Loading...
HomeMy WebLinkAboutHO Decision - Tree Farm 3DECSO I=I LE N l M B E APPLICANT: PROP R ERTY 0' APPLlCANT'S ATTORNEY: B OPPONENTS'' ATTORNEYS: R E UEST: l ER: N STAFF REVIEWER: H ARING DATES: RECORD CLOSED: Tree Fara 3, 247-14_ ESC H UTES CO u NTS` H EAR N S OFR 247 -14 -000246 -CU. 247 -14 -000247 -TP The Tree Farm LLC 409 N.M. Franklin Avenue Bend, Oregon 97701 Miller Tree Farm 110 N.E. Greenwood Avenue Bend, Oregon 97701 Jeffrey G. Condit Miller Nash LLP 111 S.W. Stn Avenue. Suite 3400 Portland, Oregon 97204 Myles A. Conway - Marten Law 404 S.W. Columbia Street. Suite 212 Bend, Oregon 97702 Attorney for Rio Lobo Investments Paul, Dewey r Central Oregon LandWatch 50 S.W. Bond Street, Ste. 4 Bend, Oregon 97702 Attorney for Central Oregon LandWatch c E R The applicant requests conditional use, tentative plan and site plan approval for a ten- of clustertplanned unit development (PUD) on a 106.9 -acre parcel in the UA' -1O, RR -10 and WA Zones north of Byyliner's Road and west of Skyline Ranch Road on the west side of Bend. This proposal is Identified as "Tree Farm 3," It is part of a proposed 50 -lot cluster/PUD on, five contiguous legal lots totaling approximately 533 acres, identified as "The Tree Farm." The applicant submitted four other applications for The Tree Farm (Tree Farms 1, 2, 4 and,,rikl the following file numbers: Tree Farm 1: 247-14-9 Tree Farm 2. 247-14-0 Tree Farm 4; 247-1 Tree Far€m€ 5: 247-1 00242 -CU, 247 -14 -000243 -TP 09244 -CU, 247 -14 -009245 -TP 4 -000248 -CU, 247 -14 -000249 -TP 4 -900250 -GU, 247 -14 -000291 -TP. Anthony Ra!guinee, Senior Planner N vember 6 and January 13 2015 20, 2 0246->U, 247 -14 -000247 -TP 014 Pag e 1 of 114 6pPLic,ABLE STANDARDS AND CRITERIA: A. Title 17 of the Deschutes County Code, the Subdivision/Partition Ord 1 Chapter 17.08, Definitions and hiterpretation of Lan * Section 17.06.630, Definitions Generally Chapter 17.16, Ap Development Plans proval of 5 u bdivi&ion Ten * Section 17.16.100, Required Findings for Appro * Section 17.16.105, Access to Subdivisions * Section 17.16.115, Traffic Impact Studies c hatter 17.36, Design Standards * Section 17.36.020, Streets • Section 17,36,040, Existing Streets * Section 17.36.050, Continuation of Streets * Section 17.36.060, Minimum Right -of -Way and Section 17.36.070, Future Resubdivision * Section 17°36.080, Future Extension of Streets * Section 17,36.100, Frontage Roads * Section 17.36.110, Streets Adjacen * Section 17.36.120, Street Names • Section 17.36.13€0, Sidewalks * Section 17.36.140, Bicycle, Pedestrian and T * Section 17.36.150, Blocks • Section 17.36.160 Easements * Section 17.36.170, Lots ® Size and Shape • Section 17.36.150, Frontage * Section 17.36.160, Through Lots • Section 17.36.200, Corner Lots, * Section 17.36,210, Solar Access Performance * Section 17.36.220, Underground Facilities • Section 17.36.260', Fire Hazards * Section 17.36.280, Water and Sewer Lines * Section 17.36.230, Individual Wells * Section 17,36,300, Public Water System uage tive P vel lance. lens and Master Roadway Width t to Railroad s Free rans 4. Chap ter 17.44, Park Development; * Section 17.44.010, Dedication of Land * Section 17.44.020, Fee in Lieu of Dedication Reg Chapter 17.48, Design and Constructiorn Specifications ays a d Pa uiremen is * Section 17.48.140, Bikeways * Section 17.46.160, Road Development Requirements — Standards Trey: Farm 3, 247 -14 -000246 -CU, 247 -14 -000247 -TP rkways Page 2of114 Tit1 1 C. 'rid * Section 17.46.160, private Roads Section 17,48,190, Drainage e 18 of th e Desch utes County Code, t he Desch utes Cou Chapter 18x04, Title, purpose and Definitions * Section 16064.€ 3 Cha 0, Definitio pter 16.60, Rura ns Residential Zone — RR -10 * Section 16,60,030, Conditional Uses permitted * Section 18.60.060, Dimensional Standards Chapter 16.8 8, Wild its Area Combining Zone — WA • Section 16.88.010, Purpose * Section 18.88.02€0, Application of provisions * Section 18.88.040, Uses Permitted Conditionally • Section 16.88.050, Dimensional Standards * Section 18.66.060, Siting Standards * Section 18.88.070, Fence Standards Cha pter 18.128, Conditional U ses nty Z nn g Ord Mance: * Section 18.126,016, General Standards Governing Conditional Uses • Section 16.126.040, Specific Use Standards * Section 18.128.200, Cluster Development (Single -Family Residential 'U Only) * Section 18.128.210, Planned Development 9 of the Deschutes County C Cha pter 19.12 , Urban Area * Section 19.12.030 ode, the Bend Rese Urban Area Z nin Ordinance rve Zone - UARa1 O , Conditional Uses * Section 19.12.040, Heig ht Requirements equire ents • Section 19.12.050, Lot R Chapter 19.76, Site PianReview " Section 19.76.070 • Section 19,76.080 Cha pter 19.100, • Secti Site Plan Criteria Required Minimum Standards Conditi€ nal U se Permits on 19.100.030, General Conditional Chapter 19 10 4, Planned Use Criteria Unit Development Ap Tree Fara 3, 247 -14 -000246 -CU, 247.14 -0002.47 -TEP proval, e Page 3 of 114 * Section 19.104.010 *, Section 19.104,040 * Section *'Sectio , Purpose , Minimum Size for Pinned 19.104.070, Stand n 19.014.080, Stand reit Dav&l ards for Approval ards and Requ remen Title 22 of the Deschutes County Cod 1. Chapter 22.04, 2. *»Sectio ha n is cpnents e, the Deveopm nt Procedures Ordinance ntroduction and Definitions 22.04.020, Defini pter 22.0 do n 8, nonoral Provisions * Section 22.0 *,Section 22,0 8 8 .€020, Acceptance of Application 030, incomplete Applications Ise Statements on Application * Section 22 08.030, Fa Documents * Section 22.08.070, Time Computation Cha pter 22.20, * Section 22.2 Review of Lan 0.055, Ater 22.24, dU se Actio n A pli Modification of Application Land U se Action H earin gs cation s' * Section 22.24.140 Goritmuances and Record Extensions Deschutes County Comprehensive Plan 1. Ch a pter 2, Resource Ma Bend Area General >Plan 1. Chapte r 5, H usin g and n ag ement Re&Id enti I Lands Oregon Administrative Rules (OAR) Cha Development Co € Ission 1 Division 4, Goal 2 Exceptions Process * OAR $60.004-0040(7), A Residential Areas 2. Divi cion 11 ,''Public Fa pp pter 660, ication of Goal 14 cili ies P annin OAR'' 0-011.0085 Water Service to R urx Tree Farm 3, 247 -14 -000246 -GU, 247 -14 -000247 -TP et is and Su pporting Land Conservation and u rbani ation R Page 4 or 114 IIo , FINDINGS a OF'_FACT A. Location: The Tree Farm 'including Tree Farm 3 has an assigned address of 18900 Sky Road, Bend. The Tree Farm consists of ''Tax Lots 6202, 6205. 6207, 6208 6209, 6210, 6211 and 6213 on Deschutes County Assessor's Map 17-11 Zoning and Plan Designation: The western approximately 393 acres of he Tree Farm are zoned Rural Residential (RR -10) and Wildlife Area Combining Zone (WA) ,associated with the Tumalk Deer Winter Range, and are designated, Rural Residential' Exception Area (RREA) 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 Plan map. Tree Farm 3 is zoned 'DAR -10, RR -10 and WA and is designated UAR and RREA. Site Description, The Tree Farm, of which the proposed Tree Farm 3 is a part, is approximately 533 acres in size, ,irregular in shape, vacant, and with varying topography. The dormant topographical feature of The Tree Farm property is a ridge running from southwest to northeast forming the southeast rim of Tumado Creek Canyon, > The top of this ridge is generally flat to rolling, with steeper slopes in the northwest where it drops off toward Tumalo 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 sea 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 T umalo 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 ponderosa 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. Much 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 Hall Fire. Portions of the burned area have been replanted with trees, although my site visit 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 ! 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 Farm 3 is 106.9 acres in size and is in the middle of The Tree Farm. 1t abuts Tree Farm 2 on the east, Skyliners Road on the south, Tree Farms 4 and 5 on the west, and undeveloped UAR-10 zoned property on the north. o rou d€n9' ming and Lard Uses.: 1 The Tree Farm topography is described in detail in December 8, 2014, and incduddd in the record. Tree Farm 3, 247-14-000246-C , 247 -14 -000247 -TP he He s0 fficer's site. visit report dated Page aof144 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 Park and Recreation District (park district), and as zoned Open Space and Conservation (OS&C). Near the southwest corner of the subject property is the City of Bend's Outback Water Facility, 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 closed, 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 Timberland Other private forest -zoned parcels to 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 UAR-10 and owned by Rio Lobo Investments LLC (Rio Lobo East. To the east are Tree Farms 1 and 2 and 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 Middle 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 NorthWest Crossing, a mixed-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 LIAR -10 and developed with thirty-seven roughly 16 -acre lots with dwellings. Farther southeast is the Tetherovy 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 ti€giber production as part of the larger Miller Tree Farm, including periodic harvesting, and thinning activities. The eastern portion of Tree Farm 3 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, Highway 97 to the southeast. In June 2014, the applicant obtained lot -of -record' determinations for The Tree Farm property recognizing five legal lots of record (LR -14-16, LR -14-17, LR -14-18, LR -14-19, LR -14-20). The applicant also obtained approval of ten lot fine adjustments reconfiguring boundaries for the five legal lots of record (LL -14-17 through LL -14-26). Deeds reflecting the adjusted boundaries of the five legal, lots were recorded on October 17. 2014., Procedural HistorT. The 'Tree Farm applications were submitted on August &; 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. Hoy, ever, the staff report states that because the incomplete letter w s provided to the applicant within 30 days of the date the applications were submitted, as Tree Far€m>3. 247.14-000246 ctr, 247 -14 -000247 -TP a not P ge6of 114 required by ORS 215.427(2) and Section 22.05.030 of the Development Procedures 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 wou€'ld have expired on February 2, 2014' A consolidated public hearing on the five Tree Farm applications November 6, 2014. On November 4, 2014, the Hearings Officer cond the subject property accompanied by Senior Planner Anthony R occurring on the nearby utility lines, some roads adjacent to and were not accessible, so the site visit was terminated, scheduled for ucted a site visit to aguine. Due to work within the Tree Farm By a letter dated November 4, 2014, the applicant requested that the hearing be colntinued 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. 1 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 197.753, 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 all 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 fine l argument on January 13, 2015 and the record closed on that date. Because the applicant requested that the public heanng 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 68 days and now expires on April 13, 2€05.2 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 a50 -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/PVDs 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 cluster/PDs 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 trail:, in 5h'ulin Perk and the DNF. Tree Farms 1;.' through 4 would include land in the UAR-10 RR -10 and WA Zones. Tree Farm 5 would' be located entirely within the RR -10 and WA Zones. Because Kends a the 150th day fails on Saturday April 11, 2015, and because under Section 22.08 nd holidays are excluded from' time computations, the 150" day is April 13,,2015 Tree Farm 3, 247 -14 -000246 -CU, 247.14-00024, -TP Paw e of 114 The subject application is for Tree Farm 3, consisting of 106.9 acres with ten dwellings an ten 2 -acre lots (Lots 21-30) clustered near the center of The Tree Farm. Tree Farm 3 would have an 83.6 -acre open space tract and 3.1 acres of right-of-way.' The residential lots would have access to Skyliners Road, a county collector road, via two new private roads, Tree Farm Drive and Ridgeline Drive, over which the applicant proposes to dedicate permanent public access easements. Tree Farm Drive and Ridgline Drive would run through Tree Farms 1, 2 and 3 before connecting to Skyliners Road, and therefore the applicant proposes 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 Drive would connect.` Lots in Tree Farm 3 would' be served by on-site sewage disposal systems. 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 AvlonWater Company; or (3) water pumped from one or more private groundwater wells an The Tree Farm and#or the adjacent Miller Tree Farm property. Tree Fara 3 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 3 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, Building 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 Farm 3 staff report and are included in the record. The following agencies either did not respond to the request fear comments or submitted "no comment" responses: the Deschutes County Environmental Soils Division, Assessor, and Surveyor; the City of ree Farms 1, 2, 4 and 5 would have t follawin g characteristics' Tree Farm 1 . Lots 1-10; 105.3 acres total; 81 acres of open space, of ,which 80.9 acres be in the RR -10i #A Zones; and 4.2 acres of right-of-way` Tree Farm 2: Lots 11-20; 104.2 acres total; 82.8 acres of open space, of which 67.7 acre,ould be in the RR-10NVA Zones; and 1.4 acres of right-of-way, Tree Farris 4: Lots 31-40; 109.5 acres total; 87.7 acres of open space. of which 85. i acres would' be in the RR -10, v"VA 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, of which would be in the RR-10/1NA Zones; and <0.2 acres of rgght-of-wavy. `' 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 Farre 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 t_obo property. Tree Farm 8, 247 -14 -000245 -CU, 247.14 -000247 -TP woulol Page 8 of 114' Bend Planning Division, Engineering Division, and Public Works Department (public works); the USFS DNF; the Oregon Department of Water Resources, aterrnaster4 District 11; the school district; Bend Broadband; Cascade Natural Gas: CenturyLink; and Pacific Power. Agency comments are addressed in the findings below. Pubic Comments: ents: The Planning Division mailed individual written notice of the applicant's proposal and the initial public hearing to theowners of record of all property located within 250 feet of the subject property's boundaries, The record indicates this notice was railed to the owners of twenty-six tax lots. In addition, notice of the initial public hearing was published in the Bend "Bulletin" newspaper, and the subject property was posted with a notice of proposed land use action sign. As of the date the record in this matter closed, the 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 a're addressed in the findings below. J. Lot of Record: The county deter rr €ned Tree Farm 3 is a legal lot of record pursuant to 2014 lot -of -record determination (LR -14-18). The current configuration of Tree Farm 3 is the result of a series of 2014 lot line adjustments (LL -14-17 through LL -14-26). CONCLUSIONS OF ILA SUMMARY: The Hearings Officer has found that with two significant except ns, Tree Farm 3 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 Wildlife Assessment and Management Plan (WMP) and Wildfire Protection and Management Plan (wildfire ,plan) are not 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 3. 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, l have included in this decision findings of fact and conclusions of law on !applicable standards and criteria, as well as recommended conditions of approval. B P RE L M INAR`y ISSUES: oplter es Statu of Application. FINDINGS: In June of 2014, the county issued lot-of-recorddeterminations written by Associate Planner Cynthia Smidt and confirming the existence of five legal lots of record comprising The Tree Farm ((LIQ -14-16 through LR -14-20). Ms, Smidt also issued a series of decisions approving, lot line justni nts for the five legal lots of record creating the current configurations of The five Tree Farm developments (LL -14-17 through LL -14-26). Each of the lot -line -adjustment decisions included the following six conditions for final approval: (a) obtaining approval of 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 Tre Farrn , 247-14-0 00246 -CU, 247-14-0 0024 T Pa0e9z 1 1 4 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 conditions of approval had been met at the time The Tree Farm applications were filed and the record for the applications closed 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's 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. s ection 22.06.035 of t h ed evelopm€nt proced ures ordinance states: It the applicant or the applicant9s representative or apparent representative makes a misstatement of fact on the application regarding property ownership, authority to submit the application, acreage, or any other fact material to the acceptance or approval of the application, and such misstatement is relied upon by the Planning 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 — i.e., the legal status and configuration of the five lots comprising the five proposed Tree Farm developments. However, the record>. indicates all five Tree Farm applications were deemed complete as required by law. Moreover, the Planning Director has not declared the applications void, and l find he is not likely to do so since he referred The Tree Farm applications for a hear€ng, and the required deeds were recorded before the record closed. For these reasons, I find I may consider The Tree Farm applications. Nevertheless, 1 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, Modification Application; FINDINGS: As discussed in the findings below' concerning compliance with the PUD requirements in Title 19, the applicant has requested approval of a number of exceptions to the standard regulations for Trees Farm 3.'Sevaral 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 €.€p to the dose of the record, but prohibits the Hearings Officer from considering a modification without the filing,, of a modification Tree Farr 3, 247 -14 -000246 -CU, 247 -14-000247-TFC Page 0 of 114 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: * 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 components: proposed uses, operating characteristics, intensity, scale,, site layout (including 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 fin€dings of fact to be changedrit does not mean an applicant'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 arguments in support thereof, 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. 1 also find they constitute new evidence that clarifies and supports the applicant's proposal. Therefore, I find I can consider all of the appi,icant's requested exceptions without the need for modification applications., 3 Effect of Split Zonin g. FINDINGS: Tree Farm 3 includes land in, three,, zones UAR-10, RR -10 and WA -- established and governed by two separate zoning ordinances — Title 18 (RR -10 and WA) and Title 19 (UARm10). 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 Tree Farm 3. Permitted Uses. Sections 18 60 030(E) and (F) respectively, permit conditionally in the RR0 Zone "planned development"'' and "cluster development," defined in Section 18.04.030 as; "Cluster development" means a development permitting the clustering of single or mufti -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 development of an area of land at east 40 acres in size for a number of dwelling units,, commercial or industrial 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 18, and usually featuring a clustering,, of residential >.units, .tanned unit >development,' see "planned ;developmentr=' Section 18.88 040 provides that uses permitted conditionally in the zone Zone is combined are permitted conditionally in the WA Zone, Tree Fern^ a, 24{-1$-0 h which the WA 00246 -CU, 247 -14 -000247 -TP Page 11 of Section 19 ,12.030(N)'' permits conditionally in the UARF1 Zone "planned unit development, defined in Section 19 04.040 as follows.> "Planned unit development" ent" means 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. Although "planned unit development" in the UAR-1 g Zone does not expressly permit clustering of dwellings, the Hearings Officer finds clustering is the type of deviation from standard regulations contemplated in a PUD. All proposed Tree Farm lots will be at least two acres in size, and a five Tree Farm developments will be at least 40 acres in size, As discussed in the findings below, the applicant has requested cluster/FUD approval in order to deviate in several respects rom the standard regulations under Titles 18 and 19. For the forego ng reasons, the Hearings Officer finds Tree Farm 3 falls within the definitions of cluster development."' "planned development,' and "planned unit development" in Titles 18 and 19. Because the proposed cluster/PUDs are permitted conditionally in all three zones, l find the split -zoning does not preclude approval of Tree Farm 3 on the subject property. See: Eola Glen Neighborhood Assoc. v. City of Salem, 25 Or LUBA 672 (1 g3) (residential subdivision allowed on property's split rural residential and rural agricultural zones where use permitted in ''both zones); Roth v; Jackson County, 38 Or LUBA 894 (2000) (winery allowed on split -zoned property's agricultural zone, but not on its s€. burban residential zone where winery is not a permitted use). Effect of Zone Boundaries, Tree Farms 1 through 4 straddle the boundary between the UAR- 1g and RR 10ANA 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.' 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 Zone.6 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. Therefore, l find the WA Zone regulations do not apply to the areas of Tree Farm 3 located outside the WA Zone boundaries With respect to base zones such as the RR -10 and,'UAR-1O Zones, the Hearings Officer finds there are circurnstances in which application of the general rule, that zoning regulations do not apply outside the zone boundaries, may not be appropriate. For example, in Eola'Glen cited It app ar, from tate t=itre rt tined' lot line ad)ristment >decisions that this split zoning existed in the original configuration of the five legal lots of record comprising The Tree a Examples of similar .geographicalI, specific overlay or combining zones in Title 18 are: (a) the Landscape Management (Li'i) Zone in Chapter 18.84 (protecting designated scenic roads and waterways; (b) the Sensitive Bird and € aa€-nral Habitat (SBMH) Zone in Chapter 18.90 (protecting bird nests and breeding grounds); and (c) the Airport Safety (AS) Zone in Chapter 18.801 (protecting airport approach zones). Tru t arrrt' 3, 247-14.000246- U, 247 -14 -g00247 -T Page 12 of 114 above, LUBA appears to have found that because the proposed residential subdivision was 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 Hodgert (CU -06-53, SP -06-19, LM-06FJ3, LL -06.48). 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 f ndin s: "SpIit zoning generally is not favore 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 cluster/PUDs 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 Tyles 18 and 19 only to those portions of Tree Farms 1 through 4 located within the RR -10 and UAR-10 Zones, respectively, would allow meaningful review of each clusteriPUD as a whale.' The Hearings Officer 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, I will apply the applicable > provisions of the RR -10 and UART10 Zones to the proposed Tree Farm 3 in its entirety., ADMINISTRATIVE RULES Oregon Administrative R cies, Chapter 66 Corn rni ion 1. Div 0, Land Conservation and Development sion 4, Goal 2 Exceptions Process OAR '6 (1) 6 0-0 04-0040, Application of Go al 14 to Ru al Re siid entia The purpose of this rule is to specify how Statewide Goa 14, Urbanization ,; applies to rural lands exception areas planned for residential uses, Areas Planning ged n ackaowled (a) This rula applies to lands that are not within an urban growth boundary, that are planned and zoned primarily for residential: uses, 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. 7 As noted above, Tree Farm 5 s #pct split zoned as it is €skated entirely within the RR -10 Zone. Tree Farm 3, 247 -14 -000246 -CU, 247.14 -000247 -TP Page 13 of 114 (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 hope on such lot or passel, where the application for partition or subdivision was filed with the local government and deemed to be complete in accordance with ORS 215.427(3) before the effective date of Section (1) to, (8) of this rule (c) This rule does not apply fo types through (H) of this subsection: (A) (B) (C) (D) (E) (F) (G) (H) and in&id e an ackno boundary; edg nd ll ted in (A) ed urban growth and inside, an acknowledged community boundary estbllshd Chapter 660, Division 022; unincorporated pursuant to OAR and on an acknowledged urban reserve area e tabl shed pursuant to OAR Chapter 660, Division 021; land in acknowledged destination resort establts pursuant to applicable land'' use statutes and, goals; resource land, as defined in OAR 660-0 no 04-000 5(2); hed nresource land, as defined in OAR 0-004-00 marginal la Edition; rod, as 'defined in 0 RS 197.247 5(3),3 , 1991 land planned and zoned primarily for rural>.indutrial, commercial or public use. FINDINGS- The applicant and staff identified this administrative rule as applicable to Tree Farm 3 because the proposed cluster/PUD is on land located outside the Bend UGB, zoned LIAR -10, RR -10 and WA, and designated UAR and RREA. The Heanngs 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, i 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 3 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 >- ighland: at Broken Top PUD ofz t-3AR-10 2 fl d land (f:' ;. cf) f <fia ! nd (Ct1'-0 ',_7:.T -.02.. 931)). Ms. Lewis concluded this administrative' rule was applicable to the UAR-10 Zone west of Bend based on the following findings: The I-feanngs Officer agrees with Staff that the subject property is located neitF'eer inside ars acknowledged urban growth boundary nor inside ars, Tree Farm ; , 247-14-0 00246 -CU, 247 - :4 -000247 -TP Page 1 4 of 114 acknoledged unincorporated community. In addition, &though /coated in 't the urban reserve area, the record indicates ural' the County's urban reserve area was established in 1979 prior to the State requiring ac nowie ment of urt art re erve--_gees, Further, the land is not an acknowledged destination resort, resource land, nonresource land, marginal or zoned for rural ''industrial,,, commercial or public use. Therefore, the Hearings Officer finds this rule is, applicable to the applicant's proposal." (Emphasis added.) The Hearings Officer agrees with Ms. Lewis' analysis and finds this administrative rule applicableto the portion of Tree Farm 3 zoned and designated UAR. II! (7) (a) The creation of any new lot or parcel smaller than two acres in a ;,neral 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 arrays complies with Goal 14. The question of whether the creation of such lots or parcels complies with Goa 14 depends upon compliance with all provisions of this rule. (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 rule, that Minimum area shall be referred to as the minimum lot size. (c) lf, on the effective date of this rule, a local 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 minimum lot size which is already in effect. (d) lf, on the effective' date of this rule, a local government 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 lots in Tree Farm 3 vouid be at least o aloes lir s€xe, and the lots would be clustered in the northern err part of Tree Farm 3As discussed abi ve, Tree Farm 3 would be one of five contiguous cluster/PUDs comprising The Tree Farm; and establish'3ng a total of 50 dwellings on approximately 533 acres. The applicant's five burden of proof statements assert each subdivision can be approved as a stand-alone development. The Hearings Officer disagrees. l find the five cluster/PUDs,' T Farm >3, 247-14--000240-CU. 247-14--000247 -TP' Pag 5of114 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 3 lots will not have access to Skyliners Road without concurrent development of Tree, Farms 1 and 2, and the applicant's proposed utility plan sho €s city water service connections to Tree Farm 3 lots must be rnade through Tree Farms 4 and 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,8 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 legai lots` as a prerequisite to cluster/I'U'D dev&lopment, Neither have l found any prohibition against' developing a cluster/PUD where, as here, roads and other infrastructure necessary to serve the new subdivision oats 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 existin other infrastructure before final plat> approval. g roa ds and For the foregoing reasons,, the Hearings Officer finds Tree Farm 3 does not exceed the' maximum number of dwelling units for a cluster/PUD under this administrative rule, B. The number of new lots or parcels to be created does not exceed 10, FINDINGS: a: -he applicant proposes ten new residential lots in Tree Farm 3. Staff questioned whether the applicant's proposed open space tract must 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 fo'ilowing analysis: "There are two rules of statutory construction that comae into play..: First, a statute is 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(e)) allows up to ten dwellings on up to ten new lots, so that assumes Haat there can be up to ten bu€iidable lots. The rule (subsection 7(h)) also contemplates that there could' be an, `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. It will be possible, of course, to include the cannon area within the boundary of one of the ten parcels, and limit the developrnen€t on the open space portion via t` omat)t, but what is the policy basis for allowing that and not to s'i't'€ ; the open space to be io sated on a separate unit of land as long as it can't be developed? F As discussed above, the Hearings Officer has found the applicant will be required as a condition of approval to demon ate to the 'Planning Division that all conditions of approval for the lot line adjustments ating the proposed configurations for Tree Farms 1 through 5 have been met before final plat approval for any of the Tree Foran>deveiopments: Tr e Farm 3. 247;14--000246-C U. 247 -14 -000247 -TP Pag e16 f 114 (Particularly considering that the latter arguably provides better long-term protection to the open space parcel) II 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, was intended as a limit of up to ten buildable parcels, and that subsection 7(h) allows an additional unbuil bie 'lots parcel or tract' restricted to open space as long as the requirements in that section are rnet. 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 properly, Under the existing UARn10 zoning, the property could be divided into ten lots each with a house on it. The Tree harem's propos& 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 rn ecl,'' convenience, service and appearance.' DCC 19.194.070, The preservation of'the ajority of the property in an open space tract is the chief public benefit that s the exception to the standard, Second, DCC 19.104.070 provides that la] 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 Plan,' 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 tern 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 coir f; non practice in planned' developments). The Hearings Officer concurs with Mr. Condit's analysis. 1 find the proposed open space tract in, Tree Farm 3 is not counted in the ten -lot maximum, and therefore the applicant's proposal for> ten residential lots does not exceed that maximum, Fi DI N GS: Al D. None of t two acres he new ots or parcels will>, be smaller than residential lots in Tree Farm 3 will be two acres in size, satisfying this criterion, The development is not tea be served by community sewer system, The development is net to be served by any new extension of a sewer system from within an urban growth boundary or from within ann, unincorporated oc�rn r3 n unity. NDINGS: The applicant proposes to serve the ten residential lots in Tree Farm 3 with, individual "on-site septic systems, therefore satisfying, these criteria Tree Farrn> 3, 247 -14 -000246 -CU. 247 -14 -000247 -TP Pag e17of114 The overall density of the development will not exceed, one dwelling for each unit' of acreage specified in the local govern ent'land use regulations on the effective date of this ,rule as the minimum lot size for the area. FIND NGS: The RR -10 and UAR-10 Zones in which' Tree Farm 3 is located establish a general, density of one lot per ten acres through Sections 18.60.60 and 19.1 .50, respectively. Both zones permit higher density for cluster/P'UDs through Sections 18.0.60 and 19.104. X40. respectively. As discussed above, the Hearings Officer has found the 1O -lot maximum density in the administrative rule applies to residential lots and does not include open space tracts. Therefore, 1 find'' the applicant's proposal complies with this reg FI DI N GS: uirement G. Any group or cluster of two or more dwelling uni not force a significant change in accepted farm o forest practices' on nearby lands devoted to farm o forest use and will not significantly increase the cos of accepted farms or forest practices there; to will r t Farm Use, The record indicates there are no nearby lands devoted to fare use and no farm practices occurring on nearby lands. Therefore, the Hearings Officer finds Tree Farre 3 will not force a significant change in, or significantly increase the cost of, accepted farm practices on, nearby lands devoted to fare use. Forest Use., Required Analysis. 'The F-learings Officer finds this paragraph requires me to determine: (1) whether nearby forest -zoned'' land is 'devoted to forest use;" (2) if so, what is 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.9' Study Area. The record indicates public forest land'' in the DNF is located southwest across Bkyliners Road. In addition, private forest and is located west and northwest of Shevlin Park, The DNF forest ands are managed by the USPS and extend west to the crest of the Cascade Mountains. The private forest lands west and northwest of Bhevlin Park were once part of the "Bull Springs Block" 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 Se lion 18.04.030 defines "forest lands' and 'forest uses,, as follow "Forest lands" means laws which are suitable for cot la forest uses including cent or s eg ray lands which are neu scary to permit forest operations or ,radices and other forested lands that ma ntain soil, air, wate€ ar d fish and wildlife resources. "Forest uses" 1'nelude production space; buffers from noise and vis and wildlife arld f sherles habits clean air and ''water; outdoor wilderness values compatible with t f trees and the proc paratkon pro iona ac ese uses Tree Farm ` , 247 -14 -000246 -CU 247 14.000247 -TP lactlsng use d and wa edify and related su d grazing for livests c Page 18o 114 according to Assessor's data consists of 17 tax lots totaling a proximately 33,000 acres. Assessor's data indicate there are several smaller ,private forest -zoned parcels northwest of Shevlin Park, some of which have dwellings'' The Hearings Officer finds i must establish a "study area' 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 male 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 ar time; close in distance ar time; dose in relationship" Webster's New World Dictionary and Thesaurus, Second Edition. In 'light of these definitions, I 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 Farre."' The record indicates that because of the large size of these parcels, this study area includes thousands of forested acres in public and private ownership. Accepted Forest Practices on Nearby Lands Devoted to Forest Use. 1. Deschutes National Forest. The applicant's burden of proof for Tree Farm 3 notes the portion of the DNF southwest of The Tree Farm includes the heavily -used "Phil's Trail" mountain biking trail network, 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 Management Area 9 — Scenic Views, The goal of this management area is to provide 'visitors with scenic vistas representingthe natural character of central' Oregon. Specifically, landscapes' which are visible from selected travel' routes and places which are frecluerntly 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 hc�resites in The Tree Farm project overall and in Tree Farm 1 specifically ally 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 Plano In addition, use of the PUD to cluster development alto tis homesites to be sited at a further distance from the boundary than would development of ten -acre lots. The open space tract rust remain in that state and will be subject to deed restrictions." 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 The Hearings Officer is Deschutes County holdings. a%are that after the close of the record Cascade Timberlands sold its H continue to»refer to these lands as Cascade Timberlands property. The Hee s Officer finds I 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 dweilin conditional' use approval requiring a similar analysis of the impact from such a dwelling on acceptor farm practices in the surrounding area. ring Tree Farm 3 247-14-00 246-C U, 247 -14 -000247 -TP Fag of 114 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: :.l would note that the Forest Service does have an approved project called 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'Mlarshall, former City of Bend Fire Marshal. stated the USFS has begun implementing the "West Bend 'Flan" 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 '',fest'' Bend Flan" 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 forest health and fire prevention through periodic thinning by logging 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 burns. 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-specific analysis of the impact of the ten proposed dwellings in Tree Farm 3 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 Farrn.1' Finally, Mr. Keith stated that in his opinion; rather than restricting management because of development, this proiect [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*,, Existing d d evelopment near the DNF includes both ahevlin'Park and two large rural''''residential' evelopments .V. The Highlands at Broken Top and Tetherow. Based on Mr. Keith's comments, the ! € anngs Offltwer hel€eves it is appropriate to assume the management ent 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 the Bend UGB. DN For ncladed as Exhibit "lel" to Mr. Condit's December F west and south ,rest of The Tree Farr, est' - i<e., the area p anned for timber,. Tree F a rm> 3, 247:-14 0 €rt 0246-CU,247 -14-000247-TP 2014 letter is a ng the more dista color -coded map depicting the nt location of the DNF "General Pape 2 0 11 The record indicates that at its closest points, the portions of the DNF engaged in, and planned for, scenic preservation and recreation are located between 2,500 and 3,000 feet from Tree Farm 3 Lot 26, the most southwestern lot. The 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 f any impacts on Tree Farm 3 residential'' uses. I find the lack of comment on The Tree Farm from the SFS strongly suggests it has no concerns about the impact of dwellings in Tree Farm 3 on its management practices. For the foregoing reasons,, the Hearings Officer finds Tree Farm 3 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 CNF. These lands were transferred to Crown Pacific, and following its bankruptcy were conveyed to other owners including Cascade T€nnberlands. 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 sustainable 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 1=arra. In the Hearings Officer's previous decision in Taylor '(MP -g -31, CU -05-106, SMA -05-41, 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: andWatch argues that although current forest practices r 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 017 a large scale and mature trees are harvested in greater numbers. LandWatch's predecessor Sisters Forest Planning Committee (SFPC) made the same argument in Hogensen. In that decision, 1>;made the following pertinent findings: 'The Hearings Officer concurs with the appellant that 1 is reasonable to assume the term 'accepted' forest practices includes not only those practices currently taking place, but those that could occur in the 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, sailing tracts of its forest -/on ?d /and for residential developrr7ent purposes rather than for timber management and harvest. Therefore, 1 find it appropriate to evaluate the impacts of the proposed MA ening' on those forest practices that are most prevalent currently and in the recent past — i.e., selective harvesting of trees, log hauling, slash and prescribed burning, and some chemical spraying.' Tree Fan , 247-14-000240- U, 247 -14 -000247 -TP P 21 of 114 These findings, ere challenged by SFPC and upheld an appeal. Sisters Forest Planning Committee v. Deschutes County. The Hearings Officer adheres to these findings here." On appeal of the Hearings Officer'sdecision in Taylor (Central Oregon LandWatch v. Deschutes County 53 Or LUBA 290 (2007), LURA found that the scope and intensity of accepted forest practices is a "fact -specific inquiry," and upheld my findings.There is no evidence in this record that Cascade Timberlands continued itspredecessor's practice of selling individual Barest -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 Timberlands property has not changed. Therefore, I find it is appropriate to assume accepted forest practices on these lands would include selective harvesting of trees, log hauling, slash and prescribed burning, and some chemical spraying. I have toe. lid '' 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 bums and pile/slash burns. The tentative plan for Tree Farm 3 shows its most western lot, Lot 26, would be located more than 5,500 feet from the nearest point on the Cascade Timberlands land and farther from the nearest smaller private forest -zoned parcels to the northwest. The intervening land incl€de 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 Shevlin Park has influenced„ and will continue to influence, the intensity of forest practices on the nearby private forest lands. I' find impacts, if any, on Tree Farm 3 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 Farm 3 will not force a significant change in, or significantly increase the cost of, accepted forest practices on the nearby private forest lands. Therefore, I find the applicant's proposal satisfies this rule requirement. H. For any open space or common area provided as part of the cluster 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 common area for as Tong as the lot, parcel, or tract remains outside an urban growth boundary. FINDING: The applicant proposes to make the Tree Farm 3 open space tract subject to deed restrictions as depicted in Exhibit "L' to its burden of proof. However, the sample 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 zozat aid ? the Bend U B, As discussed in findings throughout This decision, the applicant has stated it intends that The Tree Farm and Tree Farm 3 never will be included' in the Bend 1.GB, and has proposed that the development create a "permanent" transition area between urban uses to the east and Shevlinn Park and forest land to the west. Tree Farm , 247.14- O024$ -CU, 247 X14 -000247 -TP Page 22 of 114 Accordingly, the Hearings Officer finds the applicant will be required as a condition of approval'' to record nonrevocable deed restrictions >;for the Tree Farm 3 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 Farris 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 approval the applicant's intent will be accomplished and the open space tract in Tree Farm 3 will be preserved as open space as required by this paragraph. (f) Except as provided in subsection (e) of this section, a local government shall not allow more than one permanent single- 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 sin le_farily dwelling pe satisfying' this criterion° 2. Div cion 11, 'public Faci OAR 66 (1) (a) ities P a nnh r resident a 0-011-0065, Water Service to Rural Lands As used in th ru e, unless the context req tires oth lot,; therefore erwise. "'stablishmentaz means the creation of a new water system and all associated physical components, including systems provided by public or private entities; (b) "Extension of a water system" means the extension, of a pipe, (c) conduit, pipeline, main, or other physical component from or to an existing water system in order to provide service to use that was not served by the system on the applicable date of this rule, regardless of whether the use is inside the service boundaries of the public or private service provider. "W system" shall' have the same meaning as provided in Goal' 11, and includes all pipe, conduit, pipeline, maims, or other physical components of such a system, (2) Consistent with Goal 11, local hand use re ulatioras a licable to lands that are >.outside urban€,, growth boundries and �nincomorattA,sgsitypunity laotIndsriies shall not: (a) Allow an 'i'ncrease hi a base density in a residential zone due, to the availability of service from a water systems Tree Farm 3. 247-`€4-000246-C , 247-14-0 00247 -TP Page 23 of 114 (b) Allow a h€ her densit< for residential development ater system than will be authorized without sue c) (3) or served by, h service;' Allow an increase in the allowable densit'; of residen development due to the presence, establishment,, extension of a water system. Applicable provisions of this rule, rather than conflicting provisions of local acknowledged'' zoning ordinances, shall irrarnediately 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 3 lots through one of three options: (1) extension of Cityof Bendwater service; (2) securing water service from Avion Water Company; or (3) pumping water from one or more wells on The Tree Farm or adjacent propertyThe Hearings Officer finds both Bend's and Avion's water systems constitute "water systems" for purposes of this rule. The base density of the UARw1 b Zone will allow the creation of up to ten new residential ots in Tree Farm 3, as proposed by the applicant. The Hearings Officer finds the applicant's proposal will not allow an increase in the UAR-1€0 base density, allow higher residential density than would be authorized without, water service, or allow an increase in allowable density due to the presence or extension of a water system. Therefore, 1 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 County Zoning Ordi RR -10 ZONE STANDARDS Chapter 18.60, Rura Section 18.6 The foil owl n F. CI Residential Zone — RR -10 0.03 Ju s Conditional U ses Permitted s may be allowed su uster development,' bject to DCC 18.128: nance FIND NGS: The Tree Farm 3 tentative plan shows most of the proposed open space tract would be located within he RR -10 done. 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 18,60,030(E) and (F) and 19,12,030(N), respectively:. The staff report states the RR -10 Zone provisions applicable to residential'' lots are not applicable to Tree Farm 3 because its residential lots are not located in the RR -10 Zone. However, as discussed above, have found''' that to the extent feasible, l will apply the provisions of both the RR -10 and UAR-10 Zones to Tree Farms 1 Tree Farm 3, 247-14 0246- U, 247 i 4 -000247 -TP Page 24 s f 114 through 4 in their entirety rather than segmenting my review based on the zone boundaries. Therefore, I find the provisions of the R-10 Zone are applicable to Tree Farm 3 as a whole. The proposal's compliance with the provisions of Chapter 18,128 is discussed in findings below' under that chapter, Section 18.60.060, Dimensional Standards In an RR -10 Zone, the fo Ho ing dimensional standards shall a ppy Minimum 'lot size shall be, 10 acres, except planned and cluster developments shall be allowed an equivalent density of one gait per 7.5 acres. Planned and cluster developments within one mile of an acknowledged urban growth boundary shall be allowed a five acre miniraiium lot size or equivalent derasity, For parcels separated by anew arterial rights of way, an exemption shall be granted pursuant to DCC 18.120.020. FlNDi' S: The Hearings Officer has found time applicant's proposal satisfies the maximum density under OAR 660-004-0040, which allows lots as small as two acres. The applicant proposes ten 2 -acre residential lots and one 83.8 -acre open space tract for Tree Farm 3. As discussed in the findings below under the WA Zone, Section 18 8$.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 3 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 Tree Farm 4 in the UAR-10 Zone __ at t o acres in size, and to cluster the residential lots, in order to maximize open space and to create a consistent development pattern throughout The Tree Farm in spite of its split zoning. For the foregoing reasons, the Hear€ngs Officer finds the applicant's proposal satisfies all applicable criteria in the RR -10 Zone. WA ZO NE STANDARDS 2. Chapter 18.88, Wald ife Area Combininq Zone — WA Section 18.88.810, Purpose The purpose of the Wildlife Area Combining Zone is to conserve important wildlife areas in Deschutes County; to protect an important environmental, socia and economic element of the area; and to permit development compatible with the protection of the wildlife resource., Section 18.88,020 Application of Provisions The provisions of DCC 18.88 shall" appy to all areas identified in the Com rehensi ae Plan . as ---a ri_a ;ter__ er ram, significant elk habitat, a€ntclope range or deer migration corridor, Tree Farm . , 247-14-00024 - ' -00 247-T Page 25 f 114 Unincorporated communities DCC 18.88. (Emphasis added.) p fro m the provisions of FINDINGS: S: The tentative plan or The Tree Farm shows the western 333 acres of"the entire development; and the western 86 acres of Tree Farm 3, are wthn the WA Zone associated with Tu€€malo 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, I will apply,', the WA Zone only to those portions of Tree Farms 1 through 4 located within, the WA Zone.14 Therefore, I find the WA Zone provisions apply only to the portion of Tree Farm 3 located in the WA Zone, consisting of open space and a segment of Tree Farm Drive. b. Section 18.8.040, Uses Permitted Conditionally A. Except as provided in DCC 18.88.040(13), in a zone vs ith vvh the WA Zone is combined,, the conditional uses permitted shall''' be those permitted conditionally by the underlying zone subject to the provisions of the ''Comprehensive Plan, DCC 18.128 and other applicable sections of this title. FINDINGS: Cluster developments are permitted conditionally in the RR -10 Zone and therefore they are allowed conditionally in the WA Zone. Compliance with the specific chaster development standards in Chapter 18.128 is addressed in the findings below.' c. Section 1888.05 0, Dimensional Sta ndards In a WA Zone, the following dimensional standards shall ap ply: In the Tumalo, Ietollus, North Pauling and Grizzly deer winter ranges designated in the Comprehensive Plan Resource Element, tete Alinj_ lot size for new parcels shall be 40 acres except as provided in DC 18.88.050(D). FINDINGS: Section 18.04.030 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 3 would be 106.9 acres in size, and the portion of Tree Fara 3 in the WA Zone would be 86 acres, exceeding the minimum lot size for new parcels. D, Residential land divisions, including partitions, in deer winter range where the underlying zone is RR -10 or MUA-1O, shall not be permitted except as a planed development or duster development conforaming to the following standards: FINDINGS: The applicant proposes a residential land division cluster/FUD on property zoned RR -10 and UAR 10, therefore satisfyin µ,- 1:: The minim deveIopmen on sting of a ten -lot this criterion. urn area for a pi t shall be at least 40 ac armed or c res. 14 As noted above, Tr Fars 1, 2, arcI 4 also have split zoning between IJAR-10 and>.RR-1Q/WA. Tree Farm , 247`-14-000246-C1J, 247-14-00 0247 -TP s ter Page26of`l14 FINDINGS: According to the subs acres, 86 acres of which would minimum area standard.5 -luted tentative plan, Tree Farm 3 would consist of 106.9 be located within the WA Zone, therefore satisfying this The planned or cluster develkpnient shall retain a mirlmum >;of 80 percent open space and conform with, the provisions of DCC 18.128.200 or 210. FINDINGS: : According to the subritted tentative plan, Tree Farm 3 would residential lots (ten 2 -acre lots), 83.8 acres of open space, and 3.1 acres of right-of-way. The tentative plan shows 82 acres of the open space and 2.2 acres of the right-of-way' would be located within the WA Zone, Based on this acreage. 78 percent of the entire Tree Fare 3, and d portion of Tree Farm 3, would be open space. The percent open space should be calculated including lowing analysis. have 20 acres of approximately 97 percent of the VVA-zone applicant's burden of proof states the 80 - only the WA -zoned land, based on the fol "Overail,, the 5 separate `UD/Cluster Development proposal within The Tree Farm 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 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 zorred.:.s'R-.P .,(WA) a,nc:.. ub/e_ct to -the. -..807 requirement, the remainder 1 ein ?orae ,t `i� rt yhrr ter l �g rto such '�i �'t"l�ic open space recduirement. Of the 393 acres in the RR-10(1/VA), 362.7 acres (92%) will be preserved as permanent open space. This is accomplished by concentrating the developed hor esites in the UAR-10 portion of the property in order to maximize the arnount of open space to be preserved in the deer printer range.' The Hearings Officer agrees with the applicant`' that la 'i d outside the WA Zone is not included in the open space calculation, and therefore I find Tree Farm 3 satisfies the minimum 80 percent open space requirement in the WA Zone, FI N DI N Notwithstanding the provisions of DCC 18.128.200 or 210, or DCC 18.60.060(C), the total number of, residences in a cluster development may not exceed t he density permitted in the underlying zon e. GS: The general density in the RR -10 Zone is one dwelling per ten acres, The applicant that the 106,9 -acre Tree Farm 3 be developed with ten residential lots and one open ct. The Hearings Officer has found the open space tract is not included in the density calculation, and therefore Tree Farm 3 satisfies this standard. propose, space t residents d Se ction 18.88,060, Siting Standards 15 The Hearings Officer addressed a similar issue in my Taylor decision, cited above. There, the applicant 'posed creation of an 80 -acre parcel conmprised of 40 acres zoned F-1 and 40 acres zoned Surface ring (SIVI). Section 18.36.090 establishes > an $0 -acre minimum lot size 'in the F-1 Zone I held the quoted language meant the 80 -acre minimum lot size must be met entirely within the F-.1 Zone. The nguage establishing tate m nimulot size in the WA Zone is identical to the language in F-1 Zone at sue in Taylor Tree Farm 3. 247-14-.0 0024 --CU, 247.14-0 0247 -TP Page 27 of 114 FINDING Tie Hearings and lot lines. Because all outside the `A Zone, 'Ifind Setbacks shall be those described'' in the un with which the WA Zone is combined. d riyin Officer ''finds this provision applies to setbacks betwe 10 residential ots and dwellings in Tree Farm 3 wou this criterion is not applicable to Tree Farm 3. en structures ld be located" 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: 1 For 1 Habitat values (Le., browse, forage, cover, access to water) and migration corridors are afforded equa 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 lest 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, The dwelling is set back no more than 50 feet from the edge of a driveway that existed as of August 5, 1992. purposes of DCC 18.88.060(B) 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 Clerk prior to August 5, 1992 establishing a right of ingress and egress for vehicular use; Tree Farrm;%3, 247-14-0t An aerial photograph with proof that it was taken prior to, August 5, 1992 on which the road, easement or driveway allowing vehicular access is visible', c„ A map 'p .ublishod prior to August „ '1992 or 246 -CU, 247-14-0 assessor's map from prior to August 5, 1992 shovving the road (but not showing a mere trail or footpath). 00247 -TP Page 2S cf 114 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, FIND Because no residential lots or dwellings in Tree Farm 3 will be located in the WA Zone; the Hearings Officer finds these dwelling siting criteria are not applicable to Tree Farm 3. Section 18.88.070, 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 in conjunction with a conditional use permit or site plan reviewwa New fences hi 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 and Wildlife;, The distance between the ground and the bottom strand or board of the fence shall'' be at'''least >>15 inches. 2. The height of the fence shall not exceed 48 inches above ground level, Smooth wire and wooden fences that allow passage of wildlife bre preferred. Woven wire fences are discouraged 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, Corra s used for work n 9 livestock. FINDINGS: The applicant does not propose any new fencing for Tree Farm 3, and therefore the Hearings Officer finds these criteria are not applicable. However, to assure, compliance with these standards, l find that as a condition of approval the applicant will be required to install any fencing in the WA -zoned portion of Tree Farm 3 in accordance with these standards. As noted above, tie applicant proposes to remove most of the existing wire far ing on The Tree Fang. For the foregoing reasons, the Hearings Officer finds Tree Farm 3 satisfies all a standards in the WA Zone. CONDITIONAL USE APPROVAL CRITERIA, Tree Farm 3 247-14-00024 '.-CU 247 14-00 pplicable 0247 -TP Page 2 of 114 Cha pter 18,128 Conditional t se Section 18.128.010, Operations A conditional use listed hi DCC Table 18 shelf he permitted,, altered or deeded in accordance with, the standards and>' procedures of this title;'' DCC Title 22,, the Uniform Deve&opr€et Procedures Ordinance; and the Comprehensive Plan. Se c ti€ n 18,128.015 Ge neral Sta rid rds Governin g Con ditionai U ses Except for those conditional uses permitting individual single family, dwellings,, corndition l uses sh 1I comply with the following standards in addiction to the standards of the zone in which the conditional use s located and any other applicable standards of, the, chapter: FINDINGS: : The applicant argues the general conditional use standards in this section do not apply to Tree Farm 3 because the proposal includes individual single-family dwellings The Hearings Officer disagrees. I find these criteria are applicable to Tree Farm 3 because the proposed conditional use is a cluster development, not an "individual single-family dwelling:''6, A. The site under conideration shall suitable for the proposed use based on he determined to be 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 3. As discussed above, the Hearings Officer has found that in order to conduct a meaningful review of Tree Farm 3 as a whole, I will apply the standards in both Titles 1$ and 19 — with the exception of the A Zone in Title 18 to the entire cluster/PUD. Therefore, I find the site for evaluation of the proposed cluster/PUC) is the entire Tree Farm 3. Site, design and ape tin g characteristics t he use; Site. Tree Farm 3 would be 106.9 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 lots of record. The topographical information on The Tree Fara 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 3 is in the middle of The Tree Farm. Tree Farm 3 extends from a ,point south of the northern border of The Tree Farm in a generally southwest direction to the western Tree Farm boundary. The topography of Trod Farre 3 varies from higher, relatively level, ground in its northern area where the dwellings are proposed to steeper slopes in the center and southwest portion of the site and within the open space tract. Vegetation consists of a mature forest in the western portion of the site and mostly shrub steppe vegetation in the eastern portion. Tree Farre, 3 does not have frontage on Sk liners Road; it is separated from the road by the most southern portion of Tree Farm 2. Tree ,e The applicant did not address these rrriteria in its burden of proof for Tree Farm 3, but in response the staff report submitted a memorandum dated October 29, 2014 addressing the criteria. Tree Fara 3, 247.14 -000246 --CU, 247 -14 -000247 -TP Page 30 of 114 Farm Miller eparated f Tree Farrel Bend UGB by Tree Farms 1 and 2 and a vacant pa el owned by Design and Operating Characteristics. The proposed ten residential lots in Tree Farm 3 wo€ild be clustered in the north -central portion of The Tree Farm on higher, relatively level ground. Ail lots would have frontage on Ridgeline Drive or Golden Mantle Loop. The northeast terminus of Ridgeline Drive would be a cul-de-sac on Ridgeline Court near the;, northeast comer of Tree Farm 1. Ridgeline Drive would extend southwest from Tree Farm 1 through Tree Farris 2 and 3 and would connect with Tree Farm Drive in Tree Farm 3, the primary cluster/PUD 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 Bkyliners Road to the lots in those three dduster/PUDs. The topographical information on the tentative plans shows the private roads will be constructed primarily on the centra ridge, thus minimizing steep road cuts a nd'g rales. A gated temporary emergency access road would extend from the southern term nus 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 Sago Steppe Drive could connect. Saga Steppe Drive would be a dedicated public road with 60 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 adjacent 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, andwould receive water from the City of Bend, Avion Water Company, or one or more groundwater wells. The majority of Tree Farm 3 (83,8 acres) wou'Id 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 usa of trails within tlse residential lot areas. The multi -use paths and recreation/mountain bike trails sn Tree Farm 3 would connect with trails in the rest of The Tree Farm and Bhevlin Park and the DNF to the west and southwest. The Hearings Officer finds the site for Tree Farm 3 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 €n the north -central part of Tree Farre 3 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. I find the design of the public and private roads in Tree Farm 3 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, 1 have found soils on the site are suitable for installation of on-site septic systems. I also have found the proposed dwellings' will have adequate access to Bkyliners Road with concurrent development of Tree Farms, 1, 2 and 3. For the foregoing reasons, the Hearings Officer finds the site of Tree Farre 3 is suitable for the proposed' ten -lot cluster/PUD considering the site and the design and operating characteristics of the proposed development. Tree Farm Adeq u acy oT portation access to the si€e9 and'' . 247'-14-00 246 -CU, 247 -14 -000247 -TP Page 31 of 114 FINDINGS: Access to Tree Farris 3 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 improved 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 e Sage Steppe Drive, a dedicated public road, in Tree Farm 1 south through the adjacent Tree Farm property to Crosby Drive, a dedicated public street within 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: nd of Miller Traffic Study. In support of The Tree Farm proposal, the applicant submitted 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 3. The traffic study indicates the Institute of Transportation Engineers Trip Generation Manual, gfr: Edition OTE Manual), predicts each single-family dwelling will generate 0. 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 study analyzed the ''impact of this traffic on the proposed Skyliners RoadrTree 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: pact on Skyliners Road and Crosby Drive: O Skyliners Road and Skyline Ranch Road; Skyliners Road and Mt. Washington Drive;,, O Mt. Washington Drive and Northwest Crossing Drive: and Mt. Washington Drive and Simpson Avenue. the following five exis ng 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 percen 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 2017 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 proposal, Senior Transportation Planner 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 unaccti ptable eves 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, in light of the traffic study's conclusions and the lack of road improvement recommendations iron€ the road department Tree Farre 3, 247.14-0 24 -CU. 247 -14 -000247 -TP Page 32 of 1'I4 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, 1 find the OSU development and its potential traffic impacts are too speculative to be included in 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.m. peak hour tripsThe Rio Lobo property is outside the Bend UGB, 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.17 Therefore, 1 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 60 -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 Mated 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 €€ot part the route would be on level or slightly sloping ground. The exception is a small area just 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 Novernberr. 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 lacked 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 that additional options are available for 'residential access," including special keys, key codes and automatic gates. 1 find the applicant will be required as a condition of approval to install one or more of these 'residential access" measures on the Tree Farm side of the gate at the southern terminus of Sage Steppe Drive. Ir. his December 19, 2014 comments on the applicant's proposal, peter Russell correctly noted that without any land use approvals or current applications for development of the Rio Lobo property, 'the potential trip generation from the Rio Lobo property is zero. Tree Farm 3. 247 -14 -000246 -CU, 247-14-000247-T1 ge 3 of 114 At the public hearing, the Hearings 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, 2015 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 Farre 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. Condi€t'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'' evacuate at the same time and by the same roads. The Hearings Officer agrees with Mr; !Marshall's assessment. The Tree Farm would have two points of egress — Tree Farm Drive and the secondary emergency road -- and the record indicates the schools have several points of access. l find the existence of multiple points of egress for The Tree Farm and for the schools would serve to reduce congestion in the event all three 'schools and The Tree Farm were evacuated simultaneously. Moreover, 1 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, In a November 4, 2014 letter, included in the record as Exhibit "P" to Paul Dewey's November 19, 2€ 14 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, find an emergency access road to the northeast likely would 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 Fara 1 east of the cul-de-sac bulb for Ridgeline Drive. In the Hearings Officer's decision in Tree Farm 1, I discussed concerns expressed by county staff and Rio Lobo about the locatilon of this right-of-way, I held the applicant will be required as a condition of approval for Tree Farm 1 to include a notation on the Tree Farm 1 final plat 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. For the foregoing reasons, and with imposition of the condition of approval described above, the Hearings Officer finds Tree Farm 3 is suitable for the proposed ten -lot cluster/PUD considering the adequacy of''transportation access to the site. Fl NDl N GS: 3. The natural and physical features of the site including, but not lirrrRed to, general topography, natural hazards and natural resource values. General Topography. The Tree Farm 3 tentative plan shows, and the Hearings Officer's, site visit observations confirmed, that the Tree Farm 3 site has varying topography. The dominant feature of Tree Farre 3 is the central ridge 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 Tree Farris 3, 247`14 -000246 -Cid, 247.14 -000247 -TP Page 34 of 114 toward Turrnalo 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 Farms 4 and 5 slopes down to the west at grades ranging from 10 to 20 percent and lots in Tree Fames 4 and 5 include sloping terrain The topographical information on the Tree Farm 3 tentative plan shows the rear portions of Lots 23-25 are sloped down to the southeast, but that this slope is more gentle than th slopes on the lots in Tree Farms 4 and 5. As discussed above, the private road segments in Tree Farm 3 would align with the natural topography rather than cutting across slopes. For these reasons, I find the site is suitable for Tree Farm 3 considering Its general topography. NatHazards. The identified natural hazard affecting The Tree Farm is wildfire. There is no dispute The Tree Farm is in a wildfire hazard area. 8 It '''is located in theMidland Urban interface('UI)'' — i.e., the transition area between human development and wildland, in, this case forest lands. The eastern half' of The Tree Farm was in the path of the 990 Awbrey Hall fire that burned approximately 3,500 acres from the north end of'''Shevlin Pa k southeast"to a point hear Highway 97. The June, 2014 Two Bulls Fire burned several thousand acres of Cascade Timberlandsproperty west and northwest of Shevlln 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 adjacent land, and (b) wildfire ignited elsewhere in the WUI, such as in the DNF, could spread to residential uses in The Tree Farm, diverting fire -fighting resources to The Tree Farm. The applicant's burden of proof states the Awbrey Hail;,; Fire removed much of the forest overstory in the eastern part of The Tree Farm including the eastern part of Tree Farm 3, 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 (ODF) 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 LIAR -10 zoned property in Tree Farms land 3 and the most southwestern portion of Tree Farm 1. The 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 no part of The Tree Farm property or Tree Farrn 3 is suitable for the proposed>cluster/PUDs conside ing the risk of wvildfire. 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 WUI 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 L nd atch's fire expert Addison Johnson, as well as dozens of pages of articles, studies, and research papers discussing the risks of wildfire in theWUI 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 'O"`to Mr. Dewey'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 — i.e., 'extreme" and high density extreme.'" 18 E g., the Tree Farm Master 'Plan, Exhibit "A" to the Tree Farm 3 burden of proof, Tree Fan r 3, 247 -14 -000246 -CU, 247-14--000247-TP Page 35 of 1 14 In response, Mr, Condit argues in his December 30, 2014 letter that "The Tree Farms properties are zoned for rural development and the applicable criteria have to be construed in, that context."' in his January 6, 2015 final argument, Mr. Condit stated: `While [the applicant's proposed wildfire plan] >>KO obviously not eliminate all risk from wildfires, it does not, however, follow that all development should be prohibited. Deschutes County regulates developments in areas subject to natural hazards (including wildfires) pursuant to Statewide Land Use Planning Goal 7, s�rl ich provides that 'Noce! governments shall adopt comprehensive plans * * * to reduce risk to people and property fromnatural hazards. There Is no requirement that all risk be elirinated,3' indeed, such risk would be it possible to eliminate ira the Bend area. The greater Bend area Community' Wildfire Protect alar oundary, attached as the last page of Exhibit 0 to LandWatch's November , 2014, submittal shows that The Tree Farm properties, the territory within the `ity of Bend, and r for wildfire risk. And there are significant'. density extreme' for dfire risk. The surrounding territories is thus tt properties. Condit goes on to state: e surrounding territory ar yeas near the City rated 'e1tren aro' risk within the City and on even higher than on The Tree rated 'high' ' or 'high- s of the high-stofthe Farm "By requesting, and obtaining an exception to Goals 3 and 4 to designate The Tree Farm 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 Goals, including Goal 7. That doesn't mean The Tree Farm doesn't have to comply with the applicable criteria. See PGEYGaines, cited in the Applicant's prior testimony., Mr, Dewey argues that, because the Applicant cannot guarantee absolute protection from wildfires, no development should be allowed. Such a eading would swallow the Code" The Hearings Officer agrees the county rnade a policy decision that the RR-1O/WA zoned lands west of the Bend € GB are developable. Any change to the uses permitted in the RR -10 and UAR-10 Zones west of Bend --4 e.g., eliminating dwellings due to fire risk -- 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 and use decisions However, The Tree Farm propose ll includes land divisions providing for multiple dwellings, and therefore is subject to the subjective and discretionary standards in Title 17 eg.; contributing to '`orderly development" -- and the equally subjective and discretionary conditional use and clusteriPUD standards in Titles 18 and 19, Section 18.128.010 (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 conditional 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 3 site. Rather, it is whether the site for Tree Farm 3 is suitable for the proposed '''cluster/P'UD considering the wildfire hazard. Tree F m 3, 247.11 -000246 -CU, 247 -14.000247 -TP Page 36 of '1 14; The unusual configuration of Tree>Farm 3 restricts placement of dwellings to the higher ground near the northern property boundary where there are significant views, 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 "" to the Tree Farm 3 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 al! fire risk for these dwellings. Rather, I must determine whether the wildfire plan, in its design and implementation, will reduce that risk to sufficient degree that the Tree Farm 3 site and configuration are suitable for the proposed 1 pilot olusteriPl D considering the risk of''yvildfire. The applicant's wildfire plan consists of a two-page narrative to which are attached nine pages of information concerning the °F€revise Communities Program" (Firewise) and the "Fire Adapted Communities Program." The narrative describes the wildfire plan's, goals as further reduction of lad thinning of juniper and der fuels' small ponderosa trees; % development of a fire:.:adaptive ecosystem to preserve old growth.>. 6. maintenance of a healthy tree stand and reduction of the threat of beet damaged trees: and enhancement of the support wildlife_ The wild fire pian id landca entifies the followin pe, 9 n means to five ;,;grasses for CC om plish these g n atu oa ra l e bill and fire ndscape an d to, 1. wildlan€d 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 governingdocuments and guidelines, and will "enhance open space, structure survivability, and firefighter safety," 2. The Tree Farm ,, ill omni with all applicable criteria in the Deschutes County code relative to community safety from fire;, 3. The Tree Farm will become a nationally recognized Fire‘mise/LISA 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 gu€del€nes the requirement to €11 e Pre resistant buildinalLIAlfgiillA..40...IAMI§OPP„„Niltfftgits 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 til Take arkann a.::cor itimant..,to main as,a Firewise/UA Community; 6, residents and visitors will l an 31� r with the county's W,? df€re F€re IWvacuatr, addition to The Tree Farm Evacuation Plan; and Tree Farm 3, 247-14- 3 30246 -CU, 247-14-00 247 -TP Page 37 of 1'14 7. The Tree Farm's governing documents will address sources of human caused ignitions and prohibit burning'' of debris and the use of fireworks. (Emphasis added.) In his written public heanng 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 vvill greatly reduce the risk of home ignition from wildfire" Attached to lir. Marshall's testimony are several lengthy NFPA and Firewise documents, including the 34 -page 2008 edition of the NFPA's "Standards for Reducing Structure Ignition Hazards from Wildland Fire." However, Mr. Marshall's testimony does not indicate which of the Firewise or NFPA standards would apply to The Tree Fara, 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 applicant's wild each ofwhich is addressed in the findings below, fire plan for two principle reasons, 1. 'Reliance on Firev ise and NFPA Standards. In his November 21, 2104 comments on the applicant's proposal, Ed Keith noted that to obtain Firewise recognition, The Tree Farm would need to obtain a wildfire risk assessment from ODF or the Bend Fire Department, form a board 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 renewed annually "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, With 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, hr w, or by whom the NFPA standards world be implemented, or how and by whom they would be enforced and their effectiveness eveluted., ,Although Mr. Marshall's written testimony, provided in several letters, does include some specific recon €r endations tar it €plementation of the Firewise program and NFPA standards, these recommendations are not described in the appl'icant'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 responsibiiity, 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 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. >sSee, 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 20 In 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 irnprecise, confusing,, hypothetical, andlor in conflict with county code provisions Tree Farm 3, 247 -14 -000246 -CU, 247` -14 -000247 -TP Page 33 of 114 H OA will undertake certain wildfire plan activitie but, they do not clarify ifiwhn the deve !toper would bow out and the HOA would take over. For the foregoing reasons, the Hearings Officer finds the applicants wildfire plan is not sufficient to demonstrate compliance with this conditional use approval criterion because it simply does not include a meaningful action plan or an explanation of how, when, or by whom the plan wiiI 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. ''l find such a plan must include, at a rninirnuim the following information identification of each residential lot building 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 setback from the upper edge of the slope(s) for each building envelope and dwelling; the fuel treatment, if any, on any slope below each dwelling, and if such fueltreatment {ill occur on open space, what impact it will have on that open space, on surface water drainage, and on wildlife habitat for bats in the WA Zone;, lather and where d ecks and outb uilding s would be permit what specific construction methods and building dwelling' to meet specific, identified NFPA standard a detailed descripti monitored, and enfo and the HOA; a d on of how and rced, with particu ed on each lot; materials will be required for each s by whom the 'wild la r attention to th fire plan will be implemented, e transition between the developer specific, mapped evacuation plan for The Tree Farm and each of the five Tree Farm eveloprnents, includ'Ing directions for operation of the gate on Sage Steppe Drive; and a ,detailed description of when and how residents and g wildfire plan requirements and the evacuation plan. tests will be informed of the 2. inadequate Recognition of Fire Behavior. The parties disagree as to whether the proposed design and configuration of Tree Farm 3 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 upslope and downwind from a wind -driven wildfire starting in the ,public and private forest lands or Sheviin, 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 lame tenths of 10-12 fMet. He claims the previously burned portion of The Tree Farm, including the, eastern part of Tree Farm 3, 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, lir. 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 Tree Farm >3, 247-1€ -000246-s~ U, 247`-14 00O' 47 -TP Page 39 of 114 different location. Finally, Mr. Johnson questions suppression in light of the uncertainty of The Tree Fa he adequacy of water >available for fire m's water supply and pressure. The applicant responds that The Tree Farm 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 well back from the top of the slopes. The applicant also submitted several letters from Mr Marshall, 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 identify 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 Offlcer finds that without an adequate wildfire plan, the applicant also has not demonstrated the site and configuration of Tree Farm 3 sufficiently address predicted wildfire behavior affecting residential lots and dwellings. 1 also find it is neither feasible nor appropriate for me to craft conditions in an effort to make the applicant's proposell approvable; For the foregoing reasons, the Hearin demonstrate the site for Tree Farm 3 is suitable fo hazards. s Office finds the applicant r the proposed use conid has failed to ening natural Natural Resource Values. The Hearings Officer finds natural resources on the site of Tree Farm 3 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 (789%) will be maintained, in permanent open, space. As discussed above, 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 wil'i continue within the Tree Farm > 3 open space tract. In addition, the applicant proposes that, each lot in Tree Farm 3 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 3 for fire fuel reduction can and will be accomplished in a manner consistent with preservation of wildlife habitat. b. Rimrock and Rock Outcrops. At the outset, the Hearings Officer finds it is not dear any rock outcrops in Tree Farm 3 qualify as "rimrock," defined in Section 18.04.030 as a ledge or outcropping of rock that "farrms a face in excess of 45 degrees." In any case, the submitted tentative plan and burden of proof statement for Tree Farm 3 indicate the applicant does not, intend to remove or alter existing rimrock or rock outcrops. c. Wildlife Habitat. The Hearings Officer finds Tree Farm 3 contains what are essentially two categories of wildlife habitat. The western 86 acres of Tree Fare 3 are located in the Tumalo winter deer range and are subject to the WA Zone established to protect it. The remaining" approximately 21 acres of Tree Farm 3 provide wildlife habitat typical of `>undeveloped land west of Bend, but this habitat is not designated for special protection. Nevertheless, the applicant, Tree Farm 3, 247 -14 -000246 -CU, 247 -14 -000247 -TP Page 40 of 114 proposes to protect this typical habitat 'in a manner similar to that required in the WA Zone. Specifically, the ten Tree Farm 3 dwellings could be clustered near the northern border 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 3 burden of proof states the applicant has removed some wire fencing on The Tree Farm, and intends to remove most of the recess€rt€ng 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 3 outside the WA Zone is suitable for Tree Farm 3 considering the typicalwildlife habitat outside the w rater deer range. The tentative plan for Tree Farm 3 shows that all of the 86 acres within the WA Zone and the winter deer range would be maintained in permanent open space with the exception of 3.1 acres of right-of-way for segments of Golden Mantle Loop and Tree Farm Drive. No dwellings and no part of the trail system would be located in this part of Tree Farre 3, but a small portion of the proposed recreation/mountain bike trail would traverse this area, Therefore, the Hearings Officer finds the impacts from Tree Farre 3 on the winter deer range would be limited to use of Tree Farm Drive and the recreation trail, and vegetation management practices for fire fuel reduction, The stated purpose of the WA Zone in Section 18.88.010 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 3 will satisfy all applicable WA Zone criteria. Nevertheless, in its August 19 and December 11, 2014 comments on the applicant's proposal, ODFW argued The, Tree Farm will not protect the Tumalo winter deer range for the following reasons: development of residences in the winter deer ;,range will convert native forest and upland habitats into built structures, including roads, resulting in permanent loss of habitat; hom d ee e r mig ners will be allowed to remove ha ratio n torrid bitat on their homesites'; ors will 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 the applicant has not identified mitigation measu habitat pursuant to OD W's administrative rules.21 es demon stra ng "no net loss At the outset, the Hearings Officer notes no dwellings are proposed in the WA -zoned portion of Tree Farm 3, and therefore the impact of dwellings addressed by ODFVV Will not occur in Tree Farm 3 In addition I find ODFW'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 21 ODFW also raised concerns about a proposed pond in The Tree Farm. However, her letter dated' October 10, 2014, ente stated the pond has been removed from The Tree Farm proposal``. Tree Fars >3. 247'-14-000246-ta , 247 -14 -000247 -TP Page 41 of 11 4 415-0020. I find neither exception applies here. Finally, <l <find ODFWs concerns about low impact recreational use on trails are of greater relevance to Tree Farms 4 and 5 than they are to Tree Farms 1, 2'' and 3 because all of Tree Farm 5 and most of Tree Farm 4 are locatedin the, winter deer range. Consequently, I find the only relevant wildlife issues are development' and use of the segment of Tree Farm Drive in Tree Farm 3, and management of the WA -zoned, open space for fire fuel reduction. LandWatch submitted an article from the USFS Pacific Northwest Research Station (PNWR ) 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 PNWlS, 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 19, 2014, is attached to the Tree Farm 3 burden of proof as > Exhibit 1," and was prepared by Dr. Wendy Wente, an ecologist and biologist with Mason, Bruce and> Girard Natural Resource Consultants (MB&G)., The WMP includes an overview of The Tree Farm property, Dr. Wente'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 a e addressed in detail in the Hearings Officer's decisions an Tree Farms 4 and which propose dwellings in the WA Zone, At page $ of the WMP, Dr. Wente identified The Tree Farrn in relevant part as follows: "Mule Dee "generals ildllfe utilization trends" for rr€ule deer on r Habitat and Migration Corridor; 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 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 use corridors for traveling to resources located outside of the PS���Cfor a3e cing forage and posibiy water rddrtddS. Key areas identified as /rave/ 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 mr ve bet peen the Tree Farm 3, 247 -14 -000246 -GU; 247-.14-000241 TP Page 42 dat 114 Turnalo Creek riparian corridor and upland areas to the east (outside of the WA Zone) that provide bunchgrass and antelope>. bitterbrush forage. Therefore,, the MB&G biologist was able to corroborate`' the WA ,one designation within the PSA relative to mule deer habitat and use," (Bold emphasis in original.) Based on the figures and photographs in the `+ lMF, the Hearings Officer understands Dr. Wente to conclude mule deer use and travel''' corridors are suff ciently' diffuse on The Tree Farm property that deer currently move across the southern portion of Tree Farm 3 and will continue to do so. Based on Dr. e€nto}s opinion, 1 find deer would cross the proposed, segment of Tree Farm Drive in Tree Farm. Dr. Wente also submitted relevant part as'fol lows: etter dated October 10, 2014 res ponding to 0 DF'" ''s concerns in "ODFW commented that the deer migration corridors 'could be completely eradicated or substantially cut-off [sic], forcing deer to move through the development * ' The Tree Farm RR -10 parcel, which is overlain by the deer rr linter 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%) as designated open space. The DCC 13,88,0.€0(D)(2) requires the retention of 80% of an RR -10 zoned area with a WA zone as open space, thus this development far exceeds the proportion of open space required by the code for a cluster development within a WA Zone, In addition to providing more open space than required by the code for deer winter range on RR -10, the developrrtent 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 Tumalo Creek drainage. The two pods of the cluster development that fall within ("F5) 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 east/ est deer movement patterns along the southern portion of the -10 zone. This area is clearly maintained as a corridor of habitat between the road [ky+liners Road] and the southernmost cluster [in Tree Farms 3 and 5]. These corridors, and the open space in generals will continue to provide space for deer to move across and to utilize the wildlife habitat provided by the WA zone on the RR -10." (Bold emphasis added.) The Hearings Officer understands the above -emphasized language' to mean Dr concluded the proposed open space in the southern portion of The Tree Farm and Tree Farm 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 Farris 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 the east. The record ' also indicates s these heads arid the existing dirt trails in The Tree ram/ 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. Tree Farm 3. 247-14 000246 -CU, 247` 14 -000247 -TP Page 43 of 114 The Hearings Officer finds development of The Tree 'Fara and construction of Tree Farm Drive are >;,Iikely 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 --u 476 ADTs - I find the presence of a segment of Tree Farm Drive in Tree Farm will not interfere with use of the winter deer range in general or migration corridors therein in particular. At the pudic hearing, the Hearings Officer questioned whether ongoing management on The Tree Farm for fire fuel reduction can be undertaken consistent' with the conservation of th Turalo winter deer range. In response, the applicant submitted a letter dated December 5, 2014 from Dr. 'Wente stating the VVMP 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: mainta ping the quality of wildlife habitat while also reducing the risk of wildfire." Specifically; Dr. Wente noted the fuel reduction treatments proposed for The Tree Farm's open space tracts are merely a 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 historic and ongoing fuel reduction treatments thereon; (2) the fuels management techniques will simulate the effects of small-scale 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 fo bs that make up much of the winter forage for deer. However, as discussed in the findings above and in my decisions in Tree Farms 1, 2, 4, and 5, >I 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 Farre 1 is suitable for the proposed cluster/PLO' and will be compatible with surrounding lands. 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 fromthat 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 does 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 WIMP states simply that certain things "will be done' or "will comply." l 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''rne Cher feasible nor appropriate for me to craft conditions of approval in an effort to make the applicant's WMP adequate. For the foregoing rea demonstrate the site for Tree Fa resource values sons, the H rill 3 e rings Officer finds the applicant has failed to ref s suitable for the proposed use considering natu Tree Farm 3, 247-14-OOO246-CU, 247-14-OOO247-TP Page 44 of 114 FIN NG Exist/. discus The proposed use shall be compatible with existing and projected uses on surrounding properties based on the factors listed in DCC 18.128.015(A). g and Projected Uses. Existing and ed in the findings below projected u on surrounding properr€es are 1. East: To the east of Tree Farms 1 and 2 is vacant land zoned UAR- 0 and owned by Miller Tree Farm. The Hearings Officer finds that ire 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 UGB and developed with urban -density residential uses. Farther to the east within the Bend UGB and city limits are three public schools and Northwest Crossing, a mixed-use development including urban -density residential, commercial, and light industrial development. The Hearings Officer finds these uses will continue in the future. The applicant's burden of proof states, and >l agree, that the design of The Tree Farm, with its clustering of dwellings and large swaths of open space, wil be compatible with surrounding lands to the east by placing the dwellings closest to the GB 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, Immediately to the west is Sh vlin Park, a 652 acre regional park owned and managed by the park district and which includes 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 lands is scant, so have found it appropriate for purposes of the suitability criteria addressed above to assume existing uses include those permitted outright in the F-1 Zone, including, some timber harvest. However, as noted above, 1 am aware long -terra plans for the Cascade Timberlands holdings have included a €pix of timber production, protection of scenic views, and recreation. The Hearings Officer has found Tree Farm 3 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 3 is suitable for the proposed cluster/PUD 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 3 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 ;,ban 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 Fa3 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 Highla UAR-10 and including 37 ten -acre residential lots and open s nds at Broken Top PUD zoned pace. Farther to the south is the Tree Farm 3, 247-14-00 46 CU 247' 14-0Q r247 -TP' Page 45 of 1 4 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_1 O, The Highlands at Broken Top has the potential to be brought into the Bend UGB and redeveloped at urban density. I find Tree Farm 3 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 UARw1'0, 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, Rio Lobo argues The Tree Farm and Tree Farm 3 are not compatible with future developrnent 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 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 17.36 020(3). requires the applicant to dedicate and construct a public road from The Tree Farm's shared boundary with Rio Lobo's property to Skyiiners Road to facilitate future development of Rio Lobo's property. The Hearings Officer disagrees. As discussed in the subdivision and PUD findings below, I have found the applicant" is permitted to develop The Tree Farm with private roads, In addition, I have found Section 17.36.€0 0(3) 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 Farm and/or development of Rio Lobo's property with its current LIAR -10 zoning." Second, Mr. Conway argues The Tree Farm is not combat€bio with projected uses on Rio Lobo's property because the majority of Tree Farrn dwellinegs 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 17.36.140(B)(3)(c). However, as discussed in the findings below, the Hearings Officer has found Section 17.36.140(B)(3)(c) of the subdivision ordinance is not applicable to Tree Farm 3, and therefore the applicant is not required to provide more than one future road connection along the northern boundary of The Tree Farm. 22 In a letter dated December 23, 2014, Charley Miller representing Miller Tree Farm LLC stated it would be willing to commit to the dedication of public road right--of--way in a rnc€tually agreed upon location across the adjacent Miller Tree Farm property in Inc event Rio Lobo obtains county land use approval for either a destination resort or a 37 -lot subdivision or PUD on its adjacent property. That dedication s u €id be to allow Rio Lobo to construct the segment of Skyline Ranch Road from the Rio Lobo property across the MMliller Tree Farm property to the recently constructed Northviest Crossing Drive/Skyline Ranch road intersection adjacent to the new Pacific Crest Mid le School Tree Farm 3, 247 -14 -000246 -CU 247 -14 -000247 -TP Page 46 14 Rio Lobo's property and the vacant Miller Tree Farm property east of Tree Farm 1 are zoned UART18 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 Sk liners Road. Annexation of these properties into the UGB could allow the urban -density development''conterplated in Rio Lobo's traffic study',. However, l 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 Shevlin Park and large areas of forest to the west. That transition is created by clustering r €ostr; of the dwellings in the UAR-10 zoned portion of The Tree Farm, including all of the dwellings in Tree Farm 2, and placing most of the open space on the RRv1 /V A -zoned property near 8hevlin 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. Opponent LandWatch argues the applicant mischaracterizes The Tree Farm 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 transition to anything," The Hearings Officer disagrees. The properties east and north of The Tree Farm are zoned UAR-10 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 ultima ely may be developed at much higher density than The Tree Farm. Accordingly, 1 find the, cha acterization of proposed The Tree Farm as a "transition area is accurate. For the foregoing reasons, the Hearings Officer finds Tree Fenn 3 Mill 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 WMP. C. These standards and any other standards of DCC 1 be met by the imposition of conditions calculated `to insure that the standard will be met. 28 may FINDINGS: As discussed throughout this decision, the Hearings Officer has reco if the applicant's proposal is approved on appeal, such approval should be subjec of approval designed to assure compliance with applicable standards and criteria, 1, Section 18.128.040 p ecific Use Sta nd a rds, mended that to conditions A conditional use shall comply with the standards of the zone in which it is located and with the standards and conditions set forth in DCC 18.128.045 through DCC 18.128.370. FINDING: Compliance with thz :sp cif€ , f.€ ->a Standards for Cluster deveto rnents in Section € 18.128.200 is addressed in the findings immediately below, Section 18.128.200, Cluster Development (Single Family Residential Uses Only) Tree Farm 3, 247 -14 -0o0246 -CU€; 247-14-o0 X247 -TP Page 47 of 14 Such uses may be authorized as a cond consideration of the following factors: FINDINGS: The Hearings Officer finds the discussed in the findings below do not este but rather identify issues I must consider. tlonal use y after language of this paragraph means the factors rds for Tree Farrn 3, blish specific approval standa 1 Need for residential uses in the i€ediate area of the proposed development, FINDINGS: The applicant addressed this factor by submitting as Exhibit "K' to its burden of proof reports identifying the homes, lots and land currently for sale, pending sales, and actual' saps during the past 12 months in developments in dose 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 "Bratton Report," a monthly compilation of data on residential saps complied by the Bratton Appraisal' Group. The staff report summarizes the reports in Exhibit `K" as follows: "Out of a total of 131 listings, 81 lots have sold in the past year and riir e 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 Januani 2014, the number 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, 116 have sold in the past year and 29 are pending, absorbing inventory at just over 12 sales per month. Standing inventory includes 33 homes on the market -- a dozen of which are either under- construction or to -be -built --- providing 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, 1 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 3 will address that need; FINDING 2, Environmental, social and economic lrnpacts likely to result from the development, including impacts on, pubiic facilities>such as schools and roads. Environmental Impacts. Tree Farm 3 is configured so that the ten proposed dwellings and most of the roads that will serve them are clustered on relatively level land in the north -central' part of The Tree Farm in the UAR-10 Zone. The remainder of Tree Farm 3 will be preserved as open space with the exception of a small area near the southern property boundary on which a Tree Farm 3, 247`-14-000246-C , 247 -14 -000247 -TP Page 48 of 114 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 world 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 3 will not interfere, and will be compatible, with accepted forest practices on nearby public and private forest lands. I have also found that without an adequate wildfire plan the applicant has not demonstrated The Tree Farm and Tree Farm 3 will be compatible with current and projected uses on Shevlin»Park and nearby forest lands to the west. In his December 11, 2014 letter, Paul Dewey argues the Hearings Officer should not consider environmental impacts based on a comparison of the impacts of clustering vs development of The Tree Farm property with the maximum five dwellings that would be permitted under its current configuration and zoning, or with alternate development patterns such as a traditional subdivision with 10 -acre lots' and dwellings spread throughout the 533 -acre property. lois 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 r o basis to conclude that 50 10 -acre lots can be created here.' (Underscored emphasis added.) The Hearings Officer disagrees. There are reasons to find e traditional subdivision w€th ten 10 acre lots could be approved on each of the five Tree Farm legal lots. First, a similar development — The Highlands at Broken Top -r was approved immediately south of The Tree Farm. Although this subdivision technically is a PUD,23 it was approved with 37 mostly ten -acre lots on land zoned t, AR -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 UA -10 Zones. They are subject to the 10 -acre minimum lot size in those zones, and to the subdivision standards in Title 17. As di€scussed 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. l find it is possible for the applicant' to satisfy those standards with conditions of approval and with the above-described revisions to its wildfire plan and WMP. Accordingly, I find there is nothing improper in comparing the propose clusterlPUDs to the alternative of a traditional subdivision when weighing the environmental impacts of The Tree Farm and Tree Farm 3. LandWatch also argues the applicant has failed to demonstrate The Tree Fara will not have negative environmental impacts on Tumalo Creek. Again, the Hearings Officer disagrees. I find potential impacts on Turalo 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. The Cascade Highlands decision, included in November 17, 2014 memorandum, states "the 37 proposed Lot 22 that will be 18.05 acres)," an be platted' as a separate lot" and designated''n Tree Fan € , 247.14 -000246 -CU, 247-14-00 0247-T P rd as an attachment to Anthony Ragu€ine's e all about 10 aures in sire ;with the exception of ring acreage [approximately 20 acres] * * * will the subdivision. Page 4gof114 Because the Heanngs Officer has found the applicant failed to demonstrate the site for Tree D considering wildlife habitat and wildfire risk, 1 e Farm 3 adequately considers and addresses Farm 3 is suitable for the proposed cluster/PU also find the applicant failed to demonstrate Tre this cluster development factor. Social 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 X111 cluster ten dwellings in the UAR-1 g Zone relatively close to three public schools and, ommercial and light -industrial uses in NorthWest Crossing and possible future urban -density development on, the adjacent Rio Lobo and liil'ler Tree Farm properties. The configuration will place approximately 98 percent of the Tree Farm 3 open space in the RR -1O and WA -Zones closest to Shevlin Park and the public and private forest lands to the west. As discussed above, have found the proposed configuration of Tree Farm 3 will provide a transition between the Bend urban area and the vast forested land to the west, 1 find the proximity of Tree Farm 3 to Shevlin Park and to the extensive "Phil's Trail" mountain biking trail network in the DNF wil 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, Steve Jorgensen, the park district's Park and Trail Panner, 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. lr. Jorgensen recommended several measures to facilitate trail access and off-street parking These would occur on the adjacent Miller 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 Skyliners ''Road''' that terminates on the east side of Crosby Drive and the proposed frail 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 3. Economic 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 arge rural tract, and ch 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 o secure domestic water through connection to the City of Bend water systen1 or the Avon Water Company there will be no need for individual on-site wells.24 44 The applicant argues he 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 comments on the applicant's proposal, George Kolb noted that the county no longer is accepting roads into its road maintenance Tree Farm 3, 247 -14 -000246 -CU, 247-14-0 247-7 Page0of114 Public Facilities. Comments on the applicant'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 3 w€tl not place an undue burden on city water facilities. Schools. The, UAP -1O zoned portion of Tree Farm 3 is located within the boundaries of the Bend -La Pine School'' District.25 As discussed` above, three of the district's schools _- Miller Elementary, Summit High School, and the new Pacific Crest `>Miiddle School under construction are located within a mile of Tree Farm 3. 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 discussed above, the applicant proposes to dedicate public access easements over all private Tree Farm roads. For the foregoing reasons, the Hearings Officer finds Tree Farm 3 will have positive social and economic impacts, but in the absence of an adequate wildfire plan and WMP, the applicant`>.has not d emonstrated Tree Farm 3 ill have entirely positive environmental impacts. Effect of the development on the rural character of the a roe. FINDINGS: Tree Farm 3 is located in a rural area west of the Bend UGB that is characterized by::', (a) large vacant parcels zoned UA -10 to the east and north; (b) large LAR -10 zoned parcels to the south across Skyliners '"Road'' with low-density 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 lands to the west. The Hearings 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 Farm will be the same as in The Highlands at Broken Top. The proposed configuration of The Tree Farm will duster the majority of dwellings in the UAP -10 Zone and will locate the majority of open space in the RR 10 and WA Zones. For these reasons, l find Tree Farm 3 will be consistent with the rural character of the area. Effect of the development on, agricu wildlife or other natural resource uses 1 tural, forestry, n 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 Fara 3 will not force a significant change in, or significantly increase the cost of, accepted forest practices on nearby= and devoted d 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 fF The record indicates the RR -10 zoned portion of the Tree Farm is located in the Redmond Bch District. The applicant's burden of proof states the applicant will request that the Bend and Redri-ron school districts allow the thirteen Tree 'Fara'" homesites in the Redmond School District to be transferred to the Bend -La rine School District. Tree 'Farre 3, 247-14--000240-C U. 247.14 -000247 -TP Page 51 of 114 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 envelopesThe 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 3 will comply with all applicable requirements in the WA Zone, However, 1 have found that in the absence of an adequate wildlife habitat management and wildfire plans, the applicant has not demonstrated The Tree Farm and Tree Farm 3 will be compatible with nearby forest lands or with the Turalo winter deer range. For the foregoing reasons, the Hearings Officer finds Tree Farm 3 will not have a negative effect on >>agriculture or forestry. But 1 have found the applicant has failed' to demonstrate Tree Fara 3 wiill not have a negative effect on wildlife habitat in the winter deer range. The€refore,»l find Tree Farm 3 does not satisfy this criterion. The conditional use shall not be granted unless the following findings are rna de: AH development and alterations of the natural' landscaper will be limited to 35 percent of the land and at Bast 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: The Hearings Officer has found the WA Zone's 80€ -percent open space requirement must be met entirely within the WA -zoned portion of Tree Farm 3. Because 83.8 acres of the 86 acres of Tree Farm 3 in the WA Zone will be preserved as permanent ,open space, the applicant's proposal satisfies the WA Zone standards, With respect to the '65 percent open space requirement in this paragraph, the applicant's burden of proof states 83.8 acres of the 106,9 -acre Tree Farm 3 (78 percent of the site) will be in open space, satisfying this standard. The area not dedicated to open space or common use may be platted''' as residential dwelling lots or parcels that are a minimum of two acres and a maximum of three acres in sizeTheir 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 3 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 be managed for trail systems, wildlife habitat, Tree r"arm3. 247-14-00246-C U. 247-14-00024 Pr- e -2 of 114 and forest management consistent with preservation of wildlife habitat and the, reduction o fuels. For these reasons, the Hearings Officer finds Tree Farm 3 satisfies this criterion, In the Wildlife Area Combining Zone, in addition to compliance with the WA zone development restnct€orfs, uses and activities must be consistent' with the required Wildlife 'Management ent Plan. The Plan shall be approved if it proposes all of the following in the required open space area: FINDINGS; As discussed in detail in the findings above, the Hearings Officer has found the WA Zone requirements apply only to the portion of Tree Farm 3 zoned WA. Therefore, l find it is applicable only to the,, 86 acres of open space and road right-of-way in Tree Farm 3 zoned WA The applicant's WMP proposes that uses in the open space tracts in Tree Farm 3 will be limited to managementof vegetation for fire fuel reduction and winter range habitat conservation as well as low -intensity recreation uses such as pedestrian and bicycle trails. Therefore, I find the proposed uses and activities in the open space tract will 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 wild habitat for WA zone protected species as specified in the County Comprehensive Pan (DCC Title 23); and ife FINDINGS: The portion of Tree Farm 3 in the WA Zone consists of 83.8 acres of open space and 3.1 acres of right-of-way for Tree Farm DriveAs 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 3 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, have found on the basis of the VVMP that deer will continue to use the habitat in the open space area for browsing, and the segment of Tree Farm Drive rill not'' obstruct the existing deer migration corridor across the southern portion of Tree Farm 3, b. Prohibits golf courses, tennis courts, swirnming 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 on the Tree Farm 3 open space would be the pedestrian/bicycle trail system, a leer -intensity use permitted by this paragraph. Tree F m 3, 247 - cls 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 -000246-CU, 247 -14 -000247 -TP Fags 3 of .114, structures other than fences consistent with DCC 18.88.070may be constructed. The size of the yard may be reduced during development review if the County finds that, through the review of the mvildlife management plan, natural''' landscape protection or wildlife values will 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 assure the natural resource values relied upon to justify the exception to the special yard requirements will be protected. FIN lNG : The tentative plan for Tree Farm 3 shows Lot 26 and possibly Lot 25 may be adjacent to the open space within the WA Zone. As discussed above, the applicant has proposed building envelopes for all residential lots in The Tree Farm including the ''ten lots in Tree Farm 3. Those building envelopes show setbacks of at least 100 feet between the adjacent UAR -10 zoned open space and the building envelope d; Off. -road' .motor vehicle use sha in the open space area. be prohibited FINDINGS: The appl'icant's burden of proof states no off-road motor vehicle use will be permitted in the open space tractsThe Hearings Officer finds the applicant will be required as a condition of approval to prohlibit off-road vehicle use on the Tree Farm 3 open space tract, and to enforce that prohibition, through the development's''CC&Rs. Adequate corridors on the cluster property to allow for wildlife passage through the development. FINDINGS: As disc€.€ssed in the findings above concerning compliance with the general conditional use standards in Chapter 18.128, the applicant's WMP identified several ex€st€ng, migration corridors in the winter deer range, including north -south corridors in the vestern portion of The Tree Farm outside the boundaries of Tree Farm 3, and an east -west corridor along the southern part of Tree Farm 3 running parallel to S yl'€hers Road. Based on the WMP, the Hearings Office has found the open space tract and the small' segment of Tree Farm Drive in the A -zoned portion of Tree Farm 3 will not create a barrier to deer migration along this existing corridor. Therefore, I, find this existing corridor>will allow wildlife passage. 4 All lots within the development shall be contiguous to one another except for occasional corridors to allow for human passage, wildllife travel, riatural 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 circur tances warrant a wider corridor. Tree Farr, , 247-14-000246- 1, 247-14-O00247-Tf Page 54 of 114 FINDINGS: The tentative plan for Tree Farm 3 shows all ten residential lots will be contig €ous except for the intervening right-of-ways for Golden Mantle Loop. Therefore, the Hearings Officer finds Tree Farm 3 satisfies this criterion 26 F DI N AH applicable subdivision or partition requirements contained in DCC Title 17, the Subdivlsio f3partition Ordinance, shall be met. GS. Compliance with the criteria in Tit 6 e1 is addressed in the findings be OW. The total number of units shall be established by reference to the lot size standards of the applicable zoning district and cornbinir g zones. FINDINGS: The RR -10, UAR-1O and WA, Zones ten acres. The applicant proposes ten residentia therefore satisfying these standard s. establish a general density of one dwelling per lots on the 106.9 -acre Tree Farm property, 7. 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 chaster development, the owner ,shall submit proof of deed restrictions recorded in the County records. The deed restrictions shall preclude' all future rights to construct a residential dwelling, 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 duster development plan, unless the whole development is brought inside an urban growth boundary. If open,, space is to be owned by a homeowner's association or if private roads are approved, a homeowner's association must 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 falling of the final plan 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 3 shows the 83.8 acres of open space would be platted as a separate tract. The Hearings Officer the applicant will be required to show the Tree Farm 3 open space as a separate tract on the final plat as a condition of approval. 26 The record indicates'' the only gap between residential lots within The Tree Farm — other than those created by roads — is proposed between Lot 37 in Tree Farm 4 and Lot 43 in Tree Farm 5. The p indicates this gap is located at a natural topographic break and existing wildlife corridor between Tut alo Creek and the nigher ground on the subject property. Tree Farm 3 247--14-000246-CU, 247 -14 -000247 -TP Pads. 55 of 114 The applicant submitted as Exhibit "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 applicantwill be required as a condition of approval, and prior to submitting for final approval any plat for Tree Farrn development, to provide to the Planning Division for county review and approval a copy, of the required deed restric ions, 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 WIMP' aloe 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 I~H0A.2' 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 Title17, 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 planned or duster development or required by the County during cluster development review shall be subtracted from the gross acreage of the cluster development prior to calculating compliance with open space requirements. Fl N DIN GS: The a. private road b. private P roa d u e nn gs Officer find s this subsection establishes the following,' s are permitted in Tree Farm 3; D ands u t meet the county's private road standards; maintenance agreement acceptable to the county must be executed; and Exhibit "0" to the applicant`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 public 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;g„ 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 3. - ree F 14 -000246 -CU, 247 -14 -000247 -TP Page 56 of 114 d. public roads may be, req treet continua u red in the su bdivision where: tion standards in Title 17 call forstreet connections; and 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 two private roads in Tree Farm 3 --4 Golden Mantle Loop and Ridgeline Drive -L and to improve these roads to the applicable county standards for local' private roads including 20 feet of paved surface. In addition, the applicant proposes to dedicate to the public 60 feet of right-of-way for Sage Steppe Drive in Tree Farm 1 in order to provide future public road access to the adjoining Rio Lobo property to the north and an emergency access road through the adjoining, Miller Tree Farm property to the south. Ridgeline Drive will connect with Tree Farm Drive in Tree Farms 1, 2 and3 to provide access to Skyliners Road for the residential lots in Tree Farms 1, 2 and 3. The applicant proposes that all Tree Farm roads will be owned and managed by The Tree Farm HOA. The Hearings Officer finds the applicant ill be required as a condition of approval to execute a road maintenance agreement ceptable to the county and to record such agreement prior to submitting for approval the>f€nal plat for any Tree Farm development. The record indicates there are no existing streets on surrounding lands for which a connection to allow continuation of such street is required. Section 17.36.020(3) 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 Skyliners Road because such a public road is not necessary to accommodate present and future through traffic within The Tree Farm or from the Rio Lobo property. Based on the foregoing findings, the Hearings Officer finds that with imposition of the conditions of approval described above, Tree Fara 3 will satisfy this criterion. 9. Al! service connections shall be the rninimu necessary and underground where feasible, , length FINDINGS: : The preliminary utility', plan for Tree Farm 3, Exhibit y` E" 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 wi assure service connections are the minimum length necessary= therefore satisfying this criterion. FIN DINGS: The a northeast corner of 10, The number of,new dwelling units to not exceed 10. The number of not exceed 10.. r1 ew 0 :s or pare be clustered does els to be created pplicant proposes ten residential' lots in Tree Fara the development, therefore satisfying these criteria. Tree Farm 3, 247-14-Q 0246 CU 247-14-00 247 -TP clustered d near the Page 57 of 114. 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 cunity.. FINDING: Applicantproposes to serve the residential lots in Tree Farm 3 with individual `>.on- site septic systems, therefore satisfying this criterion. The development 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. FIND NG As discussed in detail in the findings above concerning compliance with the applicable administrative rules in OAR 60-004-040 and the general conditional use standards in Chapter 18.128, incorporated by reference herein, the Hearings Officer finds Tree Farm 3 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. 14. All dwellings in a cluster development must be setback a minimum of 100 feet from the boundary line' of an adjacent '''lot zoned Exclusive Farm Use that is receiving special assessment for farm use, FINDINGS; The Hearings Offi zoned Exclusive Farm Use (E cer finds this criterion is not applicable because there are no lands FU) adjacent to the subject property, C. All applications shall be accompanied b following information: y a plan with the A plat map meeting all the subdivision requirements of DCC Title 17, the Subdivision/Partition Ordinance. A draft of the deed restrictions requ 18.128.200(8)(7) ed by DCC FINDINGS- The applicant submitted a tentative plan for Tree Farm 3 including a plat map showing a information required under Title 17. In addition, the applicant submitted as Exhibit o 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 perrnanentiy prohibit development on these tracts. For these reasons, and with imposition of the conditions of approval described above, I' find Tree Farm 3 satisfies this criterion. Tree Far€m°3, 247-1 A written document establishing an acceptable homeowners association assuring the € aintenance of common property, if any, in the development. The document shall include a method for the resolution of disputes by the association membership, and shall be included as part of the bylaw 0246 CU, 247 -14 -00247 -IP Page 58 of 114 Fl H NDING : The applicant submitted as part of Exhibit "L" to the, burden of proof CC&FRs and OA bylaws, therefore satisfying this criterion. 4. In the WA Comb ning Zone, the applicant shall submit an evaluation of the property with a Wildlife Management Plan for the open space area, prepared by a>wildlife biologist that includes the following: FIN find find 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 n the comprehensive plan; and A description 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 times 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. DINGS: The applicant submitted a WMP as Exhibit "l„ to the burden, of proof. Based on the Ings above concerning the WMP, incorporated by reference herein, the Hearings Officer s the management plan contains the information required in this subsection. 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 is appropriate. FINDINGS: The applicant's burden of proof includes aerial photographs of The Tree Farm and surrounding property as well as a narrative desc iption of the natural landscape features and proposed open space areas in Tree Farm 3. The applicant does not propose to introduce any landscaping, 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 ridgetop dwellings;. Therefore, l find the applicant has not fully satisfied this criterion. -Toe Farm 3, 247-14- 00246 -CU. 247-14-00 247 -TP Pag e 59 if 114 A description of the pro posed, if any. f ry r aricul al uses FINDINGS: The applicant's burden of proof states no agriculturaluses are proposed for Tree Farm 3, 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 proposal provides all infarrrratian required by these criteria. Dimensional Standards: Setbacks and height limitations snail 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. FINDINGS: The setback and height limitations in the RR -10 and UAR-1O Zones are discussed in the findings above and be ow. The Hearings Officer has found the applicant will be required as a condition of approval to meet these standards for the dwellings in Tree Farm 3, 2. d linimum area for a cluster development shall be etermined by the zone in which it is proposed. FIND : The 104,2 -acre Tree Farm 3 meets the 40 -acre minimum size for a cluster development in the WA Zone. The RR -1O Zone does not establish a minimum size for duster developments.> As discussed in the findings below, Tree Farm 3 satisfies the five -acre minimum size for a planned unit development in the UAR-1 O Zone: Cos ditions for phased development shall be specified and performance bonds shall be required by the PanningDirector Body to assure completion of the project as f required improvements are not completed prior or sti condition of approval, to construct all subdivision roads with the applicable standards in Title 17 for focal public and private roads Bicycle and pedestrian connections shall be provided at the ends of cul-de-sacs, at raid -block, between subda son plats, etc., in the following situations. Connections shall have a 20 foot right of way, with at least a 10 -foot wide useable surface, shallbe as straight as possible, and shall not be more than 400 feet long. FIND iNGS: The applicant submitted as Exhibit "C" to its burden of proof for Tree Farre 3 a "Trail, Plan" that shows four types of trails within the Tree Farm: 1. a 10 -foot -wide paved section of Tree Farre Drive from from Skyflners Road to a po 3; nt in Tree Farm 2. several 8 -foot -wide "neighborhood trails" running along the private Tree Farm roads; 3. recreation/mountain bike trails leading acrossthe open s of The Tree Farm and connecting with the existing tram' syst pace in the RR-10/WA. zoned portion em in Shevlin Park; and 4. existing "perimeter trails" with "native surface" traversing the open space in the RR-10ANA: 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 Rid ellne 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 cul-de-sac and the nearest eastern and southern boundaries of Tree Farrar 1. As discussed in the findings above, Sage Steppe Drive in Tree Farm 1 i proposed to be stubbed off at the northern and souther€ i 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 would connect with 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 found in my decision in Tree Farm 1 that no bicycle connections are required either at the end of the RidgeIine cul-de-sac or mid -block anywhere in Tree Farm 1. I also find no mid -block bicycle connections are required in Tree Farm 3. 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 50 percent over other available routes. For school's coruit erciai, uses hers the addition of a connection will reduce the walking or cycling distance to an existing or planned transit stop, school, 28 The staff report states the three schools a Hearings Officer finds that calculation is n nsistent ted approximately 450 fe th the scale shown on Tree Farm 3, 247.-14 000246- U, 247-14-00 247 -TP Tree Farm 2, The Page 61 of 114 shopping center, or neighborhood park by 200 feet or by at least60 percent over other available routes, For cul de sacs or dead end streets where a street connection is determined by the l earings Officer or Planning Director to be unfeasible or inappropriate provided that a bicycle or pedestrian conriection 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 duster development without bicycle or pedestrian connections if connections interfere with '' wildlife passage through the subdivision, harm wildlife habitat' or alter landscape approved 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 found in my decision in Tree Farm 1 that a bicycle and pedestrian connection at the cul-de-sac ' end of F;idgeline Drive is unfeasible and nappropriate. I note that the proposed trail system in The Tree Fara will connect the cul-de-sac at the western end of Canopy Court in Tree Farm 5 to Shevhn Park and to the DNF to the westi. 11. A Conditions of Approval Agreement for the cluster development shall be recorded prior to or concurrent with the final plat for the development FIND NGS: The Hearings Officer finds the applicant will be required as a condition of approval to record a Conditions of Approval Agreement in accordance with this paragraph. For the foregoing reasons, the Hearings Officer has failed to demonstrate Tree Farm satisfy al', applicable conditional use criteria in Chapter 18.128 D. Title 19 of the D Ord iaiance eschu U -p ZONE STANDARDS tes County Cod e, the Bend Urban Growth Bound Chapter 19.12, Urban Area Reserve Zone UA n10 a. Section 19.12.010, Purpose will a Zoni'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 long as possible as useful open space until, needed for orderly, growth., FINDINGS: Opponent Ch purpose statement for the ritine Herrick argues the applicant's propose LIAR -10 Zone which she believes requires the l conflicts with the portion of The Tree Tree Farre 3, 247 14-000246-C1J, 247-14-00 247 -TP Page 62 of 114 Farm located in the UAR 10 Zone to remain in open space "as long as possible." The Hearings 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. SElt l v. City of Happy Valley, 58 Or LURA 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. Section 1912O30, Con ditionall U ses FINDINGS: Opponents Christine Herrick and Ruth Zdanowicz argue that conditional uses in the UA -10 Zone 'must comply with the Statewide loads for land use. They are mistaken. The statewide goals are implemented through the county's acknowledged comprehensive plans and zoning ordinances, and therefore are not, directly applicable to the applicant's quasi-judicial, land use application. The following conditional uses may be permitted subject to a conditional use permit and the provisions of OCC 19 76 and 19 100 Pia nne du evelo pment su bj c DCC 19.1€0. FINDINGS: S: The applicant requests conditional use approval to establish Tree Farm as a PU D. Section 19.04.040 defines PUD as: * :* 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, baflk or type of dwelling, density, lot coverage or required open space to the standard regulations otherwise required by DCC T€tle 19. The applicant proposes that Tree Farm 3 be approved as a stand-alone subd vision with ten 2 - acre residential lots, an 83.8 -acre open space tract, segments of private roads and multi -use, paths. 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 3 be developed concurrently with Tree Farms 1 and 2 to assure access to Skyliners 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 3 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 3 as a whole, I will apply the provisions of Title 19 to the entire Tree Farm 3 and not just to those portions of the development zoned UAR- 10, Compliance with Chapters 19.76, 19.100, and 19,1€0 is addressed in the findings below. Section 19.12.040, Tree Farms 3, 247- -00 Heig ht Regulations No building or structure shall be hereafter e structurally altered to exceed 30 feet in height. 46 -CU, 247 -14 -000247 --TP cte d enl rade d or Page 63 of 114 FINDINGS: The Hearings Officer finds the applicant will be, required as a condition of approval to assure ail dwellings in Tree Farm 3 meet the 0 -foot height limitation. I find building height will be verified at the time of building plan review, permitting and inspections. d. Section 19.1 .050, Lot Requirements The followi Lot ng requirements shall be observed: Area. F ch I of shallhave inimum a ea oft ac Lot 4idth', Each lot shall have a minimum average width of 300 feet with a minimum street frontage 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 plan or Official' Map, except that, any lot of record less than one acre in size lawfully created prior to (effect date of this title) shall have a minimum front yard of 30 feet, Side Yard. There shall be a minimum side yard of 10 feet. Rear Ya F. So Q rd. There shall' be a minima ar Setback. The solar setbac CC 19.88.210. ata k sha r yard of 60 feet. be as prescribed in FINDING 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 Fare cluster/PUDs For the foregoing reasons, the Hearings Officer finds Tree Farm 3 satisfies all appliica standards in the UARw10 Zone in Chapter 19.12. !Die SITE PLAN REVIEW F D Cha pter 19.76, Site Plan Review Section 19.76.070, Site Pia n Criteria NGS: As set forth above, Section 19.12.030 states PUDs are subject to site plan review; Approval of a site plan shall be based on the following criteria: A. Safety and Privacy. Residential site plans shall be designed to provide a , safe,, lhvie,r wironment while offering appropriate opportunities for privacy and transitions from public to private spaces. FINDINGS: As discussed in detail Hearings Officer has found the in the findings above, incorporated by reference h Fa erein€,, the, pplicant failed to demonstrate the site for Tree MI is Tree Farm 3, 247 -14 -000246 -CU, 247.14-00 247 -TP Page 64 of 114 suitable for the proposed cluster/PUD considering wildfire risk. For those same reasons. 1 find the applicant has not demonstrated the site plan for Tree Farm 3 i designed to provide a safe living environment. Therefore, 1 f nd Tree Farm 3 does not satisfy this criterion, B. Special Needs of Disabled. When deemed appropriates the site plan shall provide for the special needs of disabled' persons, such as ramps for wheelchairs, drop curbs and disabled parking stallse FINDINGS: 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 3 will be designed and constructed in accordance with applicablerequirements 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, l 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 3 satisfies this criterion. C, Preservation of Natural Landscape. The landscape and existing grade shall be preserved to the maximum practical degree, considering development constraints and suitability of the landscape' or grade to serve the applicant's »functionsr, Preserved trees and shrubs shall be protected during construction. FINDINGS: The applicant proposes to preserve 83.8 acres of the 108,9 -acre Tree Farm 3 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 Farre or on other relatively <level areas, The dwellings in Tree Farm 3 would''' be clustered near the northern border of the cluster/PUD on relatively level ground. Finally, the 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 applicant's wildfire plan nor \NMP 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 3 is ,suitable for the proposed cluster/PUD and is compatible with surrounding properties. Therefore, 1 find the applicant has not demonstrated com€piiance 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. F NDlN GS: The Tree Farm tentative plans show the development' will have access from Skyliners Road via Tree Farm Dri se, improved with a 26 -foot -wide paved surface, and with a system of public and private roads connecting with Tree Farm Drive and developed with a 20- Tre Far€n 3, 247.14 -000€246 -CU, 247 -'14 -000247 -TP Page 5 of 14 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 will avoid road congestion, therefore satisfying this criterion. Buffering and Screening. Areas, structures and facilities for storage, machinery and equipment, services (mall, refuse, utility wires and the like), loading and, parking and similar' accessory areas and structures ,.shall be designed, located, buffered or screened to minimize adverse impacts to the site and neighboring properties, FINDINGS: The applicant's burden of proof and tentative plans indicate none of the above- described structures or uses is proposed for Tree Farm 3. Therefore, the Hearings Officer finds this criterion is not applicable. F. Utilities. All utility installations above ground, f s allowed, shall be located so as to minimize adverse on the site and neighboring properties, c m l are pacts FINDIN : 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 € 3. The applicant'' proposes that all new utilities be located underground. Therefore, l find this criterion is not applicable to Tree Farm 3, G Publ Burd lc Facilltie en on public s FIND N GS: s. The proposed ystem. h se shall not be an un facilities, such as due the street, sewer or water Streets. A-. discussed in the findings above, the applicant's 'traffic study, included in the record as Exhibit H" to the applicant's burden of proof for Tree Farm , shows traffic predicted to be generated by The Tree Farre will not cause affected transportation facilities t 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 facilities to accommodate Tree Farm traffic. Sewage Disposal. The Tree Farm will be served by individual on-site septic disposal systems. No connection to the city's sewer system is proposed. The applicant submitted as Exhibit "F'" to the Tree Farm 3 burden of proof a septic suitability study demonstrating soils on The Tree Farm, and Tree Farm 3 are suitable for on-site sewage disposal. Tree Farm 3, 247-14--OOO246-C 47-.4 00247 -TP Pag e66of114 Water. The applicant proposes to provide domestic water to The Tree Farm residential » lots through one of three sources: (1) extension of and connection to the City of Bend water system (2) extension of and connection to Avian 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 analysis for serving The Tree Farm with city water. That analysis and supporting documents, dated August 1, 2014, are included in the record as Exhibit "G" to the Tree Farm, 3 burden of proof. in addition, to diagrams labeled "Preliminary Utility Plan" are included in Exhibit "E" to the Tree Farm 3 burden of proof, One of those diagrams is a version of the diagram included in Exhibit "G" 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 installation of 12 -inch and 24 -inch diameter water mains within The Tree Farm. However, the analysis cautioned''' no such water connection could be made until the city's 'Outback Mernbrane Water Facility" is constructed and operational, and 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 sten pressure and flow for domestic use. 40 20 2,0 psi (pounds per square inch psi residual' pressure; and 00 gpm (gal ons per minute) fo dards eq uire the pressure at peak periods;' r fire flow. following%, minimur date r The color -coded' diagrams included in Exhibits "E" and "G" to the Tree Farm 3 burden of proof show that most of the water mains in The Tree Farm could be 24 inches in diare er, but that the mains would need to be 12 inches in diameter along the 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 gpm 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 "F" 'includes a notation that "all homes incl. services with booster pumps." The Hearings understands this note to mean the applicant proposes that water service for each residential lot'wi I have a pump boosting pressure to achieve the minimum psi, established in the city's minimum s andards. 29 The Hearings Officer and erstands this acuity was and Tree Farm >3, 247 -14 -000246 -CU, 247 -14 -000247 -TP er anon when this record closed.. Page 67 of 114 Based on the city's water analysis, the Hearings Officer finds that if water is provided to Tree Farm 3 through extension of city water service as proposed by the applicant and with necessary city approvals, Tree Farm 3 will not, place an undue burden on the city's water facilities. In his December 11, 2014 letter on behalf' of LandWatch, Paul Dewey stated: Given the uncertainty as to the eventual source of water and whether all of the possible,; sources will have adequate pressure, the Applicant should be requ re to provide more specific information and the public be given the opportunity to comment on 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 3 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 3 that demonstrate 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.3° Finally, Mr. Boggs noted l' idler Tree Farm has a quasi-municipai water right for 350 gpm for propertyincluding The Tree Fenn. 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 vrould 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 lots. For the foregoing reasons, the Hearings Officer finds that if the applicant elects; or'''i5 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 for Tree Farm 3, and before submitting, for approval the final }Mat for any Tree Farm 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 flow, For the foregoing reasons, and with imposition of the conditions of approval described above, the Hearings Officer finds Tree Farm 3 satisfies this criterion. The record indicates the 37 lest+ served by individual on-site wells. -1,'he Highlands at Broken Top south across kyliners Road are Farr , 3, 247 -14 -000246 -CU, 247 -14 -000247 -TP Page 6 of 114 Section 19.76.080, Required Minimum Standards Minimum Landscaping tandards. All developments subject to site plan approval shall meet the, following minimum standards for landscaping: 1. A minimum of 15 percent of the area of a project shall be landscaped for multifamily, commercial and industrial developments, subject to site plan approval' and the following requirements FINDINGS: The Hearings Officer fir Subsection (1) ,is not applicable to Tree industrial use. ds the 15 -percent Farm 3 because it landscape area not a€ltli fan�i requirement in y, commercia 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 o . FIND NGS: The app lleant 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. Areas of commercial and industrial zones, used for vehicle maneuvering, parking, loading or storage shall be 'landscaped and screened as fdllcws:., . . FINDING; The Hearings Officer finds this criterion is not a does not include multi -family, commercial, or industrial uses. 4. Required msintaine d` pplica ble to Tree Farr€ because it landscaping shall bs continuously Vegetation planted in accordance with an approved site plan shall be maintained by the owner, any heir or assignee. plants or trees that die or are damaged shall be replaced and maintained. FINDINGS: The applicant has requested an exception to these requ€irem€ents under Ch 19.104. As discussed in the findings below, the Hearings Officer has found this excepti justified by the benefits provided by The Tree Farm. B. Shared Areas. <Usable outdoor recreation space shall be provided for the shared use of residents and their guests in any apartment residential! development follows FINDING. The Hearing is not an apartment resid s Officer finds this criterion is not applicable to Tree Farm 3 because entia d evdioprnent. Tree Farm 3, 247'=14 -000246 -CU, 247:,14.000247 -Tib 'a ge69of114`` Storage. Areas shall be provided, hi residential develops tints 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 lot within each dwelling, garage, and/or accessory structure. Therefore, 1 find the applicants proposal satisfies this criterion. D Drainag e. s ace drainage shall be co ntained on site. FINDINGS: The applicant's submitted site plan and burden of proof for Tree Farm 3 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 na ural drainage way via a roadside ditch and culvert. Because of the site's topography, na ural drainage patterns on The Tree Farm generally are toward Turalo 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 irnpervious 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 calc'olations determine additional runoff storage is needed, the applicant 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 Hearings Officer found in my decision in Tree Farms 1 that the applicant will be required as a condition of approval, and prior to submitting the final plat/ for any part of The Tree Farm 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 for Tree Farm 1 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. Fi be N DIN ca park E. Bicycle Parking. The development shall provide the number and type of bicycle parking facility as required in DCC 198O080 ;,and 19 80 090. The location and design of bicycle parking facilities shall be shown on the site plan. GS- The Hearings Officer finds Tree Farm 3 is not required to provide bicycle parking use it is not subject to Sections 19.80.080 and 1980090. That is because off-street bicycle ng is not required for single-family dwellings, and Tree Farm 3 will not include any of the uses for which off-street bicycle parking is required. F. Interne l 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 building entrances to one another and from building entrances to public street and existing or planned transit 'stops.;, On site walkways shall connect with walkways, sidewalks, bikeways, and other pedestrian or Tree Farm>3, 247 -14 -070246 -CU, 247-14- 024I -TP Page 70 t f 4 RN bicycle connection on adjacent properties planned or used for commercial, multifamily, institutional or park use. DINGS. The Hearings Officer finds these criteria are not applicable to Tree Fang because it is n of a neoffice park or commercial development, G, Public Transit Orientation. New retail, office and institutional 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 criterion is not a is not a new retail, office or institutional use. For the foregoing rea the conditions of a under Title 19 pplicable to Tree Farm 3 because it sons, the Hearings Officer finds Tree Farm 3 satisfies, or with imposition of applicable site plan requirements pprovai described above will satisfy, al URBAN AREA CONDITIONAL USE CRITERIA Fl NlDl 3. NGS: ha pter 19.10 Sec 0, Conditional Use permits tion 19.100.030, Ge nera l Conditional U s e Crlte ria A conditional use permit may be granted only upon flndm s by the Planning Direc or or Hearings Body that the proposal meets all of the criteria in DCC 19A00.030, as well as all other applicable criteria contained in DCC Title 19, The general criteria are: A. That the location, size, design and operating characteristics of the proposed use, are such, that it will have minima 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 10 and located approxi east of Shevlin Park. is located; north of Skyliners Road mately 4,000 feet west of the Bend 0 n property zoned UAR-10 and RR- UGB and approximately 2,000 feet Size. Tree Farr' 3 is 106.9 acres in size and is west of Tree Farms 1 and 2. Tree Farm 3 would be developed with .2.0 <acres of residential lots. "83:8 acres of open spa re, and 3.1 acres of road right-of-way Operating Characteristics, The proposed ten residential lots in Tree Farm 3 would be clustered in the north -central part of The Tree Fara on higher, relatively level ground. All' ots would have frontage on Golden Mantle Loop, a private road developed' to the county's private Tree =arm 3, 247 -14 -000246 -CU, 247 14 -000247 -TP Page 71 of 114 local road standards. Golden Mantle Loop would connect with Ridgeline,,Drive northeast of Lots 21 and 30 in Tree Farm 2, and would connect with Tree Farm Drive rw the primary PUD road that, intersects with Skyliners Road am west of Lots 25 and 26 in Tree Fara 3. 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 wll,l 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 Fare 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, would be served by an on-site 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 3 (83.8 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 Fara HOA for use of trails within the residential lot areas in Tree Farm 3. The path and trail 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 3 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 cluster,PUDs for The Tree Farm in order to provide a transition area between urban and urbanizable lands to the east and Sh vlin 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, similar 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 UlAR-10 zoned parcel because it will not provide a public road from Rio Lobo's southern boundary to Skyliners Road to facilitate through traffic from Rio Lobo's property, and because most Tree Farre dwellings would be clustered along or €sear 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 Fara configuration will not preclude Rio Lobo from developing', its property at urban or urban € ? serve densities r: in the futurre. LandWatch and other opponents argue the site for Tree Farm 3 is not suitable for the proposed cluterlPUD 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 is suitable for the proposed clusterIPUD Tree Fara 3, 247.14 -00024$ -CU, 247 -14 -000247 -TP Page 72. of 114 considering wildlife habitat and wildfire risk. For the same reasons, I find the applicant has not demonstrated The Tree Farm will be cornpatible with She lin Park and the public and private forest lands to the west considering wildfire risk, and therefore it does not satisfy this criterion. 2. Traffic Patterns and Street Capacity. As discussed above, the Hearings Officer has found from the applicant's traffic study, and the lack of any recomrendations''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 3 site will be suitable for the proposed cluster/PUD considering the adequacy of transportation access. For the same reasons, 1 find Tree Farm 3 will have minima if any adverse impacts on property value, livability and permissible development of the surrounding area considering traffic patterns and street capacity. Fort he foregoing reasons, the Hearings Officer finds Tree Farm 3 satisfies this criterion, B. That the site planning of the proposed use will, as far as reasonably possible, provide an aesthetically ple.sing and functional >environment to the highest degree consistent, with the nature of the use and the given setting,. FINDINGS: The design of Tree Farm 3 includes two -acre residential lots clustered in the north central part of The Tree Farm and well away from Skyliners Road, 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 the 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 recreational trails within The Tree Farm 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 Heanngs Officer finds the site planning for Tree Farm 3 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 3 dwellings would be substantially screened from Skyliners Road by existing topography and vegetation. Most of Tree Farm 3 would remain in a natural state. Roads and trails would provide a functional circulation system for residents and guests, and the property's proximity to the Bend UGB would allow easy access to schools and other urban uses, Finally, 1 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 ., F', he foregoing reasons, the Hearings Officer find C. Tree Farm satisfies crite rio €. That if the use is permitted outright in another zone, there is substantial reason for locating the use an area where it is only conditionally allowed, as opposed to an area where it is permitted outright., FINDINGS: The Hearings Officer finds no othe permitted use. Tree Farm 3, 247 -14 -000246 -CU, 247 -14 -000247 -TP r' allow a resid tie Pu D as an outright Page _ ao11 That the proposed use wiil be cornsistent'rith 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 UAR-10 Zone in Section 19.12.010 does not constitute an approval criterion for quasi-judicial, and use applications. Section ''19.44.020 identifies several purposes for Title 19, lincluding providing the principle means for implementing the Bend Area General Plan, and providing a means of classifying, designating and regulating development in the Bend urban area. The purpose statement uses a number of aspirational terms, such as to "encourage," "consen,Fe" 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 Farm 3. Copliance with the applicable administrative rules is addressed in the findings above. Compliance with applicable comprehensive plan policies is addressed in the findings below. l` have found the Statewide Land Use Planning Goals are not directly applicable to the applicant's proposal. Pinally, compliance' with Title 19 is the findings above and below. For the foregoing reasons, the Hearings Officer finds Tree Farm 3 satisfies, or with imposition of the conditions of approval described above will satisfy, all UAR 10 Zone conditional use approval criteria. PUD STANDARDS 4. Chapter 19.104, planta edU nit Deveio Section 19.104.010, Purpose p ent The purpose of planned ' unit developrraea t approval is to allow and to make possible greater variety and diversification In the relationships between buildings and open spaces In planned building groups, while ensuring compliance with the purposes and objectives of the various zoning regulations and the intent and purpose of DCC 'Title 19. FINDINGS: : As discussed above, unless the text or context of a purpose st ternent indicates otherwise, such statement does not establish approval standards for quasi-judicial land use applications. The Hearings Officer finds use of the ''terms "make possible, ensuring compliance," and `intent and, purpose's indicates the PUD purpose statement is aspirational and therefore does not establish approval criteria for Tree Farm 3. b. Section 19.104.040, Minimum Size for Planned Unit Developments No application shall be accepted for an area of less than five acres in any R zone, or for an area of less than four acres in any other zon e. FINDINGS: : Each Tree Farm development including Tree Farm 3 is at Ist 104 acres in size, therefore satisfying this standard. Section 19.104.070 s tandard Tree Far re# 3, 247-14- 0246 -CU, 24>7 14 -000247 -TP form pproval Page 74 of 114 n grantingapproval for Body or Plannin plan Director shat ped emit deve be uid opmen€t, the Heariings ed by t he following:, A. Whether applicant has, through investigation, planrung 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 actin by the County, , or within such longer period of time as may be established by the Hearings Body or Planning Director. FINDING: The Hearings Officer finds that read in the context of the rest of this paragraph, the term soundness connotes the feasibility m financial and physical — of developing The Tree Farm and Tree Farm 3. 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 Skylirier TWS, 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 condition of approval to begin construction of Tree Farm 3 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, l find the applicant's proposal satisfies this criterion. Whether the proposal conforms with the gen County in terms of location and genet standard. al plans of the development FINDINGS: The Hearings Officer finds Tree Farm 3 s proposed for land designated and zoned for residential development and in which residentia cluster/PUUDs are permitted conditionally. In addition, as discussed in the findings below, l have found Tree Farm 3 is consistent with applicable plan policies. Therefore, l find Tree Farm 3 conforms to the city and county comprehensive plans, FIND! The T N C. Whether the project will accrue benefits to the County and the general public in terms of need, convenience, service and appearance sufficient to justify any necessary exceptions to the regulations of the zoning and subdivision ordinances. GS: The applicant has requ ree Farre and Tree Farm 3: 1. 'two -a 18 60.06 ore 0 or 2 residentia the ten -acre r e to d exceptions to the following stand lot size rather than the five -acre rninimurr ze under Section 19.12.050: thirty-foot front yard 12.050; Tree Farm 3, 247-14-0 setba 0024 cks ra ther ards applicable to of size under Section than the fifty -foot front yard setback under Section 247 -14 -000247 -TP Pag e 5df114 17.3 rss than fifty feet of street ontag 6.180; 4. redu 19.12.0 e for Lot 1 ction in the milnirrru€ r average lot wid 50 for Lot 1 in Tree Farm 1 h and in Tre e Farm 1 requ€i red by Section eet frontage standards under Section 5. no street trees rather than street trees as ired by Section 19.76,080(A)()' 6. no introduced landscaping or maintenance thereof; 7. eight -foot -ride bicycle and required by Section 19.104.080 pedestr (F); an an mul use paths rathe 8. no road/bicycle path connections at 400 -foot inte adjacent Frio Lobo and Miller Tree Farm properties., The applicant argues The Tree county and the general public: Ff els a r than to n$foot wide paths a s ong The Tree Farm's borders with the and Tree Farm 3 Will accrue the foil 1. creating two -acre residential cats rather than five- or ten -acre l acres of The Tree Farr€, and 20 acres of Tree Fara 3; 2. preserving over 83 Tree Farm as a whole acres of o pen space in Tree Farr 3. making the PUD roads access g benefits to the and cls€sterinra lots on 10 and 423 acres of pen ble to the public through public access easements; 0 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 3 to the trail systems in Shevlin Park and the IDNF 5. minimizing impacts to habitat in the Tumalo wl€iter deer range through small; clustered' residential lots, large open space tracts, preservation of € rost native vegetation; and reduction in fire fuels; 6. providing a d The Tree Farm; 7. designing reduce wildfi €gestic water system for the dwellings and fire hydrants to aid and managing, The Tree re risk; Farm and re pr € taction on Tree Farm 3 as a ''Fire Wise Co € munity" to 8 configuring The Tree Farm and Tree Farm 3to establish' a permanent low-density transition area between urban and urbanizable lands to the east and Shevlln Park and the extensive public and private forest lands to the west; and 9. providing 50 new dwellings to address the ,demand for new horTie sites ori Bend. the est sid e of LandWatch again argues the analysis required by this section should not compare the applicant's proposed chaster./PUD with alternative subdivision configurations such as a Tree Far , 247 -14 -000246 -CU, 247 -14 -000247 -TP Page 76 of 114 traditional su In his Decerr bdivision with 10 -acre lots and dwellings spread throughout the 533-a ber 11, 2014 letter, Paul Dewey states: pro "There are apparently only five lots, so the current alternative would be five houses. Though ugh 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 added,) perty, As discussed above, the Hearings Officer has found there are reasons to conclude a traditional, subdivision with ten 10 -acre lots could 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 Farm with 37 mostly ten -acre lots and large open space areas on land zoned UAP. -10 that is close to the DNF, In addition. traditional 10 -acre lot` subdivisions in the AR -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, 1 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 Ferre 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, 1 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, 1 find Tree Farm 3 satisfies this criterion. 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 FINDINGS: The Hearings Officer has found on the basis of the applicant's traffic study that the addition of traffic generated by The Tree Farre will not exceed the capacity of affected transportation facilities, and no additional right-of-way or improvements are required` l 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 art 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, '1'''find Tree Farm 3 satisfies this criterion; Whether the project will; be compatible with adjacent' developments and will not adversely affect the character of the area. FINDINGS: The Hearings Officer has addressed virtually identical criteria in the findings above under Section 18.128.D15(3)(B). Based on those findings, incorporated by reference herein, i. find Tree Farm 3 satisfies this criterion with respect compatibility with the rural character of the area, and with adjacent property to the north, east and south. However.>l have found that in the absence of an adequate wildfire plan the applicant has not demonstrated The Tree Farm or Tree Farm 3 will be compatible with Shevlin Park and forest lands to the west. Tree Farm 3, 247 -14 -000246 -CU, 247-14-0 00247 -TP Page 77 cf 1 Fl N DI NGS: Whether the project will satisfactorily take care of sewer and water needs consistent with the Bend Urban Area General Plan. Sewer. The applicant,' proposes that each dwelling be served by an on-site septic system, and provided as Exhibit "F" to the Tree Farm 3 burden of proof a Preliminary Soils and Percolation Investigation prepared by FEI 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 Farm 3 are sufficiently deep (18-60 inches) and well -drained to accommodate either standard or capping -fill' on-site septic systems on each of The Tree Farm lots. The Hearings Officer finds that as a condition of approval the applicantwill be required to obtain from the county an approved septic site evaluation for each Tree Farm 3 lot., Wafer. The applicant proposes to provide domestic water o 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 Avian Water Company; or (3) through one 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 hom€esites 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. 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 gpm. Based on the foregoing findings, the Hearings Officer finds Tree Farm 3 satisfies, or with imposition of the conditions of approval described above will satisfy, this criterion. G. A planned unit development shall not be approved in any zone if the housing density of the proposed development will result in an intensity of land use greater than permitted by the Comprehensive Plan. FINDING not exceed one dwelling per ten acres, consistent with the general density permitted in 10 and LJAR-10 Zones, therefore satisfying this criterion. 5: The proposed density of each Tree Farm development including Tree Farm wil Tree Faun 3, 247-14-0 Section 19.1' 04.08 0, Standards and `'R e q uire m ents R RM Approval of a request for a planned unit development is dependent upon the submission of an acceptable plan and satisfactory 0246 -CU, 247 4--00024 TP a of 114 Fl NEM N assurance that it d a rds and require be carried out, The followin minimum' ents e ha II apply A. A dwelling use permitted in any zone may be pl anned unit development permitted n a GS- The applicant proposes ten residential lots for s Ingle-farrr€ily d arellings, a use allowed' in the LIAR -10 Zone. A manufactured home may be permitted in a plannedunit> development be allowed in However, manufactured home parks shall not a ny commercial or industrial zone. FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant does not propose any manufactured homes or manufactured home parks. 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 lots 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 membershp in the association must be required of ail owners; adopt and record bylaws as provided by ORS 94.625; adopt bylaws that contain the provisions required by ORS 94.635; and have the power to create a Oen upon the unit or lot for services, labor or material lawfully chargeable, as, common expenses as provided In ORS 94.709. The association's power to create such a lien shall exist whether or not the property is subject to the Oregon Planned Community Act (ORS 94.565 rough 94.785.) FINDINGS: The Tree Farm will include private roads, a public road, multi -use paths, recreation trails, and open space that will be owned and managed by an HOA. The appl'icant's burden of proof for Tree Farm 3 states an HOA will be established, organized and maintained pursuant to applicable provisions of ORS Chapter 94. As discussed in the findings above, the applicant submitted'' as Exhibit "L" to its burden of proof a sample set of CC R's and HOA bylaws that will serve as the template for The Tree Farm CC&R s and HOA bylaws. The Hearings Officer finds the applicant will be required as a condition of approval to record CC&Rs and HOA bylaws pnor to submitting for approval the final plat for any Tree Farm development; 1 find that with imposition of this condition of approval, Tree Farm 3 Will satisfy this criterion. D. if the property is not subject to the Unit 'Ownership Law, the association shall also create, by contract, the right,'' to dale -I a lien upon any <unit or lot for services. labor or material chargeable as common expenses. This Oen may be created by covenants between the association and the property owners and shall supplement the Oen created by ''DCC 1,104.080(0 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 Tree Farm 3, 247-14-0:}0246-% U, 247 -14 -000247 -TP Page 79 of 114 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 3 are not subject to the Oregon Condominium Act (ORS 100.105 to 100.910), and therefore Section 19 104,08 (C) and (D) are applicable to this development E. Streets and roads in planned unit development designated developments shall be pubilc 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 pe rr ritted shall require minimum additional eight feet of width' for each side of parking. if pedestrian walkways 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 Plannirg Director or Hearings Body may specify other requirements including, but not limited to, increased or decreased pavement width FINDINGS: The applicant proposes that the private road in Tree Farm 3will be improved rith' 20 feet of pavement, and no on -street parking will be permitted. AH private Tree Farm roads 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 pedestrianibicycle 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 within Tree Farm 3, and on separate eight- and ten foot -wide paved pathways running parallel to the rest of The Tree Farm roads, 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 Ckyliners Road to provide for through traffic from future development of the Rio Lobo property. However, as discussed In the findings below. incorporated by reference herein, the Hearings Officer finds that section does not require dedication o a public road in the circumstances presented here. For the foregoing reasons, the H F. earings Officer finds Tree Farm 3 »satisfies this criterion: Pedestrian walkways and '''bikeways shall 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 >;least 10 feet in width to accommodate Tree Farm 3, 247 -14 -000246 -CU, 247 -14 -000247 -TP` Pag two way traffic and shall be constructed with portland cement or asphaltic concrete to county standards, except as varied;; by the provisions of DCC 19104.080 or by the Plannin Director or Hearings Body. g FINDINGS: The applicant proposes a system of paved multi -use paths and natural surface recreation trails throughout The Tree Farm and within Tree Farm 3 designed to accdrn€modate pedestrians and bicycles. According to the trail plan, Exhibit "C" to the applicant's burden of proof for Tree Farm 3, four types of trails are proposed: ('l)" ma€n 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 akyliners Road to the point where the path splits to go west to Sh vlin 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 'Far€x€.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 loser -use function for bicycle/pedestrian access within the homesite area. The applicant'' notes there are only 50 lots 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, l have found this requested exception is justified by the significantmunity benefits from the proposed clusterfPUD. For the fore g 0 reasons, the H ea rings Officerfinds Tree Farm 3 satisfies this criterion, G. All utility facil accord ance wi FINDING e The applicant proposes that this criterion ties shall be install th County standards, II nes u it ed a r derg be installed' underg round a r d i ri round, satisfying f I, The design of all planned'' unit development projects shall provide direct access for all units and ots to open space areas and facilities. Open space >.areas and facilities include such things as landscaped areas, natural areas, golf courses, and other recreational facilities, but do not ''include streets, sidewalks, bikeways, access corridors or trails FINDINGS. The tentative plan for Tree Farre 3 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. 39 The proposed ,recreation; rnou€Main biking trails would be soft -surface trails devel bike trail standards in Section 17.48.140(E). These trails would connect with the tr Park. The applicant's burden of proof states the existing perimeter trai's within tracts are composed primarily of old roads that will be converted to traiI use and surfaces. However, none of these trails is located in Tree Parra 2. Tree Farm 3, 247..14 -000246 -CU, 247-14-000247 -TP'' ped to the mountain it network in Shevlin m open space I l have native dirt Page :1 of 114 Fl N DI A statement must be submitted relative to the soar access to be provided by the planned unit d NGS: The applicant's burden of proof includ evelopment. es the following statement on solar access: 'An of the lots within The Tree Parer 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 access to the lots. However, many of the open ridge top lots in Tree Farm 1, 2 and 3 will lame nearly ideal solar access. Y, The Hearings Officer finds that the size and configuration of the ten Tree Farm 3 residential lots will assure a dwelling can be sited on each lot in compliance with the required solar access standard under Sections 18.60.O4O(D) and 19.12.0 0(), For the foregoing reasons, the Hearings Officer finds Tre the conditions of approval described'above will sat stand ards, E. Title 17 of the Desch Lite Co Linty Code, th SUBDIVISION STANDARDS Chapter 1716, Approval Su Development Plans FINDINGS: e Su eFarm'''' isfy, all' b d satisfies, or with imposition of pplicable urban area PUD a ivisionIPart b 'ivision on Ordin ano Tentative Plans a e nd Mast Section 17.1 .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 include91 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 natural features and resources such as strea s, lakes, natural vegetation, special terrain features, agricultural and forest lands and other natural resources, Orderly Development and Land Use Patterns in the Area. The applicant proposes to develop Tree Farm 3 as cluster/PUD' with an overall density of one dwelling' per ten acres as permitted in the RR 10 and UAf.-1 O Zones. This density is the same as that in The Highlands at Broken Top PUD located south across S'kyliners Road. However, untike that :development :with 37 ten -acre lots and dwellings scattered throughout the 390 -acre site, Tree Farm 3 would have 2 -acre residential lots clustered in the north -central part of The Tree Farm in order to preserve a large tract of open space. 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" urban table land to the east Tree Farr 3. 247 -14 -000246 -CU 24 -14-00024i-TP Page 2 of 4 and Shevlin Park and vast public and private forest lands to the west. The also applicant intends that The Tree Farm never will be annexed into the Bend GB or redeveloped. PUD roads would,' connect with Skyliners Road, and eventually with roads developed', on the Ilio Lobo property to the north and the Miller Tree Farm property to the east. As also 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 Farm 3 will contribute to orderly development and land use patterns in the area. Preservation of Natural Features and Resources. Natural features and resources on Tree Farm 3 consist of topography, native vegetation, and wildlife habitat. As discussed above, the applicant has proposed clusterlPUDs 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 grading and filling, and PUD roads will follow the sites` 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 3 by clustering most 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 and Tree Farm 3 will be compatible with Shevlin Park and forest lands to the west because its wildfire plan is inadequate. I also have found the applicant failed to demonstrate The Tree Farm and Tree Farm 3 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 3 is suitable for the proposed''cluster!PUD and is compatible with s€rrounding lands. For the same reasons, I find the applicant has not demonstrated Tree Farm wiII provide for the preservation of natural features and resources. The subdivision < will not create excessive demand on facilities and development. public, services, and utilities required to, serve the FINDINGS: The pubic facilities and services req uired treatment, water, roads, electricity,, natural gas, teleph protection. Each of these is addressed below. one a by Tree Farm 3 include sewage nd cable service, and police and fire 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 3 burden of Proof a septic suitability study showing the soils on Tree Farm 3 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 3 prior to final pat approval. Water, "lite apt' licarnt proposes toprovide dors `,tic 3 Ater to the residential l lois in Trema? Fan 3 through one of three options; (1) extending and connecting to City of Bend water service as proposed in the applicants 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 Tree Farr 3, 247 14-O 246a-UU, 247 -14 -000247 -TP Page 3 of t 14 capacity to serve the residential lots in Tree Farm 3, 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 Farm and Tree Fara 3 will not create excessive demand on the city's water system. However, I 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 residual 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 Far€n will not cause any affected transportation facilities to 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 addition a,i right-of-way', or improvements to affected transportation facilities. Electricity. The applicant submitted a will -serve letters from Pacific Power for electric service in Exhibit "G" to the Tree Farm 3 burden of proof. Natural Gas. The applicant `> submitted a will -serve later from Cas service in Exhibit "G" to the Tree Farm 3 burden of proof., c de N a ra Gas for gas, Telephone. The applicant sulbmitted a will -serve letter' from CenturyLink for telephone se Exhibit "G' to the Tree Fam 3 burden of proof, Cable. The applicant su bmitted a will -serve letter rm 3 burden of proof. Exhibit "G" to the Tree Fa Police. Police protection will be provided om Bend Broadband for cable' service in by the Deschutes County Sheriff Fire Protection. Fire;,,protection will be provided by the City 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 Farm, These comments can be summarized as follows: 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 Farm 3 and the gated temporary emergency access road in compliance 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 >final approval of the water supply system. The OFC states installation of fire hydrants along fire Tree Fara>' 247-14-000246-C , 247-14-000247- P Page 84 of 1 apparatus access roads may be required by the fire code official. Finally,' the OFC states that if fire hydrants are installed they must be nr farther than 400 feet apart. As discussed in detail in the findings above, incorporated by reference herein, the Heanngs 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 3 burden of proof, shows fire hydrants placed' at 400 -foot intervals along all PUD roads abutting the 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 Farm development, to, provide to the Planning Division a water system analysis from a registered professional engineer de€monstrating, 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 Nast 2,000 gpm for fire flow, 3. Other fire service features. The OFC requires that each dwelling in Tree Farm 3 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 3 will not create excessive demand on public facilities,, services and utilities required to serve the development. C. The tentative plan for the proposed subdivision meets the requlrea eats of Oregon Revised Statutes Section 92.090. FINDINGS: ORS 92090(1) states a new subdivision can only use the same name if it is a continuation of an existing subdivision, with a sequential nu€m€bering system, and must either be platted 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 through 5, with the overall project to be known as The Tree Farris. The Hearings Officer finds this subdivision name plan conforms to Subsection (1) of the statute. Subsection (2) of this statute requ€res that roads be laid out to conform with existing plats on adjoining property, that streets and roads held 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 plats 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 3. l find that with imposition of this condition of approval, Tree Farm 3 will comply with Subsection (2). Subsections (3), (4) and (5) €rf th to Tree Farm 3. e statute relate to final platting and therefore are not a For subdivisions or portions thereof pro Surface Mining Impact Area (SMA) zone sand Deschutes County Code . Tree Farre 3. 247 -14 -000245 -Cts, 247 -14_550247 -TP' p' e pplicable sed wit Title 18 him a of the Page £ 5 o 114 FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject property is not located >.wlthin , a SMIA Zone. The subdivision name Surveyor, has been approved by the C nty, FINDINGS: Exhibit "P' to the Tree Farm 3 burden of proof indicates the proposed names for The Tree Farm cluster/PUDs have been approved by the County Surveyor, therefore satisfying this criterion. b. Section 171 .10 5 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 arterial meets relevant County standards and has been accepted for maintenance purposes. FINDINGS: Access to Tree Farm 3 will be from Skyl`€ners Road, a designated county collector road improved to the county's collector road standards and maintained by the county, therefore satisfying this criterion; Secti€ rr 17.16:11 , Traffic r n pact Studies Guidelines for Traffic Irr pact Studiies The following vehicle trip generation,thresholds shall determine the level" and scope of transportation analysis required for a new or expanded development. ce Traffic Impact Analysis (TlA): d mo f the evelopment or change in use will generate re than 200 trip ends and 20 or more PM peak hour trips, then a Traffic Impact Analysis (TIA shall be required FINDINGS: The applicant subrrtted a traffic study prepared', by Kittelson & Associates, included'' in the record as Exhibit "H" to the burden of proof for Tree Farm 3., 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 Tree Farm 3, 247--14-0 00246-C u 247-1 4-0 00247 -TP Page 86 of l 14 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 Officer finds the applicant's proposal satisfies this criterion. 2. Chapter 173 6 Design Sta Section 17.36.020 ndards s treets 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 Farrn roads in conformance with the applicable county local road standards - i.e., the public local road standards for Sage Steppe Drive, and the private focal road standards for the private roads in Tree Farm 3. The proposed road layout generally follows the topographical contours of The Tree Farm and Tree Farm 3, 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 lstreets in adjoining partitions or subdivisions that require the continuation of those streets into Tree Farm 3. No alterations to road layout or design were identified by the road department. For these reasons, the Hearings Officer finds Tree Farrn 3 satisfies this criterion. Streets in subdivisions shall be dedicated to the public, unless located in a destination resort, planned community or planned or cluster development, where roads can be p ivately owned. pinned> develo €Hent§ shall arssrlude ubl'ic streets where necessary..'to,ac omrt odate resent and future throe g traffic, (Emphasis added) FINDINGS: With the exception of Sage Steppe Drive, the roads in The Tree Farm would be private roads as,, permitted for cluster/PBDs. Sage Steppe Drive would have a dedicated 60 -foot, engirt cof- a y to facilitate a future public road connection between the Rio Lobo property and Skyliners»Road or Crosby Road at such time 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 Farrn property to Crosby Drive. Tree Parra 3; 247-14-0 0024 CU, 247 -14 -0€00247 -TP Pane 87 of 114 The applicant states all private roads within The Tree Far b+ ubject to pu easements to be shown on the final plats for The Tree Farm,'2 In his August' 28, 2€ 14 comments on the applicant's proposel, George Kolb stated that Paragraph (B) 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 Farm 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 language in Paragraph (B) provides no discretion to deviate from the public road dedication requirement. The Hearings Officer disagrees. I find the plain anguage of this paragraph makes dear the public road requirement is contingent on a finding that such a road is "necessary to accommodate present and future through traffic." In his December 30, 2014 memorandum, Jeffrey Condit argued the dedication of public road right-of- way does not meet this "necessity' test, will be s blic acres Mr. Condit argues a requirement that all PUD roads, anchor 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 dollar v. California Coastal Gorrrnission, 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, LandWatch argues the Miller Tree Fara 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 applicant proposed offsite road improvements to which the off-site property owner consented. I 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, I have authority to deny an application if I 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 or a requirement to dedicate to the public the Tree Farm Roads identified by 32 In his January 6, 2015 let er on behalf of Rio Lobo, Miles Conway states the applicant is offering only a "temporary" public access easerr;ent 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>subdivlsio. Mr. Conwa is mistaken. The applicant's burden proof for Tree Farrn 3 makes clear 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 plat:" (Emphasis added.) It as the easement across the Miller Tree Farm property for the secondary emergency access road that will be 'interim" until such time as the Miller Tree Farm property is developed with public roads that will connect Sage Steppe Drive and Skylin,.rs Road. Tree Farm 3, 247.14 -00246 -CU, 247-14-00024' TP Pagesib:f114 Mr. Russell -- does not have a sufficient nex with, a impacts from The Tree Farm development. 1 agree wit December 30, 2014 letter as follows nd hM s not roughly proportional to, tr r. Condit's analysis, set forth in his "A public street is not necessary to accornrnode te 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 2014 analysis provided by Joe Bessrnan, PE, of Kittelson responding to Rio Lobo's December 11, 2014, testimony prepared by Marten Law and Lancaster Engineering (Witte/son Memo). The Kittelson Memo confirms that the local' street system proposed by the Applicant is more than sufficient to accommodate the development of up to 37 single-family home situs on the Rio Lobo Property.13 As the County notes, `,the transportation effects fon the surrounding street system]' of such nominal development would be de r linirnis,' x 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 minimum, would require a new traffic impact analysis and approval of a Master Plan, Most significantly, as noted in the Kittelson Memo, DCC 19.106,0060(C) requires all destination resorts to 'have direct access onto a state, county, or city.' arterial or collector roadway as designated by the Bend Area General Pian.' As discussed in more detail below. the only designated collector or arterial to which the Rio Lobo property currently has 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 an amendment to the Bend Area General Plan to designate such a roadway as a 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 innminent, viable, er would otherwise be compliance' with Chapter 19.106 Although UAR-10 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 properties.'' here are thus multiple future opportunities to obtain the necessary connections in the event the properties are added to the Up. Such speculative future development does not justify imposition of a condition requiring the Applicant to dedicate additional'' right-of-way or construct a street Tree Farm 3, 247 -14 -000246 -CU, 247 14 -000247 -TP' Page 89 of 114 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. Thal 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 cons ruction can be imposed at that time. The fact that Rio Lobo may have to await development of the Miller Property for the connection to Skylines Road to be dedicated and constructed puts Rio Lobo in no different position than it is ire not 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>Ciausa. 13lndeed, the County is only requesting dedication at additiright-of= questing any change in the construction car the street system. The reciuir i. local public streets and local private streets are virtually the same. See DCC Charster' t 7 Table A, 1 given the relative location of the Rio Lobo property vis-a-vis the Miller Property and the Anderson Ranch property [located north of the Rio Lobo property], which are directly' adjacent to the current`<Bend city limits, the Rio Lobo property is unlikely to be added to the Bend UGB unless or until (or after) the Miller and Anderson Ranch properties are added. ,, The Hearings Officer finds Section '17.3 .020(3) does not require the applicant to dedicate a public road -- either off-site or within The Tree Perna - as part of The Tree Farm development in order to provide access from the Rio Lobo property to Skyliners Road, b. Section 17.6.040, Existing St reets Whenever existing streets, adjacent to or within a tract, are of inadequate width to accommodate the increase in traffic expected from the subdivision or partition 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 p an for the subdivision or partition, the Planning Director or Hearings Body, together with the public Works Director, shall determine whether improvements to existing streets adjacent to or within the tract, are required. if so determined, such improvements shall be required as a condition of approval for the tentative plan. Improvements to adjacent streets shall be required where traffic on such streets will be directly affected by the proposed subdivision or partition, FlNOIt4GS: The only existing street adjacent to Tree Farm 3 is kyliners Road, a designated county collector road with a 60 -foot right-of-way, No additional right-of-way or other, improvement to Skyliners Road was identified, in the applicant's traffic study or by the road department, For these reasons, the Hearings Officer finds Tree Farrn 3 satisfies this criterion Tree Farm 3, 247-14-000246-C U; 247414 -000247 -TP Page 9 E of 114 Section 17.3 6.0 50, Continuation of Streets Subdivision or partition stre streets in ,contiguous tern centerlines <coincide ets whic ito ry h constitute the continuation shall be aligned so that th FINDING: The Hearings Officer finds this criterion is not applicable becaus no streets that would constitute a continuation of other streets. Section 17.36.060,,Minimu m Right of Way rid Road Tree Farm way Width of eilr The street right of way and € oadway surfacing widths shall be in conformance with standards and specifications set forth in chapter 17:43 of this title. Where chapter 17.48 refers to street standards found hi 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 applicant will be required to show those easements on the final plats for The Tree Farm. For these reasons, I find Tree Farm 3 satisfies this criterion. Section 17.360070, Future Resubdivision Where a tract of land is divided into lots or parcels of more, the Hearings Body may require an arrangement parcels and streets such as to permit future resubd conformity to the street requirements contained in this tit a n acre or of lots or ivision in eo FIND lNGS: The applicant's burden of proof for Tree Farm 3 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 Farris open space tracts that would'''' preclude further division or development thereof. However, as discussed in the findings above, the Hearings Officer has 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 Farm 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 3 permitting future resubdivision. Section 17.6.060, Future Extension of Streets When necessary to give access to or permit a satisfactory fut division of adjoining land, streets shall be extended to the bound f thee'"subdivision or partition ure ary 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-10 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 - Tr : Farm >;3, 247 -14 -000246 -CU, 247-14-000247-T1 Page91 cf114 site secondary emergency access roa Lobo property. For these reasons, I'' find d, to accom€modate, future through traffic from the Rio Tree Farm 3 satisfies this criterion. g.Section 17,3 6100, Frontage Roads If a land division abuts or contains an existing or proposed collector' or arterial street, the Planning Director or >>Hearings Body may require 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. All frontage roads shall comply 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, F NlDlN : Tree Farm 3 d therefore the Hearings Offi FIN and oes not abut Skyliners Road, a designated county col cer finds this criterion is not applicable to Tree Farm€ 11 Section 173 Parkways 6110, Streets Adja cent to lector road, and Railroads, Freeways and 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 less than 80 feet in width, such intervening property shall be dedicated to park or thoroughfare use. The intersections of such parallel streets, where 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. DINGS; The Hearings Officer finds Tree Farm 3 are not adjacent to a this criteri on is not applicable because The Tree Farm railroad, freeway or parkway. Section 17,36 120, Street N as ae 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, FINDINGS- ; Exhibit "Q" to the Tree Farm 3 burden of proof indicates the applicant has received county approval'' for all Tree Farm road nares, therefore satisfying this criterion. Section 17.3 6.130, Sid e €al ks Trey. Farm 3, 247-14-00 1246 C , 247-14-0 247 -TP Pag 92 of 14 A. Within an urban rth ''boundary, sidewalks shall be installed on both sides of a public road or street any in any special pedestrian way within the subdiv=ision or partition, and along any collectors and arterials improved in accordance with the subdivision or partition, FINDINGS: The Hearings Officer finds this criterion is not applice not located within the Bend UGB. ble B. VVithin an urban area, sidewalks s frontage roads only on the &de of t the development. FINDINGS: The Hearings Officer fin frontage roads in Tree Farm 3. d s this riterion is not a pplica because Tree Farm hall be required along frontage road abutting, ble beca there are no C. Sidewalk requirements for areas outside' of urban area are set forth in section 17.48.175. In the absence of a special requirement set forth by the Road Department Director under DCC 17A8.M3O, 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 require located in a rural area outside unincorporated communities, Sect on 1703 d in Tree Farm because it is 6.140, Bicycle, Pedestrian and Transit Requirements A. Pedestrian and Bicycle Circulation within Subdivision. 1, The tentative plan fora 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 a rt erraobile 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 trip. 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 Skyliners Road and beyond to Northwest Crossing, the three nearby public schools, and the rest of the Bend urban area. The applicant also proposes a number of soft - surface r creationfrnountain bike trails within the open space tracts and linking with trails in Tre Farm 3, 247 -14 -060246 -CU; 247 4 -000247 -TP Page 93 of 114 Shevlin Park and the DN 3 satisfies this criterion. F to the west. F on these reasons, the Hearings Officer Layout finds Tree Fa rrrr 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 shall 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 curl -de -sacs at the eastern terminus of Ridgeline Court in Tree Fara 1 and at the western terminus of Canopy Court in Tree Farm 4. The Hearings Officer has found in my decisions in Tree Farms 1 and 4 that these cul-de-sacs are justified by, topography and the lack of through -street > connections. 2. Bicycle and pedestrian connections between streets shall be provided at mid -block where the addition of connection will reduce the walking or cycling distance to an existing or planned neighborhood activity center by 400 feet and by at least 50 percent over other available routes. FINDING : The Hearings Officer find there are no existing or planned neigh are warranted or necessary. Tree this criterion is not applicable to Tree Farm ''3 because boyhood activity centers for which rnid-block connections Local roads shall align and connect with themselves across collectors and arterials. Connections to existing or planned streets and undeveloped ro '` erties shall be '`` rovidled at no reater than'_ 44l0 foot intervals, Connections shall seat be more than 400 feet ion=: as d shall be as straight as possible. Facilities a nd mprovements Bikeways may be provided by either a separate paved path or an on -street bike lane, cos s'stent with the requirements of DCC Title 17, Pedestrian access may be provided by sidewalks or a separate paved path, consistent with the requirements of DCC Title 17. Farrn 3, 247--14-000246 CU, 247-14-OOO247-TP Page 94 of 114 Fl ND! NGS: The Hearin -oss S kyliner.s. Road. gs Of Connections shall have a 0-fooht-of-wav, with at least a 104foot usable surface. (Emphasis a dried,), er finds there are no existing local roads that rust be ned 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 least 400 feet long and at 400 -foot r; intervals along the northern boundary of The Tree Farm to provide future connections 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 connections, In particular, Mr. Russell notes the term "connections" in Paragraph (C)(3) of this section clearly refers to bicycle/pedestrian paths because it 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 esta'blis'hes a requirement of 10rfoot-wide paved bicycle/pedestrian connections at 400 -foot intervals along the Tree Farm`s borders with adjacent undeveloped;' property. In his December 30, 2014 '''letter, Mr Condit agreed with Mr. Russell's interpretation of the connection requirement, but, argues this requirement should not be applied to rsubdivisions 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-interval/400-foot-long connections would bisect the lots and create paths "leading to nowhere."33 Mr. Condit also argues that if this connection requirement is applicable to Tree Farms 1, 2 and 3, 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 most of the land in Tree Farms 1, 2 and 3 is less than 400 feet wide, compliance with the connection requirement would not be feasible'' in Tree Farms 1, 2 and 3, Mr. Condit also notes the county did not apply this bicycle path connection requirement to prior approvals for three rural PUDs on nearby properties: Tunafo Creek Development ent (CU -05- 17, TP -05-958) adjacent to the Rio Lobo property on the north); Cascade Highlands (CU -02-73, TP -02-0311) (The Highlands at Broken Top subdivision across Skyliners Road to the south); and Shevtan Heights (Anderson Ranch) (ZC 00.5, CU -00.112 TP -00.010) (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 roads, Finally, Mr' Condit argues that if the Hearings Officer concludes the bicycle/pedestrian path connection require€Tient is applicable to The Tree Farm, I should grant an exception under Section 19.104.070(C), discussed in the findings above, in light of Tl e Tree Farm's demonstrated benefits in general, and the extensive multi -use, path/trail system proposed for The Tree Farm. The Hearings Officer agrees with Mr. Russell that read in context, the "connections" required by Section 17.3$.1>.40(B)(3) and (4) are bicycleipedestrian path connections and not road connection) -also agree with Mr. Condit that applle tion€ of this- requirement to rur 1' subdivisions including The Tree Farm would be inappropriate and infeasible. ''Finally, l find the applicant has demonstrated an exception to this requirement is justified by the benefits provided by The Tree Farm, particularly the extensive multi -use path/trail system. ua As noted in the findings ve ur;d Tree Far rn> 3. 247 -14 -000246 -CU er the UAR-10 Zone, the minimum! 247 -14 -000247 -TP vid th in that one is 300 feet. Page 95 of 114 For the foregoing reasons, the Heari approval of the exception described a Saction 17.3 rigs', Officer fi€ bove. 6.150 Bloc ks ds Tre e '''Fe sa es tlhe criteria ith 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. FINDINGS: Section 17.03.030 defines "block" as "an area of land bounded by streets or by a combination 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 3 does not contain any "blocks" inasmuch as no area of land within the proposed development is bounded by streets or the other listed features. FINDINGS: Tree Fa B Within an, urban growth boundary, no block shall be longer' than 1,200 feet between street centerlines. In blocks over 800 feet in length, there shall be a cross connection consistent with the provisions of DC 17.3 rm 3 is not lova finds this criterion is not applicable. 6.140. ted within the Bend UGB. Therefore, the Hearin Section 17.36.160, Easements gs Officer A. Utility easements. Easements shall be provided along property lines when necessary for the placement of overhead or underground utilities, and to provide the subdivision or partition with electric power, communication facilities, street lighting, sewer lines, water lines, gas lines or drainage. Such easements shall be labeled "Public Utility Basement" on the tentative and final plat; they shall be at least 12 feet in width and centered on lot lues where possible, except utility pole guyline easements along the rear of lots or parcels adjacent,, to un .ubdivided'''land may be reduced to 10 feet in width. FINDINGS: The Tree Farm 3 burden of proof states the applicant intends to locate all utilities in roadside trenches, either within the private road rights-of-way or within multiple use easements (MUEs) paralleling the rights-of-way, as shown on the Preliminary Water Plan 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 3 >E Drainage. If a tract is, traversed by a watercourse such as a drainageway, channel or stream,' there shall be provided stormwater easement or drainage right of way conforming substantially with the lines of the watercourse, or in such further width as will be adequate for the purpose. Streets or Tree Farm 3, 247' 14 -000246 -CU€, 247 -14 -000247 -TP Page 9 6 of 114 parkways parallel t ma or watercour es o may be required. FINDINGS: The Hearings Officer finds this criterion property is not traversed by a watercourse is not Section 17.3,170, Lots = Size an d Sha drat nageways applicable because the su p e bject The size, widthand orientation of lots or parcels shall be appropriate for the location of the and division and/or the type of development and use contemplated, and shall be consistent with the ot 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, minimum lot and parcel sizes shall permit compliance with the requirements of the Department of Environmental Quality and the County, Sanitarian, and shallbe sufficient to permit adequate sewage disposal. Any problems posed by soil structure and water table and related to sewage disposal by septic tank shall be addressed and resolved in the applicant's initial plan. FINDING: The proposed residential lots in Tree Farm 3 will be two acres in size, The applicant submitted a septic suitability study, included in the record as Exhibit "F" to the Tree Farm burden of proof, indicating the soils 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, i have granted an exception to the minimum lot width for Lot 1 in Tree Farm 1. And l 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 3 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 1 O Zones, and large enough to accernr -iodate on-site septic systems. ass. Section 17.36.130, Frontage A. Each lot or parcel shall abut upon a public' road, or when located in a planned development or duster development, private road, for at least 50 feet, except for lots or parcels fronting on the bub of a cul de sac, then the minium frontage shall be 30 feet, and except for partitions off of U.S, Forest Service or Bureau of Land Management roads. Frontage for partitions off U.S. Forest Service or Bureau of Land Management roads shall be decided on a case by c basis based on the location of the property, the condition o 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 13.61, Table 2: La Pine Neighborhood 'planning Area Zoning Standards. Tree Parva 3, 247 -14 -000246 -CU, 247-14- 024 TP Pa e 97 114 Road frontage standards lln destination resorts, shall be subject to review in the conceptual master plan. All side lot lines shall be at right mg es to street lines radial to curved streets wherever practical. FINDING: With the exception of Lot 1 in Tree Farm 1, all proposed residentiallots in The Tree Farm 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. In the Hearings Officer's decision in Tree Farm 1, I approved an exception to the 50 -foot road frontage requirement for Lot 1 based on my finding that the benefits of the proposed clusteriPUDs justify the requested exceptions. Generally, Tree Farm 3 lot lines are at right angles to Golden Mantle Loop. For the foregoing reasons, I find Tree Farm 3 satisfies this criterion. p. Section 17,36,190, Through Lots, Lots or parcels with double frontage should be avoided except where they are essentia to provide separation of resides tial' development from major street or adjacent nonresidential activities to overcome specific disadvantages of topography and orientation. A planting screen easement of at lest 10 feet in width and across which there shall > be no right of access may be required along the fines of lots or parcels abutting such a traffic artery or other incompatible use FINDINGS: Section 17.08.00 defines "through lot" as an interior lot having frontage on two streets." As discussed in my Tree Farm 1 decision, I have found 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. However, because the tentative plan for Tree Farm 3 shows no through lots, >;l find this criterion is not applicable to Tree Farm 3. q Section 1,36,20 0c ner Lots Within an urban growth boundary, corner lots 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 t he zoning district' in whic h they are located. FIND lNGS: The Hearings Officer finds this criterion is not applicab located outside the Bend UG3. r. Section 17,3 621, Access Perfo e because Tree Farm rma n ce A. As much solar access as feasible shall be provided each lot' or parcel in every new subdivision or partition, considering topography, development pattern and existing vegetation. The tot lits of lots or parcels, as far as feasible, shalt be oriented to provide solar access at ground level at the southern building ine 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 Tree Farr>3. 247-14- J0246 -CU. 247414-000247 Tib P e9 of 114 c ground level at the southern building line two hours before and after the solar zenith from September 22nd to March 21st, and three hours before and after' the sonar zenith from March 22nd to September 21st. This solar restrictions parcels retie access shall be protected by solar heightl on burdened properties for the benefit of lots or lying 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 building 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 orientation of the residentia ree Farm 3 wiU allow for the dwellings on these lots to meet' the solar access standards. Section 17,36 22 0, Underground Facilities lots in W thin 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 shall; FINDINGS: The Hearings Officer' finds tlhis section located outside the Bend UGB. Section 17.3L2$0. Fire Hazards not pplicable because the property is Whenever ,possible, a minimum of two points of access to the subdivision or partition shall be provided to provide assured access for emergency vehicles and ease resident evacuation. FINDING- The applicant proposes two points of access to The Tree Farm and Tree Farm 3 -- the €Train PUD road that intersects with Sky)€hers Road at the southern boundary of Tree Farm 1, and the proposed secondary emergency access road running from the southern terminus of Sage Steppe Drive in Tree Farm 1 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. l also have found the applicant will be required to develop Tree Farms 1, 2 and 3 concurrently to assure access to the residential lots. Such access will allt� , use of the emergency access by lots in Tree Farms 2 and 3. Section 17.36 280, Water a n d Sewer Lin es, Tree Farts>3, 247 -14 -000246 -CU, 247 -14 -o00247 -TP Page 99 of Where, required by the applicable zoning ordinance, water and sewer Mines shahl 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, FINDINGS : No new sewer lines are proposed because residential lots in Tree Farm 3 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 lines in compliance with the city's standards and specifications therefor. Section 17.36.290, hidividual Wells !n any subdivision or partition where individua'l wells are proposed, the applicant shall provide documentation of the depth and quantity,' of potable water available from a minimum of two wells withinone mile of the proposed land division. Notwithstanding DCC ``17.36 300, individual wells for subdivisions are allowed when parcels are larger than 10 acres. FINDINGS: The applicant has stated its preferred alternative for providing domestic water to the residential lots in Tree Farm 3 is the extension of City of Bend water service. However, if that connection is not possible, and the applicant does not obtain water service from Avion VVater Company, the applicant proposes to provide domestic water through one or more groundwater wells. The applicant submitted as Exhibit "M" to the Tree Farm 3 burden of proof well ogs 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 Tree Farm 3 satisfies this criterion Section 17,36,30 0, Pu blc to System In any subdivision or partition where a public required or proposed, plans for the water system and approved by the appropriate state or federal. s water system hal be submitted FINDINGS: The Hearings Officer finds that if the residential lots in Tree Farm 3 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 requirernents 3. c h pter 17.44, Par Tree Farm 3, 247-14-00 Sec tion 1 k Development' 7.44.010, Dedication o 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 ire an area planned for parks., 24S CU, 247.14-000247-1'P Pa e100of114 For either DCC 17.44.010 (A) or (B), the developer shall either dedicate the and set aside to the public or develop and provide maintenance for the land >.set aside as a private park open to the public, The Planning Director or Hearings Body shall whether or not such land is suitable for park pu If the developer dedicates the land with DCC 17.44.01 t4 Director or Hearing that the County or a dedicating such and DCC 17.44.010 shall of land determine rposes. set aside in accordance (A) or (B), any approval by the, Planning s Body shall be subject to the condition ppropriate park district accept, the deed not apply to the subdivision or partition s located within the boundaries of the Bend Metro Park', and Recreation District or the Central Oregon Park and Recreation District. FINDINGS The record indicates all proposed residential lots in Tree Farm 3 are ocated within the boundaries of the park district, and therefore the Hearings Officer finds these requirements' are not applicable. b. ection 17.44.020, Fee in Lieu of Dedication A. In the event there is no suitable park or recreation area or site in the proposed subdivision or partition, or adjacent thereto, then the developer shall, in lieu of settinaside 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 land, unptatted and without improvements, as shown on the County Assessor's tax roll shall be used. The surra so contributed shall be deposited with the County Treasurer and be used for acquisition of suitable area for park and recreation purposes or for the development of recreation facilities. Such expenditures shall be made for neighborhood or cora munity facilities at the discretions 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 Park and Recreation District. FINDi GS: The ie;ar r gs Officer find t z:3t t e cause r l �: roposec r a le€ tial leis ire Tr e Farr ;3 era located within flee boundaries of tlse pads district, this sections does not appy. Chapter 17,48 a. Section Tree Farre 3. 247-14-0 and Construction Specifica 17448.1 440, Bi keways, 46 CU, 247 -14 -000247 -TP tions Page 101 of 114 G ene ra I Design Criteria Bikeways shall be designed an accordance with the current standards and guidelines of the Oregon (OD T) Bicycle and pedestrian plan, the American Association of State Highway Transportation Officials (AA HTO) Guide for Development of New Bicycle Facilities,and the Deschutes County '''Bicycle Master Flan,, See DCC 17.48 Table B. Alicollectors and arterials shown on the County Transportation Plan map shall be constr•••••ucted'' to include bikeways as defined by the Deschutes County Bicycle Master Plan, If interim road standards are used, interim bikeways arid/or walkways shall be provided. These interim facilities shall be adequate to serve bicyclists and pedestrians until the time of road upgrade. Multi -use Path so Multi -use paths shall be used where aesthetic, recreation and safety concerns are '`primary and a direct route with few intersections can be established. If private roads are constructed to a width of ess than, 28 feet, multi -use paths shall be provided, Multi -use paths are two way facilities with a standard width of 10 feet, but with a 12 foot width if they are subjected to high use by multiple users. These paths shall meet County multi -use path standards and shall connect with bike facilities on public roads, FINDINGS: The applicant proposes to provide multi -use paths in The Tree Farm through additional width on a segment of Tree Farm Drive, and eight- or ten -foot -wide multi -use paths along the rest of the PUD roads<A ten -foot -wide multi -use path is proposed to parallel Tree Farm Drive from its intersection with Skyliners Road to the point where the path splits to go to Shevlin Park to the west. From that point to the intersection of Golden Mantle Loop and Ridgeline Drive, and throughout the rest of The Tree Farr, the multi -use paths are proposed to be eight feet wide. The Hearings Officer has approved an exception to allow reduced width from ten to eight feet for neighborhood multi -use paths, requested by the applicant because of projected`` low traffic volumes, based on my finding that the benefits from The Tree Farm justify, the exception. For these reasons, and with the exception granted for the eight -foot path, i find Tree Farm 3 satisfies these criteria. Bike Lanes. Six foot bi con S ke lanes shall be used on new struction of curbed arterials an boulder B ikeways. Tree 'arra 3. 247 -000246-CU 247=14--000247--TP d col ectors. Page 102of114 FINDINGS: The H collectors or arterials are pro earings Officer posed. Should of tincu er bikeways shall be used on new construction rbed arterials and collectors. Shoulder bikeways Where the Crave collector is not afire, shall be a minimum shall be at' least four feet wide. e on an existing arterial`' or er than eleven feet, the bikeway four feet wide. finds these criteria are not Mountain Bi ke Trail 5, Mountain bike (d may be used facilities. applicable because no ne in or other unpaved surface) trans ecreationl or interim transportation Trails used for transportation shall have a two foot minimum tread width and a six foot min imum earing 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 3 burden of proof, the applicar€f proposes a network of soft -surface recreation/nountair€ bike trails linking with trails in Shevlin Park and in the DNF to the west. A segment of one of these trails would > be located in the southwest portion€, of Tree Farm 3. Therefore, the Hearings Officer finds these criteria are applicable to Tree Farm 3. The applicant's Tree Farm 3 burden of proof states the proposed recreation/mountain bike trails will satisfy these standards, and i find the appllcan€t will be required as a condition of approval to do so'. b. Section 17,48.160, Road Devel prnent Re, uire men ts Sta ndards A. Subdivision Standards. All roads in new subdivisions shall either be constructed 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 FINDINGS The applicant proposes to dedicate to the public and to improve Sage Steppe Drive in con€plia ce with the county's standards for public rural roads, and to improve ail public and private 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 r be v6, the record indicates the county is not accepting new rods into ita road maintenance system. For these reasons, the Hearings Officer finds Tree Farm 3''satisfies this criterion, B. Improvements of P€.ablic Rights of Way, Tree Farm 3, 247.14-00 246 -CU, 247 -14 -000247 -TP Pape 103 of 114 The developer of a subdivision or pa required to improve alb public ways tha or within the land development. rtition will be t are adjacent 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, FINDING: 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 improvements to Skyliners 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 3 satisfies this criterion. C. Primary Access Roads. The primary access road for any new subdivision shall be improved to the applicable standard set forth in Table A (or the applicable standard set forth in a zoning ordinance). The applicable standard shall''' be determined with reference to the road's classification under the relevant transportation plane For the purposes of this section a primary access road is a road leading to the subdivision from an existing paved county, city or Mate maintained road that provides the primary access to the subdivision from such a road. FINDINGS: The primary access road to The Tree Farm consists, of Tree Farm Drive, Golden Mantle Loop, and R€dgeline Drive. The Hearings Officer finds the applicant will be required as a cos dition of approval to improve the segments of these roads within Tree Farm 3 to the co rnty` standards for local private roads in Table "A" to Title 17. In addition, as discussed in the findings above, l 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 subdivision, 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 departn,ent`a standi,',Irda for fire. apparatus access roads, including a 4 -foot -wide all-weather surface. As discussed above, this emergency access road will be an interim access unti'1 the Miller Tree Farm property is developed with public roads to which Sage Steppe Drive can Tree Farm 3, 247 -14 -000246 -CU, 24i -:4 -000247 -TP Page 104 of 114 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 t a development boundary shall be constructed with a paved cul- de-sac bulb. FINDINGS: The Hearings Officer finds this criterion is not applicable to Tree Farm 3 because no cul-de-sacs are proposed for Tree Farm 3, In my decision in Tree Farm 1, l found the proposed cul-de-sac at the eastern terminus of l idgelihe Court, and the stubbed street at northern terminus of Sage Steppe Drive, are justified ,;because of the steep topography and lack of> through -street connections in the vicinity. F. Gaal -de -sacs. Cul-de-sacs shall have a length of less' than 600 feet, unless a longer length is approved by the applicable fire protection district, and more than 100 feet from the center of the bulb to the iritersedtion with the main road. The MakitTILIM grade on the bub shall' be four percent. FINDINGS: The tentative plan for Tree Farm 3 shows a cul-de-sac at the western end of Canopy Court in Tree Farm 3 that is longer than 600 feet. Because the fire department did not address the length of Canopy Court in its comments on The Tree Farm, 1 find the applicant will be required as a condition of approval, and before submitting the final plat for Tree Farm 3, to submit to the Planning Division written documentation from the fire department that it has approved the length of Canopy Court. Section 17.48.180, Private Roads The following minimum, road standards shall appy for private road 3: A. The MilliMUM paved roadway width shall be 20 feet in planned unit devolopmerrts and cluster developments with two -foot wide gravel shoulders; M nimum radius of curvature 50 Maximum grade,12 perce rat; feet; FINDINGS: The applicant's burden of proof for Tree Farm >3 states the private roads will meet thee standards, and the Hearings Officer finds the applicant will be required tis construct the PU'D's private roads in compliance with these standards as a condition of approval. D. At least one road name si intersection for each road; gn will be provided at' each FINDINGS: . The Hearings Officer finds the applicant .wdbe tego 'ed as a cor§di ion of aper to comply with this criterion.. 34 The burden of proof for Tree Farm'3 state the applicant woad request a variance to the requirement that the secondary access road be paved. However, in an e-mail message dated August 15, 2014, the applicants representative Rorny Mortensen clarified the applicant is not seeking a variance and does not is required. Tree Farm 3, 247-14-000246-U, 247 -14 -00247 -TP Page LL105of114 A method County; for continuing road maintenance acceptable to the FINDINGS: The applicant proposes that The Tree Farm HOA will own and maintain all tree farrr'"r roads. The Hearings Officer finds the applicant +ill be required as a canciltlorn of approval to execute a road maintenance agreement with the county that is acceptable to 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 20 -foot wide road. in other developments, shoulder bikeways shall'' be a minimum 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, FINDINGS: As discussed in findings throughout this decision, the applicant proposes to accommodate bicycle and pedestrian traffic in The Tree Farm through a system of paved multi- use paths running parallel to PUD roads. The segment of Tree Farm Drive in Tree Farrn 3 would, have a 26 -foot -vide paved surface to its intersection with Golden Mantle Loop, and all other public and private road segments would'' have a 20 -foot paved width with adjacent or nearby, eight- or ten -foot -wide paved bicycle/pedestrian paths, For these reasons, the Hearings Officer finds Tree Farm 3 satisfies this criterion. d. Section 1 Mi 7,48,190, D rri rrUM nage Requirements, Drainage facilities shall be designed and constructed to receive and/or transport at least a design storm as defined in the current Central Oregon Storrs water Manual created by Central''' Oregon Intergovernmental Council and all surface drainage water coming to and/or passing through the developmerrt or roadway. The system shall development. be designed for maximum allowable 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 swales 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 -yew storm event. The tir�ainago ton note8 that 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 states none of the runoff from impervious areas such as roads and driveways will create any additional'' drainage contributions to Turnalo Creek as no surface water will be disposed of off-site, The applicant also proposes that if ''hydrological' calculations determine Tree Farm 3, 247-14-00 246 -CU, 247-14-000247-Tt Pa go 106 of 114 additional runoff storage is needed, the applicant will construct a catch basin near the main entry to The Tree Farm at SkylinersRoad. The Heanngs Officer has found that prior to submitting for approve l 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 Fern 3 and to construct it. I find that with imposition of this condition of approval Tree Farm 3`>will satisfy this criterion. Finally, the Hearings Officer finds the drainage plan for Tree Fara 3 need not be designed to serve the site with "maximum allowable development" — Le.,, urban -density development on the UAR 10 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 prohibitijng development on The Tree Farm open space tracts. N oncurbed Section 1 Road culverts shall'' be concrete or metal FINDINGS: The applicant's bu Farm will be corrugated rneta csslverts and one 24 -inch cu required as a condition of a positive drainage m nl u m design life of 50 years. AH cross culverts shat larger. Culverts sha shall provid be e pose h a be 18 inches Ira diaa seter or placed in natu tive drainage. rel drain eareasa nd rden of proof for Tree Farm 3 states culverts used for The Tree p€pe with a minimum fifty-year design life, and that two 18 -inch pert will be installed. The Hearings Officer finds the applicant will be pprovl to place all culverts in natural drainage areas and provide Drainage gwales. The Desigrn Engineer Is responsible to design a drainage swale adequate to control a design storm as defined In the Central Oregon Stormwater created by Central Oregon Intergovernmental Council. FINDINGS. The applicant's burden of proof for Tree Farm 3 states the drainage swaies will be designed for a 50 -year storm event. Therefore, the Hearings Officer finds Tree Farm 3 satisfies this criterion. Drainage plans, A complete set of drainag hydraulic and hydrologic calica.siations sIial in all road improvement plans. e plans including I e lincorporated FINDINGS: The applicant's burden of proof for Tree Farm includes a narrative description of its proposed drainage plan, and states complete modelling will be performed and incorporated into the storm disposal infrastructure design during engineering and construction plan Tree Farr 3, 247-14-00 24 U, 247.14 -000247 -TP` Page: 1 07 of 114 development. The Hearings Officer finds the applicant will be required as a condition of approval to incorporate the drainage plan for Tree Farm 3 into the road improvement plan for Tree Farm 3, and to provide to the Planning Division a copy of that plan before submitting the Tree Farm final plat for approval. FIND beca F. Drill Holes. Drill holes are prohibited, Injection wells (drya+vel way. Is) ar R hibited'hi the p ING : The Hearings Officer finds the applicant's proposalco use no drill holes or injection wells are proposed For the foregoing reasons, the Hearing conditions of approval described above wil COMPREHENSIVE PLN s plies with Officer finds Tree Farm 3 atisfy, all applicable criteria ublic ri satisfies n Title 17 ht - hese criteria with the, FINDINGS; Comprehensive plans can be a potential source of approval standards for quasi - 'judicial and use applications, The Flight Shop v. Deschutes County, Or LUBA {CUBA 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 use be consistent with applicable plan provisions. See, Bothman 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 3 depends on whether their text and context indicates they include mandatory standards, requirements, and/or considerations applicable to quasi-judicial development approvals. F. Desch F N utes Cou my Com p re h erg sive Plan NGS: The applicant and staff identified the fol Cha pter 2 Resource Manag Goal 1 owing plan ,previsions as applicable., ement Section Maintain and enhance a diversity of wildlife and habitats. Policy .6.8, Balance protection of wildlife with, wildland private lands in the designated Wildland Urban Interface.. fire ation on FINDINGS: : The Hearings Officer finds this goa and policy are v ritten in aspirational terms and appear directed at the county rather than to applicants for and use approval. Therefore, I find these provisions' are not applicable to Tree Farm € 3. 2. hapter 3, Rural Gro Goals and Poch th Mana E ent Goal 1»Maintain the rural character and safety of,'ha u ng in uni Deschutes Cou nty, Tree Farm; 3, 247-14-0 0246 -CU, 247-14-00 247 -TP nco ported Page 103 of 114 Policy 3.3,1, The rn€mum parcel size for, new rural resid be 10 acres. ential parcels shall, FINDINGS: The Hearings Officer finds this policyis written in mandatory terms suggesting it is applicable to Tree Farm 3. I have found Tree Farm 3 complies with the ten -acre minimum size for lots or parcels in the RF - 0 and LIAR -10 Zones, and therefore 'I 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 rather than at an applicant for a quasi-judicial land use application, and therefore i applicable to Tree Farm 3, county i not For the foregoing reasons, the Hearings Officer finds Tree Fara 3 is consistent with applicab county comprehensive plan goals and policies identified by planning staff. G. Bend Area General 1. Chapter 5. tl 3. Sidewal FINDI SU a U Pu ped Plan OU NGS: The H ggesting plicant d nder Title 17. D roads. I find si ng a n d Residential Lands e ks shall be required in all new 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 trails that provide adequate pedestrian circulation may be approved. earings Officer finds this plan provision is written in mandatory terms it is applicable to Tree Farm 3. However, as discussed in the findings above, the cies not propose sidewalks, and I have found they are not required in rural areas stead, the applicant proposes a network of paved multi -use pati s along ail new this, path network constitutes an alternate system that will provide adequate estrian access within Tree Farm 3, and therefore it is consistent with this plan policy. Chapter 8: Pu *** blic Facilities nd Services 15, Dry wells or storrn 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 ways for storm drai maga shall be required In new develnPnients as much as possible. * 35 The Bend Area General Plan applies to and s within the Bend Tree Farre `;3, 247.-"4-000246 CU, 247.14 -000247 -TP rt�an aria r Page 100 of 114 20. Developments shall be designed to meet appropriate drainage quantity and quality requirements (e.g., meeting the requirements of the City's National Pollutant Discharge Eliinination System MS4 Stormwater Permit, the City's Stormwater Master Pian and Integrated Stormwater Management Plan, and Total" Maximum Daily oad requirementLow iaaapct site designs shall be encouraged. *s k 27. Develo consid erosio parent on, slopes in excess of 10 percent shall req eration to prevent construction -related and post_c alre special' onstruction FINDINGS: The Hearings Officer finds these plan provisions are written in mandatory terms suggesting they are applicable to public facilities and services in Tree Farm 3. As discussed in the findings above, incorporated'' by reference herein, the Hearings Officer has found the applicant's proposed drainage plan will dispose of stormwater through the use of vegetated swales, roadside ditches, culverts, and natural drainage ways. I find these methods will assure that stoma *ma ter runoff infiltrates into native soil to the maximum degree possible and does not rur off into Tualo Creek or onto other off-site areas. For the foregoing reasons, I find the drainage plan for Tree Farm 3 Is consistent with these plan policies. For the foregoing reasons, the Hearings Officer finds Tree Farm 3 is ctent with the applicable urban area comprehensive plan policies identified by planning staff. V. DECISION Based on the foregoing Findings of Fact and Conclusions of Law, the H DEMES the applicant's proposed, conditional use, tentative pian, and development/PUD on the subject property, to be called Tree, Farm € 3. earings Officer hereby site plan for a cluster In the event this decision is appealed to the Board of County Commissioners, and the Board elects to hear the appeal and approves the applicant's proposal on appeal, the Hearings Officer RECOMMENDS such approval be SUBJECT TO THE FOLLOWING CONDITIONS' OF APPROVAL: P R This approval for Tree Farre 3 is based upon the applicant's submitted tentative plan site plan, burden of proof statennents, and written and oral testimony... Any 'substantia change to the approved plan will require new land use applications and approvals, R TO SUB MITTI NG TH E FI N AL SU DDIVI SION;,PLAT FOR APPROVAL: 2. The applicant/owner shall demonstrate to the Panning Division that conditions of ppro;,ft'al...for The Tree Fame. lot line adlustrnents have been met. The applicant/owner shall submit to the Planning Division an upd Farm 3. Tree Farm 3. 247 -14- 246 -CU 247 -14 -000247 -TP ated title re port for Tree Page 10 of 4 4. The applicant/owner shall submit to the 'Planning ©iv s on for• review and approval a copy of nonrevocable deed restrictions for the Tree Farrn 3 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 applicant/owner shall record with; the homeowner's association. The applicant/owner shall record with the conditions and restrictions for Tree Farm Deschutes County Clerk the bylaws of the The applicant/a Tree Farm 3, ne s hal Deschu execute and record a tes Co unty Clerk th onditions of Approval e covenants, A reement or The applicant/owner shall execute and record with the Deschutes County Clerk a development agreement for the private roads in Tree Farm 3 on a form approved by Deschutes County Legal Counsel. The development agreement shall incorporate the drainage plan for Tree Farm 3. The applicant shall provide a copy of the recorded development agreement to the Planning Division'. The applicantowne shall submit to the Deschutes County Road Department for its review and approva a draft Road Maintenance Agreement outlining the maintenance responsibilities for al new roads in Tree Farm 3, and following road department approval' the applicant/owner shall record the Road Maintenance Agreement with the Deschutes County Clerk' 10. The applicant/owner shall record vvith the Deschutes County Clerk the wildfire plan and'' VVMP for the Tree Farm 3 open space tract. The applicant/owner shall provide copies of these recorded management agreements to the Planning Division, 11 The applicant/owner shall obtain an approved septic site evaluation for each resid lot in Tree Farm 3. 12. The applicant/owner shall obtain from the Deschutes County Road Depart access permit for the new road connection to Skyliners Road in Tree Farre 1, en al t an' 1 The applicantfowner 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 applicantfowner,shall submit'' to the Planning Division proof of City of Bend approval to extend domestic water service to Tree Farm 3. 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 applicantfowner elects, or is required to, provide water to The Tree Farm through means other than extension of city water service, the applicant/owner all 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 Tree Earm 3, 247-14--000246-CU, 247.14 -000247 -TP Page 111 of 114 will provide at each residential lot water pressure of at least 40 psi durin periods, 20 psi residual pressure, and 2 000 gpm for fire flow. 16. The applicant/owner shat professional engineer ind g peak derr and provide to the Panning Division a statement from cating whether a runoff storage basin is necessary, re 9 istered 17. The applicant/caner shall subrr€it 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, and that it approves the length of the Canopy Court cul-de-sac. 18. The a WITH 0 pplicantlowner shall pay all taxes for Tree Far € 3 in accordance with ORS 92.095. R ON THE FINAL U BD IIBI0 N PLAT: The applicant/ownershall prepare the final plat for Tree Farm 3 i 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 the followin g on th e fin the exact lot <size of each »residential lot, and be platted as a separa to tra ct; b. the building envelope for each lot; 9= all easements of reco rd and existing rig a plat for Tree Farnn 3: of the open space tract which shall hts-offway; a statement of water rights as required by ORS 92.120; all u tility easements,; all pu blic access easements; and if a runoff storage basin is necessary, the location of the storage basin. 21.The surveyor or registered professional'' engineer sobatting the final plat for Tree Farm 3 shall submit information to the Deschutes County Road Department showing the location o 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, Ail existin 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 boated`, 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 wiu be dedicated as directed by the Deschutes County Road De arti i n't to meet current county standards, 22. The final plat for Tree Farm 3 shall be signed by all persons with an ownershipinterest in the property, as well as the Deschutes County Assessor and Tax Collector. Tree of , 247-14-0 024 3, 247-`14-0 0247 -TP Pag e 112 4114 PRIOR TO 0 R WITH CO N 23 The applicant/own of all construction any construction, 24. 25. AH 26 STR UCTI0N: er shall obtain from the Deschutes County Road Department approval plans for all required road improvements prior to commencement of AD private road desig Table "A" of the Desc 27 28. 29. ns sha l hutes C be in accordance with the standards in Chapter"17.48 and ounty Code for rural local private roads. private roads constructed in Tree Farm 3 shall as proposed on the tentative subdivision plan and b Include bicycle and urden of proof. pedestrian paths The applicant/owner shall construct all road improvements under the inspection ;;and approval of the, Deschutes County Road Department. The road department may accept certification of improvements by a registered professional engineer pursuant to ORS 92.097 The applicant/owner shall assure that all road improvements in Tree Farm 3' are surveyed and staked in accordance with' DCC 17.48.200< The applicant/owner shall place all culverts in natural drainage areas and positive drainage. if a runoff storage basin ''ls determined to be necessary, the applicant construct such a basin at the lowest point in Tree Farrn 1, or in such oche€ determined to be appropriate by a registered professional engineer, 30. The applicant/owner shall install a 31 The appllicant/bv+rner sI all in each road, 11 utilities underg round,. provide ner >shall location as stall''' at least one road ` name sign at each intersection for 32. If the applicant/ ov ner provides domestic water service to Tree Farm 3 through extension of and connection to the City of Bend water system, the applicant/owner shall construct all required water lines to the city's standards and specifications therefor. The applicant/owner shall install on the residential lot side of the gate at the southern terminus of Sage Steppe Drive at least one me of opening the gate by Tree Farre residents and guests, such as special keys, key codes and/or automatic gates. 34. The applicanttou ner shall' construct a '' recreation/mountain bike rails with a two -foot minimum tread width and a six foot minimum clearing width centered aver the''trail, and minimum overhead clearance of seven feet. FOL 0I N FINAL PLAT APPR OVAL: 35, The applicant/byline r sha11 begin construction of of the date this decision becomes final, or such Director may allow. Tree Farm 3, 247 -14 -0002466 -CU, 247.14-000247-T ree Farms 1, 2 and 3 within six months onger period of time as the Planni€- Pacge 113 9 AT ALL TIM 3 6, 37 38. 39 40 DU ES: The app protectio icant/owner shall satisfy >;a n within Tree Farm 3. redirem€ents of the Bend Fire Department for f€re The applicant/'owner'shall limit uses perr €fittedin the Tree, Farm 3 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 applicantloner shall enforce these open space restrictions and prohibitions through the Tree Farm 3 covenants, conditions and restrictions The applicant/owner shall install any fencing i'n the WA -zoned accordance with the WA Zone standards therefor portion of Tree Farr t 3 in The applicant/owner shall assure the building height and setback standards fir€ the UA - 1g, RR -10 and »' ''A-10 Zones are r et for dwellings in Tree Farm 3. The applicantrowner>shall assure that address numbers are provided for each dwelling in Tree Farm 3 as required by the Oregon 'Fire Code. RATION OF AP PR OVAL; 41'. The applicant/owner shall complete all conditions of approval and appy for final;, plat' 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 vola._ Dated his 18th d ay arch , 2015 Karen H. Green, Hearings Officer TSI u IS D ISLE ail ed this 18 day of March, 2015 F I IO I BECOMES FINAL TWELVE (1 2) DAY SS APPEALED BY A PARTY OF INTEREST. Tree Parra 3, 247-14-00 246CU 247-1 4-000247- P AFTER THE DATE OF MAI NG, Page 114 of 114 c 0 unity Develop 11 ent De Pad Planning DiviLior Buildirs $ait4y Divisikn Envi? nni c FILENU ETI men# t33i$ LDivi5ispn P 0 Box 6'005 117 NW Lefayet e Avenue. Ser Oregon 97708-6005 (.41)388-6575 FAX (541)385-1764 http.1/www.co.dechutf,:..ts,or.usicddi RATE MAI L N BERS° 247 -14 -000242 -CU, 243 -TP DOCUMENTS MAI MAP/TAX LOT N u LED: M 8 ERS: 247 -14 -000244 -CU, 245-T 247 -14 -000246 -CU, 247 -TP 247.14 -066246 -DU, 249 -TP 247 -14 -000250 -CU, 261 -TP Hearings Officer Decisions - Tree Farms 1 17-11-35D 6208. 620 00-040 0; 17-1 6210, 6211 arras 1-6002, 6205, 6207, 6212 and 6213 ! certify that on the 16th day of March, 2€ 15, the attached noti March 18, 2015, was/were mailed by first class rail, postage prepaid, address(es) set forth on the attached list. CO y Mortensen The Tree Farre, LLC 409 NW Franklin Avenue Bend, OR 97701 Ken Pirie Walker Macy 111 SW Oak St #200 Portland, OR 97204 Jeffrey Condit !t#liller Nash LLP 3400 US Bancorp Tower 11' 1 SW Fifth Avenue Portland, OR 97204-6699 Dated this 16th day of u MITY D Quality Se# EV LOP By ; sssM E NT rets, 2015. DE oonlight BPO £es Pe PARTM Charly Miller iller''Tree Farm 0 NE Greenwood Avenue Bend, OR 97701 E NT ce(s)/rye to the Ron Hand WHP olfic 123 SW Columbia Street Bend, OR 97702 Dale Van Vaikenburg Brooks Resources Corporation 409 NW ranklin Avenue Bend, OR 97701 Pride ated and Connie Peterson 2203 N Clearwater Drive Bend, OR 977€ 1-22€ 3 Doug Wickham 61971 Kildonan Court Bend, OR 97702 Corey Heath & Nancy Bruener Oregon Department of Fish ''&. Wildlife 61374 Farrell Road Bend, OR 97702 Michelle Healy & Steve Jorgensen Bend Metro Parks and Recreation District 799 SWColumbia Street Bend, OR 97702 yles Conway; erten Law 404 SW Columbia Street, Suite 212 Bend. O 97702 Al Johnson 2522 NW Crossing Drive Bend, OR 97701 Kelly Esterbrook 16322 Skyliners Road Bend, OR 97701 Paul Dewey 1539 NW Vicksburg Avenue Bend, OR 97701 Christine Herrick 7'2231 NW High Lakes Loop Bend, OR 97701 Larry Medin Bend Fire Department 1212 SW Simpson, Suite B Bend .> OR 97702 uennitr Taylor & Christine 'o11ard 19001 Squirreltail Loop Bend, OR 97701 George Weurthner F.O. Box 8359 Bend, OR 97708 Edward & Lynn Funk 2138 Toussaint Drive Bend, OR 97701 Deschutes County Ed Keith, Forester George Kolb, Road Department Peter Russell, CDD