impact of the proposed use. Location. Tree Farm 1 is located north of Skyliners Road on property zoned 'UAR-10 and RR- 10 and located;; approximately 2,500 feet west of the Bend UGB and approximately 2500 feet east of Shevlin Park., Size. Tree Farm 1 is 105.3 acres in size and, comprises the most eastern cluster/PUD in the 33 -acre' Tree Farm development. Tree Farm 1 would be developed with 20 acres of residential lots, 81.1 acres of open space, and 4,2 acres of road right-of-way. Tree Far1, 217 -14.000242 -CU, 247 -14 -000243 -TP Page 72 of 11 Operating Characteristics. The proposed ten residential lots in Tree Farm 1 would be clustered in the northeast corner of the <development on higher, relatively level ground. Ali lots would have frontage on Ridgeline Drive, a private road developed to the county's private local road standards. Four lots also would have frontage on Sage Steppe Drive, a dedicated public road improved to the county's standards for local public roads. Ridgeline Drive would extend west and southwest into Tree Farms 2 and 3, and would connect in Tree Farm 3 with Tree Farm Drive, the primary subdivision road which intersects with Skyliners Road at the southern property boundary. The applicant proposes to develop Tree Farms 1, 2 and 3 concurrently to provide access from Skyliners Road for all lots in those developments, The tentative plans show the private roads will be constructed primarily on the central ridge, thus minimizing steep road cuts and grades. A gated temporary emergency access road would' extend from the southern terminus of Sage Steppe Drive in Tree Farm 1 south across the adjacent Miller Tree Farm property to Crosby Drive in the Bend UGB. This secondary access would be in place until the adjacent Miller Tree Farm property is developed with paved streets to which Sage Steppe Drive could connect. Sage Steppe Drive would be stubbed at the northern boundary of Tree Farm 1 to provide a future road connection to the adjacent Rio Lobo property to the north. The applicant proposes that each dwelling would be constructed within a designated building envelope, wound be served by an on-site septic system, and would receive water fro rra the City of Bend, Avian' Water Company, or one or more groundwater wells, The majority of Tree Farm 1 (81.1'' acres) would be set aside as permanent open space. The public would have access to this open space through a combination of a permanent trail easement on the primary trails within The Tree Farm and a license granted by The Tree Farm HOA for use of trails within the residential lot areas in Tree Farm 1. The multi -use trai system would connect with trails in Shevlin Park and the DNF to the west and southwest, Compatibility. This criterion requires the applicant' to demonstrate Tree Farm 1" will have "minimal' adverse impact on the property value, livability and permissible development of the surrounding area" considering 'scale, coverage and density," 'alteration of traffic patterns and the capacity of surrounding streets," and "any other relevant impact of the proposed use." 1. Scale, Coverage and Density. The applicant has proposed five clusterr'PUDs for The Tree Farm in order to provide a transition area between urban and urbanizabte lands to the east and Shevlin Park and public and private forest lands to the west. The configuration of The Tree Farm would cluster most of the dwellings in the UAR-10 Zone, limit residential development to 100 acres (fifty 2 -acre lots), and preserve almost 423 acres in permanent open space. The overall density of The Tree Farm would'' be one lot per 10 acres, sirnilar to The Highlands at Broken Top PUD located across Skyliners Road The applicant proposes that each residential lot would have a designated building envelope in which the dwellings would be built, with the rest of the residential lots retained in native vegetation. Opponent Rio Lobo asserts the proposed configuration of The Tree Farm will negatively impact future development of its adjacent 376 acre U R-13' zoned parcel because it will not provide a public road from Rio Lobo's southern boundary to Skyliners Road to 'facilitate through traffic Rio >.Lobo's ' property, and because most Tree Farm dwellings would be clustered along or near Rio Lobo's southern boundary with only one road connection provided along that boundary. As discussed in the findings below, the Hearings Officer has found the applicant is not required to dedicate a public road between the Rio Lobo property and Skyliners Road to facilitate through traffic for Rio Lobo, and The Tree Farm configuration will not preclude Rio Lobo from developing its property at urban or urban reserve densities in the future. Tree Paan 247.14-30 0242-C U, 24714000243 -TP" Pae73of116 LandWatch and other opponents argue the site for The Tree Farm and Tree Farm 1 i not suitable for the proposed cluster/PUD considering impacts on wildlife habitat and the risk of wildfire. As discussed in the findings above, incorporated by reference herein, the Hearings Officer has found the applicant has failed to demonstrate the site for Tree Farm 1 is suitable for the proposed cluster/PUD considering wildlife habitat and wildfire risk. For the same reasons, find the applicant has not demonstrated The Tree Farm will be compatible with Shevlin Park and the pubHc and private forest lands to the west considering wildfire risk. 2. Traffic Patterns and Street Capacity. As discussed in the findings above, the Hearings Officer has found from the applicants traffic study, and the lack of any recommendations from the city or county for additional right-of-way or road improvements, that traffic generated from the entire Tree Farm development will not cause affected transportation facilities to operate below acceptable levels of service, and the Tree Farm 1 site willl be suitable for the proposed cluster/PUD considering the adequacy of transportation access. For the same reasons; 1 find Tree Farm 1 will have minimal'' if any adverse impacts' on property value, livability and permissible development of the surrounding area considering;, traffic patterns and street capacity. For the foregoing reasons, the Hearings Officer finds Tree Farm 1 satisfies this criterion. B That the site planning of the proposed use wiil,, as far as reasonably posslhie, provide an aesthetically pleasing and functional environment to the highest degree consistent with the nature of the use and the given setting, FINDINGS: The design of The Tree Farm and Tree Farm 1 includes two -acre residential lots clustered mostly in the northern part of the property and well away from Skyliners Road, Most of the residential lots would be located atop the central ridge, with all of the remaining acreage, except the road rights-of-way, permanently preserved as open space. Existing vegetation in tl e open space tracts and on the residential lots outside of the designated building envelopes would be retained except where removal is necessary for fire fuel treatments or to enhance wildlife habitat. The applicant proposes to create a system of paved multi -use paths and trails within The Tree Farm and Tree Farm 1 that would connect with the existing trail network in Shevlin Park and the DNF to the west. The cluster/PUD would have a system of public and private roads that generally would follow the existing terrain to minimize' road cuts and steep slopes. The road system would include a gated temporary emergency access road from Tree Farm 1 south to Skyliners Road through the adjacent Miller Tree Farm property. The Hearings Officer finds the site planning, for Tree Farm 1 will provide an aesthetically pleasing environment for cluster/PUD residents and for the general public. Based on my site visit observations, 1 find the Tree Farm 1 dwellings would be substantially screened from Skyliners Road by existing topography and vegetation. Most of Tree Farm 1 would remain in a natural state. The cluster/PUD roads and trails would provide a functional circulation system for residents and guests, and the property's proximity to the Bend UB would allow easy access to schools and other urban uses. Finally, l have found that with imposition of conditions of approval described above, all necessary facilities and services will be available to residential lots in Tree Farm 1. For the foregoing reasons, tale Hearings Officer finds Tree Far Tree Farre 1, 247 -14 -000242 -CU, 247 -14 -000243 -TP isfies this criterion Page 74 of 6 FINDINGS: The H permitteduse. That if the use is, permitted outright in another zone, there is substantial reason for locating the use €n an area where it is only conditionally allowed, as opposed ;.to an area where it is permitted outright., earings Officer finds no other zones alloy a residential PU D as an outright That the proposed use will be consistent with the purposes of DCC `Title' 19, the Comprehensive Plan, Statewide Goals and any other applicable statutes, ordinances or policies. FINDINGS: The Hearings Officer has found the purpose statement for the UAP. -1O Zone in Section 19.12.010 does not constitute an approval criterion for quasi-judicial land use> applications. Section 19.04.020 identifies several purposes for Title 19, including providing, the principle means for implementing the Bend Area General Plan, and providing a means of classifying, des grating and regulating development in the Bend urban area. The purpose statement' uses a number of aspirational terms, such as to "encourage, " "conserve and 'facilitate" various goals for the Bend urban area. For these reasons, the Hearings Officer finds the Title 19 purpose statement does not contain applicable approval criteria for Tree Fars 1 Compliance with the applicable administrative rules is addressed in the findings above. Compliance with applicable comprehensive plan policies is addressed in the findings below, have found the Statewide Land Use Planning Goals are not directly applicable to the applicant's proposal Finally, compliance with Title 19 is the findings above and below. For the foregoing reasons, the Hearings Officer finds the applicant's proposal satisfies, or with imposition of the conditions of approval described above will satisfy, all UAR-1O Zone conditional use approval criteria. PUD STANDARDS hapter 19.104, Planned Unit Development Section 19.104.010, Purpos e The purpose of planned unit development approval is to allow and to make possible greater variety and diversification in the relationships between buildings and open spaces in planned building groups, le' ensuring compliance with the purposes and objectives of the ous zoning regulations and the intent and purpose of DCC Title, whi vari 19. FINDINGS: S: As' discussed above, unless the text or context of a purpose statement indicates otherwise, such statement does not establish approval standards for quasi-judicial and use applications. The Hearings Officer finds use of the terms "make possible," ensuring compliance," and "intent and purpose" indicates the PUD purpose statement is aspirational ' and therefore does not establish approval criteria for Tree Farm 1 Tree F Section 19,104,00, Minimum Size for Planned Unit l 247 -14 -000242 -CU 247-1 4 -000243 -TP veio prr#ents Page 75 of 116 No app n any zone. lication shall be accepted for an area of less than five acres R zone, or for an area of less than four acres in any other, FINDINGS: Each Tree Farm develo therefore satisfying this standard. pm' nt including Tre Se tion 19.104.070, Stand e Fa is at least 104 acres in size, rds for Approval In granting approval, for plan ed unit a evel Body or Planning Director shat opment, the Hearing he following. be guided by t 8 Aa Whether applicant has, through investigation, plalining and> programming, demonstrated the soundness of the proposal and an ability to carry out the project as proposed, and whether the construction shall begin within six months of the conclusion of any necessary action by the County, or within, such longer period of time as may be established by the Hearings Body or Planning Director. FINDINGS: The Hearings Officer finds that read in the context of the rest of this paragraph, the term '`soundness" connotes the feasibility -- financial and ,physical — of developing The Tree Farm and Tree Farm 1. The applicant's burden of proof states, and the Hearings Officer agrees, that the applicant has demonstrated the soundness of its proposal through its tentative plans, detailed narrative, will -serve letters from utilities and the City of Bend, the city's water analysis, the septic feasibility analysis, and the background of the development team. The team includes several experienced developers such as Brooks Resources, and Skyl€ner T 'V a, LLC, whose members include Michael Tennant, Ron White, and Kirk Schueler, each with many years of successful local development experience. I am aware Brooks and Tennant together developed NorthWest Crossing. The burden of proof states the applicant's intent is to initiate development of Tree Farms 1,, 2 and 3 immediately upon gaining land use approval. I find the applicant will be required as a conditbn of approval to begin construction of Tree Farm 1 'within six months of the date this decision becomes final, or such longer period of time as the Planning Director may allow. For these reasons, and with imposition of this condition of approval, I find the applicant's proposal satisfies this criterion. B. Whether the proposal County in standards, conforms with the genera plans of the terms of location and general development FINDINGS: The Hearings Officer finds Tree Farm 1 is proposed for land designated and zoned for residential development and in which residential cluster PUDs are permitted conditionally, in addition, as discussed in the findings ''below,, I have found Tree Farm 1 is consistent with applicable plan policies. Therefore, I find Tree Farm 1 conforms to the city and county comprehensive plans. Tree Farm Whether the project will accrue benefits to the County and the general public in terms of need, convenience, service and app arance sufficient to justify any necessary exceptions to the regulations of the ,zoning and subdivision ordinances, 247.14 -000242 -CU, 247;- 34 -000243 -TP' Page 76 of 116 FINDINGS: The applicant has req The Tree Farm and Tree Farm 1 1. two -a 16.60, 66 uested exception s to the folio n 9 standards applicable to cre residential lot size rather than the five -acre m n€€mum lot size under Section 0 or the ten -acre minimum lot size under Section 19.12.050: 2. thirty-foot front yard setbacks rather than the fifty -foot front yard setback under Section 19,12.050 3. less than fifty feet of street fronta 17.36.180; ge for 'Lot 4. reduction in the minimum average lot width and 1 9.12,060' for Lot 1 in Tree Farm 1 in Tree Fan € 1 as required by S street frontage standards unde 5. no street trees rather than street trees as required by 6, no introduced landscaping I or maintenance thereof; ection 19,76 080(A)(2) ection, Sec 7.eight-foot-wide bicycle and pedestrian multi -use paths rather than tenafoot wide paths as required by Section 19 104.080(F); and 8. no road/bicycle path connections at 400 -foot intervals along The Tree Faun's, borders with the adjacent Rio Lobo and Kiln Farm properties. The applicant argues The Tree Farm and Tree Farm,1 will county and the general public; 1. creating two -acre residential ots rather than five- or ten- acres of The Tree Farm, and 20 acres of Tree Farm 1; 2. preserving over 81 acres of open space in Tre Tree Farm as a whole; 3 making the PU D roads accessible to the pu e Fa accr cre the following benefits is and clustering the rr 1' and 423 bllic throu gh pu Cres of open blic access easerraents;' the on 100 pace in The 4. creating a network of trails accessible to the public through public access easements and licenses, and linking The Tree Farm and Tree Farm 'i to the trail systems in Shevlin Park and the DNF; 5. minimizing impacts to habitat in the Tumlo winter deer range through small; clustered residential lots, large open space tracts, ores preservation of most native vegetation, and reduction in fire fuels; 6, providing a d The Tree Farm, omestic wate 7. designing and m reduce wildfire risk Ir an ag ng The Tre for the dwellin g and re hydrants ko aid fire protection on e Farrra and Tree Farm 1 as a`Fire '+ a`€se Community" to 247 -14 -000242 -CU, 247;_14 -0€00243 -Tp Page 77 of 116 8. configuring The Tree Farm and Tree Farm € 1 to establish a permanent low-density transition area between urban and urbaniz ble lands to the east and Shevlin Park and the extensive public and private forest lands to the west; and 9. providing Bend. 50 new dwellings to addres s the de €n rid for new horresites on the west side of LandWatch again argues the analysis required by this section should not compare the applicant's proposed c usteriPUD with alternative subdivision configurations such as a traditional subdivision with 10 -acre lots and dwellings spread throughout the 533 acre property. In his December 11, 2014 letter, Paul Dewey states: 'There are apparently only five dots, so the current alternative would be five houses. Though the zoning allows a house on a 10 acre parcel, there is no basis to conclude that 50 10 -acre Tots can be created here. ° (Underscored emphasis added.) As discussed above, the Hearings Officer has found there are reasons to conclude a traditional subdivision w th, ten 10 -acre lots cold be approved on each of the five Tree Farm legal''' lots, including the fact that the county approved a very similar development. The Highlands at Broken Top, immediately south of The Tree Fara with 37 mostly ten -acre lots and large open space areas on land zoned UAR-10 that is close to the DNF. In addition, traditional 10 -acre lot subdivisions in the UAR-10 and RR -10 Zones do not require conditional use approval, but rather are subject only to the subdivision standards in Title 17. For• this reason, I find there is nothing improper in comparing the proposed cluster/PUDs to the alternative of a traditional subdivision when weighing, the benefits of the proposed Tree Farm development against the requested exceptions. The Hearings Officer finds many of the above-described benefits of developing the subject property with cluster/PUDs justify the requested exceptions. In particular, I find the requested two -acre lot sizes, the clustering of dwellings, the preservation of large swaths of open space in the WA Zone, and the creation of a trail system connecting with trails in Shevlin Park and the DNF will provide significant benefits to the community. For these reasons, I find Tree Farm ''1 satisfies this criterion. D. Whether the project will satisfactorily take care of the traffic it generates by means of adequate off street parking, access points, additional street right of way and improvements and any other traffic facilities required, FIND NGS: The Hearings Officer has found on the basis of the applicant"s traffic study that the addition of traffic generated by The Tree Farm will not exceed the capacity of affected transportation facilities, and no additional' right-of-way or it provements ere required. I also have found the intersection of akyliners Road and Tree Farm Drive will have adequate sight distance in both directions, and that the proposed gated secondary access road will provide an appropriate second point of access for evacuations and emergency vehicles. No on -street parking will be allowed: all off-street parking will be accommodated on each homesite. For these reasons, I find the applicant's proposal satisfies this criterion. Tree Farrel 247-14-0 0242 -CU 247.1 ¢-000243-TP Page 7 of 116 Whether the project will` be compatible with adjacent developments ar d will not adverely affect the character of the area. FINDINGS: The Hearings Officer has addressed virtually identical'' criteria in the findings above under Section 18.128, 1 (3)(B). Based on those findings, incorporated by reference herein, find Tree Farm 1 satisfies this criterion with respect compatibility with the rural character of the area, and with adjacent property to the north, east and south. However, & also have found the applicant failed to demonstrate The Tree Farm will be compatible with Sheviin park and the public and private forest lands to the west because of deficiencies In the applicant's wildfire plan and WMP. Therefore, I find the applicant's proposal does not satisfy this criterion. F. Whether the project will satisfactorily take care of sewer and water needs consistent with the Bend Urban Area General Plan FINDINGS: Sewer. The applicant proposes that each dwelling be served by an on-site septic system, and provided''' as Exhibit "F" to its burden of proof 'a Preliminary Soils and Percolation investigation prepared by Fl Testing and Inspection based on the analysis of 27 test pits and sample percolation testing. The study found the soils on The Tree Farm and Tree Far€n 1 are sufficiently deep (18-60 inches) and well -drained to accommodate either standard or capping -fill on-site septic systems an each of The Tree Farm lots. The Hearings Officer finds that as a condition of approval the applicant will be required'' to obtain from the county an approved septic site evaluation for each Tree Farm 1 lot. Water The applicant proposes to provide domestic water to each dwelling in The Tree Farm through one of three methods: (1) extending and connecting to city water service; (2) extending and connecting to service from Avon Water Company; or (3) through ane or more groundwater wells. The applicant provided as Exhibit "E" to its burden of proof a Water System Analysis, and as Exhibit "G" to the burden of proof a will -serve letter from the City of Bend indicating the city's water system has sufficient capacity to serve the 50 hornesites in The Tree Farm. The applicant, also submitted as Exhibit "M„ to its burden of proof well logs on surrounding properties showing water is available, The applicant's burden of proof also indicates there is an existing quasi- municipal well on the adjacent Miller Tree Farm Property to the east. The applicant did not submit a will- serve letter from Avion, and there is no evidence in the record that Avon can provide water pressure and fire flaw meeting minimum standards. Therefore, the Hearings Officer has found that if the applicant elects, or is required to, provide water to The Tree Farm through means other than extension of city water service, the applicant will be required as a condition of approval, and before submitting for approval the final plat for any Tree Farm development; to provide to the Planning Division a water system analysis performed by a registered professional engineer and demonstrating water service from the alternative domestic water source(s) will provide to each residential lot water pressure of at least 40 psi during peak demand periods and at least 20 psi residual pressure, as well as fire flow of at least 2,000 gprn Based an the foregoing fin€dings, the Hearings Officer find s Tree Farm 1 sa imposition of the conditions of approval described above will satisfy, this criterion. Tree Farm 1 . 24 4 -000242 -CU tisfies. or , 247''-14-0 024 3 FP'' Page 79 of A planned'' unit development shallnet be approved In any R zone if the housing density of the proposed development will result in an intensity of land use greater than permitted by the Comprehensive "Plan, FINDINGS: . The proposed density of each Tree Farm development including Tree Farm 1 will, not exceed one dwelling per ten acres, consistent with the general density permitted in the RR 10 and UAR-10 Zones, therefore satisfying this criterion. d.Section 19 1O4 080, Standards and Requirements Approval of, a request for a planned unit development is dependent upon the submission of an acceptable plan and satisfactory assurance that it will be carried out. The following minimum standards and requirements shall apply A. A dwelling use permitted in any zone may be perrniitted>.'in planned unit development. FIND NGS: The applicant proposes ten residential lots for single-family dwellings, a use alio ed in the UAR-10 Zone, A manufactured home may be permitted hi a planned unit development. However, manufactured home parks shall not be allowed, in any commercial or industrial zone. FINDING: The Hearin gs Officer finds this criterion is not a does not propose any manufactured homes or manufactured home parks pplicable' because the a ppl€cant Developments which either provide for or contemplate private streets and ways and common areas which will be or are proposed to be maintained'' by the owners of units or ots within a development must organize and maintain an owners; association. The owners.* association shall consist of all the owners of units or lots within the development and membership In, the association must be equired of all owners; adopt and record bylaws as provided by ORS 94.625; adopt bylaws that contains the provisions requ red by ORS 94.635; and have the power to create a lien upon the unit or lot' for services, labor or materia lawfully chargeable as common expenses as provided In ORS 94.709. The association's power to create such alien shall exist whether or not the property Is subject to the Oregon Planned Community Act (ORS 94.565 through 94.785.) FINDING: The Tree Farm wi inclu d e private roads, a public road, multi -use p trails, and open space that will proof for Tree Farm 1 states an applicable provisions of ORS submitted as se a ths recreation, be owned and managed by an HOA. The applicant's burd HOA will be established, organized and `>maintined pursue Chapter 94, As discussed in the findings above, the applican en of int to Exhibit "L" to its burden of proof a sample set of CC&R's and HOA bylaws that will rve as the template for The Tree Farre CC&R's and HOA bylaws. The Hearings Officer finds Tree Farm 1, 247-14-000242-C U, 247-•14-000243-T€P Page 80 of 1 the applicant will be required as a condition of approval to record CC&Rs and HOA bylaws prior to submitting for approval the final plat for any Tree Farm development I find that with imposition of this condition of approval, Tree Farrn 1 will satisfy this criterion. If the property is not subject to the UnitOwnership Law, the association shall also create, by contract, the right to claim a lien upon any >unit or lot for services, labor or material chargeable as common expenses. This lien may be created by covenants between the association and the property owners and shall supplement the lien created, by DCC 19.104.080(C) and require all owners of units or lots within the development to consent to and pay the reasonable value of services, labor or material, expended by the County for common expenses where such county expenditures are made because the owners or the owners' association does not provide the necessary services, labor or material for common expenses. FINDINGS; The, applicant's burden of proof states the statutory references in this criterion no longer are correct because the Oregon Unit Ownership Law was substantially amended in 1977 and 1981 and renamed the "Oregon Condominium Act." (1977 Oregon Laws Chapter 484; 1981 Or Laws Chapter 841.) The burden of proof notes that in 1989 the Oregon Condominium Act was relocated to ORS Chapter 100. Because of these changes, the applicant > argues, and the Hearings ''Officer agrees, that The Tree Farm and Tree Farm 1 are not subject to the Oregon Condomini€.€€n Act (ORS 100.105 to 100.910), and therefore Section 19.104.080(C) and (D) are applicable to this development. E. Streets and roads an planned unit development designated developments shall be public roads and ways developed to county standards or be private roads of a minimum 14 feet wide paved surface for one way traffic, minimum 20 feet wide paved surface for two way traffic, and parallel parking as permitted shall require minimum additional eight feet of width for each side of parking. If pedestrian walkvways or bikeways are included in the road, an additional five feet of pavement width on each side of the roadway shall be provided and striped to separate such use from motor vehicle traffic and parking. In addition to these requirements, the Planning Director or Hearings Body may specify other requirements Including, but not limited to, Increased or decreased pavement width. FINDINGS: The applicant proposes that the public and private roads in Tree Farm improved with 20 feet of pavement, and no parking wil be permitted on the roads. All private Tree Farroads will be owned and maintained by The Tree Farm HOA but will be subject to public access easements. As discussed in the findings above, the applicant proposes to provide separate pedestrian./bicycle paths according to the plan included in the record as Exhibit "C" to the applicant's burden of proof. The pedestrian/bicycle path will be included in a 10 -foot -wide space on the southern portion of Tree Farm Drive withi 1 Tree Farm 1, and on separate eigh and ten -foot -wide paved pathways running parallel to the rest of The Tree Farre roads. fill be t Tree Farm "I, 247` -14 -000242 -CU, 4/ -14 -000243 -TP Page 81 of 116 County staff and opponent 'Rio Lobo argue that under Section 17.36.020 B) the applicant is required to dedicate and improve a public road between the southern boundary of the Rio Lobo property and Skyliners Road to provide for through traffic from future development of the Rio Lobo property. However, as discussed in the find rigs below, incorporated by reference herein, he Hearings Officer finds that section does not require dedication of a public road in the circumstances presented here. For the foregoin reasons, the Hearings Officer >finds Tree Farm 1 satisfies this criterion. F. Pedestrian walkways and bikeways shat) be provided for adequate pedestrian and bicycle traffic, and shall connect to any adjacent existing or planned sidewalks, bikeways, access corridors, or public trails, Off street pedestrian walkways and bikeways shall be at lest 10 feet in width to accommodate two way traffic and shall be constructed with portland cement or asphaltic concrete to county standards, except as varied by the provisions of DCC 19.104,080 or bY the Merl Director or Hearings Cody, ming FINDINGS: The applicant proposes a system of paved multi -use paths and natural surface recreation trails throughout The Tree Farm and within Tree Parra 1 designed to accommodate pedestrians and bicycles. According to the trail plan, Exhibit °`C" to the applicant's burden of proof for Tree Farm 1, four types of trails are proposed. (1) main connection trails; (2) neighborhood trails: (3) proposed recreation/mountain bike trails, and (4) existing perimeter trails. The applicant proposes that the main connection trails would consist of ten -foot -wide paved multi -use paths paralleling Tree Farm Drive from its intersection with Skyliners Road to the point where the path splits to go west to Shevlin Park. The neighborhood trails would extend from that point east to the Golden Mantle Loop/Ridgeline Drive intersection and along the rest of the roads in The Tree Farm These paths would be paved to a width of eight feet and would roughly parallel' the internal road network in The Tree Farm.31 The applicant has requested an exception to the ten -foot width requirement for the multi -use neighborhood paths for the reason that they will serve a lower -use function for bicycle pedestrian access within the homesite area. The applicant' notes there are only 50 kits in The Tree Farm, so traffic volume on the neighborhood paths would be low. In addition, the applicant) suggests, and the Hearings Officer agrees, that most of the trail use near The Tree Farm homesites will be by residentsc; Finally, the applicant notes the proposed paths will be, relatively flat and will have adequate sight distance to avoid the opposite -direction traffic conflicts that ten -foot wide paths are intended to address. As discussed above, 1 have found thi requested exception is justified by the significant' community " benefits from the proposed cluster/PUD. For the foregoing reasons, the Hearings Officer finds Tree Farm 1 satisfies this criterion. G All utility facilities steal accordance with County sta i e instal 'dards, led Lind erg ound and 31 The proposed recreation/mountain biking trails would be soft --surface` trails developed to the mounta,n bike trail standards in Section 17 48.140(E). These trails would connect with the trail network in Shevlin Park. The applicant's burden of proof states the existing perimeter trails within the western open space tracts are composed primarily of old roads that will be converted to trail use and will have native dirt surfaces. However, none of these trails is located in Tree Farm 1. Tree Farm 1, 247 -14 -000242 -CU, 247 -14 -000243 -TP Pag 82 >af 116 FINDINGS: The applicant p this, criterion: o poses thata new ilities evil be insta ed un derground fying The design of all planned 'unit cleveloprrient projects shall provide direct access for all units and tots to open space areas and facilities. Open space areas and facilities include, such things as landscaped areas, natural areas, grolf courses, and other recreational facilities, but do not include streets, sidewalks, bikeways, access corridors or trails. FINDINGS: The tentative plan for Tree Farm 1 shows each residential lot will have direct access to the proposed, open areas throughout The Tree Farm via the network of multi -use paths and recreation' trails, therefore satisfying this criterion. I'o A statement must be submitted relative to the soar access to be provided by the planned unit development. FINDINGS; The appiicant's burden of proof enol des the following statement concerning solar. access: "All of the ithin The Tree Farm will be at least 2 acres in size with setbacks on all lot, lines of no less than 20 feet. This alone will provide ample solar acc< to the lots. However;, many of the open ridge top lots, in Tree Fara 1, 2 and 3 have nearly kraal solar access.' The Hearings Officer finds that the size and configuration of the ten Tree Farm 1 residential lots will assure a dwelling can be sited on each lot in compliance with the required solar access standard underSections 18,60.04O(D) and 19.12.050(F). For the foregoing reasons, the Hearings Officer finds, the applicant s proposal satisfies, or with imposition of the conditions of approval >.described above will satisfy, all applicable urban area PUD standards. E. Tit SUB e 17 of the Deschutes County Code, the Subd DIVISION STANDARDS 1 Chapter 17.16, Approve Development Plans ivision/Partition Ord nance of Subdivision Tentative Plans and Master Section 17.16.100, Required Findings for Approval A tentative, plan for a proposed subdivision shall not be approved unless the Planning 'Director or Hearings Body finds that the subdivision as proposed or modified will meet the requirements of this title and Titles 18 through 21 of this code, and is in compliance with the comprehensive plan. Such findings shall include, but not be limited to, the following:' A , The subdivision contributes to orderly development and land use patterns in the area, and provides for the preservation of Tree Farm 1, 247 -14 -880242 -CUA, 247-14-0 0243 -TP Page 83 of 116 natural natural forest I FINDINGS: features and resources, such as streams, lakes,, vegetation, special terrain features, agricultural and ands and other natural resources, Orderly Development and Land Use Pattern in the Area. The applicant proposes to develop Tree Farm 1 as cluster/PUD with an overall density of one dwelling per ten acres as permitted in the RR -10 and UAR-10 Zones. This density is the same as that in The Highlands at Broken Top PUD located south across Skyliners Road. However, unlike that development with 37 ten -acre lots and dwellings scattered throughout the 390 -acre site, The Tree Farm and Tree Farm 1 would have 2 -acre residential lots clustered in the northern part of the 533 -acre site in order to preserve ,large tracts of open space totaling nearly 80 percent of the entire property, Tree Farm dwellings, would '' be sited within designated building envelopes, retaining the rest of the lots in native vegetation. As discussed above, the applicant intends The Tree Farm to provide a permanent transition between urban and urbanizable land to the east and Shevlin Park and vast public and private forest lands to the west, The also applicant intends that The Tree Farm never ;ill be annexed into the Bend UGB or redeveloped. PUD roads would', connect with Skyliners Road, and eventually with roads developed on the Rio Lobo, property to the north and the Miller Tree Farm property to the east. As discussed above, the Hearings Officer has found affected transportation facilities will continue to operate at acceptable levels of service with the addition of traffic generated by The Tree Farm, Each residential lot will be served by an on-site septic system and domestic water from the City of Bend, Avion, or groundwater wells. For these reasons, I find Tree Fara '1 will contribute to orderly development' and land use patterns in the area. Preservation of Natural Features and Resources. Natural features and resources on Tree Farre 1 consist of topography, native vegetation, and wildlife habitat. As discussed above, the applicant has proposed cluster/PUDs in order to maximize open space and to preserve native vegetation, Residential lots will be located on relatively level > land on or near the central ridge on the property, minimizing the need for gr••.ading and filling, and PUD roads will follow the site's existing contours minimizing the need for steep road cuts or slopes. As also discussed above, the applicant proposes to protect the deer winter range habitat on The Tree Farm and Tree Farm 1 by clustering n-iost of the dwellings outside the winter range, creating gaps between clusters of dwellings where there are existing deer migration corridors, and preserving native vegetation except where removal or modification is necessary for fire fuel treatments or to enhance wildlife habitat. However, as discussed in the findings above, the Hearings Officer has found the applicant failed to demonstrate The Tree Farm will be compatible with Shevli€n Park and forest lands to the west because its wildfire plan is inadequate, l also have found the applicant failed' to demonstrate The Tree Farm will adequately protect winter deer range if more aggressive fire fuel treatments, such as clearing of slopes on the lots and/or in the open space tracts are required to reduce the risk of fire for ridgetop dwellings such that Tree Farm 1 is suitable for the proposed cluster/PUD and is compatible with surrounding lands. For the same reasons,,''I find the applicant has not demonstrated Tree Farm 1 will provide for the preservation of natural features and resources. B. The subdivision` will not create excessive demand on public facilities and services, and utilities required to serve the development. Tran Farm 1 247-1 4 -.000242 -CU, 247.1.x,_0 43 -TP Page 4 of 116 FINDINGS: The public facilities and services required by The Tree Farm and Tree Farrn 1 include sewage treatment, water, roads, electricity, natural gas, telephone and cable service, and police and fire protection. Each of these is addressed below. Sewage Treatment. The applicant `> proposes to serve the residential lots with individual on-site septic systems. The applicant submitted as Exhibit "F" to the Tree Farm 1 burden of proof a septic suitability study showing the soils on The Tree Farm and Tree Farm 1 are suitable for installation of on-site septic systems. The Hearings Officer finds the applicant will be required as a condition of approval to obtain an approved septic site evaluation for each residential lot in Tree Farm 1 prior to final plat approval. Water. The applicant proposes to provide domestic water to the residential lots in The Tree Farm and Tree Farm 1 through one of three options; (1) extending and connecting;,; to City of Bend water service as proposed in the applicant's Preliminary Utility Plan; (2 extending and connecting to Avion Water Company facilities: or (3) utilizing one or more individual wells on The Tree Farm property and/or the adjacent Miller Tree Farm property. As discussed in the findings above, incorporated by reference herein, the Hearings Officer has found the city's water system will have adequate capacity to serve the residential lots' in The Tree Farm' and Tree Farrn 1, and with the water facilities proposed by the applicant, including 12 -inch and 24 -inch water mains and pressure pumps at each lot, the city's water system, will provide adequate pressure and fire flow at each lot. Therefore, I find providing domestic water to The Tree Farms will not create excessive demand on the city's water system€. However, have found that if the applicant does not obtain city water service for The Tree Farm, it will be required as a condition of approval, and before submitting for approval the final plat for any Tree Farm development, to provide to the Planning Division a water system analysis prepared by a registered professional engineer, demonstrating whatever alternate source of domestic water is chosen will provide each residential'' lot with at least 40 psi of water pressure at peak periods. 20 psi residua water pressure, and at least 2,000 gpm for fire flow; Roads. As discussed in the findings above, incorporated by reference herein, the Hearings Officer has found from the applicant's traffic study that the addition of traffic generated by the 50 proposed dwellings for The Tree ''Farm will not cause any affected transportation facilities tea operate below acceptable levels of service at buildout. and in the years 2017 and 2022 with the addition of future traffic. Neither the road department nor the city identified the need for additional'' right-of-way or improvements to affected transportation facilities. Electricity. The applicant s€ Exhibit "': to the Tree Farm 1 britted a will -serve letter from Pacific Power f burden of ,proof, elect service in Natural Gas. The applicant submitted a will -serve letter from Cascade Natural Gas for gas service in Exhibit "G" to the Tree Fara) 1 burden of proof. Telephone. The applicant submitted a will -ser Exhibit "G" to the Tree Farm 1 burden of proof e letter from C Cable The applicant submitted a` will -serve letter from Ben Exhibit "G" to the Tree Farm 1 burden of proof, Polices Police protection will be provided by the Deschu Tree Farre 1, 247 -14 -000242 -CU, 247 -14 -000243 -TP ntr.€ryLink for telepho d Br c1 band tes County Sheriff. or ca ne service in bi' service Pace 85 of 116 Fire Protection. Fire protection will be provided by the C€ty of Bend Fire Department. In his, September 2, 2014 comments on the applicant's proposal, Deputy Bend Fire Chief/Fire Marshal Larry Medina identified a number of Oregon Fire Code (OFC) provisions applicable to The Tree Farre. These corhrnent can be summarized as'fol lows;' 1. Standards for fire apparatus access roads. The OFC requires that fire apparatus access roads: (a);,, extend within 150 feet of all buildings; (b) have an unobstructed width of at least 20 feet; (c) have unobstructed vertical'' clearance of at least 13 feet 6 inches; (d) be designed and maintained with an all-weather surface that can support vehicles weighing 60,000 pounds; (e) have a grade not exceeding, 10 percent; and (f) if gated, have a "Knox Key Switch" operable by the fire department. The Hearings Officer finds the applicant will be required as a condition of approval to design and construct all roads in Tree Farre 1 and the gated temporary emergency', access road in complince with these standards. 2. Standards for fire protection water supplies, The OFC requires that The Tree Farm have an approved water supply capable of supplying the required fire flow for fire protection to buildings, the adequacy to be determined "by an approved method," The OFC also requires ,that the applicant provide documentation of adequate fire flow to the fire department prior to fine approval of the wa er supply system. The OFC states installation of fire hydrants along fire apparatus access roads may be required by the fire code officia . Finally, the OFC states that if fire hydrants are installed they must be no farther than 400 feet apart. As discussed in detail in the findings above, incorporated by reference herein, the Hearings Officer has found the city's water supply analysis shows extension of and connection to its water facilities can provide fire flow of 2,000 gpm at each residential lot, the minimum flow prescribed by the city. In addition, the applicant's Preliminary Utility Plan diagram. included in Exhibit "" to the Tree Farm 1 burden of proof, shows fire hydrants placed at 400 -foot intervals along all PUD roads abutting tl e residential lots. As also discussed above, the Hearings Officer has found that if the applicant does not secure city water service for The Tree Farm, the applicant will be required as a condition of approval, and prior to submitting for approval the final plat for any Tree Farre development, to provide to the Planning Division a water system analysis from a registered professional engineer demonstrating the alternate water system will provide at each residential lot water pressure of 40 psi during peak periods, 20 psi residual water pressure, and at least 2,000 gpm for fire flow. 3. Other fire service features. The OFC requires that each dwelling in Tree Farm 1 have an address number placed on a monument, pole or other sign so that it is plainly visible from the private road. The Hearings Officer finds the applicant will be required as a condition of approval to provide address numbers as required by the OFC. For the foregoing reasons, and with imposition of the conditions of approval described above, the Hearings Officer finds Tree Farm 1 will not create excessive demand on public facilities, services and utilities required to serve the development: C. The ter€tative plan for the proposed subdivision meets the requirements of Oregon Revised Statutes Section 92.090. FINDINGS: ORS 92.090(1) states new subdivision can only use the same name if it is a continuation of an existing subdivision, with a sequential numbering system, and must either be pia ted by the same party or have the consent of the previous party. The applicant is requesting approval of five separate but interconnected ten -lot cluster/PUDs to be known as Tree Farms 1 Tree Peart 1 247 -14 -000242 -CU 47 -14- 0243 -TP Page 6 of 116 through 5, with the overall project to be known as The Tree Farm. The Hearings Officer finds this subdivision name plan conforms to Subsection (1) of the statute. Subsection (2) of this statute requires that roads be laid out to conform with existing plats on adjoining property, that streets and roads helot for private use are clearly indicated on the tentative plan, and that all reservations or restrictions relating to such private roads and streets are set forth on the plat. The Hearings Officer finds there are no adjoining Mats with, which The Tree Farm must, conform. As discussed above, Sage Steppe Drive is proposed to be dedicated to the public in order to provide a future road, connection with the undeveloped UAR-zoned'' parcels to the north. The remainder of the PUD roads would be private but would be subject to public access easements. The Hearings Officer finds the applicant will be required as a condition of approval to show all public easements on the final plat for Tree Farm 1. I find that with imposition of this condition of approval, Tree Farm 1 will comply with Subsection (2). Subsections (3), (4) and (5) of the statute relate to final to Tree Fara 1. platting and th fore n of app llca ble For subdivisions or portions thereof proposed within a Surface Mining impact, Area (SMlA) zone under Title 18 of the Deschutes County Code e r FINDINGS: The Hearings Officer finds this criterion is not property is not located within a SI. Zone. T he subd Surveyor. is n a b applicable because the s has been a p P ove d by bject he County FINDINGS: Exhibit "P' to the applicant's burden of proof indicates the proposed names for The Tree Farm clusterlPU s have been approved by the County Surveyor, therefore satisfying this criterion. b. Section 17,16.10 , Access to Subdivisions No proposed subdivision >.shall be approved unless it will be accessed by roads constructed to County standards and by roads accepted for maintenance responsibility by a unit of local or state government. This standard is met if the subdivision will have direct access to an improved collector or arterial, or in cases where the subdivision has no direct access to such a collector or arterial, buy demonstrating that the road accessing the subdivision from a collector or arter l meets relevant County standards and has been,, accepted for maintenance purposes: FINDINGS: Access to Tree Farm ''1 will be from Skyliners Road, ;,a designated county collector road unproved to the county's collector road standards and maintained by the county, therefore satisfying this criterion c. Section 17.16 115, Traffic Impact Studies Tree Firr1. 247-14-00 Guidelines for Tra 0242 -CU. 247 -14 -000243 -TP pact Studies Page 87 of 11 The -.following vehicle trip determine the level analysis rig * * * eneration thresholds shall and scope of trans uired for a new or ex p portation anded deveio p m ent. Traffic Impact Analysis (TIA): if the development or change in use wil'1 generate more than 200 trip >;ends and 20 or more PM peak hour trips, then a Traffic Impact' Analysis (TIA) shall be required FINDINGS: The applicant submitted a traffic study prepared by Kittelson & Associates, included'' in the record as Exhibit `'F -I" to the burden of proof for Tree Farm 1. The traffic study was submitted because the applicant's traffic engineer predicted traffic generated by the 50 dwellings in The Tree Farm would generate over 400 trip ends, The traffic study concludes traffic generated by The Tree Farm will not exceed the capacity of affected transportation facilities at buildout, or in 2017 and 2022 with the addition of other traffic from the surrounding area. The traffic study also found that no additional) right-of-way or improvements are required, and neither the road department nor the city indicated the need for addition right-of-way or improvements. Therefore. the Hearings s Officer finds the applicant's proposal satisfies this criterion. 2. Chapter 17.36 Design S Sectio n 17.36 .0 tandards 20, Streets A. The location, width and grade of streets shall be considered in their relation to existing and planned streets, topographical conditions, public convenience and safety, and the proposed use of land to be served by the streets. The street system shall assure an adequate traffic circulation system for all modes of transportation, including pedestrians, bicycles and automobiles, with Intersection angles, grades, tangents and curves appropriate for the ,traffic to be carried, considering, the 'terrain. The subdivision or partition shall provide for the continuation of the principal streets existing in the adjoining subdivision or partition or of their property projection when adjoining property which is not subdivided, and such streets shall be of a width not less than the minimum requirements for streets set forth in DCC 17.36. FINDINGS: The applicant proposes to construct all Tree Fara roads in conformance withthe applicable county local road standards i.e., the public local road standards for Sage Steppe Drive, and the ,private local road standards for the private roads in The Tree Farm and Tree Farm 1. The proposed road layout generally -.follows the topographical contours of The Tree Farm and Tree Farm 1, and will provide direct access to each proposed residential lot. Separate multi -use paths are proposed along all new roads to provide adequate circulation for bicycles and pedestrians and adequate separation from vehicular traffic. There are no principal streets in Tree Farm 1, 247 -14 -000242 -CU, 247 -14 -000243 -TP Page X8of116 adjoining partitions or subdivisions that require the continuation of those streets into The Tree Farm or Tree Farm 1. No alterations to road layout or design were ''identified by the road department. For these reasons, the Hearings Officer finds Tree Farm 1 satisfies this criterion. B Streets in subdivisions shall be dedicated'' to the public, unless located in, a destination resort, panned community or planned or cluster development, where roads can be privately owned. Panned devel'€a raaerats shall include it is Streets where necessary to a000rrirriodatuarmerdind tut re through traffic. (Emphasis added.) FINDINGS. With the exception of Sage Steppe Drive, the roads in The Tree Farm and Tree Farm 1 would be private roads as permitted for cluster!PU+s. Sage Steppe Drive would have a dedicated 60 -foot right -of -war to facilitate a future public road connection > between the Rio Lobo property and Skyliners Road or Crosby Road at such tinge as the Miller Tree Farm property is developed. The applicant has proposed an interim gated secondary emergency access road from the southern terminus of Sage Steppe Drive through the adjacent Miller Tree Farm property to Crosby Drive, The applicant' states all private roads within The Tree Farm will be subject to public access easements to be shown on the final plats for The Tree Farm.32 In his August 28, 2014 comments on the applicant's proposal, George Kolb stated that Paragraph (8) of this section requires the applicant to dedicate 60 feet of right-of-way for and improve to the county's public road standards, a public road from the northern boundary of The Tree Farm to Skyliners Road. This argument also was made by Peter Russell and by Miles Conway on behalf of opponent Rio Lobo. In his December 19, 2014 memorandum, Mr. Russell suggested the applicant be required to dedicate to the public and improve to public road standards all of Tree Farre Drive, the southern portion of Golden Mantle Loop, and all of Ridgeline Drive as the "primary access road" for The Tree Farm. Mr. Conway argued that this paragraph requires the applicant to dedicate to the public not only to provide for through traffic from development on the Rio Lobo property, but also to accommodate through traffic within The Tree Farm itself;' Both Mr Conway and Mr. Russell argue the langua deviate from the public road''' dedication requ€ire'rrre plain language o this paragraph makes clear t he finding that such a road is "necessary to accommodate present and future throng December 30, 2014 memorandum, Jeffrey Condit argued the dedication of public road ri ge in Paragraph (8) provides no discretion to nt. The Hearings Officer disagrees. I find the public road requirement is contingent on a h traffic." in his ght-ofn way does not meet this "necessity" test. it Condit argues a requirement that all PUD roads, and/or the proposed secondary access road, be dedicated to the public would' constitute an unconstitutional "taking" under the >>Fifth, Amendment to the U.S. Constitution as interpreted in Nollan v. :alifornra Coastal Commission 32 In his January 6, 2015 letter on beha f of Rio Lobo, biles Conway states the applicant is offering only a "temporary" public access easement over the system of Tree Farm roads, and therefore The Tree Farm HOA, which would own and manage the subdivision roads, could erect barriers to "through traffic.' within the subdivision. lir, Conway is mistaken. The applicant's burden proof for Tree Farm 1 make dear the public access easements for Tree Farm roads will be permanent. For example, the Tree Farm 1 burden of proof states at page 54 that the private streets would have ''public access to be dedicated with the final;;, °lat." (Emphasis added.) it is the easement across the <Miller Tree Farm property for the secondary rgency access road that will be "interim" until such time as the (#iliilel Tree Farm property is developed;.; pith public roads that will connect Sage Steppe Drive and Skyiiners Road. Tree Farm `I , 247-14--000242--CU, 247-14 000243f P Page 89 of 116 483 US 825, 107 S Ct`'3141, 97 L Ed 2d 677 (1987), Dolan v.: City of Tigard, 512 US 374, 114 S Ct 2309, 129 L ' Ed 2d 304 (1994), and Schultz v. City of Grants Pass, 133 S Ct 2586, 186 L Ed 2d 697 (2013). Specifically, he argues, such a requirement would not meet the "essential' nexus/roughly proportional test articulated in the above cases. He also asserts the county cannot require public road dedication through the adjacent Miller Tree Farm property because the county has no jurisdiction over that property., in response, Land latch argues the Miller Tree Farm property is subject to the county's jurisdiction because the applicant proposed the secondary emergency access road across that property, and Miller Tree Farm owns both the adjacent property and The Tree Farm. The Hearings Officer disagrees. The applicantproposed off-site road improvements to which the off-site property owner consented. ! find that proposal does not confer jurisdiction on the county to require public dedication and improvement of that off-site road without the off-site property owner's consent. At most, 1 have authority to deny an application if ! find an off-site road improvement were required for the proposal to meet the applicable approval criteria and no such off-site improvement were proposed. Even assuming for purposes of discussion that the Hearings Officer has jurisdiction to require the public dedication of the proposed secondary access road, I agree with Mr. Condit that such a requirement - ar requirement to dedicate to the public the Tree Farm Roads identified by Mr Bussed sv does not have a sufflcie€1t nexus with, and is not roughly proportional to, traffic impacts from The Tree Farm development. I agree with Mr. Condit's analysis, set forth in his December 30, 2014 letter as follows: "A public street is not necessary to accommodate the through traffic that would be generated by development of the Rio Lobo property under the existing UAR- 10 zoning. Attached as Exhibit 4 is a December 29, 201 ' analysis provided by Joe Bessman' PE, of Kiltelson responding to Rio Lobo's December 11, 2014, testimony prepared by Marten Law and t! anoaster Engineering t`®Kitteison, Memo'). The Kitteison Memo confirms that the local street system proposed by the Applicant is rrrore than sufficient to accorfrrr r r 'ate the development of up to 37 single4fanrily lrorr e sites on the Rio Lobo Property "<As the County notes, '[be transportation effects [on the surrounding street system] of such nominal development v ouid be de rtinirnis ,v** Rio Lobo argues that 'future through traffic' has to include consideration of the potential development of the Rio Lobo property as a destination resort or as urban development. The ''County correctly rejects such development as too speculative to require the Applicant to address it as part of this application, Development of the Rio Lobo property as a destination resort would require compliance with the multiple criteria of DCC Chapter 19.106, which, at a mininum. would require a new traffic impact analysis and approval of a Master Plan. Most significantly, as noted in the Kittelson /Worn., DCG 19.106.0060(C) requires all destination resorts to 'have direct access onto a state, county, or city arteriai or collector roadway as designated by the Bend Area General Plan.' As discussed in more detail below, the only designated collector or arterial to which the Rio Lobo property currently eras direct access is the future extension of Skyline Ranch Road. A destination resort on the Rio Lobo property would be prohibited from taking indirect access;, via a Sage Steppe road extension over The Tree Farm and Miller Properties unless and until Rio Lobo seeks and obtains Tree Fara 1, 247``,14 -000242 -GU, 247-14- € 30243 -TP Page 90 of 11 an arrrendment"to the Bend Area General Plan to designate such a roadway as collector. Because such an amendment would have to be based on a demonstrated need, at a minimum it would have to occur in conjunction with an actual application for a destination resort. Rio Lobo has submitted no evidence that such an application is imminent, viable, or would otherwise be compliance with Chapter 19.106. Although UAR-.4O zoning does anticipate eventual urbanization, urbanization of the Rio Lobo property requires subsequent legislative decisions by the City and the County in compliance with state law, and would bring the property under the City's transportation jurisdiction. It also, as noted by Kittelson, would require an amendment to the BUAGP transportation system plan, which would require a needs analysis for urbanization of all the newly added propertis.'6 There are thus multiple future opportunities to obtain the necessary connections in the event the properties are added to the UGB. Such speculative future development does not justify imposition of a condition requiring the Applicant to dedicate additional right-of-way or construct a street under the County Code or the Takings Clause as interpreted" in Schultz. The Applicant has addressed the impacts on future connectivity that arise from its development by providing for and dedicating Sage Steppe right-of=way. That right-of-way will be available for use at such time as Rio Lobo and/or Miller Tree Farm properties are developed and the requirement for its dedication and construction can be imposed at that time, The fact that Rio Lobo may have to await development of the Miller Property for the connection to Skyliners Road to be dedicated and constructed puts Rio Lobo in no different position than it is in now. Indeed, the dedication of Sage Steppe ensures that a connection will occur at this point pursuant to DCC 17.36.020(B) when development of the Miller Property occurs. For these reasons, dedication of the Sage Steppe right-of-way by the Applicant addresses the future connectivity impacts on surrounding properties that arise from the development of the Tree Farm property. No additional exactions are warranted under the Takings Clause. '';Indeed, the County is only requesting dedication of additional right-of-way; if requesting any change in the construction of the street system. The requirements for local public streets and local private streets are virtually the same. See DCC Chapter 17 Tabla A. 16 Given the relative location of the Rio Lobo property vis-a-vis the Miller Property and the Anderson Ranch property fiocated north of the Rio Lobo property], which are directly acljacent'to the current Be city limits, the Rio Lobo property is unlikely to be added to the Bend UGB unless or until for after) the Ivliller and Anderson Ranch properties are added." The Hearings Officer finds Section 17.36.020(B) does not require ti, applicant to dedicate a public road — either off-site or within The Tree Farm - as part of The Tree Farm development in order to provide access fro i the Rio Lobo property to kyliners Road. b. Section 17.3 6.040, Exis ting Streets Whenever existing streets, adjacent inadequate width to accommodate th Tree Farr;1, 247 -14 -0€10242 -CU, 247 -14 -000243 -TP o or within a tract, are of increase in traffic expected Page 0 116 from the subdivision or partition by the county roadway network plan, additional rights of way shall be provided at the time of the land division by the applicant. During consideration of the tentative plan for the subdivision or partition, the ,Planning Director or Hearings Body, together with the Public Works Director, shall determine whether improvements to existing streets adjacent to or within the tract, are required. if so determined, such improvements shall be required as a condition of approval for the tentative plan. Improvements to adjacent streets shall be required where traffic on such streets will be directly affected by the proposed subdivision or pa iti n. FINDINGS: The only ex stin county collector road with improvement to Skyliners R department. g street adjacent to Tree Farm, 1 is Skyliners Road, a designated a 60 -foot right-of-way. No, additional right-of-way or other oad was identified in the applicant's traffic study or by the road finds Tree Farm 1 satisfies this criterion. Fl N For these reasons, the Hearings Officer Se ction 17,3 6,050, Conti n ua tion of Streets, Subdivision or partition streets which constitute the continuation of streets In contiguous territory shail be aligned so that their centerlines coincide, DINGS: The Hearings Officer finds this criterion is not applicable because Tree, Farm 1, has no streets, that would constitute a continuation of other streets. d, Section 17, 6.060, Minimum Right of Way and Roadway ld th The street right of way and roadway surfacing widths shall be in conformance with standards and specifications set forth in chapter 17.48 of this title. Where chapter 17,48 refers to street standards found in a zoning ordinance,the standards in the zoning ordinance shall prevail. FINDINGS: The applicant proposes to improve all PUD roads to the county's standards for public and private local roads and to improve them with 20 feet of paved surface as provided in Table A of Title 17. As discussed above, the applicant proposes that all private PUD roads be subject to public access easements, and the Hearings Officer has found that as a condition of approval the applicants; will be required to show those easements on the final plats for The Tree Farm. For these reasons, 1 find Tree Farm 1 satisfies this criterion. e. Section 17,36M70, Future Resubdivision Where a tract of and is divided into lots or parcels of an acre or more, the Hearings Body may require an arrangement of lots or parcels and streets such as to permit future resubdivision r conformity to the street requirements contained in this title. FINDINGS: The applicant's burden of proof for Tree Farm 1 states the applicant intends that The Tree Farm never will be annexed into the Bend UGB or redeveloped. The applicant has proposed deed restrictions for The Tree Farm open space tracts that would' preclude further division or development thereof. However, as discussed in the findings above, the Hearings Tree Farm 1, 247 -14 -000242 --CU, 247 -14 -000243 -TP Page 92 of 116 Off cer leas required the applicant as a condition of approval to provide to the Planning Division for its review, and to record, revised deed restrictions that provide for permanent preservation of The Tree Fara open space tracts. For these reasons, and with imposition of that condition of approval, 1 find it is not necessary or appropriate to require an arrangement of lots in Tree Farm 1 permitting future resubdivision. Section 17 3 &08 0.<Future Extension of Streets When necessary to give access to or permit' a satisfactory future division of adjoining land, streets shall be extended to the boundary of the subdivision or partition. FINDINGS; Sage Steppe Drive will be dedicated to the public and will be stubbed off at the, northern boundary of Tree Farm 1 in order to provide a future road connection to the vacant UAR 1O Rio Lobo property to the north. The Hearings Officer has found the applicant is not required to dedicate and improve other public roads within The Tree Farm, or the proposed off- site secondary emergency access road, to accommodate future through traffic from the Rio Lobo property For these rea ons,,'`i find Tree Farm 1 satisfies this criterion. g• Section 17.36.100, Frontag e Roads If a land division abuts or contains an existing or proposed collector' or arterial street, the Planning Director or '''Hearings Body may requ re frontage roads, reverse frontage lots or parcels with suitable depth, screen planting contained in a non -access reservation along the rear or side property line, or other treatment necessary for adequate protection of residential properties and to afford separation of through and local >.traffic. AH frontage roads shall cornply with the applicable standards of Table A of DCC Title 17, unless specifications included in a particular zone provide other standards applicable to frontage roads. FINDINGS: A portion of Tree Farm 1 abuts Skyliners Road, a designated county colt afar road. However, the Hearings Officer finds no frontage road is required because none of the proposed residential lots will abut or take direct access from Skyliners Road. I also find no reverse frontage lots are necessary because the proposed open space tracts will provide significant separation between the proposed residential ots and Skyliners Road.. Section 17.36.110, Stye Adjacent to Railroads, Parkways When the area to be divided adjoins or contains a railroad, freeway or parkway, provision may be required for a street approximately parallel to and on each side of such right of way at a distance suitable for use of the land between the street and railroad, freeway or parkway. In the case of a railroad, there shall be a>land strip of not less than 25 feet in width adjacent and along the railroad right of way and residential property. if the intervening property between such parallel streets and a freeway or a parkway is fess than 20 feet n width, such intervening property shall be dedicated to park or thoroughfare user, The intersections of such parallel streets, where ets Freew and Tree Farrn> 1, 241;-14--000242-C4- , 247-1 -000243-TP Page 9'u of 116 they intersect with streets that cross a railroad, shall be determined with due consideration at cross streets of a minimum distance required for approach grades to a future grade separation and right of way widths of the cross street. Flh DIl G : The Hearings Officer finds this criterion is not a property is not adjacent to a railroad, freeway or parkway. FINDlN county Section 17.36.120, Street Naafis ppli ble b eca bject Except for extensions of existing streets, no ..street name shall be used which will duplicate or be confused with the name of an existing street in a nearby city or in the County. Street names and numbers shall conform to the established pattern in the County, GS: Exhibit "Q" to the Tree Farm 1 burden of proof indicates the applicant h p roval for ail Tree Farm road names, therefore satisfying this criterion. a Section 17,3 6.130, Sidewalks as received A. Within an urban growth boundary, sidewalks shall be installed on both sides of a public road or street any in any special pedestrian way within the subdivision or pard ion, and along any collectors and arterials improved in accordance with the subdivision or partition. FINDINGS: The Hearings Officer find not located within the Bend LJ B. s this criterion is not applicable because Tree Farm 1 is B Within an urban area, sidewalks shall be required alorn frontage roads only on the side of the frontage road abutting the development. FINDINGS: The Hearings. Officer finds this enter€en is not appl'€cable because there are no frontage roads in Tree Farm 1. Sidewalk requiremernts for areas outside of urban area are set forth in section 17A8.175. In the absence of a special requirement set forth by the Road Department Director under DCC 17.48 030, sidewalks and curbs are never required in rural areas outside unincorporated communities as that term;, is defined in Title 18. FINDINGS: The Hearings Officer finds no sidewalks are required in Tree Farre€ lecated in a rural area outside unincorporated communities. k. Section 17.3 A. Ped 6.140, Bicycle, Pedestrian and Transit Req stria n and Bicycle Circulation wit Tree Farm 1, 247 14- 242 CU, 247 -14 -000243 -TP hi n Su because it is u are ents bdivision Page 4 0 116 The tentative plan for a proposed subdivision shall provide for bicycle and pedestrian routes, facilities and improvements within the subdivision and to nearby existing or planned neighborhood activity centers, such as schools, shopping areas and parks in a manner that will (a) minimize such interference from automobile traffic that will discourage pedestrian or cycle travel for short trips; (b) provide a direct route of travel between destinations within the subdivision and existing or planned neighborhood activity centers, and (c) otherwise meet the needs of cyclists and pedestrians, considering the destination and length of tripe FINDINGS: The Tree Farm would include a €multi -use path system including eight- and ten -foot.. wide paved paths that would run parallel to all subdivision roads. The multi -use paths will provide access to Skylin€ers Road and beyond to North est Crossing, the three nearby public schools, and the rest of the Bend urban area. The applicant also proposes a number of soft- surface recreation/mountain bike trails within the open space tracts and linking with trails in Shevlin Park and the DNF to the west. For these reasons, the Hearings Officer finds Tree Farm 1 satisfies this criterion B, Su bdivision Layout Cul-de-sacs or dead-end streets shall be allowed only where, due to topographical or environmental constraints, the size and shape of the parcel, or a lack of through -street connections in the area, a street connection is determined by the Planning Director or Hearings Body to be infeasible or inappropriate. In such instances, where applicable and feasible, there shalll be, a bicycle and pedestrian connection connecting the ends of cul-de-sacs to streets or neighborhood activity centers on the opposite side of the block. FINDINGS. The applicant proposes a cul-de-sac at the eastern ter € inus of Ridgeline Court in Tree Farm 1. In his January 6, 2015 letter on beha f of Rio Lobo, Miles Conway stated the proposed cul-de-sac "cannot be justified by topographical'' or environmental constraints in this ocation."' The Hearings Officer disagrees. The topographical information on the Tree Farm 1 tentative plan clearly shows a steep slope east of the most eastern lots in Tree Farm 1 — i.e,, Lots 1-4. The applicant argues, and I agree, that this cul-de-sac is necessary due to this steep topography. I also find this cul-de-sac also is justified by the lack of through -street connections in the area. Finally, I find that although Ridgellne Court is not intended to continue into the vacant property to the north, the multi -use path along this road could be continued into that property in the future. For these reasons, I find Tree Farm 1 satisfies this criterion. , Bicycle and pedestrian connections shall be provided at mid - between streets block where the addition of a walking or cycling distance neighborhood activity center connection will reduce the to an existing or planned Tree Fame 1, 247` 14 -000242 -CU, 247 -14 -000243 -TP Page by 400 feet and available routes. by a least 50 percent over other FINDINGS: The Hearings Officer finds this criterion is not applicable to Tree Farm 1 because there are no existing or planned neighborhood activity centers for which mid -block connections, are warranted or necessary. Fl N Faci Local roads shall align and connect with themselves across collectors and arterials. Connections to existing or planned streets and undeveloped rolerties shall' be 'ro vided at n reater than 400 foot intervals. Connections shall riotbe more than 400 feet>.long,and shall be as slraight as p€ ssib a nd is provements Bikeways may be prov path or an on -street requirements of DCC T id bi ed by either a separate paved ke lane, consistent with the tie 17, Pedestrian access may be provided by sidewalks or a separate paved path, consistent with the requirements of DCC Title 17. connections shall havea 0 -foot r€alt f way. wit Iga t 10$oot usable surface, (Emphasis added.) DINGS: The Hearings Officer finds there are no existing local roads that must,, be a across Skyliners. Road. h at lien ed The parties and county staff disagree as to the meaning of the above -underscored language. Miles Conway argues on behalf of Rio Lobo that this language requires the applicant to provide stubbed road connections at lest 400 feet long and at 400 -foot' intervals along the northern boundary of Tree Farm 1 to provide future connect ns to the undeveloped Rio Lobo property. Peter Russell responded in his December 11, 2014 memorandum that the underscored language must be read in the context of the title of this section -- "Bicycle, Pedestrian and Transit Requirements"' -- and the rest of the section which addresses bicycle and pedestrian nnections. In particular, Mr. Russell notes the terra "connections" in Paragraph (C)(3) of this ion clearly refers to bicycle/pedestrian paths because i requires a minimum paved width of 10 feet, far less than minimum 20 -foot pavement width required for roads. For this reason, Mr. Russell argues the better reading of the underscored language is that, at most, it establishes a requirement of ''10 -foot -wide, paved bicycle/pedestrian connections at 400 -foot intervals along the Tree arm's borders with adjacent undeveloped property. In his December 30, 2014 letter, Mr. Condit agreed with Mr. Russell's interpretation of the connection requrement, but argues this requirement should not be applied to rural subdivisions because it would produce an absurd result. For example, he notes that if The Tree Farm lots along the Rio Lobo border were 10 acres in size, the ,400-foot-interval6400-foot-long connections Tree Farm 1, 247-14-€ 00242 -Gil, 247 -14 -000243 -TP Page 96of116 would bisect the lots and create paths "leading to nowhere.' 7r. Condit also argues that if'this connection requirernent is applicable, it also would apply to the adjacent undeveloped Miller Tree Farm property and therefore to the entire border between that property and Tree Farm 1 Since much of Tree Fara 1 is less than 400 feet wide, compliance with the connection requirement would not be feasible. Mr. Condit also notes the county did not apply this bicycle path connection requirement to prior approvals for three rural PUDs on nearby properties Tunalo Creek Development (CU -05-17, TP -05-958) (adjacent to the Rio Lobo property on the north); Cascade Highlands (CU -02-73, TP -02-931) (The Highlands at Broken Top subdivision across Skyliners Road', to the south); and Shevlin Heights (Anderson Ranch) (ZC-00-5, CU -00- 112, TP -004916) (north of the Rio Lobo property). A review of these decisions indicates the connection standard was not applied to these PUDs based on findings that there were no existing or planned neighborhood activity centers in the vicinity, and/or that the standard does not <apply>. to private roadsFinally, » Mr. Condit argues that if the Hearings Officer concludes the bicycle/pedestrian path connection requirement is applicable to Tree Farm 1, 1 should grant an exception under Section 19.104.070(C), discussed in the findings above, in light of The Tree Farm's demonstrated benefits in general, and the extensive multi -use path/trail system proposed for he Tree Farm. The Hearings Officer agrees with Mr. Russell that read in context, the "connections' required by Section 17.36.140(B)(3) and (4) are >bicycle/pedestrian, path connections and not road connections. I also agree with Mr. Condit that application of this requirement to rural subdivisions including The Tree Farm would be inappropriate and infeasible. Finally, 1 find the applicant has demonstrated an exception to this requirernent is justified by the benefits provided by The Tree Farm and Tree Farm 1, and particularly the extensive multi -use path/trail system. For the foregoing reasons, the Hearings Officer finds Tre approval of the exception described above. Sec tion 17.36.15O,, Blocks Farm 1 satisfies these criteria wi h A. General. The length, width and shape of blocks shall accommodate the need for adequate building size, street width, and, direct travel routes for pedestrians and cyclists through the subdivision and to nearby neighborhood activity centers, and shall be compatible with the limitations of the topography. FlND NQ : Section 17.08.0 30 defines 'block" as an area of land bounded by streets or by a cornrbination of streets and public parks, cemeteries, railroad rights of way, lines or shorelines or waterways, or corporate boundary lines of a city." The Hearings Officer finds Tree Farm 1 does not contain any "blocks" inasmuch as no area of land within the proposed development is bounded by streets or the other listed features, Within an urban growth boundary, no ;;block shalll, be longer than 1,200 feet between street centerlines. In blocks over 800 feet in length, there shall be a cross connection consisten with the provisions of DCC 17,36,1 0, 33 As noted in the findings above under the UAR-10 Zone; the minim u lot width in that zone is 300 fleet. Tree Farm 1, 247 -14.000242 -GU, 247.14 -00.243 -TP Page 97 of 11 FINDINGS; Tree Farm 1 is not located within finds this criterion is not applicable, the Bend Section 17.36.160, Easements U B. Therefore, the, Heanngs Officer Utility easementsEasements shall be provided along property lines when necessary for the placement of overhead, or underground utilities, and to provide the subdivision or partition with electric power, communication'facilities, street lighting, sewer lines, water lines, gas lines or drainage. Such easements shall be labeled "Public utilityEasement" on the tentative and final plat; they shall be at least 12 feet in width and centered on lot lines where possible, except utility pole guyline easements along the rear of lots or parcels adjacent to unsubdivided land may be reduced to 10 feet hi width, FINDINGS: : The Tree Farm 1 burden of proof states the applicant intends to locate all utilities in roadside trenches, either within the private road rights -of -ray or within multiple use easements (MUEs) paralleling the rights-of-way, as shown on he Preliminary Water Flan included in the record as Exhibit "E" to the burden of proof. The Hearings Officer finds that as a condition of approval the applicant will be required to show all MUEs on the final plat for Tree Farm 1. FI N pro Drainage. If a tract is traversed by a vvatercou drainageway, channel or stream, there shat stormater easement or drainage rig substantially with the lines of the wate further width as will be adequate for the rse such as a I be provided a ht of way conforming rcourse, or in such purpose. Streets or parkways parallel to real may required. DINGS The Hearings Officer finds this perty is not traversed by a watercourse. or watercourse tenon is n€ot a Section 17.36 170,1 Lots H Size and S s or drainageways pplicable because the subject hape The size, vvidth and orientation of lots or parcels shall be appropriate for the location of the, land division andfor the type of development and use contemplated, and shall be consistent with the lot or parcel size provisions of Title 18 through 21 of this code, with the following exceptions: A. In areas not to be served by a public sewer, minimba lot and parcel sues shall permit compliance with the requirements of the Department of Environmental Quality and the County Sanitarian, and shall be sufficient to permit adequate sewage disposal, Any problems posed by soil) structure and water table and related to sewage, disposal by septic tank shalll be addressed and resolved in the applicant's initial plan; FINDINGS: The, proposed residential lots in Tree Farre 1 will be two acres in size. The applic submitted a septic suitability study, included in the record as Exhibit ':F" to the Tree Farm 1 nt Tref Far€ 1, 247 4 -000242 -CU 247.14 -000243 -TP Page :?8 of 116 burden of proof, indicating the sails on the subject property are suitable for on-site septic systems. In addition, the applicant proposes to establish building envelopes on each lot within which dwellings must be constructed. As discussed above, 1 have granted an exception to the minimum lot width for Lot 1 in Tree Fara 1. And 1 have found the <applicant will be required as a condition of approval to obtain an approved septic site evaluation for each residential'''lot in Tree Farm 1 prior to final plat approval, For these reasons, the Hearings Officer finds the size, width and orientation of the proposed lots are appropriate for the proposed planned development, consistent with the minimum lot sizes in the RR -10 and UAR-1O Zones, and large enough to accommodate on-site septic systems. s ection 17 36.18 0, Frontage A. Each lot or parcel shall abut upon a public road, or when, located in a planned development or cluster development, a private road, for at least 50 feet, except for lots or parcels fronting on the bulb of a cul de sac, then the minimum frontage shall be 30 feet, and except for partitions off of U.S. Forest Senfice or Bureau of Land Management roads. Frontage for partitions off U.S. Forest ''Service or Bureau of Land Management roads shall be decided on a case by case basis based on the location of the property, the condition of the road, and the orientation of the proposed parcels, but shall be at least 20 feet, in the La, Pine Neighborhood Planning Area Residential Center District, lot widths may be less than 50 feet in width, as specified in DCC 18 61, Table 2: La Pine Neighborhood Plannirag Area Zoning Standards. Road frontage standards, in destination resorts shall, be subject to review in the conceptual master plan• All side lot lines shall be at right angles to scree radial to curved streets wherever practical. lines or FINDINGS: With the exception of Lot 1, all proposed residential lots in Tree Farm 1 will have at least 50 feet of road frontage, or at least 30 feet of road frontage for those lots located on a cul- de-sac. Lot 1 has frontage on both the straight and curved segments of Ridgeline Drive at its cul-de-sac. As discussed above, the Hearings Officer has granted an exception to the 50 -foot road frontage requirement for Lot 1 based on my finding that the benefits of the proposed clu ter/PUDs justify the requested exceptions. Generally, Tree Farm '1 lot fines are at right angles or radial to the Ridgeline Drive cul-de-sac. For the foregoing reasons, find Tree Farm 1 satisfies this criterion with the street frontage exception for Lot 1 p. Section 17, 6.190 Throu g h Lots Lots or parcels with double frontage should be avoided except where they are essential to provide separation of residential development from major street or adjacent nonresidential' activities to overcome specific disadvantages of topography and orientation.. A planting screen easement of at least 10 feet in width and across which there shall be no right of access may be required along,' the lines of lots or parcels abutting such a traffic artery or other incompati Tree Faun '1, 247-14-0 ble use J242 -CU, 247`14- 00243 -TP Page 99 of '116 FINDINGS: Section 17,08,0 30 defines 'through lot"as "an interior lot having frontage on two streets." The staff report states there are no through lots in Tree Farm 1. The Hearings Officer disagrees. The tentative plan for Tree Farm 1 shows Lots 4, 5, 8, and 9 will have frontage on both Sage Steppe Drive and Ridgeline Drive. Sage Steppe Drive was created to provide a future road connection to the adjacent UAR-1O zoned property to the north and connection to the proposed secondary access road for The Tree Farm. Under these circumstances, I'' find there is no need to require a planting screen easement along the double frontage of these lots because here there is no need to prevent access across these double -frontage' lots. g FINDINGS: The Hea located outside the 8 Section 17.36.200, Corner Lots Within an u rban growth boundary, corner ots or parcels shall be a minimum of five feet more in width than other lots or parcels, and also shall have sufficient extra width to meet the additional side` yard requirements of the zoning district in whish they are Ilocated. rings Officer finds this riterion is not applicabl e because Tree Farm end UGB. Section 17 6.10, Solar Access Performance A. As much solar access as feasible shall be provided each lot or parcel hi every new subdivision or partition, considering topography, development pattern and existing vegetation. The lot lines of ots or parcels, as far as feasible, shall be oriented to provide solar access at, ground level at the southern building line two hours before and after the solar zenith from September 22nd to March 21st. if it is not feasible to provide solar access to the southern building line, then solar access, if feasible, shall be provided at 10 feet above ground level at the southern building line two hours before and after the solar zenith from September 22nd to March 1st, and three hours before and after the solar zenith from 'March 22nd to September 21st v This solar access shall be protected by solar height restrictions on, burdened properties for the benefit, of lots or parcels receiving the solar access. If the solar access for any lot or parcel, either at the southern;, building line or at 10 feet above the southern build ng line,, required by this performance standard is not feasible, supporting information must be filed with the application. FINDINGS: The Hearings Officer finds the size, shape and Tree Farre 1 will allow for the dwellings on these lots to mea; Section 17.3&220, lin d orientation of the ;,r� the solar access st erground Facilities Farm 1; 247`,-14-000242- U€, 247-14-000243 TP idential lots in ndards. Page 10 0 of 11 ;.; Within an urban growth boundary, all permanent utility services to lots or parcels in a subdivision or partition shall be provided from underground facilities; provided, however, the Hearings Body may allow overhead utilities if the surrounding area is already served by overhead utilities and the proposed subdivision or partition will create less than ten lots, The subdivision or partition shall be responsible for complying with requirements of this section and shal I, . FINDINGS: The Hearings Officer finds this section, is not applicable because the property is located outside the Bend UGB. t. Section 17.3 602 6 0, Fire H azards Whenever possible, a rnfnfmum of two points of access to the subdivision or partition shall be provided; to provide assured access for emergency vehicles and ease resident evacuation, F ND NG . The applicant proposes two points>of access to The Tree Farm and Tree Farm 1 -; the main PUD road that intersects with Skyliners Road at the southern boundary of Tree Farm 1, and the proposed secondary emergency access road running from the southern terminus of Sage Steppe I -Drive south through the adjacent' Miller Tree Farm property to Crosby Drive. As discussed in the findings above, the Hearings Officer has found the secondary access road will provide an adequate means of evacuation and emergency vehicle access with imposition of conditions of approval requiring the road to be improved to the fire department's standards for such roads, and with, installation of a gate/lock system that allows the gate to be opened by residents and guests. For these reasons, and with imposition of this condition of approval, l''find Tree Farm 1 satisfies this criterion. Section 17,36 280, Wa ter and Sewer Line 'here required by the applicable zoning ordinance, water'nd seer lines shall be constructed to County and city standards and specifications. Required water mains and service lines shall be installed prior to the curbing and paving of new streets in all new subdivisions or partitions. FINDING: No new sewer lines are proposed because residential lots in Tree Fare 1 would be served by on-site septic systems. The Hearings Officer finds that if these residential lots are connected to the City of Bend water facilities, the applicant will be required as a condition of approval to construct all required water lures in compliance with the city's standards and specifications therefor. Section 17 36.29 0 nd vidual Wells In any subdivision or partition where individual wells are proposed, the applicant shall provide documentation of the depth and quantity of potable water available from a minimum of two wells within one mile of the proposed land division. Notwithstanding DCC 17.36.300, individual wells for subdivisi€ ns are allowed when parcels are larger than 10 acres. Tree Fara 1, 247 -14 -O00242 -CU, 247 -14 -00243 -TP Page 101 of 1 FINING: The applicant's burden of proof states its preferred alternative for providing domestic water to the residential lots in Tree Farm 1 is the extension of City of Pend water ser ine. However, if that connection is not possible, and the applicant does not obtain water service from Avion Water Company, the applicant proposes to provide domestic water through one or more groundwater wells.. The applicant submitted as Exhibit "M" to the Tree Farm 1 burden of proof well Ices for two wells on property in the vicinity of the subject property demonstrating that water is available in the area. Therefore, the Hearings Officer finds the applicant's proposal satisfies this criterion,, s esti on 17.36.300, Pu blie Wa ter System' In any subdivision or partition where a publ`€c water system is required or proposed, plans for the, water system shall be submitted and approved by the appropriate state or federal FINDINGS The Hearings Officer finds that if the residential lots in Tree Farm 1 are served by City of Bend or Avion water service, compliance with this criterion will be accomplished through the city's or Avion's compliance with applicable public water system requirements. 3 Cha p ter 17.44 Park bevel 0 Pm Section 17.44.010, Ded' ent cation of Land For subdivisions or partitions outside of an urban growth boundary, the developer shall set aside a minimum area of the development equal to $350 per dwelling unit within the development, if the land is suitable and adaptable for such purposes and is generally located in an area planned for parks, For either DCC 17,44.010 (A) or (B), the, developer shall either dedicate the land set aside to the public or develop and provide maintenance for the and set aside as a private park open to the public., The Planning Direct ar whether or not such land �r Hearings is suitable for B ody shall determine park purposes. If the developer dedicates the I d set aside in accordance with DCC 17,44.010(A) or (8), any approval by the Planning Director or Hearings Body shall be subject to the condition that the County' or appropriate park district' accept the deed dedicating;, such land. asp DCC 17.44.0€10 shall not apply to t of lands located' within the bounda and Recreation District Recreation District. he subd ivision or partition ries of the Bend Metro Park the Central Oregon Park and Trey: Fara 1, 247``-14-000242- U, 247 -.i4 -000243 -TP Page 102 of 116 FINDINGS The record indicates all proposed €residential lot the boundaries of the park district, and therefore the Hearin are not applicable, ba lotion 17.4..00, Fee i s in Tree Farm '1 are located within gs Officer finds these requirements n 'Lieu of Dedication A. In the event there is no suitable park or recreation area or site in the proposed subdivision or partition, or adjacent thereto, then the developer shall, in lieu ofsetting aside land, pay into a park acquisition and development fund a sum of money equal to the fair market value of the land that will have been donated under DCC 17.44.010 above. For the purpose of determining the fair market value, the latest value of the and, unpl tied and without improvements, as shown on the County Assessor's tax roll shall be used. The sum so contributed shallbe deposited with the County Treasurer and>' be used for acquisition of suitable' area for park and recreation purposes or for the development of recreation facilities. Such expenditures shall''' be made for neighborhood or community facilities at the discretion of the Board and/or applicable park district. DCC 17.44 020 shall not apply to subdivision or partition of lands located within the boundaries of the Bend Metro Park and Recreation District or the Central Oregon '''P'ark and Recreation District. FINDINGS: The Hearings Officer finds that becau are located within the boundaries of the park distri T 4. Ch e Frye a pter 17. 8, Design an se ail proposed residential lots in Tree Farm 1 ct, this section does not apply... d Constru ction Specifications a. Section 17A8.140, Bikeways A. Genera Desig n Criteria. 1: Bikeways shall be designed in accordance with the current standards and guidelines of the Oregon, (OEDOT) Bicycle and Pedestrian Plan, the American Association of State Highway Transportation Officials (AASHTO) Guide for Development of New Bicycle Facilities, and the Deschutes County Bicycle Master Plan. See DCC 17.48 Table 8, 2. AI l''' collectors and arterials shown on the County Transportation Plan map shall be constructed to include bikeways as defined by the Deschutes County Bicycle Master Plan. 1, 247.14-0 242 CU, 247-14-00024 -TP Page 103 of 1 6 If interim road standards are used, interim ,,,bikeways and/or walkways shall be provided. These interim facilities shall be adequate to serve bicyclists and pedestrians until the time of road upgrade. Multi -use Pa th s. 1. Multi -use paths shall be used where aesthetic, recreation and safety concerns are primary and a direct route with few intersections can be establi Trains used for transportation shall have a two foot minimum tread 'width and a six foot minimum clearing width centered over the trail, and a minimum overhead clearance of seven feet. Trails used solely for recreational use may be narrower with less clearing of vegetation FINDINGS: As shown on Exhibit "C" to The Tree Farm burdens of proof, the applicant proposes a network of soft -surface recreation/mountain bike trails linking with t ails in Shevlin Park and in the DNF to the west. However, because none of these recreation trails would be located in Tree Farm 1, the Hearings Officer finds these criteria are not applicable, to Tree Farm, 1. b. ection 17.48A 60 Road Development Req ai nts — Stan dards A. Subdivision Standards. All roads in new subdivisions shall either be constricted to a standard acceptable for inclusion in the county maintained system or the subdivision shall be part of a special road district or homeowners association'' in a planned unit development, FlNDlNGS: The applicant proposes to dedicate to the public and to improve Sage Steppe Drive in compliance with the county's standards for public rural roads, and to improve ail PUD roads with 20 feet of paved surface as provided in Table "A" to Title 17. The applicant also proposes that all Tree Farm roads will be maintained by the HOA. As noted above, the record indicates the county is not accepting new roads into its road maintenance system. For these reasons, the Hearings Officer finds Tree Farm 1 satisfies this criterion. B. Improvements of Pu bile Rights of Way. The developer of a subdivision or partition will be required to improve all public ways that are adjacent or within the land development; All improvements within public rights of way shall conform to the improvement standards designated in DCC Title 17 for the applicable road classification,;, except where a zoning ordinance sets forth different standards for a particular zone. FINDINGS: The only public right-of-way adjacent to the subject property is Skyliners Road, an improved county collector. As discussed above, the road department did not identify any necessary improve€rents to Skylin rs Road. The applicant proposes to improve all PUD roads to the to the county's standards for local public and private roads, including 20 feet of paved surface. Therefore, the Hearings Officer finds Tree Farm 1 satisfies this criterion, Primary Access Roads. The primary a subdivision shall be improved to the ap forth in Table A (or the applicable sta zoning ordinance). The applicable' standard determined with reference to the road's classific ess road for any new plicable standard set ndard set forth in a Tree Far 1, 247 -14 -000242 -Gid . 24 (-14-0 0 0243 -TP shall be ation under Pag 16 the relevant transportation plan. For the purposes of this section a primary access road is a road leading to the subdivision from an existing paved county, city or state maintained road that provides the primary access to tl e subdivision from such a road. FINDINGS: The primary access road to The Tree Farm consists of Tree Farm Drive, Golden Mantle Loop, and Ridgeline Drive. The Hearings Officer finds the applicant will be required as a condition of approval to improve the segments of these roads within Tree Farm 1 to the county's standards for local private roads in Table "A" to Title 17. in addition, as discussed in the findings above, I have found the applicant will be required as a condition of approval, to develop Tree Farms 1, 2 and 3 concurrently to assure the primary access road is in place to serve all lots in those developments Secondary Access Roads. When deemed necessary by the County Road Department or Community Development Department, a secondary access road shall be constructed to the subdivision. Construction shall be to the same standard used for roads within the subdivisions FINDINGS: The road department did not identify the need for a secondary access road, However, the applicant proposes to construct a temporary emergency access road from the southern terminus of Sage Steppe Drive south through the adjacent Miller Tree Farm property to Crosby Drive. The applicant proposes to improve this emergency access road;;, to the fire department's standards for fire apparatus access roads, Including a 24 -foot -wide all-weather surface. As discussed above, this emergency access road will be an ''interim access until the Miller Tree Fara property is developed, with public roads to which Sage Steppe Drive can connect: Under these circumstances, the Hearings Officer finds the proposed level of improvement is appropriate for the secondary access road.34 E. Stubbed Roads. Any proposed road that terminates at a development boundary shad be constructed with a paved cul- de-sac bulb. FINDINGS: The eastern terminus of Ridgeline Drive in Tree Farm 1 will end in a cul-de-sac bulb that abuts the adjoining Rio Lobo property to the north. As discussed in, the findings above, the Hearings Officer has found this proposed cul-de-sac is appropriate because the steep topography and lack of through -street connections in the vicinity. The applicant also proposes to terminate Sage Steppe Drive as a stubbed street at the southern boundary of the Rio Lobo property to provide a future through street connection to that property. I find this terminus is appropriate because under Section 17.36.140(2)(A), discussed above, cul-de-sacs and "dead- end streets" are allowed where "due to * * * a lack of hrough-street connections in the area, a street connection is determined by the Planning Director or Hearings Body to be infeasible or inappropriate." Therefore, I find the northern terninr s of Sage Steppe Drive need not be a paved cul-de-sac. A The burden of proof for Tree Farm 1 states the applicant would request a variance to the ret; that the secondary access road be paved. However, in an e-mail message dated August 15, 2014, the appllcan: s'representative Romy Mortensen clarified the applicant is not seeking a variance and does not believe one is required. ent Tree Farm 1, 24`7 -14 -000242 --CU, 247 -14 -000243 -TP Page 100 of 11 Cul-de-sacs. Cffnd feet, >.unless a Ion protection distric the bulb to the intersection with grade on the bulb shall be four easacs shall have a length of less than 60 0 ger length is approved by the applicable fire t, and more than 100 feet from the center of the main road. The maximum percent. FINDINGS: The tentative plan for Tree Farm 1 indicates the Ridgeline Court du€i-de-sac will be less than 600 feet in length, and will have more than 100 feet from the center of the cul-de-sac bulb to the intersection with Ridg line Drive. The Hearings Officer finds the applicant will be required as a condition of approval to construct the R dgeline Court cul-de-sac bulb so its grade does not exceed four percent. ! find that with imposition of this condition of approval, Tree Farm 1 satisfies this criterion. Section 17,48,1 T° he followiin g 80, P rivate Roads minimum road stan da d s h all a A. The minium paved roadway wid planned unit d two -foot wide gravel shoulde evelopments and rs; cl pply fo rp iva to road s: th shall be 20 feet in uster developments with B. Minimum radius of curvature, 50 feet: C aximur grad e, 12 percent; FINDINGS: The applicant's burden of proof for Tree Farm 1 states the,, private roads will € these standards, and the Hearings Officer finds the applicant will be required'' to construe PUD's private roads in compliance with these standards as a condition of approval FIN to corn DIN D.. The Hearing ply with this crite At least one road name sig intersection for each road; s Officer finds the applicant will non. h eet the be provided at eac be required as a condition;.of ap h prove' A rr ethod, for conthiwng road rnamtenance>.acceptable to the County; FINDINGS: The applicant proposes that The Tree Farm HOA will own and maintain all tree farm roads, The Hearings Officer finds the applicant will be required as a condition of approval to execute a road maintenance a€greernerit with the county that is acceptable tc the county. F. Private road systems shall include provisions for bicycle and pedestrian traffic, In cluster and planned developments limited to ten dwelling units. the bicycle and pedestrian traffic can be accommodated within the 0 -foot wide road. In other developments, shoulder bkeways shall be a MilliMUITI of four feet wide,;, paved and striped, with no on -street parking allowed within the bikeway, and when private roads are developed to a width of less than 28 feet, bike paths constructed to County standards shall be required. Tree Farm 1, 247 -14 -000242 -CU, 247-14- 0243 -TP Pa ge 1 of 116 FINDING: As discussed in findings throughout this decision, the applicant proposes to, accommodate bicycle and pedestrian traffic in The ''Tree Farm and Tree Farm 1 through a system of paved multi -use paths running parallel to PUD roads. The segment of Tree Farm Drive in Tree Farm 1 would have a 26$foot-wide paved surface to its intersection with Golden Mantle Loop, and all other road segments would have a 20 -foot paved width with adjacent or nearby eight- or ten -foot -wide paved bicyclelpedestrian paths. For these reasons, the Hearings, Officer finds Tree Farm 1 satisfies this criterion. d. Section 17.48.1 90 Minimum Dra Req u nage re rr� ents. Drainage facilities shall be designed and constructed to receive and/or transport at least a design storm as defined in the current Central Oregon Stormvvater' Manual created by Central Oregon Intergovernmental Council and all surface drainage water coming to and/or passing through the development or roadway. The system shall be designed for maximum >allowable develop rent' FINDINGS: The applicant proposes a surface water drainage plan for The Tree Farm that would contain surface water on site through use of vegetated swales, roadside ditches, culverts, and natural drainage ways. According to this plan, runoff would'' shed to vegetated males with 3:1 slopes for on-site infiltration, or would enter a natural drainage way via a roadside ditch and culvert. The applicant states these culverts will be designed for a ten-year storm event, and infiltration facilities will be designed for a fifty-year storm event. The drainage plan notes that because of the site's topography, natural drainage patterns on The Tree Fara generally are toward Turnalo Creek to the west and to the undeveloped open space to the east. However, the applicant states none of the runoff from impervious areas such as roads and driveways will create any additional drainage contributions to Tumalo Creek as no surface water will be disposed of off-site. The applicant also proposes that if hydrological calculations determine additional runoff storage is needed, the applicant will construct a catch basin near the main' entry to The Tree Farm at Skyliners Road. The Hearings Officer has found that prior to submitting for approval the final plat for any part of The Tree Farm, the applicant will be required as a condition of approval to submit to the Planning Division a statement from a registered professional engineer stating whether an additional runoff storage basin is necessary, and if such a facility is determined to be necessary, the applicant will be required as a condition of approval to show it on the final plat for Tree Farm 1 and to construct it. l find that with imposition of this condition of approval Tree Farm 1" will satisfy this criterion Finally, the Hearings Officer finds the drainage pan for The Tree Fara and Tree Farm 1 need not be designed to serve the site with "M@XialL1111 allowable development" — i,e., urban -density developrnent on the UAR-1 €0' zoned portion of the site — inasmuch as the applicant intends that The Tree Farm never will be annexed into the Bend UGB, and the applicant will be required as a condition of approval to record deed restrictions permanently prohibiting development on The Tree Fara open space tracts. Tree Fan 1, 247 -14 -000242 -Cid, 247 -14 -000243 -TP Peg 108 of 1 Nonc 1 2. rbed Sections R oad culverts shall be concre minimum design life of 50 years. All cross cu larger. Culverts sha shall provid !veils shall be 18 or nches in 1I be placed in nature d e positive drainage. el with a dlarneter or rainage areas and FINDINGS: The applicant's burden of proof for Tree Farm 1 states culverts used for The Tree Farm will be corrugated metal pipe with a minimum fifty-year design life, and that two 18 inch culverts and one 4 -inch culvert will be installed. The, Hearings Officer finds the applicant will be, required as a condition of approval to place all culverts in naturaldrainage areas and provide positive drainage. Drainage Swales. The Design Engineer is responsible to design a drainage sale adequate to control a design storm as deft ied in the Central Oregon St on€ +sater``''Manual created by Central Oregon Intergovernmental Council FINDINGS: The applicant's burden of proof for Tree Farm 1 states the drainage swales will be designed for a 50 -year storm event. Therefore, the Hearings Officer finds Tree Farre 1 satisfies this criterion. l : Drainage Plans. A complete set of drainage plans including hydraulic and hydrologic calculations, shall be incorporated in all road iprovement plans. FIND NG : The applicant's burden of proof for Tree Farm 1 includes a ,narrative description of its proposed drainage plan, and states complete modelling will be performed and incorporated in o the storm disposal infrastructure design during engineering and construction plan development. The Hearings Officer finds the applicant will be required as a condition of approval to incorporate the drainage plan for Tree Farm 1 into the road improvement plan for Tree Farm 1, and to provide to the Planning Division a copy of that plan before submitting the Tree Far€n1 final plat for approval Fl l DI N GS: The H because no dril Dri'll Holes. Drill holes are prohibited. G. Injection wells (d way.. rywel'ls) earings Officer finds, the applicant holes or injection wells are proposed are p prohibited posal' corn n the public rig plies v h ht -of - hese criteria For the foregoing reasons, the Hearings Officer finds the applicant's proposal' satisfies, or''with''' the conditions of approval described above will satisfy, all applicable criteria in Title 17. COMPREHENSIVE PLANS Tree Farre 1. 247.14 -000242 -CU, 247 -14 -000243 -TP Facie "109 of FINDINGS: Comprehensive plans can be a potential source of approval standards for quasi- judicial land use applications The Flight Shop v. Deschutes County, Or LURA (LUBA No, 2013-073, January 10, 2014). Even if a comprehensive plan provision does not constitute an independently applicable mandatory approval criterion, it may nonetheless represent a relevant and necessary ,;consideration that must be reviewed and >balanced with other relevant plan provisions pursuant to ordinances that require that the proposed land rise be consistent with applicable plan provisions. See, Bothran,v. City of Eugene, 51 Or LUBA 426 (2006). Therefore, the Hearings Officer finds that whether the county's comprehensive plans apply to Tree Farm 1 depends on whether their text and context indicates they include mandatory standards, requirements, and/or considerations applicable to quasi-judicial development approvals. F. Deschu FIN D tes County Com P rehe nsive Plan NGS: The applicant and staff identified the following plan provisions as applicable,. 1. Chapter 2 Res() Goan 1 Mai ntai r rce M n and anage ment Section nhance a diversity of wild Policy o&8, Balance protection of wild private lands in the designated Wildiand life and habitats. life with wild and fire a Urban Interface. tcg ation or FINDINGS: The, Hearings Officer finds this goal' and policy are written in''aspirational teras and appear directed at the county rather than to applicants for land use approval. Therefore, , find these provisions are not applicable to Tree Farm ''1. 2. Chapter 3, Rural G rowth Management Goals and Policies Goal 1 Maintain the rural c Deschutes County. Policy 3.3A. The milli r ra be 10 acres. harcte and safety of h parcel size for neo ru ing in u ral re id nincorporate ential parcels s hall FINDINGS: The Hearings Officer finds this policyis written in mandatory terms suggesting it is applicable to Tree Farm 1. l have found Tree Farm 1 complies with the ten -acre minimum size for lots or parcels in the RR -10 and UA -10 Zones, and therefore find it also is consistent with this plan policy. Policy' 3.3.4. Encourage new subdivisions to incorporate alternative development patterns, such as cluster development, that mitigate community and environmental impacts. FINDINGS: The Hearings Officer finds >.this policy is aspirational and directed at the county rather than at an applicant' for a quasi-judicial land use ''application, and therefore it is not applicable to Tree Farm 1. For the foregoing reasons, the Hearings Officer find applicable county comprehensive plan goals and poi Tree: Farm 1, 247.14 -000242 -CU, 247 -14 -000243 -TP s the applicant's proposal is consistent with icies identified`, by plannin Page 110 of 116 Bend Area General Pla n3 1. Chapter 5: Housing and Residential Lands 6, Sidewalks shall be required hi all neva residential developments; Separated sidewalks shall be required, as practical, on streets that provide or will provide access to schools, parks, or commercial areas. However, an alternative system of walkways and trailsthat provide adequate pedestrian circulation may be approved. FINDINGS: S: The Heari suggesting it is applica applicant does not propose sidewalks, and under Tale 17. instead, the applicant pro PUD roads. l find this ,path network con pedestrian access within Tree Farm 1 and rigs 'Officer finds this plan provision written in mandatory terms,' in the findings above, the have found they are not required in rural areas poses a network of paved multi -use paths along all new stitutes an alternate system that will provide adequate therefore it, is consistent with this plan policy. b to Tree Farm 1. However;, as discussed . Ch 15 pter 8: Pu blic Facilities a d Services Dry wells or storm drains with appropriate water quality ''treatment using landscaping, retention ponds or other approved treatment controls shall be used for surface drainage control. 16, The preservation, and use of natural drainage shall be required in new d possible. drainage ways for storm evelopments as much as 20, Developments shall be designed'' to meet appropriate' drainage quantity and quality requirements (e.g., eeting the requirements of the City's National Pollutant Discharge Elimination System MS4 Stormwater Permit, the City's Stormwater Master 'plan and Integrated Storr ater Management Pan, and Total''' !Maximum Daily Load requirements). Low impact site designs shall be encouraged, 27 Development on slopes in excess of 10 percent shall require speciel consideration to prevent construction -related and post -construction erosion, FINDINGS: : The Hearings Officer finds these ,plan provisions are written in mandatory terms suggesting they are applicable to public facilities and services in Tree Farrn 1. As discussed in the findings above, incorporated by reference herein, the Hearings Officer has found the applicant's proposed drainage plan willdispose of stormwater through the use of vegetated swales, roadside ditches, culverts, and natural>drainage ways. l find these methods will assure 3 5 The Bend Area General Plan>epp es to lands ;ithlrr the Bend urban area reser'je T e Far 1, 247 -14 -000242 -CU. 247 -14 -000243 -TP Page 111 cf 11 that star water runoff infiltrates intra native soil to the maximum degree possible and does not run off into Tumalo Creek or onto other off-site areas. For the foregoing reasons, ! find the drainage plan for Tree Farm 1 is co,nsister t with these plan policies. For the foregoing reason applicable urban area com V. DECISION; s, the Hearings Officer finds Tree Fara 1 is consistent with the pr hens ve plan policies identified by planning staff. Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby DENIES the applicant's proposed conditional use, tentative plan, and site pian for a duster development/FUD on the subject property, to be called Tree Far€ 1. In the event this decision is appealed to the Board of County Commissioner, an elects to hear the appeal and approves the applicant's proposal on appeal, the Hea RECOMMENDS such approval be SUBJECT TO THE FOLLOWING GOND AP P R d the Board rings Officer ITIONS OF PROVAL: This approval for Tree Farri 1 is based upon the applicant's submitted tentative plan, site plan, burden of proof statements, and written and oral testimony. Any substantial change to the approved plan will require new land use applications and approvals, 0 R TO SUB MITTIN G THE FI NAL S UBDIVI ION PLAT FOR, APP ROVAL: 2. The applicant/owner shall demonstrate to the Planning Division th approval for The Tree Farm lot line adjustments have been met, The applicant/0wner shall submit to the P Farm 1..,, ening Division an u pd at co nditions of ed title report for Tre e The applicant/owner shall submit to the Planning Division for review and approval a copy of nonrrevocable deed restrictions for the Tree Farm 1 open space tract, stating that no portion of that tract shall be developed with a dwelling or other non -open space use in perpetuity, and that off-road motor vehicle use is prohibited. After county approval, the applicant/owner shall record these nonrevocable deed restrictions and shall provide copies of the recorded deed restrictions to the Planning Division. The applica homeowner nt/owner shall record with the Deschutes County Clerk the byla x s s associa ion., The applicant/owner shal'I record with the conditions and restrictions for Tree Farm 1. the applicant/oner shall Tree Farm 1. Deschutes County Clerk the covenan execute and record a Condition of Approval Agreement fo The applicant/owner shall execute and record with the Deschutes County Clerk a development agreement for the private' roads in Tree Farm 1 on a form approved by Deschutes County Legal Counsel. The development agreement shall incorporate the Tree Faarrn 1, 247 -14 -000242 -CU, 247 -14 -000243 -TP Page 112 of 11O` drainage plan for Tree Farm 1. The applicantiowner sha development agreement to the Planning Division. I provide a copy of the recorded` The applicant/owner shall submit to the Deschutes County Road Department for its review and approval; a draft Road Maintenance Agreement outlining the maintenance responsibilities for all new roads in Tree Farm 1, and following road department approval',' the applicant/owner shall record the Road Maintenance Agreement with the Deschutes County Clerk. The applicant/owner shall provide a copy of the recorded maintenance agreement to the Planning Division, 10, The applicant/owner shall record with the Deschutes County Clerk the wildfire plan and WMP for the Tree Farm 2 open space tract. The applicant/owner shall provide copies of these recorded management agreements to the Planning Division, The applicant/cone at> in Tree Farm 1. r shal 0 btain an ap proved septic site evaluation for each resid 12. The applicantiowner shall'' obtain from the Deschutes County Road Depart€ access permit for the new road connection to Skyliners Road in Tree Farm 1. en do en t an 13. The applicant/owner shall obtain from the Deschutes County Road Department a gate permit for the gates on the new secondary emergency access road for The Tree Farm 14. The applicant/owner shall submit to the Planning Division proof of City.. of Bend approval to extend domestic water service to Tree Farm 1. If City of Bend water is not available, prior to final plat approval for any Tree Farm development the applicant shall' submit to the Planning Division ' proof that domestic water is available via the alternative means identified by the applicant. 15. If the applicant/owner elects, or is required to, provide water to The Tree Farm through means other than extension of city water service, the applicant/owner shall provide to the Planning Division a water system analysis performed by a registered professional' engineer and demonstrating water service from the alternative domestic water source will provide at each residential lot water pressure of at least 40 psi during peak demand periods, 20 psi residual pressure, and 2,00 gpm for fire flow. 16. The applicant/owner shat professional engineer ind I provide to the Planning Division a statement from registered icating whether a runoff storage basin is necessary. 17. The applicant/owner shall' submit to the Planning Division written verification from the Bend Fire Department that all standards for subdivision roads, including the secondary emergency access road, have been met. 18. The applicant/owner shall pay all taxes for Tree Farr WITH OR ON THE FINAL SUBDIVISIO N PLAT: in accordance with ORS 92.0 5. 19. The applicant/owner shall prepare the final plat for Tree Farm 1 in accordance with Title 17 of the Deschutes County Code, including all the necessary information required by Section 17.24.060; 20. The applicant/owner shall show the foil on the final plat for Tree Farm Tree Farrn 1, 247•-14-000242-C , 247-14-t 0243 -TP Page 113 of 11- 21 the exact lot size of each reside be platted as a separate tr t, ac the building envelope for each ot; at,t, and of the o all easements of record and existing rights-ofwway; a state ent of water rights as req all utility easements; all public access easements; if a runoff storag e ba pen uired by ORS 92 1 t sin is necessary, the pace tract which cation of the storag e bas n; and shall a notation stating ,adjustments to the open space and right-of-way calculations may be made if a segment of Skyline Ranch Road is dedicated in Tree Farm 1 The surveyor or registered professional engineer submitting the final plat for Tree Farm 1 >.shall submit information to the Deschutes County Road Department showing the location of any existing roads in relationship to the road right-of-way. This information can be submitted on a worksheet, and does not necessarily have, to be on the final plat, All existing road facilities and new road improvements are to be located within legally established or dedicated right-of-ways. In no case shall a road improvement be located outside of a dedicated road right-of-way. If research reveals that inadequate right-of-way exists or that the existing roadway is outside of the legally established or dedicated right- of-way, additional right-of-way will be dedicated as directed by the Deschutes County Road Department to meet current county standards, 22, The final,, plat for Tree Farm 1 shall be signed by all persons with an ownership interest in the property, as well as the Deschutes County Assessor and Tax Collector. PRIOR TO 0 R WITH c ONSTRU CTI0 N 23 The applicant/owner shall obtain fro of all construction plans for all any construction m the Deschutes County Road Department approval' required road improvements price to commencement of 24. All public road designs she'll be in accordance with the standards in Chapter 17.48 and Table "A" of the Deschutes County Code for rural local public roads. 25. All private road designs shall be in accordance with the standards in C Table °A" of the Deschutes County Code for rural local private roads, 26 All public and private roads constructed pedestrian paths as proposed on the tenta hapten 17.48 and in Tree ''Farm'' 1 shall include bicycle''' and ive subdivision plan and burden of proof,,, 27. The applicant/owner shall construct a '' road i€nprovennents under the inspection and approval of the Deschutes County Road Department. The road department may accept Tree farm 1, 247-14-000242 U, 247 14 -000243 --TP Page 114 of 116 certification of improve € cents by a registered prole anal engineer pursuant to ORS 92.097. 28. The applicant/'owner shall assure that all road improverr€ents aresurveyed and staked in accordance with DCC 17.48.200 29. The applicant/owner shall construct does not exceed 4 (four) percent. 30: ae Ridgeline 0 ou€ CU -de-sac bulb so its ade The applicant/owner shall. place all culverts in natural drainage areas and provide positive drainage. If a runoff storage basin 'is determined to be necessary, the applicant/owner shall' construct such a basin at the lowest point in Tree Farm 1 or in such other location as determined to be appropriate by a registered professional engineer; 3 . The applicant//owner shall install all utilities underground. 33. The applicantiowner' s each road hall ins at least one road name sign a each in tersection for 34. If the applicant/owner' provides domestic water service to Tree Farm 1 throu of and connection to the City of Bend water system, the applicant/owner s ail required water lines to the city's standards and specifications therefor. h extension II construct The applicant/owner shall install on the residential lot side of the gate at the southern terminus of Sage Steppe Drive at least one means of opening the gate by Tree Farm residents and guests, such as special keys, key codes and/or automatic gates. FOLLOW N G FINAL PLAT APPROVAL: 36. The applicant/owner shat of the date this decision Director may al'lor. AT ALL TIM ES: begin construction of Tree becomes final, car such Ion 37. The applicant/owner shall satisfy all protectionwithin Tree Farm 1. 3 Farms 1. 2 and 3 within >six months g er period of tin as the Plannin g requirements of the Bend Fire Department for fire The applicant/owner shall limit uses permitted in the Tree Farm 1 open space tract to management of natural resources, trail systems, and low -intensity outdoor recreation uses; and shall prohibit golf courses, tennis courts, swimming pools, marinas, ski runs or other developed recreational uses of similar 'intensity and off-road vehicle use on the open space tract. The applicant/owner shall enforce these open space restrictions and prohibitions through the Tree Farm 1 covenants, conditions and restrictions. 9 The applicant/owner shall install any fencing in the WA -zoned portion of Tree Farre 1 in accordance with the WA Zone standards therefor. Tree Farm 1, 247-14-00 2. -CU, 247-14- 00243 -TP Page 115 of 11€ 6 40 The applicant/owner shall assure the build 10, RR -10 and WA -10 Zones are met for d ing height and setback stand wellings in Tree Farm 1. 41. The appl cant/owner shall assure that address numbers are provid Tree Farm 1 as, required by the Oregon Fire Code. DURATION OF A PP ROV'AL: ed ai9 in the UAR- r each d welling in 42I. The applicant/owner shall complete all conditions of approval and apply for final platy; approval from the Planning Division for Tree Farms 1, 2 and 3 within two (2) years of the date this decision becomes final, or obtain an extension the approval in this decision in accordance with the provisions of Title 22 of the County Code, or the approval shall be void. Dated this 18thday of rch, 201 Mailed this le day of March, 2015 THIS DECISION BECOMES FINAL TWELVE (12) DAYS AFTER TH UNLESS APPEALED BY A PARTY OF INTERIEST. E DATE OF MAILlNGIY e Fara 1, 247-14-00024". CU, 247 -14 -000243 -TP Page 1166 of 116 DOC u F E CE E` NU RTI B NTS MAI MAP/TAX LOT N certify that on the 18 March 18. >2015was/were mai ad dress(es) s UM et forth on the a co P.0 E :>? 6005 117 NW Laf.:3yette AVer0e Bend, Oregon ,,D7708-600 (541)388.6575 FAX (541)385-1>764 http:I/www.co.deschutessor.usieddt' `TATE OF ERS: 247-1 247.1 247-1 2.47-1 247-1 MA LI N 4 -000242 -CU, 243 -TP 4 -000244 -CU, 245 -TP 4 -000246 -CU, 247 -TP 4 -000248 -CU, 24'9-T P 4 -000250 -CU, 251 -TP', LED: Hearings Officer Decisi€ ns — Tree Farms 1 thru BE RS 17-11-35D00-0400; 17-11--6002, 6205, 62 6208, 6209, 6210, 6211, 6212 and 6213 07, h day of March, 2015, the ,attached notices) report(), dated lad by first class mail, postage prepaid, to the person(s) and ttached list. Dated this 1 Sth day ref UN TY 0 R n y Mortensen The Tree Farm. LLC 409 NW Franklin Avenue Bend, OR 97701 Ken Pirie Walker Macy 111 SVV Oak St #200 Portland. OR 97204 Iffrey Condit fvliller Nash LLP 3400 US Tower' 111 SW 'Fifth Avenue Portland, OR 97204-3699 Qu n 1't a Services Pero EVE By: >M LOP on lig arch, 2015. ENT DEPART ht B BO E NT Charley ('idler iller''Tree Farr 10 NE Greenwood Avenue Bend, OR 97701 Ron Hand i #HP cif€c 123 SW Columbia Street Bend, OR 97702 Dale Van Valkenburg Brooks Resources Corporation 409 h Franklin Avenue Bend, OR 97701 red wit Connie Peterson 2203 NW Clearwater Drive Bend, OR 97701-2203 ug Wickham 1971 Kildonan Court Bend, OR 97702 Corey Heath & Nancy Bruene Oregon Department of Fish 1 74 Farrell Road Bend, OR 97702 Michelle Healy & Steve Jorgensen Bend Metro Parks and Recreation District 799 SW olumbia Street Bend, OR 97702 Myles Conway,, Marten Law 404 SW Columbia Bend, OR 97702 Al Johnson 2522 NW Crossing Drive Bend, OR 97701 reet, Suite 212 Kelly Esterbrook 16322 Skyliners Road Bend, OR 97701 Paul Dewey 1539 NW Vicksburg Bend, OR 97701 Christine Herrick' 2281 NW High Lakes Loop Bend, OR 97701, Avenu e Larry Medina Bend Fire Department 1212 SW Simpson; Suite B Bend, OR 97702 Jennifer Taylor & Christine Pollard''' 1 001 Squ rreltail Loop Bend, OR 97701 George VVeurthner P.O. Box 8359 Bend, OR 97708 Edward & t 2138 Touss Bend, OR aint Drive 97701 Deschutes Cooly.. Ed Keith, Forester George Kolb, Road Department Peter Russell, CDD