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HomeMy WebLinkAboutHO Decision - Tree Farm 4DECI II Fl LE Nle M 13 E APPLICANT PROP R ERTY O' APPLICANT'S ATTORNEY: OPPON ATTO REQ ENTSY . EYS: Myles A. Conway - Marten Law 404 S.W. Columbia Street, Suite 212 Bend, Oregon 97702 Attorney for Rio Lobo Investments' RN 0 NO FD E CH SITES CO J 'TY H EAR GS OFFICER 5: 247 -14 -000240 -CU. 247 -14 -000249 -TP N E The Tree Farm LLC 409 N.W. Franklin Avenu Bend, Oregon 97701 e R: Miller Tree Farm 110 N.E. Greer rood Avenue Bend, Oregon 97701 effrey G. Condit Miller Nash LLP S.W. 5th Avenue, Suite 3400 nd, Oregon 97204 111 Portia UEST: Paul Dewey - Central Oregon Land' atch 50 S.W. Bond Street, Ste, 4 Bend, Oregon 97702 Attorney for Central Oregon Landatch The applicant requests conditional use, tentative plan and site plan approval for a ten -lot cluster/planned unit development (PUD) on a 109.5 -acre parcel in the UAR-10, RR -10 and WA Zones north of Skylin€ers Road and west of Skyline Ranch Road on the west side of Bend, This proposal is identified as "Tree Farm 4." 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, 3 and 5), with the following file numbers: Tree Farm 1: 247 -14 -000242 -CU, 247 -14 -000243 -TP Tree Farm 2: 247 -14 -000244 -CU, 247 -14 -000245 -TP Tree Fare 3: 247 -14 -000243 -CLU 247-14-000247-T' Tree Farm 5: 247 -14 -000250 -CU, 247 -14 -000251 -TP. STAFF REVIEWER; '.Arthorly Rogaine'Senior I;tanner HEARING DATES: November 6 and 2 RECORD CLOS T e Fs' ED: January 13, 2015 4, 247 -14 -000248 -CU 247-14-000249-T € 0, 201 4 Pa e 1 of 117 APPLICABLE STANDARDS AND CRITERIA: Title 17 of the Deschutes 1. Cha pter 17.0 8, *<Section 17,0 0LEf ty Cod e, the Subdivision/Partition Ordinances Definitions and`1 8 03 nterpretation of Lan 0, Definitions Generally Chapter 17.16, Approval of Su Development plana *'Section 17,16,100, Required Firs u age bdivision Tentative plans and dings for Approval * Section 17.16.100, Access to Subdivisions *'Section 17.16.116, Traffic Impact Stud . Ch pter 17.3 6, Dea$g n Stand and es * Section 17.36.020, Streets * Section 17.36.040, Existing Streets * Section 17.36.060, Continuation of Streets 17.36°060, 17, 36.070, 17.36.060, *'Section * Section * Section * Section *'Section * Section *'Section * Section * Section * Section *'Section *'Section * Section * Section * Section * Section * Section *'Section * Section * Section Cha Minimum Right -ref -Way Future Resubdivision Future Extension of Streets 17.36.100, Frontage Roads 17.36.110, Streets Adjacent'to Railroa 17.36.120, Street Names 17.36.130, Sidewalks 17.36.140, Bicycle, pedestrian and Transit Flew" 17.36.160, Blocks 17.36.160, Easements 17.36.170, Lots;— Size and Shape 17.36.160, Frontage 17°36°190, Through Lots, 17.36.200, Corner Lots 170360210, Solar Access Performance 17.36.220, Underground Facilities 17.36.260, Fire Hazards 17°36,290, Water and Sewer Lines 17.36.290, Individual' Wells 17036.300, public Water System nd Road ay Width ds, Freeways', a pter 17A4, * Section * Section p ark Development 17.44.01 0', Ded kation of Land 17.4400201, Fee n Lieu of Ded kation Chapter 17A8, Design and Construction Specific.tions * Section 17.46.140, Bikeways * Section 17.490160, Road Dev&l opment aster nd Parkways rements Requirements — Standard Tree Fare 4, 247 -14 -000248 -CU, 247 -14 -000249 -TP Page sof 1.17 * Section 17.43.130, Private Roa *Section 17.48.190, Drainage d Title 18 of the Deschutes County Code, the Deschutes C unty Zoning Ord t hapter 18 04, Title , Purpose and * 'Section 13.04.030, Cha pter 18.6 * Section 18.6 * Section 13,6 *'Section 18.6 3. Chapter 18.8 De finitlkns D eflrrlti ns Rural Residential Zone ® RR -1 0 0.030, Conditional Uses Permitted' 0.040, Yard and Setback Requirements 0.060, Dim! en mora I Sta nd and s 8, Wildlife Area Combining Zone — WA *'Section 18.88.010, Purpose * Section 18.88.020, Application of Provisions, * Section 18.88.040, Uses Permitted Conditiony * Section 18.88.050, Dimensional Standards *Section 18.88.060, Siting Standards * Section 18.88.070, Fence Standards Cha pter 18.128, Conditional U ses *Section 18.128M15, General Standards Governing Con *'Section 18.138.040, Specific Use Standards * Section 18.128.200, Cluster Development (Slagle -Family Only) Section 18.128.210, Planned Dev&loprnant dltiona es in Uses ance: d ntial Uses Title 19 of the Deschutes County Code, the Bend Urban Area Zoning Ordinance 1, Ch pter 19.12 Urban Area Res erve Zone — UAR 10 *>.Section 19.1 .030, Conditional Uses *Section 10.12.€ 40, Height Re uirremen *>Section 19.12.060, Lot Requirements Chapter 19.76, Site Plan Review * Section 10.70.070, * Section 19.76.080, is Site Plan Criteria Required Minkrium Standards Chapter 19.100, Conditional Use Permits * Section 19.100.030, General Conditional Use Criteria Chapter 19.104, Planned U nit ,* Section 19.104.010, Purpose Development A ppr sval`, Tree F rrm 4, 247 -14 -000248 -CU, 247 -14 -000249 -TP Page 3 of 117 *Section 15.104.040, Minimum Size for Planned Unit Dave! *>Section 19.104.070, Standards for Approval *Section 19.014.080, Standards and Requirements Title 22 f the Deschutes County Cod Chapter 22.04, *'''Section e, th e Deve iopmen ntroduction and Definitions 22,04,020, Definitions 2. Chapter 22.08, General Provisions *Section 22.08 *>Section 22.08 .020, Acceptance of Application 0020, incomplete Applications 0.020, False Statements on A plic * Section 22.0 Documents * Section 22',08 070, Time Computation tp raked 3. Chapter * Section 22.20.05 22,20, Review of Land U se .Asti, 6, Modification of Ap Chapter 22.24, Land * Section n Appl plication Use Action Hearings 22.24.140 Conti nua nee Deschutes County Comprehensive Plan Chapter 2, Resou Bend Area General Plan 1. Chap ter 5, H rce Ma nag s a errient nd Re ()using and Residential Land Oregon Administrative ' R Development Comrnlission a es (OA R) 5 h ation dations ord Extens Chapter 660, 1. Division 4, Goal 2 Exceptions Process La rid ns pm nts es Ord is nd Su rice pportin Conservation a nd * OAR 050-004-0040(7), Application of Goal 14 (Urbanization) to Rural Residential Areas 2. Division 11, Pu * OAR 660-011 blic Facilities Planni 0065, Water Seri ce to Rural Lan d 5 Tree Farm 4, 247 -14 -000248 -CU, 247-14-000249-T Pag e4 of 11; F N DIN GS O F FACT: Location: The Tree Farm including Tree Farm 4 has an assigned address of 18900 B yliners 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, B. Zoning and Pan Designation: The westernapproximately 393 acres of The Tree, Farm are zoned Rural Residential (RR -10) and Wildlife Area Combining,' Zone (WA) associated with the Tumalo Deer Winter Range, and are designated'' Rural'' Residential Exception Area (RREA) on the Deschutes County Comprehensive Flan 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 4 is zoned UAR-10, RR -10 and WA<and is designated UAR and RREA. C. Site Description: The Tree Farm, of which the proposed Tree Farre 4 is a part, i approximately 533 acres in size, irregular in shape, vacant, and with varying topography,, The dominant topographical feature of The Tree Farm property is a ridge running from southwest to northeast forming the southeast rim of Tumalo Creek Canyon. The top of this ridge is generally flat to rolling, with steeper slopes in the northwest where it drops off, toward Turalo Creels, 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 centra 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 Turalo Creek; the eastern part drains east to the Deschutes River, The western portion of The Tree Far€1 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 1900 Awbrey Hail Fire. Portions of the burned area have been replanted with trees, although my site visit observations confirmed these trees are too smail 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 I 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 4 is 109.5 acres in size and is In the western portion of The Tree Farm. It abuts Tree Farms 2 and 3 on the east, Tree Farm 5 on the south, Shevlin Park on the west, and undeveloped UAR-10 zoned property on the north and northeast. The Tree Farm topography is described in detail it the Hearings Officer's s,te visit report ted December 8. 2014, and included in the record. 1 ree Farm 4, 247 -14 -000248 -CU, 247-14-0 249TP 'age 5 of 17 Surroun di ng Zoning and La nd U ses: 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 is zoned Open Space and Conservation (OS&C). Near the southwest corner of the subject property is the City of Bead'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 li€nes 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 Timberlands). Other private forest -zoned parcels to the northwest of Shevlin Park are much smaller. North. To the north of The Tree "Fara is a 37wacrs and owned by Rio Lobo investments LLC (Rio Lobo) act of vaca nt land zoned UA R-10 East, To the east are Tree Farms 1, 2 and 3, and vacant land owned by Miller Tree Fara and zoned UAR-10. Farther east are three public schools within'the Bend-LaPine School District (school district) --u 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 UART10' and developed with thirty-seven roughly 10 -acre lots with dwellings. Farther southeast is the Tetherow Destination Resort developed with dwellings, a golf'' course, and a lodge. Land Use i istory: The Tree Farm property has been owned by the Miller family since the 1950's. The record indicates this property historically was managed for timber production as part of the larger Miller Tree Farm, including periodic harvesting and thinning, activities. The eastern portion of Tree Farm 4 was in the path of the 1990 Awbrey Hall Fire which burned several'' thousand acres between the northern edge of Sheviin Park and U.S. Highway 97 to the southeast. In June 2014, the applicant obtained lot -of -record'' determinations for The Tree Fara 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 line adjustments reconfiguring boundaries for the five legal', lots of record (LL -14-17' through LL414n26). Deeds reflecting`'' the adjusted boundaries of the five lega ots were recorded on October 17, 2014, Procedural History The Tree Farm applications were submitted on August 5, 2014. The Planning Division sent the applicant an incomplete letter on September 9, 2014. identifying certain r issing,information; and allowing the applicant 30 days to submit, additional information. The applicant submitted the missing information on Tree Far a:>4, 247 -14 -000248 -CU, 247 -14 -000249 -TP Page of 117 September 19, 2014. However, the staff report states that because the incom was riot provided to the applicant within 30 days of the date the applications were submitted, as required by ORS 215.42 (2) and Section 22.08.030 of the Development Procedures Ordinance, the county considers the applications to have been deemed completeon September 5, 2014. Therefore, the 150 -day period for issuance of a >finel local land use decision under ORS 215.427 wo €ld have expired on February 2, 2014, piete tetter A consolidated public hearing on the five Tree Farm applications was scheduled for November 6, 2014. On November 4, 2014, the Hearings Officer conducted a site visit to he subject property, acco€n€panied by Senior Planner Anthony Raguine, Due to work occurring on the nearby utility lines, some roads adjacent to and within the Tree Farm were not accessible, o the site visit was terr€ inated. By a letter dated November 4, 2014, the applicant requested that the hearing be continued to November 20, 2014. At the November 6; 2014, hearing the Hearings Officer disclosed my limited observations from the abbreviated site visit, received testimony and evidence, and cant hued 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 197.763. On December 3, 2€ 14 the, Hearings Officer conducted another site visit to the subject property and vicinity; again accompanied by Mr. Raguine, and on December 8, 2€ 14, issued a written site visit report. On December 19, 2015, Mr. Raguine issued a staff memorandum addressing the status of the proposed private roads in the Tree Farm. By a letter dated December 22, 2014, the applicant requested that the written record be extended to allow additional time to respond to the staff memorandum By an order dated December 23, '2014; the Hearings Officer extended the written evidentiary record through January 6, 2015, and allowed the applicant to submit final argument through January 13, 2015. The applicant submitted final argument on January 13, 2015 and the record closed on that date. Because the applicant requested that the public hea -€ng 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, 2015,2 As of the date of this decision there remain 27 days in the extended 15€0 -day period. Proposal; The applicant requests conditional use, site plan, and tentative plan approval to establish a 50 -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 Bluster/PDDs 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 clusteriPUDs coincide with the boundaries of the five legal lots of record recently reconfigured through the aforementioned lot line adjustments. Each cls€ster!Pt_UD would have ten accre residential lots, an open space tract, segments of the public and private road system, and mixed - se trails connecting to trails in Shevlin Park and the DNF. Tree Farms 1 through 4 Because the 10t day falls weekends and holidays are exci on Saturday Apr 11, 2015, and because under Section 22.08.070 • uded from time computations, the 150th day is April 1 a; 2015. Tree Farrn 4, 247 -14 -000248 -CU€, 247.14 -000249 -TP' Page 7 of 117 would include and in the UAR-10, RR -10 and WA Zones. Tree Farm 5 would entirely within the RR -10 and WA Zones. be located The subject application is for Tree Farm 4, consisting of 109.5 acres with ten dwellings on ten 2 -acre oats (Lots 31-40) clustered in the eastern potion of Tree Farm 4 and in the western portion of The Tree Farm, Tree Farm 4 would have an 8T7 -acre open space tract and 1.7 acres of right-of-way.3 The residential lots would have access to Skyliners Road, a county collector road, via two new private roads, Golden' Mantle Loop and Tree Farm Drive, over which the applicant proposes to dedicate permanent public access easements. Tree Farm Drive, Golden Mantle Loop and Ridgeline Drive in Tree Farms 1, 2 and 3 would, comprise the main PUD road. The >applicant proposes to dev=elop Tree Farms 1, 2 and 3 concurrently to establish this road. 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. 4 Lots in Tree Farm 4 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 Avion Water Company; or (3) water pumped from one or more private groundwater wells on The Tree Farm and/or the adjacent Miller Tree Farm property. Tree Farm 4 dwellings would have fire protection from the Bend Fire Department and police protection from the Desch u es County Sheriff. The applicant proposes that the entire Tree Farm >development would comply with the "Firewise Community" standards for fire prevention. The Tree Farm 4 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 ------------------ Tree Farms 1, 2, 3 and 5 would have the following characteristics: Tree Farm 1: Lots 1-10; 105.3 acres total; 31.1 acres of open space, of which 39.9 acres would be in the RR-10/WA Zones; and 4.2 acres of right -of - Tree Farm 2: Lots 11-20; 104.2 acres total; 82.8 acres of open space, of which 67.7 acres would be in the RR-1Oi+,r'VA Zones; and 1.4 acres of right-of-way; Tree Farm 3: Lots 21-30; 106.9 acres total; 83.3 acres of open space, of which 82 acres would be in the RR-10ANA Zones, and 3.1 acres of right-of-way; and Tree Farm 5: Lots 41-50; 107.6 acres total; 87.1 acres of open space, all of which would be in the RR-la/WA a/WA Zan:: ; and :.2...acres of right-of-way. 4 The tentative plan for Tree Farm 1 also shows potential right-of-way for for future extension of Skyline Ranch Road, a designated county collector road that has been dedicated and improved in segments north and south of the Miller Tree Farm and Rio Lobo properties. The potential right-of-way would extend north from Crosby Drive through the Miller Tree Farm property and the northeast corner of Tree Farm 1 and onto the Rio Lobo property. Tree Farm 4, 247, -14 -000243 -CU, 247 -14 -000249 -TP' Page of 117 Wildlife (ODFW). These comments are set forth verbatim at pages 3-9 of the Tree Farm 4 staff report and are included in the record. The following agencies either did'' not respond to the request for comments or submitted "no comment" responses: the Deschutes County Environmental Soils Division, Assessor, and Surveyor; the City of Bend Planning Division, Engineering Division, and Public Works Department (public works); the UFS DNF; the Oregon Department of Water Resources, Waterm€asterT District 1 1 ; the school district: Bend Broadband; Cascade Natural Gas; CenturyLink; and Pacific Power. Agency comments are addressed in the findings below. Public Comments The Planning Division mailed individual written notice of the applicant's proposal and the initial public hearing to the owners of record of all property located within 250 feet of the subject property's boundaries. The record indicates this notice was mailed to the owners of twenty-six ax lots. In addition, notic of the initial public hearing was published in the Bend "Bullet n" newspaper, and the subject property was posted with a notice of proposed land use ction sign. As of the date the record in this matter dosed, the county had received thirteen letters from the public in response to these notices. In addition, four members of the public testified at the continued public hearing. Public comments are addressed in the findings below. Lot of Record; The county determined Tree Farm 4 is a legal lot of record pursuant to a 2014 lot -of -record determination (LRT14-19). The current configuration of Tree Farm 4 is the result of a series of 2014 lot line adjustments (LL-14-17'''through LL -14-26), CONCLUSIONS OF LA! SU MMARY: The Hearings Officer has found that with two significant exceptions, Tree Farm 4 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. l 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 (MAP) 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 4. However, I anticipate this decision will be appealed to the Board of County Commissioners (board). Therefore, in order to assist the board and county staff in the event of such appeal, I have included in this decision findings of fact and conclusions of law on all applicable standards and criteria, as well as recommended conditions of approval. B. PR ELI M NARY IS Com pieta s u ES: ness a nd States s of Application: FINDINGS- In June of 2014. the county issued lot -of -record determinations written by Associate Planner Cynthia Smidt and confirming the existence of five legal lots of record comprising, The Tree Farm ((LR -14-16 through LR -14-2O). Ms. Smidt also issued a series of decisions approving;, lot line adjustments for the five legal lots of record creating the current configurations of the five Tree Farm developments (LL. -14-17 through LL -14426). Each of the lot -line -adjustment Tree F 4, 247-14-OOO248--CLJ, 247--14-000249-TP Page 9 of 117' decisions Included the following six conditions for final approval: (a) obtaining approval of a lot line adjustments; (b) obtaining surveys of the reconfigured lots and filing the surveys with the Deschutes County Surveyor; (3) submitting to the Planning Division legal descriptions of the newly reconfigured lots; (4) recording new deeds reflecting the new lot configurations; (5) paying all property taxes for the affected tax lots; and (6) complying with all development setbacks from tree 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 Fan applications were filed and the record for the applications dosed,, The record Indicates the deeds required pursuant to Condition 4 of the lot -line -adjustment decisions were recorded on October 17, 2014, nearly ten weeks after the applicant submitted its Tree Farm applications and nearly six weeks after the applications were deemed complete. Mr' Ra uine'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, R guine, stating the deeds had been recorded, The burden of proof for each of the five Tree Farm applications states the property subject to the application is a legal lot of record as configured on the submitted tentative plan. However, those statements were not correct because not all lot line adjustment conditions of approval had been satisfied and therefore the lot line adjustments were not final. The question is whether these misstatements affect the Hearings Officer's consideration of The Tree Farm applications. Section 22.08 035 of the devel opment procedures ordinance states,: If the applicant or the applicant's representative or apparent representative rakes, 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 aisatatements 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 I find he is not likely to do so since he referred The Tree Farm applications for a hearing, and the required deeds were recorded before the record closed. For these reasons, I find 1 may consider The Tree Farm applicatlions. Nevertheless, 1 find that to assure all lot -fine -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 Fare development for approval, to demonstrate to the Planning Division that all such conditions have been met« lodifi atio a; cif 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 Tree Farm 4. Several exceptions were identified in the applicant's Tree Farre 4, 247 -14 -000248 -CR , 247.14- 249 -TP Page 10 of 11 a burden of proof, and several additional exceptions were correspondence from the applicant. eguested throug h subsequent Section 22.20€.0 5 allows an applicant to modify an application up to the close of the record, but prohibits the Hearings'' Officer from considering a modification without the fil ng of a modification appllication. 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 chose 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 landsc ping, '''in a manner that requires the application of new criteria to the proposalor that would require the findings of fact to be changed. It 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 developmen proposal. Rather, they seek approval of various aspects of the applicant's proposal as shown n the tentative plans and in the burden of proof statements, l also find they constitute new evidence that clarifies and supports the applicant's proposal. Therefore, I find l can consider all of the applicant's requested exceptions without the need for modification applications. 3. Effect of S pllt Zoni n go FINDINGS. Tree Farm 4 includes land in three,,, zones -- UAR-10, RR -10 and WA -- established' and governed by two separate zoning ordinances ww Title 18 (RR -10 and WA) and Title 19 (UAR-1 g). 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 4. Permitted Lises. Sections 18 .60.0€ 0(E) and (F) Zone "planned development" and "cluster develr respective pment," defi y, permit conditionally in the RFS -10 ned in Section 18 04.030 as: "Cluster development" means a development permitting the clustering of single or multi -family residences on a part of the property, with individual lots of not less than two acres in size and not exceeding three acres in size. No commercial or industrial uses not allowed by the applicable zonl'ng ordinance are permitted. "Planned development"' means the development of an area of land at least 40 ares in stze or number—offdwelling >units, corn inercia —or—industrial—uses, according to a plan which does not necessarily correspond hi lot sizes 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. Tree Farm 4, 24 4 -000248 -CU 247 -14 -000249 -TP Page 11 of 117 "Planned Section 18.88 Zone is coin un d eveloprnent," see "planned d evelop en .040 provides that uses permitted conditionally in the zone with which the WA bined are permitted conditionally in the WA Zone. Section 19.12.03 defined in Section 19 i(N permits conditiona .04.040 as follows: "Panned unit developrnen entity for a number of unit ly in the UAR-10 Zone "planned uni developen t," means the development of an area of land as a single s or a number of uses, according to a pian which does d in lot size, bulk or type of dwelling, density, lot dard regulations otherwise required not necessarily correspon coverage or required open space to the sten by DCC Title 19. Although "'planned unit dev lopm€ent" in the UAR-10 Zone does not expressly permit' clustering of dwellings, the Hearings ifticer 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 all; five Tree Farm developments will be at least 40 acres in size. As discussed in the findings below, the applicant has requested cluster/PUD approval in order to deviate in several respects from the standard regulations under Titles 18 and 19. For the foregoing reasons, the Hearings Officer finds Tree Farm 4 falls within he 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 4 on the subject property. Sae: Sofa Glen Neighborhood Assoc. v. City of Salem, 25 Or LUBA 672 (1 93) (residential subdivision allowed on property's split rural residential and rural agricultural zones where use permitted in ''both zones); Roth v. 4Jackson County, 38 Or LURA 894 (2000) (winery allowed on split -zoned property's agricultural zone, but not on its suburban residential zone where winery is not a permitted use). Effect of Zone Boundaries. Tree Farms 1 through 4 straddle the boundary between the UAR- 0 and RR-10/WA Zones which is the line between Sections ''33 and 34. As a result' proposed;, lots, open space tracts, roads, and trails are located in all three zones.5 As a gee era'I 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 overly or combining zones established to, protect identified resources with specific geographic or site boundaries, such as the WA Zone 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 It appears from the aforementioned lot -line -adjustment decisions khat this split zon (`r ( nant.4 u et c./n of the five legal lots of record i:.ornarm; w'q The T r'e Farm,. ing fisted in the Examples of similar geographically specific overlay or combining zones an Title 18 are; (a) the Landscape €vlanagererit (LM) Zone in Chapter 18.84 (protecting designated scenic roads and waterways (b) the Sensitive Bird and Mammal Habitat (SB€MH) Zone in Chapter 18 90 (protecting bird nests and breeding grounds); and (c) the Airport Safety (AS) Zone in Chapter 118.80 (protecting airport approach zones). Tree Farm 4, 247 -14 -000248 -CU 247 -14 -000249 -TP Page 12 of 117 that specific habitat and minimizing conflicting uses 'therewit regulations do not apply to the areas of Tree Farm 4 located''o h. Therefore, I find the WA Zone utside the WA Zone boundaries. With respect to base zones such as the RR -10 and UAR-10 Zones, the Hearings Officer finds there are circumstances in which application of the general rule, that zoning regulations do not apply outside the zone boundaries, may not be appropriate, For example, in Eola Glen, cited above, LURA 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 simi ar cornclusi€ n €n my 2006 decision in » Hodgert (CU -06-53, SP -06-19, LM -06-73, LL06-48). In that case, the applicant requested conditional use and site plan approval to establish aprivate fishing lodge on property zoned F-1 and F-2. The applicant also requested a lot line adjustment that id create a split -zoned parcel on which some of the fishing lodge facilities would be located. !' made the following relevant findings: "Split zoning generally is not favored because it may complicate application of land use regulations to development on the property. However, where, as here, the regulations governing the F-1 and F-2 Zones are verb sir, ril r the proposed private fik laing 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 clustertPUDs permitted in both the UAR-10 and RR -10 Zones. The general conditional use standards applicable to clusteriPUDs under Sections 10.128.015 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 1. Therefore, the question is whether applying the standards in Titles 18 and 19 only to those portions of Tree Farms 1 through 4 located within the RR -10 and UARw10 Zones, respectively, would allow meaningful review of each cluster/PUD as a whole.' The Hearings Officer finds it would not because such segmented review vwould 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 clusteriPUDs, Accordingly, I, find that to the extent feasible,>;l will apply the applicable provisions of the RR -10 and UAR-10 Zones to the proposed Tree Farm 4 in its entirety. ADMINISTRATIVE RULES Oregon Adm Commission iistra e Rules, Ch pte 660, Land Conservation Division 4, Goal 2 Exceptions Process OAR 66 (1) 0.0 04-0 040, Application of Goa 14 to Rura a nd Development Resid entia Areas The purpose of this rule is to specify how Statewide Planning Goat 14, Urbanization, applies to rural lands in acknowledged exception areas planned for residential uses. ' As noted above, Tree Farm 5 is not split zoned as it is located entirely within the R-10 Zone. Tree Farm 4. 247• -14 -000248 -CU, 247-14-00 0249 -TP Page 13 of 1`'1 (2) (a) This rade appl s 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. (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 sirslgle family home on such lot or parcel, where the application for partition or subdivision was filed with the local government and deemed to be complete in accordance vvith ORS 215A27(3) before the effective date of Section (1) to (8) of this rule. (c) This rule does not apply through (H) of this subsection; (A) (6) (C) ( to types o and Inside n ackno€l boundary, d f land his ted n (A) ed urban growth land inside an acknowledged community boundary established Chapter 660, Division 022; unincorporated pursuant to OAR and hi an acknowled+ ed urban reserve area established pursuant to OAR ChapteChapter 660, Division 021; 0) land in acknowledged destination resort established pursuant to applicable land use statutes and goals; E) (F) (G) resource and as defined resource la in OAR rid, as define marginal land, as d Edition;' (H) land plan commercial or pu ned and 6 60-0 d in OAR 6 efined in ORS 04-00 6 05(2); 0-004-0005(3); 197 247 1991 zoned primarily for rural industrial, blic use. FINDINGS: The applicant and staff identified this administrative rule as applicable to Tree Farm 4 because the proposed cluster/PUD is on land located outside the Bend UGB, zoned UAR-1O RR -10 and WA, and designated UAR and RR .A. The Hearings Officer is aware the county's if1-10 zoned lands were acknow=i d ed as exception ares at the time the county's comprehensive plan initially was acknowledged in 1979. Therefore, l find the RR -10 zoned land within The Tree Farm constitutes a 'rural residential area' subject to this administrative rule because it is not included in any of the exceptions in Paragraph (2) (c) Tree Farm 4, 247-14-000248 CU 247-14.000249 TP Page 14 1 ''ith respect to land within Tree Farm 4 zoned UART10, the record indicates this urban reserve area was acknowledged but was not established pursuant to Division 21 of OAR Chapter 660, in 2003, forrner county hearings officer Tia Lewis issued a decision approving the nearby The Highlands at Broken Top PUD on UAR-10 zoned land (Cascade Highlands (GU-0-73iTP»g2 931)). Ms. Lew s concluded this administrative rule was applicable to the UAR-10 Zone west of Bend based on the following findings: "The Hearings Officer agrees with Staff that the subject property is located neither inside an >acknowledged urban growth boundar/ nor it side an acknowledged unincorporated community. In addition, although located in the urban reserve area, the record indicates that the bounty's urban reserve area . astr 379 the Stele reguirir ack t>I< / .?dtime a' of urban reserve areas. 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 applicable to the portion of Tree Farm 4 zoned and designated UAR, (7) ad inistristive rule also is (a) The creation of any new lot or parcel smaller than two acres in a rural residential area shall be considered'' an urban use. Such a lot or parcel may be created only if an exception to Goal 14 is taken. This subsection shall not be construed to imply that creation of new lots or parcels two acres or larger always complies with Goal, 14. The question of whether the creation of such lots or parcels complies with Goal 14 depends upon compliance v+iith ail 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 min um area shall be referred to as the min mum lot size. (c) if, 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 rue, a local government's land use regulations specify a minimum lot size smaller than two acres, the area of any new lot or parcel created shall equal or exceed two acres. (e) A local government may authorize planned''' unit, develops ent (PUUD), e 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: Tree Farm 4, 247 -14 -00024$ -CU, 247-14-€ 0 }24c4 -TP Page 15 of 11 The number of new dwelling units to be clutered or developedas a PUD does not exceed 10. FINDINGS: Each of the ten proposed residential lots in Tree Farm 4 would be at least, two acres in size. and the lots would be, clustered in the southeastern part of Tree Farm 4 and in the north. central part of The Tree Farm. As discussed above, Tree Farm 4 would be one of five contiguous clustdr?PUDs comprising The Tree Farm, and establishing 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 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 4 lots will not have access to Sk liners Road without concurrent development of Tree Farms 1, 2, and 3 which will create the main PUD road, and the applicants proposed utility plan shows city water service connections to Tree Farre 4 lots must be made through Tree Farms and 5. The applicant appears to have chosen to develop The Tree Farre, 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 as entitled to develop each legal lot of record consistent with applicable zoning ordinance(s) and the subdivisionlp rtition ordinance. I am not aware of any code provision that requires the applicant to consolidate its five legal lots as a prerequisite to cluster9PUD development. Neither have l; found any prohibition against developing a cluster/PUD where, as, here, roads and other infrastructure necessary to serve the new subdivision lots are dependent upon extension of and connection to such facilities on contiguous or nearby land, In such cases, subdivision approval may be, conditioned, on extension of and connection to existing roads and>' other infrastructure before final plat approval For the foregoing reasons, the 'Hearing s Office maximum number of dwelling units for a cluster Pt~ r finds Tree Farm 4 does not exceed the D under this administrative rule. B. The number of new lots or parcels not exceed 10. t e crea dry oes FINDINGS: The applicant proposes ten new residential lots in Tree Farm 4. 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 rr^€aximum applies only to new residential lots and not to the proposed open space;. tract. In an October 27, 2014 electronic mall message, the applicant's attorneyJeffrey Condit agreed with staff's interpretation, offering the following analysis; As discussed above, the Hearings Officer has found the applicant will be required as a condition of approval to demonstrate to the Planning Division that all conditions of approval for the lot line adjustments creating the proposed configurations for Tree Farms 1 through 5 have been met before final plat approval for any of the Tree Farm, developments. Tree Farm 4, 247-14- 4 CU, 47 -14 -000249 -TP Fag e 16 af 117 (here are two rules of stat€.,tory construction that come 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 r(e)) allows up to ten dvwerlinps on up to ten ne lots, so that assirrnes that there can be up to ten buildable 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 common area within the boundary of one of the ten' parcels, and limit the development on the open space portion via covenant, but what is the policy basis for allowing that and not allowing the open space to be located on a separate unit of land as long as it can't be developed? (Particularly considering that the latter arguably provides better long-term protection to the open space parcel.) l' think the better reading, which doesn't create a conflict or a distinction without, a difference, is that the ten parcel limit ir-n 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 unbuildable 'lot, parcel or tract' restricted to open space as long', as the requirements in that section are met. This is the only interpretation that reconciles potential conflicts and makes overall sense when read in context, I think similar reasoning applies to the County Code interpretation. The issue arose in the context of Tree Farm #1, which is proposed for a 105 acre property Under the existing UAR-10 zoning, the property could be divided into ten lots' each with a house on it. The Tree Farm's proposal under the county PUD statute is to cluster this development on ton two -acre >lots and preserve the remainder of the property as open space in a separate tract, * * * First, the express purpose of the PUD is to allow exceptions from the standard requirements of the zone in order to 'accrue benefits to the County and the general public in terms of need. convenience, service and appearance,' DCC 19.104.070. The preservation of they vast majority of the property in an open space tract is the chief public benefit Haat justifies the exception to the standard. Second, DCC 19,104.070 provides that '[a] 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 ten dwelling units can be sited on the 105 -acre property, Under the PUD as proposed in Tree Farm 1, no more than ten dwelling units can be sited on the 105 -acre property. The fact that the open space is being preserved in a separate tract does not affect compliance with the requirements of the PUD Code (and is a very common practice in planned developments)." The Hearings Officer concurs with Mr. Condit's>;analysis. 1 find the proposed Leen space tract in Tree Farm -4 -is -not -counted -in -the -ten -lot -maxi and therefore thee -applicant's proposal for ten residential lots does not exceed that maximum. C. None of the n two Tree Farm ' -4, 247 -14 -00024,8 -CU, 247-14- 00249 -TP ew lots o pa cel' be smaller tha h Page 17 of '117 FI N DI NOS: All resid en ial lots in Tree Farm 4 will be t L acre in size, satisfying this cnterion The development is not to be served by a community sewer system. The development is not to be served by any new extension of a sewer system from within an urban growth boundary or from within an unincorporated community. FINDINGS: The applicant proposes to serve the ten residential lots in Tree Farm 4 >. sith indiv du l on-site septic systems, therefore satisfying these criterial. F The overall density of the development will not exceed one dwelling for each unit of acreage specified in the local government's land use regulations on the effective date of this rule as the minimum lot size for the area FINING : The RR -10 and UAR-10 Zones in which Tree Farm 4 is located establis density of one lot per ten acres through Sections 18.60.60 and 19.12.50, res zones permit higher density for clusteriPUDs through Sect arts 18.60.00 respectively. As discussed above, the Hearings Officer has found the administrative rule applies to residential lots and does not include open s Therefore, l find the applicant's proposal complies with this requirement. h a general pectively. Both and 19,104,040, the 10 -tat maximum density in, pace tracts. FIND NGS: Any group or cluster of two or more dwelling units 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. Farm Use. The record indicates there are no nearby lands devoted to farm use and no farm practices occurring on nearby lands. Therefore, the Hearings Officer finds Tree Farm 4 will not force a significant change in, or significantly increase the cost of, accepted farm practices on nearby lands devoted to farm use. Forest Use. Required Analysis. The Hearings Officer finds this paragraph requires me to determine: (1) whether nearby forest -zoned land is "devoted to forest use;' (2) if so, what 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 clusteriPUD to the degree that the residential uses will significantly affect, or significantly increase the cost ofaccepted forest practices on the nearby forest -zoned lands.9 8 Section 18.04.030 aefi€yes "forest lends" and "forest uses' as follows; "Forest lands"` means lands which are suitable for co rr#r erciai forest uses including Tree Farm 4, 247 -114.000248 -CU 247 4 -000249 -TP Faye '1 f of 117 Study Area. The record indicates public forest and in the DNF is located southwest across Skyliners Road. In addition. private forest land is located west and northwest of Shevlin Park. The DN ' forest lands are managed by the USFS and extend west to the crest of the Cascade Mountains. The private forest lands west and northwest of >Shevlin Park were once part of the "Bull Springs Block" of public forest land conveyed by the UFS to private owners. The largest, of these private forest land holdings was owned and managed by Cascade Timberlands, and according, to Assessor's data consists of 17 ''tax lots totaling approximately 33,000 acres.'`' 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 gust 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 rule requires an analysis of impacts on "nearby" lands devoted to forest use; The ordinary definitions of "nearby' and "near' are: "chase at hand;" "at a short distance in space or time; close in distance or time; close 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 Farm.12 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, 4 notes the portion of the DNF southwest of The Tree Farm includes the heavily -used "Phil's Trail" mountain biking trai 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 ,pith scenic vistas adjacent or nearby lands which are necessary to permit forest operations or practices and other forested lands that maintain soil, air, water and fish and wildlife resources; "Forest uses" include production of trees and the %processing of forest products; open space; buffers from noise and visual separation of conflicting uses; watershed protection and wildlife and fisheries habitat; soil protection from wind and water, maintenance of clean air and water; outdoor recreational activity and related support services and wilderness values compatible with these uses; and grazing for livestock; The Hearings Officer is aware that after the close of the record Cascade Timberlands sold Deschutes County holdings. I will continue to refer to these ;ands as Cascade Timberlands property. its 11 The Hearings Officer finds I may take official notice of data collected and a€ntaaned by the Deschutes County Assessor concerning real property in Deschutes County. 12 This study area is equivalent to Inc county's one -mile -radius study area for non-farm dwelling conditional use approval requiring a similar analys€s of the impact from such a dwelling on accepted farm practices in the surrounding area Tree Farm 4. 247 -14 -000248 -CU, 247 -14.00O249 -TP Page 0- of 117 representing the natural character of central Oregon. Specifically, landscapes, which are visible from selected travel''' routes and places which are frequently visited will he managed to maintain or enhance their appearance. The proposed trail network will provide a variety of scenic vistas for visitors. The proposed horrresites in The Tree Farm project overall and in Tree Farm 1 specifically are all located well away frorrr the travel corridor of Skyliners Road within the Deschutes National Forest, and thus will have no negative visual impact on the forest use identified in the Forest Plan. In addition, use of the PUD to cluster development' allows homesites to be sited at a further distance from the boundaiy than w,wouid development of ten -acre lots. The open space tract rnust 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 s`devoted to forest use." I find the uses occurring on and planned for that land recreational, and preservation of open space and scenic vistas — are of relatively low intensity' compared with timber harvesting. I also find the nature of these existing and planned uses for this portion of the DNF reflects the land's proximity to the Bend urban area and its function as a gateway to millions of acres of public recreational land west of Bend, Nevertheless, in his November 21, 2014 comments on the applicant's proposal, County Forester Ed Ke stated: "I would note that the Forest Service does have an approved protect 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, Gond'€t's December 11, 2014 letter, Gary Marshall, former City of Bend Fre Marshal, stated the UFS has begun implementing the "West Bend Plan" which he descries 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 "Wes Bend Plan" are essentially the same as those previously employed, and proposed to be continued, on The Tree Farm property, Based on this information, the Hearings Officer find 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 pileislash burns, On behalf of LandWatch, Paul Dewey claims the presence of homes in cause the DNF to abandon forest practices su suppression techniques." He cites research pape Economics, included in the record as Exhibit "E" submission. This paper is based The Tree Farm will h as "aggressive fuel treatment and fire r on wildfire risks from Headwaters o Mr. Dewey's November 19, 2014 on case studies of eight communities, none of which includes Bend or Central Oregon. Altho€agh these studies provide useful general Information, the Hearings OfficeHindstley are not -a substitute -for -site -specific -analysis o the impact' of -the -ten proposed dwellings in Tree Farm 4 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." 'r. Dewey acknowledges that since the management plan for the DNF lands closest to The Tree Farm includes preservation of scenery, any logging wi I be done in a more visually sensitive way * * * Tree Fara 4. 247 -14 -000248 --CU, 247 -14 -000249 -TP Page 2 of 117 than in the General Forest," which the record indicates i southwest of The Tree Farm 13 Finally, Mr. Keith stated that i located approxi' his opinion: ately' five miles x # * rather than restricting management because of development, This project ["West Bend']>is going on because of development and the recognition of task that the current condition of these lands pose to the greater Bend area." Existing development near the DNF includes both Bhevlin Park and tiro large rural residential developments — The Highlands at Broken Top and Tetherow. Based on Mr, Keith's comments, the Hearings Officer believes it is appropriate to assume the management plans for the nearby DNF ands already have been influenced to a significant degree by the presence of these land uses, as well as nearby developments within the Bend UGB The record indicates that at ts closest points, the portions of the DNF engaged in, and planned for, scenic preservation and recreation are located between 3,000 and 4,000 feet from Tree Farm 4 Lot 40, 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 if any impacts on Tree Farm 4 residential uses: 1 find the lack of comment on The Tree Fara from the UBFS 'strongly suggests it has no concerns about the impact of dwellings in Tree Farm 4 on it management practices. For the foregoing reasons, the Hearings Officer finds Tree Farm;, 4 and its residential uses wil not force 'a significant change in, or significantly increase the cost of, accepted forest pract on FJNF lands in the study area. ices Private Forest Land, The private forest lands west and northwest of Bhevlin Park are part of the "Bull Springs Block" that was once part of the DNF, These lands were transferred to Crown Pacific, and following its bankruptcy were conveyed to other owners including Cascade Timberlands. They form much of the forest land visible to the west of Bend. The record indicates that before Cascade Timberlands sold its Deschutes County holdings, the company and other stakeholders had discussed long-term planning for this land — referred to as "Skyline Forest" to include a combination of preserve ion of open space and scenic v€ews, recreat€on, 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 s€nailer private forest -zoned parcels northwest of The Tree Farm. in the Hearings Officer's previous decision in Taylor (MP -05-31, 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, i made the following findings concerning accepted forest practices on'the Cascade Timberlands property: " andWatch argues that although current forest practices in the study area are of Io intensity, the Hearings Officer should include within the `accepted forest practices' in the study area>rruch more intensive practices drat could occur in the future iif'reforestation ' occurs on a large ''scale and maturetrees s 'arE harvested in greater numbers. L.andWatch's predecessor Sisters Forest Planning Committee 13 Included as Exhibit "H' tc Mr. Condit's December 11, 2014 letter is a color -coded map depicting the DNF west and southwest of The Tree Farm, and showing the more distant location of the DNF 'General Forest" — i.e., the area planned for timber production. Tree Far rh 4, 247-14-000248-C11, 247 -14 -000249 -TP Page 21 of 117' (SFPC) rr ade the same argument Hogensen, 1r that decision. I r : de the following pertinent findings: The Hearings Officer concurs with the appellant that it is reasonable to asorrne the Terni `accepted' forest practices includes not only those practices currently taking place, but lh€ se that could occur in the future. Nevertheless 1 find it is not reasonable to speculate from this record that ail land in the study area will be reforested and harvested to the most intense degree possible — particularly where,as here, the record indicates Crown Pacific [the predecessor of Cascade Timberlands] has been selling tracts of its forest -zoned land for residential development purposes rather than for timber management and harvest. Therefore, l firm' it appropriate to evaluate the impacts of the proposed dwelling on those forest practices that are most prevalent currently and in the recent past - Le., selective harvesting' of trees, long hauling, slash and pre,.prescribed burning, and some chemical spraying, These findings were challenged by SFPC and upheld on appeal. Sisters Forest Planning Committee v. Deschutes County. The Hearings Officer adheres to these findings here." On appeal of the Hearings Officer's decision in Taylor (Central Oregon LandWa'lch v. Deschutes County 53 Or LUBA 290 (2007), LUBA 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 its predecessor's practice of selling individual forest -zoned parcels for residential use. However, it appears from this record that in the ten years since my Taylor decision the general nature of accepted forest practices on the Cascade 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 prescrbed burning, and some chemical spraying. have found potential impacts from such uses include noise from logging, noise and drifting dust from operating log trucks on unpaved roads, drifting of chemicals, and drifting of smoke from prescribed burns and pile/slash burns. The tentative plan for Tree Farris 4 shows its most western lots, Lots 39 and 40, would be located more than 4,500 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 includes' large open space tracts in the western portion of The Tree Fara 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. l find impacts, if any, on Tree Farm 4 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 4 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, 11 For any open spec e 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 Tree Farm 4, '141-1 -000248-CU, 247-14-000249-T' Page 22 117 records. The deed rights to construct a dm tract designated as open estri long as the lot, parcel, urban growth boundary, ctions shall preclude all future �ael'ling on the lot, parcel, or space or common area for as or tract remains outside an FINDING. The applicant proposes to make the Tree Farr€ 4 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, outside the Bend UGB. As discussed in findings throughout this decision, the applicant > has, stated it intends that The Tree Farm and Tree Farm 4 never will be included in the Bend UGB, and has proposed that the development ` create a "permanent" transition area between urban uses to the east and S evlin>.Park and forest land to the west. Accordingly, the Hearings Officer finds the applicant will be required as a condition of approval to record nonrevocable deed restrictions for the Tree Farm 4 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 wil be required as a condition of approval, and prior to submitting for final approval any plat for Tree Farre 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. l' find that with imposition of these conditions of approval the applicant's intent will be accomplished' and the open space tract in Tree Farm 4 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 single-farn,ily dwelling per residential lot,, therefore satisfying this criterion: 2 Dlvision 11, Pu OAR 6 1) As (b blic Facilities Planning 60-01 100 065, VVate Service to Ru al nd a used in this rule, unless the context requi res otherwise.. "Establishment' means the creation of a new water system and all as o dated physical components, incl d)„ systems provided by public or private entities, "Extension of a water system" means the extension of a pipe, conduit, pipeline, main, or other physical component from or to an existing water system rn order to provide service to a Tree Fara 4, 247-14-00 24 -CI.E, 247-14-Of30249-TP Page2:3cf117 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. (c) "Water system" shall have the same meaning as provided in Goal 11, and includes all pipe, conduit, pipeline, mains, or other physl cal components of such a system. (2) Consistent with Goal 11, local land €sae ray s latlos s alicable to lands that are outside urban growth boundaries and un ncor prat d communit:: boundarle shall not: (a) (b) (c) Allow en„i crease €n a Jantstkritalty in a residential zone due to the availability) of sere ce from watersystem; Allow a hi er sys or t m tha for residential development served by n will be authorized without such service; Allow an increase in the allowable density of residential development due to the presence, establishment,, or extension of a water system. ) Applicable provisions of this rule, rather than conflicting provisions of local acknowledged' zoning ordinances, shall immediately apply to local land use decisions filed subsequent to the effective date of this rule. . (Emphasis added.) FINDINGS° The applicant proposes to provide domestic water to the Tree Farm 4 lots through one of three options: (1) extension of City' of Bend water service; (2) securing water service from Avian Water Company; or (3) pumping, water from one or more wells on The Tree Farm or adjacent property. The Hearings Officer finds both Bend's and Avion's water systems constitute "water systems" for purposes of this rule. The base density of the UAR-10 Zone will allow the creation of up to ten new residential lots in Tree Farm 4, as proposed by the applicant. The Hearings Officer finds the applicant's proposal will not allow an increase in the UAR-10 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, I find the applicant's proposal satisfies this criterion. For the foregoing reasons, the Hearings Officer finds the applicant's proposal satisfies, or with imposition of the conditions of approval described above will satisfy, all applicable provisions of the administrative rules in Divisions 4 and 11 of OAR Chapter 660. C. Title 16 of the Deschutes County Cod, the Deschutes County Zoning Ordinance ce RR -10 ZONE STANDAR DS 1, Chapter 18 60, Rural Residential Tree Fa14, 24T-14-0 024 CU, 247-14-00024 9 -TP Zone ® R R-10 Pag e24of117 Section 18.6 0.0 0, Con t itional Uses Perm fitted The following uses may be allowed subject to D Cluster development. CC 8128: FINDINGS: : The Tree Farm 4 tentative plan shows most of the proposed, open space tract would be located within the RR 10, Zone. The Hearings Officer has found the proposed cluster/PUD is a use permitted conditionally in both tine RR 10 and UARL10 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 4 because its residential lots are not located in the RR -10 Zone. However, as discussed above, l`> have found that to the extent feasible, I' Will apply the provisions of both the RR -10 and UAR-10''Zones to Tree Farms 1 through 4 in their entirety rather than segmenting my review based on the zone boundaries: Therefore, I find the provisions of the RR -18 Zone are applicable to Tree Fenn 4 as a whole. The proposal's compliance with the provisions of Chapter 18.128 is discussed in findings below under that chapter. b. Section 18.6 0.040, Yard a nd Seth 0 k Requirer In an RR -10 Zone, the followmg yard and setbacks shall be maintained` A. The front setback shall be a minimum of 20 feet from a property line fronting on a local street right-of-way, 30 feet from a property line fronting on a collector right-of-way' and 50 feet from an arterial right-of-way. There shall be a rninimurrr side yard of 10 feet for all uses, except on the street side of a corner ot the side yard shall be 20 feet. Th e mini rear yard shall be 2 0 feet. D. The setback from the north lot line shall setback requirements in DCC 18110180. Beet t he solar In addition to the setbacks set forth here€r, any greater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met. INDINGS: The tentative plan for Tree Farre 4 shows all residential lots Mill front on kcal road rights-of-way, and therefore the minimum front yard setbos.k for dwellings is 10 feet Section 18.04.030 defines "corner lot"' as * a lot adjoining two or more streets, other than alleys, at their intersection provided the angle of the intersection of the adjoining streets does, not exceed, 135 degrees. Tree Farm 4. 247-14 O0O2, -CU, 247 -14 -000249 -TP Page 25 of 11 The tentative plan shows Tree Fare 4 Lots 31 and 32 constitute "corner lots" because they are located at the intersection of Golden Mantle Loop and Ridgeline Drive. Therefore, the minimum side yards for these two lots are 20 feet, and the minimum side yard for the other eight lots i feet. The minimum rear yard for all lots is 20 feet. The Hearings Officer finds the applica be required as a condition of approval to assure dwellings on the Tree Farm 4 lots meet these minimum setbacks and yards. Section 18.60.0 60. Dimensional Standards n an RR4O Zo <* * e thefo llo ing di r ension Minimum lot size shall cluster developments shall al anda rd ss hall ap be 10 acres, except planned' and be allowed an equivalent density ned and cluster development ed urban growth >>boundary', mum lot size or eguivalent of o with shall d a e unit ' per 7.5 acres. Plan n one mile of an aoknoled be allowed a five acre min ensity. For n exernptio pa ns reels se hall be parated by new arterial rights of way, ranted pursuant to DCC 18.120.020. g FINDINGS: The Hearings Officer has found the applicant's proposal satisfies the maximum density under OAR 660-004-0040, which allows lots as s€mall as two acres. The applicant' proposes ten 2 -acre residential Tots and ane 87.7 -acre open space tract for Tree Farm 4. As discussed in the findings below under the WA Zone, Section 18.88.050 requires that all residential lots within the WA Zone be Blustered and a minimum of 80 -percent open space be preserved. The burden of proof for Tree Farre 4 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 'two acres In size, and to duster 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 th applicable criteria in the RR -10 WA ZONE STANDARDS e Hearings Officer fin Zone. d the a pplioan t propose l satisfies al'l 2. Chapter 18.88, Wildlife Area Combining Zone — WA a. Section 18.88.010, Purpose The purpose of the Wildlife Area Combining Zone is to conserve important wildlife areas in Deschutes County; to protect an important environmental, social and economic element of the area; ;,and to permit development compatible with the protection of the >Wildlife resource,> Sectio n 18.8 8.020, Application of provisions The provisions of DCC 18.88 shall apply to all areas identified in the Com rehensive plan as a winter deer range, significant ells Tree Farris 4, 247-14-0002 -CU, 247 -14 -000249 -TP Page 26 of 117 habitat, antelope range or deer miration corridor. ll nincorporated communities are exempt from the provisions of DCC 1&88. (Emphasis added.)' FINDINGS: The tentative plan for The Tree Farms shows the western 3 f "the entire development, and the western 88.5 acres of Tree Farm 4; are within the WA Zone associated; with Tumalo deer winter range. The Hearings Officer has found that because the WA Zone is an overlay zone protecting a specific geographicall'y-defined and mapped resource, l wai apply the WA Zone only to those portions of Tree Farms 1 through 4 located within the WA Zone.14 Therefore, 1 find the WA Zone provisions apply only to the portion of Tree Fara 4 located in the WA Zone, consisting of Lots 37, 39 and 40, open space, a segment of Golden Mantle Loop, and a portion of the recreational trail system. b. 5 ecti on 18.8 .040,, U ses Perrrrn'itted Conditionally " Except as provided in DCC 18,88,040{1 )p in a zone with which the WA Zone is combined, the conditional uses permitted shell 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 cluster development standards in Chapter 18.128 is addressed in the findings below. Section 18.8 8.0 5 0. Dimensional Standard sr l'rn aVVA Zon e, the follow g d'! mensional s tan da rd s shall a pply: A. In the Tumalo, M tollus, North Pauline and Grizzly deer whiter ranges designated in the Comprehensive Plan Resource Element, the minin a an n lot size for ne+ : arc 1s shall be 40 acres except as provided in DCC 18,88,050(D). FINDINGS: Section 18.04.0 30 defines "parcel" as "a unit of land created by a partitioning of an€d." The applicant does not propose the creation of any new parcels, and therefore the Hearings' Officer finds this criterion as not applicable, in any case, Tree Farm 4 would be 109.5 acres in size, and the portion of Tree Farm 4 in the WA Zone would be 88.5 acres, exceeding the minimum lot size for new parcels. D. 'Residential land divisions, including partitions, in deer winter range where the underlying, zone is IRR -10 or MUA.-10, shall not be permitted except as a plan ed development or cluster development conforming to the following standards: FINDINGS: The a=nppllcant propose a residential land division co € sisting of t €lot. cluster, PUD on property zoned RR -10 and UAR-10, therefore satisfying this criterion: d As noted above, Tree Farms ''1, 2, an 3 slsc have spaat zoning between t.EAR-1nd RR-10/14VA. Tref 4, 247-14-00024 -c' , 247 -14 -000249 -TP Pay e 27 of 117 FINDINGS: According to the subm acres, 88 5 acres of which; would minimum area standard.56'' The minimum area for a planned or du development shall be at least 40 acres. e r fitted'' tentative plan, Tree Farm 4 would consist of 109.5 be located within the WA Zone, therefore satisfying this The planned or cluster development shall,' r minimum of 80 percent open space and conform with the provisions of DCC 18.1 8.00or 210. am a FINDINGS: Accord€ng, to the submitted tentative plan, Tree Farm 4 would have 20 acres of residential lots (ten 2 -acre lots), 87.E acres of open space, and 1.7 acres of right -cit -gray. The tentative plan shows 857 acres of the open space and 0.8 acres of the right-of-way would be located within the WA,Zone; Based on this acreage, 80 percent of the entire Tree Farm 4, and approximately 98 percent of the WA -zoned portion of Tree Farm 4, would be open space. The applicant's burden of proof states the 80 -percent open space should be calculated including only the WA -zoned land, based on, the following analysis: "Overall the 5 separate PUD/Cluster Development proposal withir 'The Tree, Farm will result' in fifty 2 -acre hor esites 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 2. 1f s oUr+g pr o u" 1 rA , zoned R 1.0 (VA and rubiPot to thr- 80% reaurrerr rrt the rar arrr€1cr bora f z IP.c A 1 rt i had 2Q a rc# .§P§Sific open space requirement. Of the 393 acres in the RR-10(WA). 362.7 acres (92%) will be preserved as permanent open space., This is accomplished' by concentrating the developed homesites in the UAR-10 portion of the property in order to nnaxirize the amount of open space to be preserved in the deer winter range." The Hearings Officer agrees with the applicant that land outside the WA Zone is not included in the open space calculation, and therefore I find Tree Farm 4 satisfies the minimum 80 percent open space requirement in the WA Zone. Notwithstanding the provisions of DCC 18.128.200 or 210, or ' DCC 18.60.060(C), the Natal number of residences in a chaster development may not exceed the density permitted in the underlying' zone, FINDINGS: The general density in, the RR -10 Zone is one dwelling per ten acres. The applicant proposes that the 109.5 -acre Tree Farm 4 be developed with ten residential lots and one open space tract. The Hearings Officer has found the open space tract is not included in the residential' density calculation, and therefore Tree Farm 4 satisfies' this standard 1 5 The Hearings Officer add proposed creation of linil g (SM). section quoted language mea language establishing Is Ile in Taylor, Tree F'n 4, .47-14-0 sed a similar issue in my T ylor-decision, cited above. There, the applicant parcel comprised of 40 acres zoned F-1 and 40 acres zoned Surface stablishes an 80 -acre rminimum lot size "in the F-1 Zone." I held the e rhinimurm lot size must be met entirely within the , -1'' Zone. The 1 lot size in the A gone is identical to the language in F-1 Zone at 00248- tl 247-1 4 -000240 -TP Page 28 o :117 da Section 18.88.060, Siting Stand ards A. Setbacks shall be those described in the and with which the WA Zone is combined, erlyin g zone FINDINGS: The Hearings Officer 'finds this provision applies to setbacks between structures and lot lines. Three of the residential lots in Tree Farm 4 — Lots 37, 39 and 40 — would be located in the WA Zone. Therefore, l find this criterion applies to those lots. I find that as condition of approval the applicant will be required to assure compliance with the applicable setbacks in the RR -10 Zone, set forth in the findings above. B. 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. Habitat values (i.e., browse, forage, cover, access to water) and migration corridors are afforded equal or greater protection through a different development pattern; or, The siting within 300>.feet of such roads or easements for vehicular access will` force the dwelling to be located on irrigated land, in which case, the dwelling shall be located to provide the least possible impact on wildlife habitat considering browse, forage, cover, access to water and migration corridors, and minimizing length of new access roads and driveways; or, The dwell' ed g ng is set back no more than 50 feet from the e of a d For purposes of D riveway that existed as of August 5, 1992., CC 18.8 8.0 60(B): 1. A private road, easement for vehicular access or driveway will conclusively be regarded as having existed prior to, August 5, 1992 if the applicant submits any of the following: a. A copy of an easement regarded, with the County Clerk' prior to August 5, 1992 establishing a right of ingress and egress for vehicular use; An aerial photograph with proof that It was taken prior to August 5, 1992 on which the mead, easement or driveway allowing, vehicular access is visible; Tree Farm;. 4, 247.14 -000248 -CU, 247-14-0 -TP Page 29 of t 1 A map published prior to August 5, 1992 or assessors map froth prior to August 5, 1992 showing the road (but not shoing a mere trail or footpath). An applicant may submit any other evidence thought to establish the existence of a private road, easement for vehicular access or driveway as of August 5,'1992 which evidence need not be regarded as conclisiv . FINDINGS: Section 18.04.030 defines "road" as "a public or private way created to provide ingress or egress to one or more lots, parcels, areas or tracts of land." The applicant's burden of proof for Tree Farm 4 states the building envelopes for Lots 37, 39 and 40 are located entirely within 300 feet of roads that were in place prior to August 5, 1992. in support of that statement the applicant submitted as part of its VVMP in Exhibit `"I°' to the Tree Farm 4 burden of proof two aerial photos of The Tree Farm property dated July 28, 1990. These photos show a network of dirt roads on the property referred to in the burden of proof as former logging roads. in addition, the WMP includes a diagram prepared by the applicant's engineer WH Pacific that superimposes the dirt ,roads on the Tree Farm 4 lots, The Hearings Officer has examined these, photos and diagram and i find they provide conclusive evidence that the building envelopes on Lots 37, 39 and 40 in Tree Farm 4 are located within 300 feet of one or more dirt' roads that appear in the 1990 photographs, and therefore dwellings on those lots can be constructed in compliance with this paragraph 16' For these reasons, i find Tree Farm 4 satisfies the criteria in this section; Section 1 8.070 Fence Stand and 5 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 review. New fences in the Wild!'€fe Area Combining; Zone shall be designed to permit wildlife passage. The following standards and guidelines shall apply €,Mess an alternative fence design which provides equivalent wildlife passage is approved by the County after consultation with the Oregon Department of Fish andWildlife:' The d lista nce between the grou strand or board of the fence shall nd and the bottom be at least 15 inches. The height of the fence shall not exceed 48 inches above ground level, 16 Ail ten proposed residential lots in Tree Farm 5 would be located within the WA Zone. In the Hearings Officer's decision in Tree Farm 5, l found the building envelopes :or two of the Tree Farm 5 lots, Lots 41 and 42, would not be located within 300 feet of an ;,existing road. However, 1 found based on the W€vtp that the placement of Lots 41 and 42 farther than 300 feet from one of the former logging roads satisfies this criterion because habitat values (1 e., browse, forage, cover, access to water) and >migration corridors are afforded equal or greater protection through this alternate development pattern; Tree Faro's 4, 247 -14 -000248 -CU 247 4--000249-TP' Page 30 of 1 17 Smooth wire and wooden fences that allow passage of wildlife are preferred. Woven wire fences are discou ra g ed. 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. 2. Corrals used for workins livestock, FINDINGS: The applicant does not propose any new fencing for Tree Farm 4, and therefore the Hearings Officer finds these criteria are not applicable. However, to assure compliance with these standards, E find that as a condition of approval the applicant will be required to install any fencing in the VVA-zoned portion of Tree Farm 4 in accordance with these standards. As noted above, the applicant proposes to remove most of the >exist ing wire fencing on The Tree Farm. For the foregoing reasons, the Heart standards, in the WA Zone gs Officer find CONDITIONAL USE APPROVAL CRITERIA Chapter 18.128, Conditional Us Section 18.128.010, 0 pera tions s Tree Farm 4 satisfies all a p plic ble A. A conditional use listed in DCC Table 18 shall be permitted, altered or denied hi accordance with the standards and procedures of this title; DCC Title 22, the Uniform Development Procedures Ordinance; and the Comprehensive P la ne Section 18.128.015, General Standards 0 overn ng c and itional Uses Except for those conditional uses permitting individual single dwellings, conditional uses shall comply with the fol standards h addition to the standards of the zone in whi conditiona chapter: use is located and any other a pplicab fails lowing ch the e standards of the FINDINGS: The applicant argues the general conditional use standards in this section do not apply to Tree Farm 4 because the proposal ''includes individual" single-family dwellings. The Ilea in x=Officer disagrees." I find these' criteria are applicable to Tree Farm 4 because the proposed conditional use is a chaster development, not an "individual single-family The applicant did not address these critena in its burden of proof for Tree Fara 4, but in>>response to the staff report sLibrnitted>. a memorandum dated October 29, 2014, addressing the critena: Tree Farm 4, 247-1r -000218-CU 247-14-000249 Pa 31 of 117 A. The site under consideration shall be d suitable for the proposed use based on the to eterrnined to be lowing 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, 4. As discussed above, the Hearings Officer has found that in order to conduct a meaningful review of Tree Farm 4 as a whole, I will apply the standards in both Title 18 and 19 -- with the exception of the WA Zone in Title 18 -- to the entire cluster/PUD, Therefore, I find the site for evaluation of the proposed cluster/PUD is the entire Tree Farm 4, 1. Ste, desig n and o Perating pha ra cte risti of the us Site. Tree Farm 4 would be 109.5 acres in sire. 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 Farm tentative plans shows the configuration of Tree Farms 1 through 5 generally follows the contours of the property, and in particular the central ridge that runs generally in a southwest -to -northeast direction. Tree Farm 4 is in the western half of The Tree Farm. It extends from the most northern point of The Tree Farm in a generally southwest direction to the northern border of Tree Farre 5. The topography of Tree Farm 4 varies from higher, relatively level ground in its northeastern area where the residential ots are proposed to steeper slopes in the rest of the site and within the open space tract. Vegetation in Tree Farms 4 consists almost entirely of mature forest with some shrub steppe vegetation in the northeastern portion where the residential lots are proposed, Tree Farm 4 does not have frontage on Skyl ners Road: it is separated from the road by the most southwestern portions of Tree Farms 2, 3 and 5. Tree Farm 4 is separated from the Bend UGB by Tree Farms 1, 2 and 3 and a vacant parcel owned by Miller Tree Farm. Design and Operating Characteristics. The proposed ten residential lots in Tree Farm world be clustered in the north -central portion of The Tree Farm on higher, relatively level ground. All lots would have frontage on 'Ridgeline Drive and/or Golden Mantle Loop. Ridg line' Drive intersects with Golden Mantle Loop and extends southwest through Tree Farms 2 and 3 to connect with Tree Farm Drive, the primary PUD road which intersects with Skyliners Road at the southern property boundary. The applicant proposes to develop Tree Farms 1, 2 and concurrently to provide access from Skylivers Road to the ots in those three cluster/PUDs. Construction of Tree Farm Drive in Tree Farms 1, 2 and 3 would allow the connection to Golden Mantle Loop in Tree Farrn 4. The topographical information on the tentative plans shows the private roads will be constructed primarily on the centra 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 Farrn property is developed with paved streets to which Sage Steppe Drive could connectSage 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. W. {ith 'development'` of Tree Farms 1, 2 and 3, lots in Tree Farm world have a connection to the secondary access road. The applicant proposes that each dwelling would be constructed within a designated building envelope, would be served by an onsite septic system, and would receive water from the City of Bend, Avon `dater Company, or one or more groundwater wells. Tree Fara 4, 247-:4-00 248 -CU 4-o0 4249 -TP Pag e32of117 The majority of Tree Farm 4 (87.7 '' acres) would be set aside as permanent open space. The public would have access to this, open, space through a combination of a permanent trail easement on the primary trails within The Tree Farm and a license granted by The Tree Farm homeowners' association (HOA) for use of trails within the residential lot areas. The multi -use paths and recreation/mountain bike trails in Tree Farris 4 would connect with trails in the rest of The Tree Farm and Shevlin Park and the DNF to the west and southwest. The Hearings Officer finds the site for Tree Farm 4 is suitable for the proposed ten -lot cluster/FUD 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 roads. I find the clustering of dwellings in the northeastern part of Tree Farm 4 will preserve the maximum amount of open space and will allow the dwellings to be sited on the only level ground on Tree Farm 4; !find the design of the private roads in Tree Farm 4 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 Skyliners Road with concurrent developnnent of Tree Far rr€s 1. 2 and 3. For the foregoing reasons, the Hearings Officer finds the site of Tree Farm 4 is suitable for the proposed ten -lot cluster/PUD considering the site and the design and operating characteristics of the proposed development. 2. Aden ua y of tra nsportation a ccess to the site; and FIND NG : Access to Tree Farm 4 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 6 -foot -wide paved surface to, accommodate both vehicular and pedestrianbicycle traffic. The remaining segment of Tree Farm Drive and the other Tree Farm Roads would be improved with 20' feet of paved surface. The applicant proposes a gated temporary emergency access road from the southern end of Sage Steppe Drive, a dedicated public road, in Tree Farm 1 south through the adjacent Miller Tree Fara property to Crosby Drive, a dedicated public street within the Bend UGB, This secondary access would be in place until the adjacent Miller Tree Fara property is developed with paved streets to which Sage Steppe Drive could connect. Traffic Study. In support of The Tree Farm proposal, the applicant s€. bmitted 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 4. The traffic study indicates the Institute of Transportation Engineers Trip Generation Manua, 9th Edition (ITE Manual) predicts each single-family dwelling will generate 9.5 average daily vehicle trips (ADTs). Accordingly, the traffic study predicts the 50 single-family dwellings proposed for entire Tree Farm would generate 476 ADTs, of which 50 would be during the p.m. peak hour (4:00 p.m. to 6:00 p.m. weekdays). s). The traffic study analyzed the '''impact of this traffic on the proposed > Skyliners RcadITree 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 4 247- -0 00248 -CU, 247 14-OOO249-T Page 33 of 117 The traffic study also analyzed' Tree intersections on the west side of Bend: Fa rrn ra Skyliners Road and Crosby Drive; 6 Skyliners Road and Skyline Ranch Road; 6 Skyliners, Road and Mt. Washington Drive; 6 Mt. Washington Drive and Northwest Crossin Mt, Washington Drive and Simpson Avenue. g p5 Drive; and on the foil win g five existin g The traffic study found these existing intersections currently operate at acceptable levels of service, and that with the addition traffic generated by The Tree Farm, and including traffic volume growth of three percent and additional traffic anticipated from development in progress (including the new Pacific Crest Middle' School and a large church under construction, and continuing development of Northwest Crossing), these intersections will continue to operate at acceptable levels of service in 2017 and 2022. In its comments on the applicant's pr€oposal,, the road department did not identify any concerns or recommend any it provements 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 unacceptable levels of congestion on affected streets and intersections on the west side of Bend, and would cause, serious deterioration to Skyliners Road. The Hearings Officer finds no merit to these arguments in light of the traffic study's conclusions' and the lack of road improvement recommendations' from the road department. Opponent Connie Peterson suggested the traffic study should have included in its analysis traffic generated from a future Oregon State University (OSU) Cascades campus near the Mt. Washington Drive/Simpson Avenue intersection. The Hearings Officer is aware the city's approval of a ten -acre OSU Cascades campus is on appeal, to LURA and the approval therefore is not final. For this reason, l 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 pred cted up to '1,100 dwellings could be developed on the property, and they would generate over 0,000 ADTs and 948 p.m, peak hour trips. The 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.18 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 vould be a public road within a dedicated 00 -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 ,is December 1 +, 2014 cornrents on the applicant': proposal, Peter Russell correctly noted that any land use approvals ear current applications for development of the Rio Lobo property, °the trip generation from the Rio Lobo property is zero." Tree Farm 4, 247 -14- 0248 -CU, 2 41.14.000240 -TP Page04of 117 surface meeting the fire department's standards for emergency vehicles. The temporary access road would provide a means of ingress and egress for Tree Farm 4 lots following construction of the, private roads in Tree Farms 1, 2 and 3. In his November 20, 2014 comments on the applicants proposal, County Engineer George Kolb stated the emergency access road must' have a 24 -foot -wide surface, and on that date, the applicant submitted a revised tentative plan, for Tree Farm 1 showing the emergency access road would be 24 feet wide. Crosby Drive provides access to the three nearby public schools — Summit High School, 1 e Elementary School, and the new Pacific Crest middle school under construction. The tentative pan for Tree Farm 1 shows the proposed route of this emergency access road across the adjacent property, and the topographical information on the tentative plan indicates that for the most part the route would be on level or slightly sloping ground. The exception is a>;s€mall area just north of S yliners Road where there is a steep ridge. However, the proposed road al'€gnment>;appears to skirt the steepest part of that ridge. In an October 31, 2014 electronic mail message, the applicant stated the emergency access road will be constructed with grades not exceeding 8.5 percent, less than the 12 -percent maximum slope permitted for emergency vehicle access. In his November 20, 2014 comments, George Kolb stated the proposed emergency access would require a county gate permit, At the public hearing, the Hearings Officer questioned how the locked access gates would operate and whether residents and guests would be able to open the gates. Gary Marshall stated such gates generally are designed to be operated by the fire department with "Knox" locks, but that additional options are available for "residential access,' including special keys, key codes and automatic gates. I find the applicant will be required as a condition of approval to 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. 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 Farm residents will be evacuated at the same time. Mr. Marshall responded to these concerns in a letter dated December 10, 2014, included in the record as Exhibit "B" to Mr, Condit's December 11, 2014 letter. Mr. Marshall stated that in his opinion such congestion would not occur because it is highly €w€nRely 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 u-- Tree Farm Drive and the secondary emergency road rw and the record indicates the schools have several points of access. I find the existence of multiple points of egress for The T ee Fara and for the schools would serve to reduce congestion in the event all three schools and The Tree Farm were evacuated simultaneously. Moreover, I find that in light of Mr. Marshall's extensive experience, including dealing with wildfires on the west side of Bend, his opinion concerning I'ikely evacuation scenarios is credllble and reliable. In a November 4, 2014 letter, included in the record as Exhibit ,'F" to Paul Dewey's November 19, 2014 submission, LandWatch's fire expert Addison Johnson suggested the secondary emergency access road should be constructed to run in the opposite direction from the main PUD access road i.e., to the northeast. However. as discussed elsewhere in this decision, the tentative plan for Tree Farm 1 shows there is steep terrain northeast of Tree Farm 1, and there Tree Farm 4, 247-14-000248-C U, 247-14- 0024 TP Page 35of117 are no existing public roads with which such a secondary access road could connect. Therefore, I 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 i €flier' Tree Farm property and the northeast corner of Tree Farm 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 location 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 innpoition of the condition of approval described above, the Hearings Officer finds Tree Farm 4 is suitable for the proposed ten -lot clusteriPUD considering the adequacy of transportation access to the site, F lII G 3. The but and natural and physical features of the site, including, not limited to, general topography, natural hazards natural resource values. General Topography. The Tree Farm 4 tentative plan shows, and the Hearings Officer's site visit' observations confirmed, that the Tree Farm 4 site has varying topography. The dominant feature of Tree Farm 4 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 toward Tumalo Creek. The tentative plan for Tree Fa r€ € 4 shows, the proposed residential lots would be located atop this ridge. Topographical information for The Tree Farm indicates the central ridge in Tree Farm 4 slopes down to the west at grades ranging from 10 to 20 percent; One of the Tree Farm 4 lots --r Lot 37 — would be located above this slope. As discussed in the findings below concerning natural hazards, the, Hearings Officer has found the steeper slopes in this part of Tree Farm 4 and below Lot 37 may increase the risk of wildfire, and the applicant's wildfire plan does not adequately address this additional risk. For this reason, I' find the applicant has not demonstrated the site for Tree Farm 4 is suitable for the proposed cluster development considering its topography. Natural Hazards. The identified natural hazard affecting The Tree Farm is wildfire. There is no dispute The Tree Farm is in a wildfire hazard area.' It is located in the "ildland Urban Interface"'''' (' rU1) 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 1990 Awbrey Hall fire that burned approximately 3,500 acres from the north end of Shevlin Park southeast to point hear Highway 97. The June, 2014 Two Bulls Fire burned several thousand acres of Cascade Timberlands property west and northwest of Shevlin Park. The Hearings € fficer'finds The parties disagree as to the degree of that hazard. Paul ;;Dewey describes it as "extreme. The applicant notes the Greater Bend CWPP (Community Wildfire Protection Plan) Boundary Map, included in the record in Exhibit , 0' to Mr. Dewey's November 19, 2014 submission, categorizes The Tree Farm and surrounding and as "high risk" the lowest category of risk -- while other areas on the map are categorized as higher risk -- a.e.; ''extreme" and high density extreme." Tree Farm 4, 247.1€4 -000248 -CU, 247 -14 -000249 --TP Page 3of1 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 WUl, such as in the DNF, could spread to residential uses in The Tree Farm, diverting fire -fighting resources to The Tree Farrrn, The applicant's burden of proof states the Awbrey Hall Fire removed much of the forest overstory in the eastern part of The Tree Farm including the eastern part of Tree Farm 4, 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 Fara retains a relatively dense tree cover, visible in aerial photographs in the record.2° The photos show the inte€face 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 UA' -1O Zones. The denser forest also covers a small portion of UAR-1 O zoned property in Tree Fares 2 and 3 and the most southwestern portion of Tree Farm 1, The shrub steppe vegetation in Tree Farms 1, 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 Farm 4 is suitable for the proposed clusteriPUDs considering the risk of wildfire. Paul'' Dewey describes The Tree Farm as "not a safe place to build and "an inappropriate place for people to live." He states further development in theWUI is not appropriate because "no development can be made 'safe' in the face of catastrophic wildfires, '" In support of his position, Mr. Dewey submitted into the record several letters from LandWatch's fire expert AddisonJohnson, as well as dozens of pages of articles, studies, and research papers discussing the risks of wildfire in the WUI. In response, Mr. Condit argues in his December 30, 2014 letter that 'The Tree Farm 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], will 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, which provides that ?Vocal governments shall adopt comprehensive plans x' * to reduce risk to people and property from natural hazards.' There is, no requirement that all risk be elirninated.3''' Indeed . such risk would be impossible to eliminate ire the Bend' area. 'The greater Bend area Community Wildfire Protection Plan Boundary, attached as the last page of Exhibit 0 to LandWatch's November 19, 2014, submittal shows that The Tree Farm properties, the territory within the City of Bend, and most of the surrounding territory are rated bigh' for wildfire risk, And there are significant areas near the City rated 'extreme' or 'high- density extreme` for wildfire risk. The fire hazard risk within the City and on most of the surrounding territories is thus the same or even higher than on she ree Fara; properties. " M r. Condit gt tat c E,g., the Tree Farm f €este Plan, Exhibit "A" to the Tree Farm 4 burden of proof, Tree Farm 4, 247-14-000 4$ CLJ, 247-14-OOO249-TP Page 37 of r 'By requesting and obtaining an exception to Goais 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 Gods, including Goal 7. That doesn't mean The Tree Farm doesn't have to comply with the applicable criteria; See PGE/Gaines cited in the applicant's prior testimony, lr. Dewey argues that, because the Applicant cannot guarantee absolute protection from wildfires, no development should be allowed. Such z reading would swallow the Code." The Hearings Officer agrees the county made a policy decision that the B.P.-1 Of'VVA zoned lands west of the Bend UGB are developable. Any change to the uses permitted in the RR -10 and UAR 10 Zoned west of Bend - 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 land use decisions. However, The Tree Farm proposal'' includes land divisions providing for multiple dwellings, and therefore is subject to the subjective and discretionary standards in Title 17 - e,g., contributing to "orderly development" — and the equally subjective and discretionary conditional use and cluster/PUID standards in Titles 18 and 19. Section 18 128.010 (A), set forth above, makes dear 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 4 site, Rather, it is whether the site for Tree Farm 4 is suitable for the proposed cluster/PUD considering the wildfire hazard. The unusual configuration of Tree Farm 4 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 "J" to the Tree Farm 4 burden of proof. The Hearings Officer agrees with Mr. Condit that in order to find compliance with this conditional use approval criterion l need not find the wildfire plan eliminates all fire risk for these dwellings. Rather, I must determine whether the wildfire plan, in its design and implementation, will reduce that risk to a sufficient degree that the Tree Farm 4 site and configuration are suitable for the proposed 10 -)rat cluster/PUD considering the risk of wildfire. The applicant's wildfire plan consists of a two-page narrative to which are attached nine pages of information concerning the "Firewise Communities Program" (Firewise) and the "Fire Adapted Communities Program;" The narrative describes the wildfire plan's goals as: further reduction of ladder fue s; thinning of juniper and small ponderosa trees: development of a fi re a daptive ecosystem to preserve old growth; Tree Farm 4, 247 -14 -000248 -CU, 247.14 -€O00249 -T' Page 3 a maintenance of a healthy tree stand and reduction of the threat o damag ed trees; and enhancement of su pport wild life. the landscape with native g asse. for a natura beetle kill and fire landscape and to, The wildfire plan identifies the following means to accomplish these goals: 1. wildland fuel treatments completed by the current property owner will continue to be maintained by the developer and future HOA through a requirement written into the community's governing documents and guidelines, and will "enhance open space, structure survivability, and firefighter safety;" 2. The Tree Farm will comply with all applicable criteria in the Deschutes County code relative to community safety from fire; 3. The Tree Farm will become a nationally recognized Firewise/USA Community viewed as a model HOA -managed neighborhood that uses \ ildfire mitigation 'principles to manage combustible vegetation and incorporates structure fire resistant features and materials to reduce the threat and intensity of wildfire to persona property and the adjacent forest; 4. The Tree Farm will incorporate into its governing documents and architectural and landscape guidelines the requirement j.tge fire resistant'' building materials and landsga e trt' atr nt to reduce the threat of wildfire within the boundaries of the neighborhood and to create a fuel bredk to slow or stop an approaching wildfire to adjacent properties; 5. The Tree Farm developer and HOA will make an annual commitment to as a Firewise/UA Community; 6. residents and visitors will be familiar withthe county's Wildfire Fire Evacuation Pan. in addition to The Tree Farm Evacuation Plan; and nition 7, The Tree Faris governing prohibit burning of debris and t documents will address sources of human caused ignitions a he use of fireworks, (Emphasis added) n d In his written public hearing testimony, Gary Marshall stated the applicant proposes to use the National Fire Protection Association (NFPA) standards in conjunction with regulations from the Oregon Fire Code (OFC) and the Oregon State Residential Code to "greatly reduce the risk of home ignition from wildfire." Attached to this testimony are several NFPA and Firewise documents, including the 34 -page, NFPA "Standards for Reducing Structure Ignition Hazards from Wildland Fire." However, Mr. Marshall's testimony does not indicate which of the Flrewise or NFPA standards would apply to The Tree Farm, or when, how, where, or by whom they would be implemented. And indicated in the above -underlined language, most of the wildfire plan's proposed implementation measures are general and aspirational., LandWatch questions the effectiveness of the applicant's wildfire plan for two principle reasons, each of which is, addressed in the findings below. 1. Reliance on Firewise 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 Tree Far rn 4, 247-14 000 48 -CU, 47-14 00249 -TP P e cif 117' or committee to identify priorities, and create and implementan 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, how, or by whom the NFPA standards would be implemented". or how and by whom they would be enforced and their effectiveness evaluated. Although >Mr.Marshall's written testimony, provided in several letters, does include some specific reconnrnendations for implementation of the Firewise program and NFPA standards, these recommendations are not described in the applicant's submitted wildfire plan. Rather, the plan appears merely to incorporate the Firewise program and NFPA standards by reference, The Hearings Officer finds that is not sufficient to meet the applicant's burden of demonstrating compliance with this conditional use approval criterion. I also find it is not my responsibility, nor that, of planning staff or interested parties, to search through Mr.Marshall's extensive materials — which he describes as "a plethora of fire safety standards" mm 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 Fireise and the NFPA provide a sufficient basis for rrid to impose clear and objective conditions of approval., I cannot simply condition approval compliance with the Firewise Community recognition process and the NFPA standards. See, Sisters Forest Planning Comm. v. Deschutes County, 48 LUBA 78 (2004), 198 Or App 311, 108 P3d 1175 (2005)Y1 Finally, the wi dfire plan's narrative summaries state the developer and the HOA will undertake certain wildfire plan activities, but they do not clarify if/when the developer would bow out and the HOA would'' take over. For the foregoing reasons, the Hearings Officer finds the applicant's wildfire plan is not sufficient to demonstrate compliance with this conditional use approval criterion because it simply does not include a meaningful action plan or an explanation of how, when, or by whom the plan' will be implemented. And it addresses The Tree Farm as a whole although the record indicates 92there 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, l believe it is feasible for the applicant to create an adequate wildfire plan based on those standards that includes the critical information missing from the submitted plan. I'''find such a plan must include, at a minimum, the following information: on 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; it setback from the upper edge of the slop ets) for eachbu ilding envelope and d welling; 21 in tha req u reco Tree Far appeal filed by impiementation LandWatch's predecessor, the Court of Appeals held a condition of approval of the applicant's expert's recommendations was improper where, the precise, confusing, hypothetical, and/or in conflict with county code provisions 4, 247.14 -000248 -CU, 247-14-000249-T ' Page 40of117 • the fuel treatment, will occur on open drainage, and on wi ny, on any slope below each dwelling, and if such fuel treatment pace, what impact it will have on that open space, on surface water di fe habitat for lots in the WA Zone; whether and where decks and outbuilding wou ld be,'perrr'lifted on each lot; what specific eonstru€ction € rethods and building material dwelling to meet specific, identified NFPA standards; a detailed description of how and by whom the wildfire monitored, and enforced, with particular;. attention to the tran and the HOA; will be required for ea plan will be implemented, tion between the developer a specific, mapped evacuation plan for The Tree Farm and each of the five Tree Farm developments, including directions for operation of the gate on Sage Steppe Drive, and a detailed description of when and how residents and guests will be inform ed wildfire plan requirements and the evacuation plan.. of the 2. hiadequate Recognition of Fire Behavior. The parties disagree as to whether the proposed design and configuration of Tree Farm 4 adequately' recognize and address wildfire behavior: For example, Mr. Johnson argues placement of dwellings on the central' ridge and upland areas above slopes increases wildfire risk because the dwellings would' be both up&lope and downwind from a wind -driven wildfire starting in the 'public and private forest lands or Shevlin Park to the west. Mr. Johnson also argues placement'' of dwellings in the shrub steppe vegetation on the eastern half of The Tree Farm does not reduce the fire risk because fire in that vegetation can produce flame lengths of 10-12 feet. He claims the previously burned portion of The Tree Farm, including the eastern part of Tree Farm 4, does not create a fuel break between the forested western half of The Tree Farm and the urban and urbanizable lands to the east, as claimed by the applicant, because the Awbrey Hall Fire only changed the type of fuel, reducing the fire risk from 'extremely intense to merely intense." As discussed elsewhere in this decision, Mr. Johnson also argues the proposed secondary emergency access road will not allow timely and efficient evacuation of The Tree Farm in the event of afire and should be in a different location. Finally, Mr. Johnson questions the adequacy of water available for fire suppression in light of the uncertainty of The Tree Farm's water supply and pressure. The applicant responds that The Tree 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 NFPAslandards 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. Tre Farm 4 is o ne of most dense vegeta the two roost weste on in The Tree Farm. D the cluste ellings e€�€ Tree Farm 4, 247 -14 -000248 -CU. 247`-'14--000249-TP r developments and has some of the Lots 37, 39 and 40 in Tree Farm 4 Pace 4l of 117 would be located farther west than dwellings In the nearby Highlands at Broken Top PUD. They also would be farther west than dwellings in the Saddleback Subdivision, just north of Shevlin Park, which was evacuated during the 2014 Two Bu is Fire, The building envelope for Lot 37 would be ''located at the top of a slope. For these reasons, and in the absence of an adequate wildfire plan, the Hearings Officer finds applicant has not demonstrated the site and;;% configuration of Tree Farm 4 sufficiently address predicted wildfire behavior affecting residential lots and dwellings. I also find it is neither feasible nor appropriate for me to craft conditions in an effort to make the applicant's proposal approvable. For the foregoin g demonstrate the si hazards. reasons, the H to for Tree Farm 4 earings Officer finds the applicant has failed is suitable for the proposed use considering nate to ral Natural Resource Values.'The Hearings Officer finds natural resources on the site of Tree Farm 4 consist of native vegetation including predominantly shrub -steppe vegetation, scattered rock outcrops, and wildlife habitat including the Turalo 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 (78%) 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' will continue within the Tree Farm 4 open space tract. In addition, the applicant proposes that each lot in Tree Farm 4 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 4 for fire fuel reduction can and will be accomplished in a manner consistent with preservation of wildlife habitat. b. Rimock and Rock Outcrops. At the outset, the Hearings Officer finds it is not dear any rock outcrops in Tree Farm 4 qualify as "rimrock," defined in Section 18.04.030 as ,,a ledge or outcropping of rock that 'forms a face in excess of 45 degrees." In any case, the submitted tentative plan and burden of proof statement for Tree Farm 4 indicate the applicant does not intend to remove or alter existing rirnrock or rock outcrops. c. Wildlife Habitat. The Hearings Officer finds Tree Farm 4 contains what are essentially two categories of wildlife habitat. The western 88.5 acres are located in t Tumalo winter deer range and are subject to the WA Zone established to protect it. The remaining 21 acres of Tree Farm 4 provide wildlife habitat typical of undeveloped land west of Bend, but this habitat is not designated for special protection. Nevertheless, the applicant proposes to protect this typical habitat in a manner similar to that required in the WA Zone. Specifically, the ten Tree Farm 4 residential lots would be clustered'' along or 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 4 burden of proof states the applicant has removed some wire fencing and intends to remove rnost of the remaining wire fencing, and intends to eradicate and revegetate most of the existing network of dirt logging roads. The Hearings Officer find: that with these protective measures, the portion of Tree Farm 4 outside the ' WA Zone is suitable for Tree Farm 4 considering the typical wildlife habitat outside the winter deer range. The tentative pia winter deer rang n for Tree Farm 4 shows that all of the 88.5 acres within theA Zone and the e would be maintained'' in permanent open space with the exce Tree ee Farm>.4, 247-14-00€024 8 -CU. 247-14-0002 9-T P ption of 0.8 Page 42 of acres of right-of-way for a small segment of Golden Mantle Loop. Three Tree Farm 4 residential' lots --- Lots 37, 39 and 40 — and a portion of the recreation trail system would be located in this part of Tree Farm 4.. As noted in the findings above under the WA Zone, the stated purpose of that zone in Section 13.88.010 is to, "conserve important wildlife areas" vvhile 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 above, the Hearings Officer has found Tree, Farm 4 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 arid upland habitats into built structures, including roads, resulting hi permanent loss of habitat; ho ners ill be allowed to rem deer migration corrid sive habitat o n th ors will be blocked by dwellings: eir>.hor eites;,' trails and open space will promote low impact recreational use — e.g., bicycling, walking, and wildlife viewing - that v>#iil interfere with deer use of winter range if they are not sufficiently dispersed in the Tree Farm; and the applicant has n habitat pursuant to 0 ot identified mitigation measures demonstrating "no net loss" sof DFW's administrative rules.` The Hearings Officer finds ODF V's habitat mitigation policy, which includes the no net loss" standard, does not establish' approval criteria for quasi-judicial land use decisions ranless they involve local government land use regulations that require ''habitat mitigation, or proposed ,plan amendments or zone changes relating to habitat protection. OAR 635-415-0015 and OAR 635- 415-0020. 35-41h-0020.1 find neither exception applies here. 1 also find ODP 's concerns >sabout>. 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 located in the winter deer range. Consequently,'''1 find the relevant wildlife issues include development of dwellings, roads, and trails, and the vegetation removal required for those features and for fire fuel reduction La en ndWatch submitted an article from the USPS Pacific No fest Research Station (PIPS) titled "Science Findings" generally addressing the potentia impact of residential development eer winter range and migration corridors. The article reviews the work of Jeff Kline, a orester with PN' RS, on general deer migration patterns in Deschutes County, and in particular on anticipated effects on deer migration from potential future development of the Cascade Timberlands property west of The Tree Farm. The article concludes by listing "'land rrsanagerent im€pli ations" for such development, including reco€nrrsendations that resource managers work with landowners to consider protective measure; such as conservation easements to protect winter deer range and migration corridors, on mule d research t 2.? ODFW also raised concerns about a proposed pond in The Tree Farm. H October 10, 2014, Dr. Wente stated the pond has been removed from The Tree Farm in propo ted'' Tree Farm 4. 24i;-14-00€ 249 -CU, 247; -14 -009249 -TP Page 43 of 117 The Hearings Officer finds the applicant's proposal addresses the specific winter range qualities on The Tree Farm property including specific migration corridors, and identifies protective, measures similar to conservation easements for both the vvinter range and migration corridors. The WMP, dated May 19, 2014, and attached to the Tree Farm 4 burden of proof as Exhibit "l," wa 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 wildlife uses 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. At page 8'' of the VVMP, Dr. iVente''id The Tree Farm in relevant part as fol entified s`g ows. 'Mule Deer Habitat and Migration Co eneral wildlife c rridor., tilization trends" for mule d Deschutes County has designated the Tree Farm West property+,, [the part of The Tree Farm located in the WA Zone] within the PSA (The Tree Farm] (Figure 1) as a mule deer winterrange (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 -radiant trails/tracks suggest that forested areas within and throughout the PSA serve as diffuse corridors for traveling to resources 'located outside of the PSA and for accessing forage and possibly water resources. Key areas identified as travel corridors for deer included the dry draw and parallel minor ridges running northeast to southwest between plots I-18 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 mad to the south of plot H7, to move between the Tumalo >>Creek riparian corridor and upland areas to the east (outside of the WA Zone) that provide bunch sass and antelope bitterbrush forage. Therefore, the MB&G biologist was able to corroborate the WA Zone designation within the PSA relative to mule deer habitat and use." eer on Based on the figures and photographs in the WMP, the Hearings ,Officer understands Dr. Werste to conclude mule deer habitat use and travel corridors are sufficiently diffuse on The Tree Farm property that deer currently move across rhe Tree Fara Dr. Wente also submitted a letter dated relevant part as fellows: October 10, 2014 responding to 0 DF 's oncerns €r "ODFW commented that the deer migration corridors `could' be corrrpletolyr eradicated or substantially cut-off [sic}, forcing deer to move through the development * * ".' The Tree Parra RR -1O parcel, which is overlain by the deer winter range WA zone, is approximately 393 acres in size. The development plan Tree Ferrer 4, 247-14-00024 -CU. 247-114-00 249 -TP Page 44 of 117 proposes approximately 30 acres of lots and road right-of-way (combined) within the RR -1O parcel. This maintains the remaining approximately 363 acres (92%) as designated open space. The DCC 18.88.050(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 p, the development team selected a design configuration that would maintain wildlife corridors throughout the open space. The plan' provides an extensive corridor along the western boundary, preserving an area where deer would be expected to continue utilizing" the Tum to Creek drainage. The two pods of the cluster development that fall within (TF5) or partially within (TF4) the RR -10 zone are also configured to provide an additional north/south corridor following the natural lay of the land, Finally, the configuration of the development plan supports east/west deer movement patterns along the southern portion of the -10 zone. This area is clearly maintained as a corridor of habitat between the road [Skyiiners Road] and the southernmost cluster [in Tree Farms 3 and 9. These corridors, and the open space in general, will continue to provide space for deer to move across and to utilize the wildlife habitat provided by the WA zone on the _10," (Bold' emphasis added.) The Hearings Officer understands the, above -emphasized language, to mean Dr, Wente concluded the proposed roads and trails, open space tract, and dwellings in Tree Farm 4 would not create a barrier to deer movement or habitat use in that area. Each of these developfn features is discussed in the findings below, ent (1) Roads and Trails,, As discussed in the findings above, there are a number of existing dirt roads on The Tree Farm site. The record indicates these roads and dirt trails in The Tree Farm have been, arid continue to be, used by members of the public. The applicants WMP states with respect to roads and trails in Tree Farm 4: "Where proposed access roads intersect the planned [north -south] corridor, there will be reduced speed signs and signage indicating wildlife' crossings." Considering historic human use of these roads and trails. the relatively low volume of traffic predicted for The Tree Farm Drive in general at buildout,- 476 ADTs m and the very low traffic volume on the segment of Golden Mantle Drive providing access to residential' lots in Tree Farm 4, the Hearings Officer finds that with these measures, the presence of roads and trails within Tree Farm 4 will not interfere with use of winter deer range in general or in particular migration corridors the PUD roads and trails will cross. (2), Open Space Tract. At the public hearing, the Hearings Officer questioned whether ongoing,, fire fuel management in The Tree Farrn and the open space tracts can be undertaken consistent with the consersration of the Turnalo winter deer range. In response, the applicant submitted a letter dated December 5, 2014 from Dr. Wente stating the ' MP and the applicant's fire plan 'are designed to provi i a coordinated solution to serve two goats that can in some oases be in conflict: maintaining the quality of wildlife habitat while also reducing the risk of wildfire." Dr. Wente noted that the fuel reduction treatments proposed for The Tree Farm's open space tracts are a continuation of the treatments already practiced on The Tree Farm property. Dr. ''' ente 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 with Tree Farm >.4, 247-14--000248-CU, 247-14-0 249 -TP Page 45 of 117 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 forbs that make up h of the winter forage for deer. Dr. dente's opinion would support a finding that the applicant's proposed fire fuels management will be consistent with conservation of the Tumalo winter deer range in Tree Farm 4. However, as discussed in the findings above, the Hearings Officer has found the record, including the applicant's wildfire plan evidence, suggests that in order to adequately address predicted wildfire behavior it may be necessary to remove significant vegetation downslope from dwellings, including from the adjacent open space tract(s). It is not clear that Dr. Wente considered removal of vegetation beyond historic fire fuel''' treatments in forming her opinion about impacts on the winter deer range. Moreover, as discussed above, i have found ` the applicant's wildfire plan is inadequate because, among other deficiencies, it does not specify, what fuel treatments vwill be required to reduce the fire risk for dwellings on each Tree Farm lot. 3) Dwellings. The Hearings Officer finds the configuration of Tree Farm 4, with its clustering of dwellings as required in the WA Zone, preserves large swaths of open space as well as leaving the existing migration corridors intact. The WMP states in relevant' part; "The ct.rrrently,proposed lot configuration also allows for a north/south deer and other wildlife movement corridor within the residential deveiopnent, providing connectivity along the eastern edge of Tree Farm West, the portion of the property within the WA Zone. This wildlife corridor is located between lots 43 [in, Tree Farm 5]and 37 [in Tree Farm 4] on its northern terminus as depicted in the conceptual site plan (Appendix A). * *' * The corridor is designed to provide at least a '100 -meter -wide passage between structures and should be sufficient for mule deer given the minor topographic relief and habitat type (Sperger 2006); The corridor is also sited to take advantage of natural break in the topography at its northern outlet. Deer likely already use this break in the northwestern ridge to access the flatter portions of the property to the east, and the development corridor f ,rill allow them to continue this movement pattern." The proposed Tree Farm 4 configuration with three residential lots the winter range will intensify human activity over more recent human use in this habitat consisting of low -intensity recreation, tree and brush thinning, and historical logging. In contrast to these mostly seasonal activities, dwellings would create year-round human activity.Opponents question whether developing Tree Farm 4 at the proposed density will create too great an impact on the winter range compared with lower density development, or no development at all. The applicant's WMP"does not address this issue, which I find may well be relevant in the context of this very general` "suitability" approval criterion; The WMP includes at pages 9-12 a nur-nber of habitat mitigation and conservation measures, These address factors including dwelling siting and fencing consistent with the WA Zone requirement;a discussed above, not allowing uses prohibited by i itle 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 the VVMP suffers from the same lack of detail and clarity as does the wildfire plan as to how, when, where, and by whom these measures will be undertaken, how Tree Farm 4, 247-14 000248 -CU, 247-14-00024TP < Page 46 of 117 their success wi' states simply th be measured, and how and by whoa they will be enforced. Rather, the Wl s'lP' comply." For example, the WMP states: at certain things "will be done" or "wi 'During development, the developer will be responsible for managing the open space that encompasses Me wildlife management area. Upon completion, management of the open space will ultimately be transferred to either a home owner's association or a non-profit or other public entity. The VVMP does not explain the meaning of the terms 'development" and "'completion" in this context. They could signify that once all, Tree Farm infrastructure has been completed by The Tree Farm LLC, management of The Tree Farm open space and habitat shifts to the HOA, which at that point might only exist on paper. As is the case with the applicant's wildfire plan, the Hearings Officer finds that to be effective, the VVMP' must include more detail, such as an action plan that identifies specific measures addressing each residential lot in the WA Zone, as well as roles, responsibilities, and timing of measures to implement the action plan. And as with the wildfire plan, l find it is neither feasible nor appropriate for me to craft conditions of approval in an effort to make the applicant's proposal approvable. ,, For the foregoing reasons, the Hearings Officer finds the applicant has failed to demonstrate the site for Tree Farm 4 is suitable for the proposed use considering natural resource values. Fl ND l GS: 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) Existing and Projected Uses. Existing and discussed in the findings below projected uses on surroun d g perties are 1, East: To the east of Tree Farms 1, 2 and 3 is vacant land zoned UAR-1O and owned by Miller Tree Farm. The Hearings Officer finds that in the short term this property could be developed with ten -acre residential lots or with smaller' lots through PUD approval. In the longer term, because this property is included in the urban area reserve, it may be brought into the Bend llGB 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 developrnent 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 agree, that the design of The Tree Farm. with its clustering of dwellings and large swaths of open space, will be compatible with surrounding lands to the east by placing the dwellings closest to the UGB ' and by serving as a permanent transition between the urban and urban€zable lands to the east and Shevlin Park and forest lands the west. 2. West, immediately to the nest is Shevlin Park, a $52a2:€e regional park owned end managed by the park district and which includes developed amenities, large areas of open space, and an extensive trail system. 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. 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 Tree Farm 4, 247-14-00 248 -CU, 247' -14 -000249 -TP Page 47 of 117 Cascade Timberlands property and several smaller parcels,,, Evidence in the record concerning current uses on these lands i scant, so have found it appropriate for purposes of the suitability analysis to assume existing uses 'include those permitted outright in the F-1 Zone, including some Umber harvest, However, l am aware long-term plans for the Cascade Timberlands` I oldings have included a mix of timber production, protection of scenic views, and recreation, The Hearings Officer has found Tree Farm 4 will not cause a significant change significantly increase the cost of, accepted forest practices on nearby lands devoted to forest use. However, as discussed in the findings above, l have found the applicant failed to demonstrate the site for Tree Farm 4 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 4 will be incompatible with current and projected uses on public and private forest landsto the west and southwest. 1 find the primary concerns about incompatibility are the risk of a fire spreading into and from The Tree Farm, and the lack of an adequate wildfire plan and implementation of that plan making that risk, higher, 1 believe it is feasible for the applicant to develop an adequate wildfire plan, but unless and until the applicant does so, 1 find Tree Farm 4 is not compatible with existing and proposed uses on Shevlin Park and nearby forest lands. 3. South., To the south across Skyliners Road is The Highlands at Broken Top PUD zoned UAR-1O and including ' 7 ten -acre residential lots and open space Farther to the south is the Tetherow destination resort including residential lots, open space, a golf course and clubhouse. The Hearings Officer finds these uses will continue in the future, although because it is zoned UAR-10, The Highlands at Broken Top has the potential to be brought into the Bend UGB and redeveloped at urban density 1 find Tree Farm 4 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. n 3. North. To the north are large vacant parcels zoned UAR-10, 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 terra, because these lands are included" €n 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 4 are not compatible with future development of its property for two reasonsFirst, 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(B) requires the applicant to dedicate and construct a public road from The Tree Farm's shared boundary with Rio Lobo's property to Skyliners''"Road to facilitate future development of Rio Lobo's property. As discussed in the Hearings Officer's decision in Tree I arm 1 and in the subdivision and PUD fir ctin below. 1 have found the applicant is permitted to develop The Tree Farm with private roads. In addition, 1''"have found Section 17.36.020(B) of the subdivision ordinance does not require the applicant to dedicate or construct a public road between the Rio Lobo property and Sky{hirers Road because none is necessary to Tree Farm 4, 247 -`14.000248 -CU, 247 -14 -000249 -TP Page 48 of '117 accommodate present and future through traffic generated by The Tree Far ,rn a development of Rio Lobo's property with its current UAR-10 zoning, 23 ndlor Second, Mr. Conway argues The Tree Farm, is not, compatible with projected uses on Rio Lobo's property because the majority of Tree Farm dwellings are proposed to be clustered along or near Rio Lobo's southern boundary, and the applicant proposes only one street connection between the properties, the future extension of Sage Steppe Drive. in his January 6, 2015 submission, Mr. Conway asserts this configure ion 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(8)(3)(c). However, as discussed in the findings below, the Hearings Officer has found Section 17, 6.140(B)(3)(c) of the subdivision ordinance is not applicable' to Tree Farm 4, and therefore the applicant is not required to provide more than one future road connection along, the northern boundary of The Tree Farm Rio Lobo's property and the vacant Miller Tree Farm property east of Tree Farm 1 are zoned UARn10 and abut the Bend UGB. Consequently, the Hearings >>Officer finds the nature and timing of development > on these two properties likely will depend on whether and when they are brought into the UGB and when Skyline Ranch Road, a designated collector, is dedicated and developed north of its current terminus near Skyliners Road. Annexation of these properties into the UGB could allow the urban -density development contemplated in Rio Lobo's traffic study. However, I find that as long as the properties remain in the urban area reserve, development' willl 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 most of the dwellings in the UAR-10 zoned portion of The Tree Farm, including seven of the dwellings in Tree Farm 4 and placing most of the open space on the RR-10NVA zoned property near Shevlin Park and forest lands. For these reasons, I find that regardless of the ultimate' development density on the Rio Lobo and iVIiller Tree Farm properties, the transition area created by The Tree Farm chaster/PUDs will be compatible with their development LandWatch argues the applicant mischaracterizes The Tree Farm as 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 Farr are zoned UAR-10 and are planned and zoned for eventual inclusion in the Fend UGB. That these properties are undeveloped does not change the fact that they are urbanizable lands > and ultimately may be developed at much higher density than The Tree Fara. Accordingly, I find the characterization of proposed The Tree Farm as a "transition area' is accurate, lr? 1 -t>er dated €D c.ernber. �, x,014 Cryariey rer reser}hg M}Her Tide i-ann LLC „Aaatilat W cul t tae wvilling'to commit to the dedication of public road right--of-way in a mutually agreed upon on across the adjacent Miller Tree Farm property in the event Rio Lobo obtains county land use approval for either a destination resort or a 37 -lot subdivision or PUD on its adjacent property. That dedication would be to allow Rio Lobo to construct the segment of Skyline Ranch Road from the Rio Lobo property across the Miller Tree Farm property to the recently constructed NorthWest Crossing, Drive/Skyline Ranch road intersection adjacent to the new Pacific Crest Middle School. Tree Fara 4, 247414--000248-CU, 247 -14 -00024, -TP Page 49 of 31', For the foregoing reasons, the Hearings Officer finds Tree Farm 4 will be compatible with, existing and projected uses on surrounding lands to the north, east and south, but will not be compatible with Shevlin Park and forest lands to the west because of deficiencies in the applicant's wildfire plan and WMP. C. These standards and any other standards of DCC 18.128 may be met by the imposition of Gond`€tions calculated' to inure that the standard will be mete FINDINGS: As discussed throughout this decision, the Hearings Officer has recommended that f the applicant's proposal is approved on appeal; such approval should be subject to conditions of approval designed to assure compliance with applicable standards and criteria: 1. Section 18 128.040 Specific Use Standards A conditional use shall comply with the standa which it is located and with the standards and co DCC 10.128.045 through DCC 18 128.370. res of d`€tion FINDINGS: Compliance with the specific use standards for cluster d vela 18 128.200 is addressed in the findings immediately below. Sectio. 18.1 .200, Cluster Levet, Uses Only) A. Such con pment (Single uses may'be authorized as >a cond sideration of the foilowing factors: he zone set forth n n p€ents in Section Family Reid nti al` itional use only after FIND NGS: The Hearings Officer finds the language of this paragraph means the factors discussed in the findings below do not establish specific approval standards for Tree Farm 4, but rather identify issues I must consider. 1+ Need for residential uses proposed development. in the rmr late area oaf the FIND 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 close proximity to The Tree Farm. These developments include' Northwest' Crossing, Shevlin Commons, The Highlands at Broken;;, Top, Tetherow, and Shevlin Meadows. The report also includes a copy of the June 12, 2014 "Bratton Report," a monthly compilation of data on residential sales 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 nine sales are pending. This translates to 7.5 sales per month. As of the time of the reports, the applicant indicates a standing inventory of 41 properties on the market, or list unddi 5 74 months inventory. The a )icanl notes that since \lathoty 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 rr arket;' Tree Farrr 4, 247;..14-00024 - 'U!, 247-14-O 249TTP Page 50 of 117 Out of a total of 178 single-family hot listings priced up to ,000,00€ , 116 homes 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 ander construction or to -be -built providing fewer than three months of single-farnily 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 4 will address that need; Fl N Di NGS: Environmental, social and economic impacts likely to lncludig impacts on s and roads. result from the development, public faciilities such as school Emaronmentai>t pactsTree Farm 4 is configured so that, seven of the ten proposed dwellings are clustered on relatively level land in the north -central part of The Tree Farm in the UAR-1 i Zone. The WA -zoned part of Tree Farm 4 would have the remaining three residential lots, most of the open space tract, a segment of Golden Mantle Loop, and a segment of the recreationalimountain bike trailThe 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 4 will not interfere, and wi'lI be compatible, with accepted forest practices on nearby public and private forest lands. l have also found that without an adequate wildfire plan the applicant has not demonstrated The Tree Farm and Tree Farm 4 will be compatible with current and projected uses on Shevlin Park and nearby forest lands to the west. !n his December 11, 2014 fetter, 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 five dwellings' that would be permitted under its current zoning, or with alternate development patterns such as a traditional subdivision with 1 0 -acre lots and dwellings spread throughout the 533 -acre property. His letter goes on to state: "There are apparently only five >lots, so the current alternative would be five houses. Though the zoning allows a house on a 10 -acre parcel, there is no_ basis to coracirade that 50 10 --acre lots can be created here." (Underscored emphasis added.), The Hearings Officer disagrees. There are reasons to find a traditional subdivision with ten 1 0- acre lots could' be approved on each of the five Tree Farm legal lots. First, a si€hilar development The Highlands at Broken Top -- was approved immediately south of The Tree Tree Far4,247-14-000248-CU, 247.14 -000249 -TP Page 51 117 Farm. Although this subdivision technically is a PUD,24 it was approved with 37 mostly ten -acre lots on land zoned UAR-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 discussed in the findings below concerning compliance with Title 17, the vast majority of those standards are clear and objective design standards. The exceptions are the subjective and discretionary standards in Section 17.16 100 that require the developer to demonstrate the subdivision would establish orderly development and land use patterns in;, the area, provide for the preservation of natural features and resources, and not create excessive demand on public facilities and services, and utilities. I find it is ,possible for the applicant to satisfy those standards with conditions of approval and with the above-described'' revisions to its wildfire' plan and WMP. Accordingly, 1 find there is nothing improper in comparing the propose cluster/PUDs to the alternative of a traditional subdivision when weighing the environmental impacts of The Tree Farm ;.and Tree Farrn 4. LandWatch also argues the applicant has failed to demonstrate' The Tree Farm will not have negative environmental impacts on Tumalo Creek. Again, the Hearings Officer disagreesI find potential impacts on Tunnalo Creek would be limited to erosion and runoff from the west side of the central ridge into the creek, and 1 find the applicant's drainage plan, discussed in detail elsewhere in this decision, demonstrates runoff will be contained on site. Because the Hearings Officer has found the applicant failed to demonstrate the site for Tree Farm 4 is suitable for the proposed cluster!PUD considering wildlife habitat and wildfire risk, I also find the applicant failed to demonstrate Tree Farm 4 adequately considers and addresses this cluster development factor. Social Imp cts. 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 4 will cluster ten residential' dots and dwellings in the north central part of The Tree Farm, with, seven lots located in the UAR-10 Zone and three lots located in the WA Zone. All of the lots would have access to Skyli€vers Road and thereby to the three public schools and commercial' and light -industrial uses in NorthWest Crossing, and possible future urban -density development on the adjacent Rio Lobo and Miller Tree Farm properties. The configuration will place approximately 98 percent of the Tree Farm 4 open space in the RR -10 and WA -Zones closest' to Shevlin Park and the public and private forest lands to the west. As discussed above, I have found the proposed configuration of Tree Farm 4 will provide a transition between the Bend urban area and the vast forested land to the west. 1 find the proximity of Tree Farm 4 to Shevlin Park and to the extensive "Phil's Trail" mountain biking trail network in the DNF will facilitate use of these resources by Tree Farm residents. LandWatch argues The Tree Farm will have negative social impacts on Shevlin Park. The Hearings Officer finds this argument ignores the record. The park district submitted several comments in support of The Tree Farm. The only concerns the park district expressed were the need to refine the proposed trail alignments between The Tree Farm and Shevlin Park, and the need to provide for off—street parking for trail access. In his December 11, 2014 corner rents, Steve Jorgensen, the park district's Park and Trail Planner, stated that increasing public access tri the south portion of Sheviin Park 'is a positive development' th t will rel3>eve sortie Of the 24 The Cascade Highlands decision, included in the record as an attachment to Anthony Ragu ne`s November 17, 2014 memorandum, states 'the 37 lots are all about 1C€ acres in size (with the exception of proposed Lot 22 that will be 18.05 acres)," and ''the rerrsaining acreage [approximately 20 acres; " * will he platted as a separate lot" and designated 'not a part" of the subdivision. Tree Farren 4, 247-14-00€248-C>U, 241 -14 -000249 -Tp Page 52 of 117 current and future demands on the limited parking will serve to discourage transient camps on the SOL areas at, the north end of hern portion of the park. Shevlin Park an Mr. 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 2O' -wide "re -locatable 'floating' public trail easement" to the park district that abuts and runs parallel to the Sky{liners 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 Skylir e€ -s Road that, terminates on the east side of Crosby Drive and the proposed trail system in The Tree Farrn, 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, ! lack authority to require the easement and improvements as a condition of approval for Tree Farm 4. Economic facts. The applicant argues, and the clearings Officer agrees, that The Tree Farm's clustered development pattern is the most cost-efficient manner in which to develop a large rural tract, and much more efficient than providing public facilities and services to widely dispersed ten -acre lots. For example, clustering of dwellings requires shorter extensions of streets and utilities required to serve residential lots In addition, ! find that if the applicant is able to secure domestic water through connection to the City of Bend water system or the Avion Water Company there will be no need for individual on-site wells.25 Puu !ic 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 i. 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 4 will not place an undue burden on city water facilities. Schools. The UAR 1O zoned portion of Tree Farm 4, and Lots 30-36 and 38, are located within the boundaries of the Bend -La Pine School District.26 As discussed above, three of the district's schools -- Miller Elementary, Suit High School, and the new Pacific Crest Middle School under construction — are located within a mile of Tree Farm 4. The record indicates neither the Bend-L.aPine or Redmond school districts were asked to comment on The Tree Farm 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 25 The applicant argues The Tree Farm also' viii provide economic benefits by having the HOA own and maintain PUD roads, thereby relieving the county of such maintenance expenses. However, in his :: i'{r":3enti on theapplicants proposal George Kolb noted that the county no ionger is accepting 0,1ads into its road maintenance network. 26 The record indicates' the RR -13 zoned portion of the Tree Farm is 'located` in the Redrnond School District. The applicant's burden of proof states the applicant will request that the Bend and Redmond school districts allow the thirteen Tree Farm homesites in the Redmond School District to be trans erred to the Bend -La Pine Scnool District. Tree Farm 4, 247 -14 -000243 -CU, 247 -14 -000249 -TP Page d3 of 117 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 4 will have positive socia and economic impacts, but in the absence of an adequate wildfire plan and WMP, the applicant, has not demonstrated Tree Farm 4 will have entirely positive environmental impacts. 3. Effect of the development on the rural character of>the a r••ea. FINDINGS: Tree Farm 4 is located in a rural area west of the Bend UGB that is characterized by: (a) large vacant parcels zoned UA -1 O to the east and north; (b) large UARw1 g 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 urbanzable 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 cluster the majority, of dwellings in the UAR-1 g Zone and will locate the majority of open space in the RR 10 and WA Zones. For these reasons, I find Tree Farm 4 will be consistent with the rural character of the area, 4. Effect of the development on agricultural, fores wildlife or other natural resource uses in the area. try, FINDINGS: The record indicates there are no agricultural use in the area. As discussed in the findings above, incorporated by reference herein, the Hearings Officer has found Tree Farm 4 willl not force a significant change in, or significantly increase the cost of, accepted forest practices on nearby land devoted to forest use, and will be compatible with such uses. With the exception of vegetation management for fire fuel red rction,,,the applicant proposes tri retain€ all existing vegetation on The Tree Farm open space tracts as well as on the portions of the two - acre residential lots outside the designated building envelopes. The applicant proposes to site dwellings on relatively level' ground, thus, minimizing the need for significant excavation and fill, and to site the private roads to minimize steep slopes and road cuts. Finally, as also discussed above, the Hearings Officer has found Tree Farm 4 will comply with all applicable requirements in the WA Zone. However, I 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 4 will be compatible with nearby forest lands or with the Tumalo winter deer range. For the foregoing reasons, the Hearings Officer finds Tree Farm 4>'vvill not have a negative effect on agriculture or forestry. But I have found the applicant has failed to demonstrate Tree Farm€ will not have a negative effect on wildlife habitat in the winter deer range. Therefore, I find Tree Farm 4 does not satisfy this criterion, B. The cond findings Clonal use shall not be granted unless the folio it re made: All development and alterations of the natural landscape, will be limited to 35 percent of the land and at least 65 percent shall be kept in, open space. In cases where the natural landscape has been altered or Tree Farm 4, 247 14 -000248 -CU, 247--14-000249-TP Page 54 of 117 destroyed by a prior and use, such as surface Training,, 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 agriculturalor forestry use of the property after raclaraaation. 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 . Because 85.7 acres of the 88.7 acres of Tree Farm 4 in the WA Zone will be preserved as permanent open space, the applicant's proposal satisfies the WA Zone standards. +'ith respect to the 65 -percent open space requirement in this paragraph, the applicant's burden of proof states 87.7 acres of the 109.5 -acre Tree Farm 4 (80 percent of the site) will be in open space, satisfying this standard. 2. 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 size. Their use shall be restricted to single-family use. Single-family use may include' accessory uses and County authorized home occupations. Uses permitted in the open space area may include the management of natural resources, trail systems or other outdoor uses that are consistent with the character of the natural landscape. FINDINGS: The applicant proposes that Tree Farm 4 will have ten 2 -acre residential lots' w€th single-family dwellings constructed within designated building envelopes. The appicant proposes that the dedicated open space tracts will be managed for trail systems, wildlife habitat, and forest management consistent with preservation of wildlife habitat and the reduction of fire fuels. For these reasons, the Hearings Officer finds Tree Farm 4 satisfies this criterion. In the Wildlife Area >>Combining, Zone, in addition to compliance with the 1 A zone development restrictions, uses and activities must be consistent, with the required Wildlife Management Pan. 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 4 zoned WA. Therefore, I find it is applicable only to the 88,5 acres of open space and road right-of-way in Tree Farm 4 zoned WA. The applicant's WMP proposes that uses in the open space tracts in Tree Farm 4 will be limited to management of vegetation for fire fuel reduction and winter range habitat conservation as well as low -intensity recreation uses such as pedestrian and bicycle, trails. Therefore, I, find he proposed uses and activities in the open ,,pace tract will be consistent with the VA/1‘,./1P. However, as discussed above, I have found the WMP does notl adequately address potential impacts on wildlife habitat from more aggressive fire fuel reduction that may be required to protect ridgetop dwellings from wildland fire, Farm 4, 247-14.0€ 0248 -CU, 247' -14 -000249 -TP Paye 55 o 117 av Preserves, protects and enhances, wildlife habitat for WA zone protected species as specified in the County Comprehensive Plan (DCC Title 23); and FINDINGS: The portion of Tree Fare 4 in the WA Zone consists of 87,7 acres of open space and 0.8 acres of right-of-way for Golden Mantle Loop. As discussed in detail in the findings above, incorporated by reference herein, the Hearings Officer has found the applicant failed to demonstrate the site for Tree Farm 4 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, l have found on the basis of the WMP that deer will continue to use the habitat in the open space area for browsing, and the segment of Tree Farm Drive will not obstruct the existing deer migration corridor across the southern portion of Tree Farm 4. FINDINGS: The only developed b. recreationa Prohibits golf courses, tennis courts, swimming pools, marinas, sk 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 pedestrian/bicycle trail''' system, a use on the Tree Farm 4 open space wd uld be he low -intensity use permitted by this paragraph. c. Provides a supplemental,, private open space area on home lots by imposing special yard setback of 100 feet on yards adjacent to required open space areas. In this yard, no structures other than fences consistent with DCC 1 B,8&070 may be constructed. The size of the yard may be reduced during development review if the County finds that, through the review of the wildlife management plan, natural landscape protection or wildlife values will achieve equal' or greater protection through the approval of a reduced setback. In granting an adjustment, the County may require that 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. F1€' t $< The tentative plan for. Tree Fafill 4 show Lots 36 through0 are adjacent to the open space within the WA Zone. As discussed above, the applicant has proposed building envelopes for ail residential lots in The Tree Farm including the ten lots in Tree Farm 4. Those building envelopes show setbacks of at least 100 feet between the adjacent'' WA -zoned open space and the building envelope, Tree Far 4, 247 14--000248-CU, 247 -14 -00024, -TP Page 56 of 117 d. Off-road motor vehic rnthe o e use shall be pro pen space area, hi bited FINDINGS: The applicant's burden of proof states no off-road motor vehicle use wi11' be permitted in the open space tracts. The Hearings Officer finds the applicant gill, be required;, as a condition of approval to prohibit off-road vehicle use on the Tree Farre 4 open space tract, and to enforce that prohibition, through the development's CC&Rs. Ad quate corridors on the chaster prope allow for wildlife passage throug developnient.< h y to the FINDINGS; As, discussed i€ the findings above concerning compliance with the general,' conditional use standards in Chapter 18.128, the applicant's WMP identified several existing nnigration corridors in the winter deer range, including north -south corridors in the western portion of Tree Farm 4 and an east -west corridor along the southern part of Tree Farm 4 running parallel to Skyliners Road. Based on the WMP. the Hearings Officer has found the open space tract and the segment of Golden Mantle Loop in the WA -zoned portion of Tree Farm 4 mill i not create a barrier to deer migration along this existing corridor. Therefore, I find this existing corridor will allow wildlife passage. 4. Ail lots within the development shall be contiguous to one another except for occasional corridors to allow for human passage31 wildlife travel, natural features Brach as a stream or 'bluff or development of property divided by a public road which shall not be wider than the average lot width, u Hearings Body finds that special circumstances warrant a wider corridor., Mess the Planning Director or FINDINGS: The tentative plan for Tree Farm 4 she v s most of the residential lots will be contiguous except for the intervening right-of-way for Golden, Mantle Loop. However, the tentative plan shows a gap between Lots 37 and 38 and Lots 39 and 40 in Tree Fara 4 and Lot 43 in Tree Farm 5. The VVMP states this gap was proposed to recognize and protect a natural topographic break and existing wildlife corridor between Turnalo Creek and the higher ground on Tree Farms 4 and 5. Therefore, the Hearings Officer finds Tree Farm 4 satisfies this criterion. 5. All applicable subdivision or partition requirements contained in DCC Title 17, the SubdivlsionIPar°titioa Ordinance, shall be met. Fl D GS: orpllance with the criteria in Title 17 is addressed in the finding below. The total number of units shall be established b reference to the lot size standards of the applicabl zoning district and combining zones. FINDINGS; The RR 10, UAR-1 O and WA Zones establish a gen ten acres. The applicant proposes ten residential lots on the 10 therefore satisfying these standards. Tree Far-rn 4, 247 -14 -000248 -CU, 247-14 100240--1-P y e, eral density of one dwelling per 9,5 -acre Tree Farm 4 property, Pa 57of1 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 clyster 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 ire the use allowed by the approved cluster 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 andlor road areas. The bylaws of the as.ociation must be recorded prior to or concurrent with the filling of the final plate if the open space is located within the Wildlife Area Combining Zone, the management plan for the open space nnut be recorded with the deed restrictions or bylaws of the homeowner's association. FINDINGS: The tentative plan for Tree Farm 4 shows the 87.7 acres of open space would be platted as a separate tract. The Hearings Officer the applicant will be required to show the Tree Fara 4 open space as a separate tract on the final plot as a condition of approval. The applicant submitted as Exhibit "L" to, its burden of proof a draft set of deed restrictions far 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 foul € that to carry out the applicant's intent to prevent development on The Tree Farm open space tracts in perpetuity, the applicant will be required as a condition of approval, and prior to submitting for final approval'' any plat for Tree Farm development, to provide' to the Planning Division for county review and approval a copy of the required deed restrictions, and to provide to the Panning Division copies of the recorded deed restrictions after recording. The applicant also proposes, and will be;,req uired as conditions of approval, to record the WMP along with the required deed restrictions,, to form an HOA to own and manage the open space tracts and roads within The Tree Farre, and to develop bylaws for the HOA.27 xhibit " ' to the a 4i 3nt t, burden of proof indicates the appiicant has doss: u s.id;potenti l 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 4. Tree Farm 4, 247 -`l4 -000248 -CU, 247-14 U00249 TP Page of Fl a. h NDI Notwithstanding any provialon to the contrary in other parts of the County's land use regulations, roads within a cluster development may be privateroads and lots or parcels may be created that front on private roads only. These roads must meet the private road standards of DCC Title 17, and are not subject to public road standards under DCC Title 17. An agreement acceptable to the Road Department and, County Leg& 'Counsel shall be required for the maintenance of private roads. Pub lc' 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 properdes 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 duster development review shall be subtracted from the gross acreage of the duster development prior to calculating compliance with open space requirements., NOS; The Hearings Officer finds this subsection establishes the following' private roads, are permitted in Tree Farm 4; private PUD roads must meet the county's private road standards; c. a road maintenance agreement acceptab d, p IIIc roads may be re g uired in the su e to the county bdivision where; ust be executed; and street continuation standards in Title 17 call for street connections; and 0 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 apps cant proposes to construct a private road, Golden Mantle Loop, in Tree Farm 4, and to improve this road 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 to provide 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 and 3 to provide access to Skyliners Road for the residential lots in Tree Farms 1, '2 and 3, and to create a connection to Golden Mantle Loop and Canopy Court which would provide access to the lots in Tree Farms 4 and 5. The applicant proposes that all Tree Farm roads will be owned and managed by The Tree Farm HOA, The Hearings Officer finds the applicant will be required as a condition of approval to execute a road maintenance Tree Farm 4, 247-14-00 24 -Ct.�, 247 -14 -00024Q -TP Page 59 of 11 7 agreement acceptableto the county and to record such agreement prior to submitting for approval the final 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 17,36,02O(B) 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 Skylhnere 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 impositioi s of the conditions' of approval described above, Tree Farre 4 will satisfy this criterion. 9. Ail service corn ectioi s .shall be the m necessary and underground where feasi inimum length ble. FINDINGS: The preliminary utility plan for Tree Farm 4, Exhibit "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 will assure service connections are the minimum length necessary, therefore satisfying this criterion, 10. The number of rye= not exceed 10. 11. The number of new not exceed 10. dwel €x ng units to be cluste S Parcels to b red d e created d 0 es oes FINDINGS: The applicant proposes ten residential; lots in Tree Farm 4 clustered near the southeast corner of the development and the north -central part of The Tree Farm, therefore satisfying these criteria. 12. The development is not to be served by a new community sewer system or by any new extension of a sewer system from within an urban growth boundary, or from within an unincorporated community. FINDINGS: : Applicant proposes to serve the resid site septic systems, therefore satisfying this criteria ential lots in Tree Farrn 4 with individual on - n. 13. The development will not force accepted fa devoted to increase t there, a significant change in rm or forest practices on nearby lands farm or forest use, and will not significantly he cost of accepted farm or forest practices FINDINGS: 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 4 will F m 4, 247-14-0 0248 -CU, 247E 14 -000249 -TF Papa 60 of 117 not force a significant change in, or significantly increase the cost of, accepted far€ cr forest practices on nearby lands devoted to farm or forest use. 14. Ali dwellings €n a cluster developmentmust 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 Officer finds this criterion is not applicable because there are no lands zoned Exclusive Farm Use ( FU) adjacent to the subject property:,, C. Al l fol applications, shall be accompanied by a plan , ith the swing information: A plat map meeting DCC Title 17, the Su all the subdivision requirements of bdiv'isionIPartition Ordinance. A draft of the deed restrictions requ ed' by ''ICC' 18.128.200(B)(7). FINDINGS: The applicant submitted a tentative plan for Tree Farm 4 including a plat map showing ail information required under Title 17. In addition, the applicant submitted > as Exhibit "L" to the burden of proof draft deed restriction language for the open space tract As discussed n the findings above, the Hearings Officer has found the applicant ' will be required to submit for county review, and to record, deed restrictions that permanently prohibit development on these tracts. For these reasons, and with imposition of the conditions of approval described above, find Tree Fain 4 satisfies this criterion. FINDINGS: The applicant su A written document establis' hcri common property, document shall incliid owners asocl ging an acceptable Lien assuring the maintenance of if any, in the development. The e a method for the resolution of disputes by the association mem included as part of the bylaws. bership, and shall be brr•€itted as part of Exhibit °'L' to the Tree Farr 4 burden of roof CC Rs and HOA bylaws, therefore satisfying this criterion, 4'a In the WA Combining Zone, the applicant shall submit, an evaluation of the property with Wildlife Management Pan for the open space area, prepared by a wildlife biologist that <includes the following: A description of the condition of the property and the current ability; of the property to support of the open space area'by wildlife protected by the applicable WA zone during the periods specified in the comprehensive plan; and Tree Fara 4, 2 7' 14-0 248-C!J, ,47 -14 -000249 -TP Page 61 of 117 b A description of the protected species and periods of protection identified by the eomprehensive plan and the current use of the open space area; and A nanagaent plan that contains prescriptions that vvill achieve compliance with the wildlife protection guidelines hi 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. FINDINGS: The applicant submitted a WMP as Exhibit 1" to the Tree Farm 4 burden of proof. Based on the findings above, incorporated by reference herein, the Hearings Officer finds the WMP oo tains the information required in this subsection a, 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 R the applicant shall explain why remove is appropriate., FINDINGS: The applicant's burden of proof includes aerial photographs of The Tree Fang and surrounding property as well as a narrative description of the natural <landscape features and proposed open space areas in Tree Farm 4. 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 ' 'MP 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, I find the applicant has not fully satisfied this criterion. r A description of the forestry proposed, if any. FINDING: The, applicant's burden of proof states no agricultural use Farm 4, and that the only forestry uses proposed are fire fuels reduc wildfire risk and to improve wildlife habitat For the foregoing reasons, the Hearings Of information required by these criteria. Tree Farrn 4, 247 er find he Tre or agricultural uses are proposed e Farm 4 n tretm for Tree ent to reduce ,proposal provides all Dimensional Standards: Setbacks and height limitations shall 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. 4 -000248 -CU, 247-14-00 249-` Page 62 of 117 FINDINGS: The setback and height limitations in the RR -10 and UAR-1O Zones are discussed in the findings above and below. 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 4., . Minimum area for a cluster d determined by the zone in which eveloprent sh it is proposed. all be FINDINGS: The 109.5 -acre Tree Farm 4 meets the 40 -acre minimum size for a cluster development in the WA Zone. The RR -10 Zone does not establish a minim a€ size for cluster'' developments. As discussed in the findings below, Tree Farm 4 satisfies the five -acre minimum size for a planned unit development in the UAR-1 O Zone. E. Conditions for phased development shall be specified and performance bonds shall be required by the Planning Director or Hearings Body to assure completion of the project as stipulated, if required improvements are not completed prior' to platting, FINDINGS: : The applicant does not propose to develop Tree Farm 4 in phases, and therefore the Hearings Officer finds this criterion is not applicable. However; as discussed above, the applicant ;,proposes to develop Tree Farris 1, 2'' and 3 concurrently to provide road access for all residential lots in those developments. 1 have found such concurrent development will be required as a condition of approval for Tree Farms 1, 2 and 3 F' Developments with private roads shall provide bicycle and pedestrian facilities that comply with the private road requirements of Title 17. FINDING: The applicant proposes to accommodate bicycle and pedestrian traffic via a network of paved multi -use trails and native surface recreational/mountain biking trails. The applicant proposes that only the southern portion of Tree Farm Drive would be designed to accommodate bicycle traffic on its paved surface. All other paved paths would run parallel to, but be separate from, the PUD roads; The applicant proposes, and will be required as a condition of approval,' to construct all subdivisirn roads with the applicable standards in Title 17 for focal public and private roads. G. Bicycle and pedestrian connections shall be ends of cul-de-sacs, at m etc., in the following foot right of way, wit shall be as straight as possible, and s 400 feet Tonga provided at the id -block, between subdivision plats, situations. Connections shall have a 20- h>,at least a 10 -foot wide useable surface, Fall n€ot be more than Where the addition of a connection;, will reduce the walking or cycling distance to an existing 'o r planned <" transit stop, school, shopping center, or neighborhood park by 400 feet and by at least > 50 percent >.over other available routes. Tree Farrn",.4, 247 -14 -000248 -CEJ, 247-14-C 0249 -TP Page 63 of 11. FINDINGS: The applicant submitted Plan" that shows four types of trail For schools or commercial uses where the addition of a connection will reduce the walking or cycling distance to an existing or planned transit stop, school, shopping center, or neighborhood park by 200 feet or by at east 0 percent over other available routes. For cul de sacs or dead end streets where a street connection is determined by the Haring. Officer or Planning Director to be unfeasible or inappropriate provided that a bicycle or pedestrian connection is not required where the logical extension of the road that terminates in a cul de sac or dead end street to the nearest boundary of the development will not create a direct connection tai an area street, sidewalk or bikeway. The County may approve a cluster development without bicycle or pedestrian connections if connections interfere with, wildlife passage through the subdivision, harm wildlife habitat or alter landscape approved for protection in its natural state, as Exhibit "C" to its burden of proof for Tree Farm 4 a 'Trai'l s with n the Tree Farm: 1, a 10 -foot -wide paved section of Tree Farm Drive from S 3; kyliners load to a point in, Tree Farm 2. several 8 foot> -wide `"neighborhood trails" running along the private Tree Fa rr i roads; 3. recreation/mountain bike trails leading across the open space in the 'RFS-1O./WA zoned portion of The Tree Farm and connecting with the existing trail system in Shevlin Park;, and 4. existing "perimeter trails"'' with native surface" traversing the open space in the RR-10/WA zoned portion of The Tree Farm between Shevlin Park and the top of the central ridge on The Tree Fara property. The tentative plan for Tree Farre 4 shows no cul-de-sacs. Therefore, the Hearings Officer finds no raid -block bicycle connections are required in Tree Farm 4. l found in my Tree Farm 1 decision that construction of a bicycle and pedestrian connection from the cul-de-sac on Ridgeline Court to the nearby schools and beyond to the retail and park uses in >.Florth'et Crossing would require crossing the adjacent Miller Tree Farm property to the southeast which is not a part of the proposed Tree Farre development. For this reason, i found in my Tree Farm 1 decision that a bicycle and pedestrian connection at the end of Ridgeline Court is infeasible and inappropriate. In my decision in Tree Farm 3, l found a bicycle and pedestrian connection at the cul-de-sac end of Canopy Court is infeasible and inappropriate; in light of the lack of through - et connections in the vicinity`. However, I note the proposed trail system in The Tree Farm t the Canopy Court cul-de-sac to Shevlin Park and to the DNF to the west. Tree Farm 4, 247.14-00024€ CU, 247 -14 -000249 -TP Fag 64 of 117 A Conditions of Appr av l Agreement for the ci development shall be recorded prior to or concu final plat for the development. FINDINGS: The Hearings Officer finds the applicant will be req to record a Conditions of Approval Agreement in accordance wit uired as a condition h this paragraph, uster rith the pproval' For the foregoing reasons, the Hearings Officer has failed to demonstrate Tree Fara 4 will satisfy all applicable conditional use criteria in Chapter 18.128. D. Tifl e 19 of the Des Ordinance cl rotes County Cod e the Ben d Urban Growth Bou UAR-10 ZONE STANDARDS Chapter 19 12, Urban Area Reserve Zone UAR 1 O Section t 9.12.10 Purpose nd ary Zonin g To serve a ' 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 passible as useful open space until needed for orderly growths FINDINGS: Opponent Christine Herrick argues the applicant's proposal conflicts with the purpose statement for the UAR-10 Zone which she believes requires the portion of The Tree Farm located in the 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. SE1U v. City of Happy Valley, 5 Or LUBA 261 (2009). The Hearings Officer finds there is nothing, in this purpose statement that suggests it was intended to apply to quasi-judicial land use applications or to prohibit uses permitted outright or conditionally in the UAR-10 Zone. b. Section 1912.03 0, Con ditiona I Uses FINDINGS: Opponents Christine Herrick and Ruth Zdanowicz argue that conditional uses in the UA _10 Zone "must comply', with the Statewide Goals for land use." They are mistaken, The statewide goals are implemented through the county's acknowledged comprehensive plans and zoning ordinances, and therefore are not directly applicable to the applicant's quasi-judicial land use application. Fl * 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 hi lot >size, ''bulk or type of dwelling, density, lot coverage or required open space to the standard regulations otherwise required by DCC Title 19. The applicant proposes that Tree Farm 4 be approved as a stand-alone subdivision with ten 2 - acre residential lots, an 87.7 -acre open space tract, and segments of private roads and € uiti- use panes. However, the Hearings Officer has found that none of the individual Tree Farm cluster!FUDs can function independently of one another. And the applicant proposes that Tree Farms 1, 2 and 3 be developed'''' concurrently 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, l find Tree Farm 4 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 'arra 4 as a whole, l will apply the provisions of Tit e 19 to the entire Tree Fara 4 and not just to those portions of the development zoned UAR- 10 Compliance with Chapters 19.76 19.100, and 19.104 is addressed in the findings below, Section 19.12.040, Height Regulations No building or structure shall structurally altered to exceed 30 be hereafter erecte feet in height. d, enla g ed FINDING. The Hearings Officer finds the applicant will be required as a condition of approval to assure all dwellings in Tree Farm 4 meet the 30 -foot height limitation, find building height will be verified at the time of building plan review, permitting and inspections. Vit. Section 19.12.050, Lot Reg The follo in g req uira€ uirements s A. Lot Area, Each lot s ants hall be observed° hall have a mini Lot Width. Each lot shall 300 feet with a minimum s "sm u a rea of 10 acres. have a minimum average width of treet 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 ''Flan 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``' Ya rd. There shall be a mi um sid eyard of10f Rear Yard. There shall be a minimum rear yard of 5 Solar Setback. The DCC 19,88,210. Tree Farm 4, 247-14-000248-C , 24T14- 024 TP solar setba 0 feet. ck shahl be as prescri bed in Page 66of117 FINDINGS: 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 lusflfied by the benefits provided by The Tree Farm cluster/PUDs. For the foregoing reasons, the Hearings Officer find standards in the UART10 Zone in Chapter 19.12. SITE FI D PLAN REVIEW NGS: As c ha pter 19.76, Site Plan Review s Tree Section 19.76.070, Site Plan Criteria th above, Section 19.12.030 states PU A pproval of a site plan s Far 4 satisfies all a pplioable Ds are subject to site plan rev€ew, hall be based o n the followir g trite ria: A. Safety and Privacy. Residential site plans shall be designed to provide a safe living environment while offering appropriate opportunities for privacy and transitions from public to private spaces. FINDINGS. As discussed in detail in the finings above. incorporated by reference herein, the Hearings Officer has found the applicant failed to demonstrate the site for Tree Farm 4 is suitable for the proposed cluster/PUD considering wildfire risk. For those same reasons, l`>find the applicant has not demonstrated the site plan for Tree Farm 4 is designed to provide a safe living env€ronrent. Therefore, l find Tree Farm 4 does not satisfy this criterion E; Special Needs of Disabled. When deemed appropriate, the site plan shall provide for the special needs of disabled persons, such as ramps for wheelchairs, drop curbs and disabled parking stall'. 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 4 will be designed and constructed in accordance with applicable requirements of the Americans ith Disabilities Act (ADA) to the extent practicable and where required, to ensure adequate access., The Hearings Officer understands these private paths may not be inspected for ADA compliance. However, I am aware ADA compliance for dwellings and accessory structures will be, determined and verified at the time of building, permit plan, review, permitting, and inspections. For these reasons, l find Tree Farm 4 satisfies this criterion. Ca 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 functions. Preserved trees and shrubs shall be protected during;, construct€o . Tree Farm>4. 247 -14 -000248 -CU 247` 14 -000249 -TP Pace 6i of 117 FINDINGS: The applicant proposes to preserve 87.7 acres of the 109,5 -acre Tree Farm 4 as open space with the only development therein being a s€ -hall segment of Tree Farm Drive. The tentative ,; plans for Tree Farms 1 through 5 show most of the road rights-of-way have been proposed in locations and alignments where they will follow existing topography. The tentative plans also show the residential lots will be located primarily atop the central ridge running through The Tree Farm or on other relatively level areas. The dwellings in Tree Farm 4 would be clustered near the northeastern corner of the cluster/PUD on relatively levelground. 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 VVMP 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 4 is suitable for the proposed clusteriPUD and is compatible with surrounding properties. Therefore, I find the applicant has not demonstrated compliance with this criterion. D. Pedestrian and Vehicular Circulation and Parking. The location and number of points of access to the site, the interior circulation patterns, designs of parking areas and the separation between pedestrians, and moving and parked 'vehicles shall be designed to promote safety and avoid congestion on adjacent streets. FINDINGS: : The Tree Farm tentative plans show the development will have access from Skyliners Road via Tree Farm Drive, improved with a 26 -foot -wide paved surface, and with a system of public and private roads connecting with Tree Farm Drive and developed with a 20- footTwide 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 sati lying this criterion. Buffering and Screening. Areas, structures and facilities for storage, machinery and equipment, services (mail, 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: "'he applicant's burden of proof ani tent :tive` plans inv icate none of tlx : above- described structures or uses is proposed for Tree Farm 4. Therefore, the Hearings Officer finds this criterion is not applicable. Tree Farm 4, 247-14-00024 -CU 247 14 -000249 -TP Pao 68 of 117 Utilities. All utility installations above ground, if such are allowed, shall be located so as to minimize adverse impacts on the site and neighboring properties. FINDINGS: The record indicates, and the HearingsOfficer'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 4. The applicant proposes that all new utilities be located underground. Therefore, I find this criterion is not applicable to Tree Farm 4. G. Public Facilities. The proposed use shall not be an undue burden on public facilities, such as the street, sewer or water system. FINDINGS: Streets. As 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 4, shows traffic predicted to be generated by The Tree Farm will not cause affected transportation facilities to operate below acceptable levels of service. The road department, the county's transportation planner, and the city's public works department did not recommend improvements to existing transportation 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 4 burden of proof a septic suitability study demonstrating soils on The Tree Farm and Tree Farm 4 are suitable for on-site sewage disposal. 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 Avion Water Company's system; or (3) use of one or more wells on The Tree Farm and/or the adjacent Miller Tree Farm € property. The applicant expressed a preference for city water service, and requested that the city perform a water analysis for serving The Tree Farm with city water. That analysis and supporting documents, ated August 1, 2014, are included in the record as Exhibit "G"' to the Tree Farm 4 burden of proof. In addition, two 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 he City's surface water and [that] also contains several of the City's groundwater weds." The analysis ate s water for The Tree Farm could be provided from the Outback facility through a new r nectian 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 r.€ntil the city's 0 tback Membrane 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. 28 The Hearings Officer understands this facility was unde h en this record closed. Tree F 4, 24S -14 -000248 -CU, 247-14-0[1 249 -TP" Page 63 of 117 The city's water system analysis states city standards require the following pressure and flow for domestic use: m 40 20 2.0 psi (pounds per square inch) psi residual pressure; and 00 gpm (gallons per minute) press ure at peak p for fire f iods; €€n€€mourn water The color -coded diagrams included in Exhibits "E' and "G" to the Tree Farm 4 burden of proof show that most of the water mains in The Tree Farm could be 24 inches in diameter, but that the mains would need to be 12 inches in diameter along 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 pr. ire meeting the 40 psi and 20 psi minimum standards. The other Tree Farm lots would have peak period and residual water pressure falling belowthose minimum standards. The city's water analysis states the city cannot;. guarantee a<specifijc water pressure or flow, and that any water sery€ce agreement between the city and the applicant must clearly identify areas of substandard pressure and/or fire flow. The analysis goes on to state that if the property owner finds the available water pressure unsatisfactory, the property owner may install a pressure pump on the downstream side of the city's water meter, at the property owner's own expense and responsibility The applicant's ''' Preliminary Utility Plan in Exhibit "E' includes a notation that "al homes incl, services with booster pumps." The Hearings understands this note to mean the applicant proposes that water service for each residential lot will have a pump boosting pressure to achieve the minimum psi established in the city's minimum standards. Based on the city's water analysis. the Hearings Officer finds that if water is provided to Tree Farm 3 through extension of city water service as proposed by the applicant and with necessary city approvals, Tree Farm 4 will not place an undue burden on the city's water facilities n his December 11, 2014 letter on behalf of LandWatch, Paul Dewey stated 'Even the uncertainty as to the eventual source of water and whether all of the possible sources will have adequate pressure, the Applicant should be required provide more specific information and the public be given the opportunity to n it.' ,1 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 4 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 Avian or another private water purveyor would provide water to The Tree Farm through the city's existing 14 -inch or16-inch water lines. However, Mr. Boggs stated this system may require a 'booster pump station" to provide sufficient water pressure for all Tree Fano 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 "Ml" to the burden of proof for Tree Farm 4 that demonstrate groundwater is available in the surrounding area. Mr. Boggs stated in his memorandum that individual wells for Tree Farm lots would Tre =aria 4. 2477-14-000249a l.l, 247 -14 -000249 -TP" Page 70 of 117 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.79 Finally, Mr. Boggs noted Filler Tree Farm as a quasi -municipal water right for 350 gpm for property including The Tree Fare. He, stated that in order for the applicantto use this water right to create an operational water system for Th Tree Fara, water from the, well or wells > would have to be ,pumped to a reservoir site at the highest point on The Tree Farm property near proposed Lot 50 in Tree Farm 5. Water would then go through a community booster pump station before being distributed to residential lots. Mr. Boggs stated such a system would be "feasible" but would require significantly more capital investment. He did not state whether this quasi-municipa 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 is required to, provide water to The Tree Farre through means other than extension of city water service, the applicant will be required as a condition of approval for Tree Farm 4, and before submitting for approval the final plat for any Tree Farm development, to provide to the Panning 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 east 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 4 satisfies this criterion, Section 19.76.080, Required Minimum Standards A. Minimum Landscaping Standards. All developents subject to site plan approval shall meet the following minimum standards for land 1 soaping: A minimum of 15 percent of the area of a project shall be landscaped for multifamily, commercial and ludustrial developments, subject to site plan approval and the following requirements . . FINDINGS: The Hearings, Officer finds the 15 -percent Subsection (1) is not applicable to Tree Farm 4 because it is industrial use, landscape area requirement in not a multi -family, commercial or Street Trees. The placement, spacing and pruning of street trees shall be as follows, although the Planning Director or Hearings Body may adjust the placement standard for special site conditions . FINDINGS: The applicant requests an exception to the street tree requirement under Chapter 19.104 As discussed in the findings b slew, the l-lesr€ngs''Off€cer has found this exception is justified by the benefits provided by The Tree Farm. 9 The record indicates the 37 lots served by individual on-site wells:. in The Highlands at BrcKen Top south across kyii'rs Road are Tree Farm 4, 247-14- 248 -CU, 247 -14 -000249 -TP Page 7 1 cf 112 3, Areas of commercial and industrial zones used for vehicle maneuvering, parking, loading or storage shall be landscaped and screened as follows:. , o FINDINGS: The Hearings Officer finds this criterion i does not include multi -family,, commercial or Industria Required la maintained. s not applica uses. ndsca bie to Tree Farm 4 because it ping s hall 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 requirements under Ch 19.104. As discussed in in the findings below, the Hearings Officer has found this except justified by the benefits provided by The Tree Farre. apter on is Shared Areas. Usable outdoor recreation space, shaft be provided for the shared use of residents and their guests in any apartment residential development as follows FIND The Hearings Officer finds this criterion is not applicable to Tree Farm 4 because it is not an apartment residential development. C. Storage. Areas shall be provided in residential developments for the storage of articles such as bicycles, barbecues, luggage, outdoor furniture, etc. F'INDINGS; The applicant's burden of proof did not address this criterion. However, the Hearings Officer finds adequate storage for the lusted items could be provided on each residential lot within each dwelling, garage, and/or accessory structure. Therefore, 1 find the applicant's proposal satisfies this criterion D. D rai nage. Surface d raina ge s h II be contained on site. FINDINGS: The applicant's submitted site plan and burden of proof for Tree Farre 4 show surface water drainage scald 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 s ales' with 3:1 slopes for on-site infiltration, or runoff would enter a natural drainage way via a roadside ditch and culvert. Because of the site's topography, natural drainage patterns on The Tree Farre generally are toward Tumalo Creek to the west and to the undeveloped open space to the east. However, the applicant's burden of proof states none of the runoff from impervious areas such as roads and driveways will create any additional drainagecontributions`to Tumalo Creek as no surface' water' will be disposed of off-site. Finally, the applicant has proposed that if hydrological calculations determine additional runoff storage is needed, the 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 Officerfound in my decision in Tree Farm 1 that the applicant will be required as a condition o Tree Farm 4, 247` 14-0i 248 -CU, 247' 14 -000249 -TP Page 72 of 117 approva 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 finalplat 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. Bicycle Parking. The development shall provide the number and type of bicycle parking facility as required in DCC 19080.080 and 19.80,090, The location and design of bicycle parking facilities shall be shown on the site plan, FINDINGS: The Hearings Officer finds Tree Farm 4 is not required to provide bicycle parking because it is not subject to Sections 19.80.080 and 19.80.090. That is because off-street bicycle parking is not required for single-family dwellings, and Tree Farm 4 will, not include any of the uses for which off-street bicycle parking is required. F. Internal Pedestrian Circulation. Internal pedestrian circulation shall be provided in new office parks and commercial developments through the clustering of buildings,, construction of hard surface pedestrian walkway, and similar techniques. Walkways shall connect 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 bicycle connection on adjacent properties planned or used for commercial, multifamily, institutional or park use., FINDINGS: The Hearings Officer finds these criteria are not applicable to Tree Farm 4 because it is not a new office park or commercial development, Publ c Transit Orientation. New retail, o and institutional buildings on parcels within 600 feet of existing or planned transit routes shall provide preferential access to transit through the following measures „ FINDING : The Hearings Officer finds this crit ion is not applicable to Tree F r€ n 4 because it is not a new retail, office or institutional use; . For the foregoing reasons, the Hearings Office bove the conditions of approval describe under Title 19:, da URBAN AREA'CON, CONDITIONAL USE CRITERIA Chapter 19.10 Inds Tree F satisfy, al 0, Conditional Use Permits Section 19.100,00, General Gond Tree F 4, 247.14 -000248 -CU, 247 14 -€000249 -TFC" m 4 satisfies, or with imposition of applicable site plan requirements itional Use Criteria Page 73 of 11€ 7 Fl DING, A conditional use permit may be granted offly upon findings by the Planning Director or Hearings Body that the proposal meets ail of the criteria In DCC 19.100.030, as well as all other applicable criteria contained hi DCC Title 19. The genera criteria are: A. That the location, size. design and operating characteristics of the proposed use are ,such, that it will have ial'' 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 'relevent impact of the proposed use. Location. Tree Farm 4 is located north of Skyliners Road an property zoned UAR-10 and RR- 10 and located'' approximately 4,500 feet west of the Bend UGB and approximately 2,000 feet east of Shevlin Park, Size. Tree Farm 4 i 109.5 acres in size and is west of Tree Farms 1 2 and 3, Tree Farm 4 would be developed ,ith 20 acres of residential lots, 87.7 acres of open space, and 1.7 acres of road right-of-way. Operating Ch racterist€c , The proposed ten residential hats, in Tree Farm 4 would be clustered near the northeast corner of the chaster/PUD and in the north -central part of The Tree Farm on higher, relatively level ground. All lots would' have frontage on Golden Mantle Loop, a private road developed to the county's private 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 -- the primary PUD road that intersects with Skylin rs Road -- west of Lots 2 ` and 26 in Tree Farm 3. The applicant proposes to develop Tree Farms 1, 2 and concurrently to provide access from Skyliners Road for all lots in those developments. The tentative plans show the private roads will be constructed primarily on the central ridge, thus minimizing steep road cuts and grades. A gated temporary emergency access road would extend from the southern terminus of Sage Steppe Drive in Tree Farm 1 south across the adjacent Miller Tree Farm property to Crosby Drive in the Bend UGB. This secondary access would be in place until the adjacent Miller Tree Farm property is developed with paved streets to which Sage Steppe Drive could connect. Sage Steppe Drive would be stubbed at the northern boundary of Tree Farm 1 to provide a future road connection to the adjacent Rio Lobo property to the north. The applicant proposes that each dwelling would be constructed within a designated building envelope, would be served by an on-site septic system, and would receive water from the City of Bend, Avon ater Company, or one or €-nore groundwater wells. The €-najority of Tree Fara 4 (87.7 acres) would be set aside as permanent open space. The public would have access to this open space through a coil!onatorta permanent trail easement on the primary, trails within The Tree Farm and a license granted by The Tree Fenn HOA for use of trails within the residential lot areas in Tree Farm 4. The path and trail system would connect ,rith trails in Shevlin Park and the DNF to the west and southwest. Tree Far4, 247 -14 -000248 -CU, 247-14-O 0249 -TP" Page 74 of 117 Compatibility. This criterion requires the applicant to demonstrate Tree Farrn 4 will have "minimal adverse impact on the property value, livability and permissible development of the surrounding area" considering "scale, coverageand 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 urbani able lands to the east and Shevlin Park and public and private forest lands to the west. The configuraton 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 UAR-°i 0 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 Farm dwellings' would be clustered along or near Rio Lobo's southern boundary with only one road connection provided along that boundary. As discussed in the findings below, the Hearings Officer has found the applicant is not required to dedicate a public road between the Rio Lobo property and Skyliners Road to facilitate through traffic for Rio Lobo, and The Tree Farm configuration will not preclude Rio Lobo from developing its property at urban or urban reserve densities in the future. LandWatch and other' opponents argue the site for Tree Farm 4 is not suitable' for the proposed cluster/PUD considering irnpacts 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 4 is suitable for the proposed cluster/PUD considering wildlife habitat and wildfire risk. For the same reasons, l find the applicant has not demonstrated The Tree Farm will be compatible with Shevlin Park and the public and priva e 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 recommendations from the city or county for additional right-of-way or road improvements, that traffic generated from the entire Tree Farrn developrernt will not cause affected transportation facilities to operate below acceptable' levels of service, and the Tree Farm 4 site will be suitable for the proposed cluster/PUD considering the adequacy of transportation access. For the same reasons, 1 find Tree Farm will have minimal if any adverse rpacts on property value, livability and permissible development of the surrounding area considering traffic patterns and street capacity. For the forego in g' reasons, the Hearings Officer find s Tree Farm 4 satisfies this criterion. B. That the site planning of the proposed use will, as far as reasonably possible, provide an aesthetically pleasing and functional environment to the highest degree >consistent with the nature of the use and the given setting. FINDINGS: The design of Tree Farm 4 includes two -acre residential'' bats clustered near the northeast corner of the cluster/PUD and 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 Tree Fara 4, 247` -14 -00024$ -CU, 247-14-- 249 -TP Page 75 of 117 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 wildlifehabitat. The applicant proposes to create a system of paved multi -use paths and recreational trails within The Tree Farm that would connect will the existing trail network in Shevlin Park and the DNF to the west. The cluster/PUD would have a system of public and private roads that generally would follow the existing terrain to minimize road cuts and steep slopes. The road system would include a gated temporary emergency access road from Tree Farm 1 south to Skyliners Road through the adjacent Miller Tree Farm property. The Hearings Officer finds the site planning for Tree Farm 4 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 4 dwellings would be substantially screened from Skyliners Road by existing topography and vegetation. Most of Tree Farm 4 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, l;, have found that with imposition of conditions of approval described above, all necessary facilities and services will be available to residential lots in Tree Farm 4. For the foregoing reasons, the Hearings Officer f nds Tree Farm 4 satisfies this criterion. C. That if the use is permitted outright in another zone, there is; substantial reason for locating the use in an area €here it is only conditionally allowed, as opposed to an area where it is permitted outright. FINDINGS: : The Hearings Officer finds no other zones allow a reside permitted use. ntial PU D as an outright That the proposed use will be consistent with the purposes of DCC Title 19, the Comprehensive Plan, Statewide Goals and any other applicable statutes, ordinances or policies. FINDINGS: The Hearings Officer has found the purpose statement for the UAR 10 Zone in Section 19.12.010 does not constitute an approval criterion for quasi-judicial land use applications. Section 19.04.020 identifies several purposes for Title 19. including providing the principle means for implementing the Bend Area General Plan, and providing a means of classifying, designating and regulating development in the Bend urban area. The purpose statement uses a number of aspirational terms, such as to "encourage," "conserve" and "facilitate" various goals for the Bend urban area. For these reasons, the Hearings Officer finds the Title' 19 purpose statement does not contain applicable approval criteria for Tree Farm 4 Compliance with the applicable administrative rules is addressed in the findings above. Compliance with applicable comprehensive plan policies is addressed in the findings below. have found the Statewide Land Use Planning Goals are not directly applicable to the applicant's proposal. Finally, compl€once with Title 19 is the finthngs above and below. For the foregoing reasons, the Hearings Officer finds Tree Farm 4 satisfies, or with imposition of the conditions of approval described above will satisfy, all UAR-10 Zone conditional use approval criteria. Tre 4, 247`; -14 -.00248 -Cts, 247x14- O0249 -TP Page 76 of 11 PUD S T`A NDA 4. RDS Chapter 19.104, PlannedUn 5 ecti on 19.104,010, it'Develb P urpose rnen< The purpose of planned, unit development approval is to allow and to make 1possible 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 statement indicates otherwise, such statement does not establish approval standards for quasi-judicial and use applications. The Hearings Officer finds use of the terms "make possible, ensuring compliance," and "intent and purpose" indicates the PUD purpose statement is aspirational and therefore does not establish approval criteria for Tree Farm 4. 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 ess than four acres in any other zone. FINDINGS: Each Tree Farm development in therefore satisfying this standa rd. Section 19.1104.070, 5 u€ding tandard Tree Parr s for Ap 4 is at leas proal' 04 acres in size, In granting approval for planned unit' development, the Hearings Body or Planning Director shall be guided by the following Whether applicant has, through Investigation, planning and programming, demonstrated tl e soundness of the proposal and an ability to carry out the project as proposed, and whether the construction shall begin wilt lin six months of the conclusion of any necessary action by the County, or within such longer period of time as may be established by the, Hearings Body or Planning director. FINDINGS: The Hearings Officer finds that read in the context of the rest of thus paragraph, the term "soundness" connotes, the feasibility financial and physical — of developing The Tree Farm and Tree Farm 4. 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 Slogl ner TWS, LLC, whose''' members include Michael Tennant, Ron White, and Kirk 'Schu€eler, each with many years of successful local development experience1 ars aware Brooks and Tennant together developed' NorthWest Crossing. Tree Fara 4, 247 -14 -000248 -CU, 247>-14-00024 -TP Page 77 of 117 The burden of proof states the applicant's intent is to initiate development of Tree Farms 1, 2 and 3 i€ €r ediat&ly upon gaining land use approval. However, because of the size of The Tree Farm, the applicant has requested approval to commence construction of Tree Farms 4 and 5 two years after commencement of construction for Tree Farms 1, 2 and 3. Accordingly, < the Hearings Officer' finds the applicant will be required as a condition of approval to complete all conditions of approval' and appy for final plat'' approval from the Planning division for Tree Farms 4 and 5 within four years of the date this decision becomes final, or obtain an extension in accordance with the provisions of Title 22. vv$ith imposition of this condition of approval, 1 <find the applicant's proposal satisfies this criterion; Whether the proposal conforms with the general plans of the County in terms of location and general development standards.. FINDING: The Hearings Officer finds Tree Farm 4 is proposed for land designated and zoned for residential development and in which residential clu€ster/PUDs are permitted'' conditionally. In addition, as discussed in the findings below, l have found Tree Farm 4 is, consistent with applicable plan policies. Therefore, 1 find Tree Farm 4 conforms to the city and county comprehensive plans., Whether the project wiil 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. FINDINGS: The applicant has req The Tree Farm and Tree Farm 4: uested exceptions to the following 1 . two -acre residential lot size rather than the five -acre 18.60.060 or the ten -acre minimum lot size under Section 19 2. thirty-foot 19.12.€00; 3. minimu .12.050: front yard setbacks rather than the 'fife -foot front ya ess than fifty fee 17.3 6.180; redu 19.12.0 of stye ction in the minin-€ur 50 for Lot 1 in Tree Farm et fronta g e for Lot in Tree Fara€ stand ards applicable to lot size under Section d setback under Section as required by Section lot width and street frontage standard 5, no street trees rether than street trees as required by Section 19.76.0 6. no introduced' landscaping or maintenance thereof; 7, eight-foot-wid required by Sect e bicycle and pedestrian ion 19,104,080(F); and 8 under Section multi -use paths rather than ten -foot wide paths as 8. no road/bicycle path connections at 400 -foot intervals along The Tree Farm" s borders with adjacent Rio Lobo and Miller Tree Farm properties. Tree Farm 4, 247--14-000248-CLE, 247 -14 -000249 -TP Page 78 of The ap plicant argues The Tree Farr county and the general public and Tree Farm 4 wil crue he olio ing benefits to the 1, creating two -acre residential lots rather than five- or ten -acre ots and clustering lots on 100 acres of The Tree Farm€, and 20 acres of Tree Farm 4; 2. preserving over 87 acres Tree Farm as a whole; of open pa ce in Tree Farre 4 and 423 acres of open space in The 3. making the PUD roads accessible to th 4. creating licenses, the DNF; e public through pu blic access easements; a network of trails accessible to the public through public access easements and nd link ng The Tree Farm and Tree Farm 4 to the trail systems in Shevlin Park and 5, minimizing impacts to habitat in the Tumalo winter deer range through small, clustered residential lots, large open space tracts, preservation of most native vegetation, and reduction in fire fuels; 6. providing a do The Tree Farm; estic vater y em fo the d elling s nd fire hydrants to aid fire protection on 7 designing and managing The Tree Farm and Tree Farm 4 as a "Fire 'else Community" tc reduce wildfire risk;, 8. configuring The Tree Farm and Tree Farm 4 to establ area between urban and urbanizable lards to the east a public and private forest lands to the west; and h a permanent low-density transition 9. providing 50' new dwellings to a Bend. d nd Shevlln Park and the extensive dress the demand for new esites on the west sid e of LandWatch again argues the analys€s required by this section should not compare tl e applicant's proposed cluster/FUD with alternative subdivision configurations such as a traditional subdivision with 10 acre lots and dwellings spread throughout the 533 -acre property, in his December 11, 2014 letter, Paul Dewey states. 'There are apparently only five lots, so the current alter ative w i ld be five houses. Though the zoning allows a house on, a 10 acre parcel, there is no basis to conclude that 50 10 acre lots can be created here." (Underscored emphasis added.) As discussed above, the Heanngs 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 UARy10 that is close to the DIF, In addition, traditional 10 -acre lot' subdivisions in the UAR-10 and RR -10 Zones do not require conditional use approval; but rather are subject only to the subdivision standards in Title 17. For this reason, I find there is nothing;, improper In comparing the proposed cluster/PUDs to the alternative of a traditional subdivision tree Fang 4, 247-14-000248- U, 247.14-0002 49 -TP Pag of 11'7 when weighingthe exceptions. benefits of he proposed Tree Farm devei opn ent again t the requested The Hearings Officer finds many of the above-described benefits of developing the subject property with cluster/PUDs justify the requested exceptions. In particular, I find the requested two -acre lot sizes, the clustering of dwellings, the preservation of large swaths of open space in the WA Zone, and the creation of a trail system connecting with trails in Shevlin Park and the DNF will provide significant benefits to the corrr€€nity. For these reasons, I find Tree Farm 4 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 Heanngs Officer has found on the basis of the applicant's traffic study that the addition of traffic generated by The Tree Farm wi I not exceed the capacity of affected transportation facilities, and no additional' right-of-way, or improvements are required. I also have found the intersection of Skyliners Road and Tree Farm Drive will have adequate sight distance in both directions, and that the proposed gated secondary access road will provide an appropriate second point of access for evacuations and emergency vehicles. No on -street parking will be allowed; all off-street parking will be accommodated on each homesite. For these reasons, I find Tree Farm 4 satisfies this criterion. E. 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 '13,128.015(3)(B), Based on those findings, incorporated by reference herein, find Tree Farm 4 satisfies this criterion with respect compatibility with the rural character of the area, and with adjacent property to the north, east and south. However, have found that in the absence of an adequate wildfire plan the applicant has not demonstrated The Tree Farm or Tree Farm 4 will be compatible with Shevlin Park and forest lands to the west. Fl N DIN GS: Whether the project will satisfactorily take water needs consistent with the Bend Ur Plan. care of sewer and ban Area General Sewer. The applicant proposes that each dwelling be served by an on-site septic system, and provided as Exhibit "" to the Tree Farm 4 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 The Tree Farm and Tree Farm 4 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 applicant will be required to obtain from the county an approved septic site evaluation for each Tree Farm 4 lot. ree Farm 4, 247 -14 -000248 -CU, 247 -14 -000249 -TP Fag e80of117 Water; The applicant proposes to provide domestic water to each dwelling in The Tree Farm through one of three methods. (1) extending and connecting to city water service; (2) extending and, connecting to service from Avion 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 ,sG' to the burden of proof a will-serveletter from the City of Bend indicating the city's water system has sufficient capacity to serve the 50 hornesites in The Tree Farm. The applicant also submitted as Exhibit `NI" to its burden of proof well logs on surrounding properties showing;, water is available. The applicants 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 Nast 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 4 satisfies, or with imposition of the conditions of approval described above will satisfy, this criterion. G. A planned unit development' shall rest 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 Plane FINDINGS: S: The proposed density of each Tree Farm development including Tree Farm 4 will not exceed one dwelling per ten acres, consistent with the general density permitted in the RR- 10 and UAR-10 Zones, therefore satisfying this criterion, Section 19 104 080, Standards and Req uirements guest for a planned unit> development is dependent bmisron of an acceptable plan and satisfactory be carried out The following minimum nts shall apply; Approval of a re. upon the su assurance that it standards and requirer~ A. A dwelling use permitted i planned unit development. FINDINGS; The applic in the UAR-10 Zone. nt prop Os n any zone may be permitted>.in a es ten residential lots for singlewfmily d +uellings, a use allowed A manufactured home may be permitted in a planned unit development. However, manufactured home parks shalt'' not,, be allowed in any 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. Tree Farre 4, 247-14-0 24 -CU, 247 -14 -000249 -TP Page of 117 C. Developments which either provide for or contemplate private streets and ways and common areas whichwill be or are proposed to be maintained by the owners of units or ots within a development must organize and maintain an owners' association. The owners' association shall consist of all, the owners of units or lots within the development ' and rnemership In the ,association must be required of all 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''ilen upon the unit or lot for services. labor or >material lawfully chargeable as common expenses as provided in ORS 94,789. The association's power to create such a lien shallI exist whether or not the property is subject to the Oregon planned'' Community' Act (ORS 94.565 through 94.785.) FINDINGS- The Tree Farm iI1 include private roads, a public road, multi -use paths,, recreation trails, and open space that w#II be owned and managed by an HOA. The applicant's burden of proof for Tree Farm 4 states at HOA will be established, organized and €na€ntined 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 approve to record CC&Rs and HOA bylaws prior' to s bmitting for approval the final plat for any Tree Farm development. I find that with imposition of this condition of approval, Tree Farm 4 will satisfy this criterion! DI. If the property is not subject to the Unit Ownership Law, the association shall also create, by contract, the right,to claim a lien upon any unit or lot for services, labor or material chargeable as common expenses. This lien may be created by covenants between the association and the property owners and shall supplement the lien created by DCC 19.104.090(C) and require all owners of units or lots within the development to consent to and pay the reasonable value of services, labor or material expended by the County for common expenses where such county expenditures, are made because the owners or the owners' association does not provide the necessary services, labor or material'' for comm on expenses. FIND : The applicant's > burden of proof states the statutory references in this criterion no longe. 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 OR ' Chapter 100. Because of these changes, the applicant argues, and the Hearings >Officer agrees, that The-'' Tree Farm and Tree Farm 4 are not subject -to -the Oregon Condominium Act (ORS 10€9.105 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 public roads and ways developed to Tree Farm >:4, 247-14-000248-C U, 247,,14-00€ 249 -TF Page 2 of 117 county standards or be private roads of a minimum 14 feet wide paved surface for one way traffic, minimum 20 feet wide paved surface for two way traffic, and parallel parking as permitted shall require minimum additional eight feet of width for each side of parking, if pedestrian 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 Panning 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 4 will be improved with 20 feet of pavement, and no on -street parking will be permitted. All 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 pedestrian/bicycle paths according to the plan included in the record as Exhibit "C' to the applicant's burden of proof. The pedestrian/bicycle path will be included in a 10 -foot -wide space on the southern portion of Tree Farm Drive within Tree Farm 4, 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 1736020(B) the applicant is required to dedicate and improve a public road between the southern boundary of the Rio Lobo property and Skyliners Road to provide for through traffic from future development of the Rio Lobo property. However, as discussed in the findings below, incorporated by reference herein, the Hearings Officer finds that section does ;,not require dedication of a public road in the circumstances presented here, For the foregoing reasons, the Hearings Officer fi nds Tree Farm 4 s atisfies this criterion. F. 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 two way traffic and shall be constructed with portland cement or asphaltic concrete to county standards, except as varied by the provisions of DCC 19.104 080 or by the Planning; Director or Hearings Body. FINDINGS r The applicant proposes a system of paved multi -use paths and natural surface recreation trails throughout The Tree Fara and within Tree Farm 4 designed to accommodate pedestrians and bicycles. According to the trail plan, Exhibit "C" to the appl'icant's burden of proof for Tree Farm 4, four types of trails are proposed: (1) main connection trails; (2);,; neighborhood trails, (3) proposed recreation/mountain bike trails; and (4) existing perimeter trails. The applicant proposes that the main connection trails would consist of ten -foot -wide paved multi -use paths paralleling Tree Farm Drive from its intersection with Skyliners Road to the point where the path splits to go west to Shevlin Park. The neighborhood trails would extend, from that point east to the Golden Mantle Loop/Ridgeline Drive intersection and along the rest of Tree Fara 4, 247-14-0 248 -CU, 14.000249 -TP Page 83 of 11 the roads in The Tree Farm. These paths would be paved tee a width of eight feet and would roughly parallel the internal road network in The Tree 'Farm» The applicant has requested an exception to the ten -foot width requirement for the multi -use neighborhood paths for the reason that they will serve a lower -use function for bicycle/pedestrian access within the homesite area. The applicant notes there are only 50 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 residents. 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, I have found this requested exception ''is justified by the significant con n€ €unity{, '''benefits from the proposed ciuster/PUD, Forth Fl N e foreg oir reasons, the H Barin 9 Officer find s Tree Farm 4 satisfies this criterion G. Ali utility facilities shall be installed accordance with County standards. DINGS: The applic criterion. nt proposes that al new utilities will be install and erground and in ed tnderground. satisfying The design of all planned' unit development projects shall provide direct access for all units and lots 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 Farm 4 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. F ND A statement must be submitted relative to the solar access to b ep rnvided by the plan ned unit development. NGS: The applicant 's,>burden of proof includes the following statement on solar access. 'Ai! of the lots rif i i The Tree Farm will be at least 2 acres in size with setbacks on all lot lines of no less than 20 feet. This alone will provide ample solar access to the lots. However, many of the open ridge top lots in Tree Farm 1, 2 and will have nearly ideal solar access." 30 The proposed recreation/mountain biking trails would be soft -surface trails developed to the mountain bike trail standards in Section 17.48.140(E). -these trails would connect with the trail network in Sheviin Park. The applicant's burden of proof states the existing perimeter trails within the western open space tracts are composed primarily of old roads that will be converted to trail use and will have native dirt surfaces. Tree Farr 4, 247-`14.0 248 -CU 247 -14 -000249 -TP Page 84 of 11 The Hearings Officer finds that the size and configuration of the ten T can be sited on each lot in compliance with will assure a dwelling stand and under Sectio ns 18.6 0 040(0) a rid 9,12.050(F). ree Farm 4 residential lots the required solar access For the foregoing reasons, the Hearings Officer finds Tree Farm 4 ,satisfies, or with iposition of the conditions of approval described above Will satisfy, all <applicable urban area PUD standards. . Title 17o f the Deschutes County Cod he ubdivisio /Partition Ordinance SUBDIVISION STANDARD 1, Chapter 17.16, Approval of Subdivision Tentative P Development Plans Fl NDl N GS: Section 17.16,100 Required Findings for pproval, ans and 'faster A tentative plan for a proposed sdbdivisibrs shall not be approved unless the Planning ,,Director or Hearings Body finds that the subdivision as proposed or modified will meet the requirements of this title and Titles 18 through 21 of this code, and is in compliance with the comprehensive plan. Such findings shall include, but not be limited to, the following A, The subdivision contributes to orderly development and and use patterns in the area, and provides for the preservation of, natural features and resources such as streams, 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 4 as cl€uster6PUD with an overall density of one dwelling per ten acres as permitted in the RR -10 and UAR-10 Zones. This density is the same as that in The Highlands at Broken Top P1 D located south across Skyliners Road. However, unlike that development with 37 ten -acre lots and dwellings scattered throughout' the 390 -acre site, Tree Farm 4 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 spaceTree Farm dwellings would be sited within designated building, envelope, retaining the rest of the lots in native vegetation. As discussed above, the applicant intends The Tree Farm to provide a permanent transition between urban and urbanizable land to the east and Shevlin Park and vast public and private forest lands to the west. The also applicant intends that The Tree Farm never will be annexed into the Bend UGB or redeveloped, >.PUD roads Would`> connect s, ith Skyliners Road, and eventually with roads developed on the Rio Lobo property to the north and the Miller Tree Farm property to the east. As also discussed above, the Hearings Officer has found affected transportation facilities Will continue to operate at acceptable levels of service w€th the addition of traffic generated by The Tree Farm€. Each residential lot will be served by n on-site septic system and domestic water from the City of Bend, Avian, or groundwater wellsFor these reasons, l find Tree Farm 4 will contribute to orderly development and land use patterns in the area. Tree Fara 4, 24i -14 -000248 -CU, 247 -14=000249 -TP Page 85of117 Presenfation of Natural Features and ResourcesNatural features and resources on Tree Farm 4 consist of topography, native vegetation, and wildlife habitat. As discussed above, the applicant has proposed cluster/PUDs in order to maximize open space and to preserve native vegetation. Residential lots will be >located an 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 site's existing contours minimizing the need for steep road cuts or slopes. As also dliscussed above, the applicant proposes to protect the deer winter range habitat on The Tree Farm and Tree Farm 4 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 Fara and Tree Farm 4 will be compatible with Shevlin Park and forest lands to the west because its wildfire plan is inadequate. l'' also have found the applicant failed to demonstrate The Tree Farm and Tree Farre 4 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 4 is suitable for the proposed;;, cluster; PUD'' and is compatible with surrounding lands. For the same reasons, I find the applicant has not demonstrated Tree Farm 4 will provide for the preservation of natural features and resources. B. The subdivision will not create excessive demand on public facilities and services, and utilities required to serve the development. FINDINGS: The public facilities and services required by Tree Farm 4 include sewage treatment, water, roads, electricity, natural gas, telephone and cable service, and police and fire protection. Each of these is addressed below, Sewage Treatment. The applicant proposes to serve the residential lots with individual orf -site septic systems. The applicant submitted as Exhibit `F" to the Tree Fara 4 burden of proof a septic suitabiity study showing the soils on Tree Farm 4 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 4 prior to final plat approval, Water. The applicant proposes to provide domestic water to the residential lots in Tree Farm 4 through one of three options: (1), extending and connecting to City of Bend water service os proposed in the applicant's Preliminary Utility Man, (2) extending and connecting to Avion Water Company facilities; or (3) utilizing;, one or more individual wells on The Tree Farm property and/or the adjacent Miller Tree Farm property. As discussed in the findings above, incorporated by reference herein, the Hearings Officer has found the city's water system will have adequate capacity to serve the residential lots in Tree Farm 4, 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 ire flood at each lot. Therefore, I find providing domestic water to The Tree Farm and Tree Farm 4 will not create excessive demand on the city's water system, However, l 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 Fara 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 Tre Farm 4, 247-14-000248-C U, 247-14-OOO249-T,P Page 86 of 11 of water pre fire flow, at peak periods, 20 ps es€dual water pressure, and a eas 2,000 gpm for Roads. As discussed in the findings above, incorporated by reference herein, the, Hearings Officer has found from the applicant's traffic study that the addition of traffic generated by the 50 proposed dwellings for The ''Tree Farm will not cause any affected transportation facilities 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 additional right-of-way or improvements to affected transportation facilities. Electricity. The applicant submitted a will -serve Exhibit "G' to the Tree Farm 4 burden of proof. letter from Pacific Power for electric service Natural Gas. The applicant submitted a will -serve letter from Cascade Natural Gas for gas, service in Exhibit "G„ to the Tree Farm 4 burden of proof. Telephone. The applicant submitted a will -serve letter from CenturyLink for telephone, service in Exhibit "G" to the Tree Farm 4 burden of proof. Cable. The applicant submitted a will -serve Exhibit 'G" to the Tree Farm 4 burden of proof. Police. police protection will, Fire Protection. Fire protect September 2, 2014 comment Larry Medina identified er fror B end Broadband for cable service in be provided by the Deschutes County S h en f. on will be provided by the City of Bend Fire Department. In his n the applicant's proposal, Deputy Bend Fire Chief/Fire Marshal' a number of Oregon Fire Code (OFC) provisions applicable to The Tree be suar€zed as follows: Farm. These comments can 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 tha 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 f rids 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 apparatus access roads may be required by the fire code official. Finally, the OFC states that if fire hydrants are installed they must be no farther than 400 feet apart; As discussed in detail in the findings above. incorporated ' by reference herein, the Hearings Officer has found the city's water supply analysis shows extension of and connection to its water facilities can provide fire flow of 2,000 gpm at each residential lot, the minimum flow prescribed by the city. In addition, the applicant's Preliminary Utility Ilan diagram, included in Exhibit "E" to the Tree Farm 4 burden of proof, shows fire hydrants placed at 410 -foot intervals along all PUD Far 4, 247.14-000248 CU, 247 14 -000249 -TP Page 87 of 117 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 priorto submitting for approval the final plat for any Tree Farm development, to 'provide to the Planning Division a water system analysis from a registered professlonal engineer demonstrating the alternate water system will provide at each residential' lot water pressure of 40 psi during peak periods, 20 psi residua water pressure, and at least 2,000 gprn for fire flow. 3. Other fire service features. The OFC requires that each dwel'ling in Tree Fer€n'4 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 QFC'. For the foregoing reasons, and with imposition of the conditions of approval described above, the Hearings Officer finds Tree Farr€ 4 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 requirements of Oregon Revised Statutes Section 92.090. FINDINGS: ORS 92.090(1) states a new subdivision can only use the same name if it is a continuation of an existing subdivision, with a sequential numbering system, and must either be 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 pro ect to be known as The Tree Farm. The Hearings Officer finds this subdivision name plan con orms to Subsection (1) of the statute. Subsection (2) of this statute equires that roads be laid out to conform with existing pats on adjoining,, property, that streets and roads held for private use are clearly indicated on the tentative pan, 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 d scussed above, Sage Steppe Drive is proposed to be dedicated to the public in order to provide a future road connection with the undeveloped LIAR -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 4. I find that with imposition of this condition of approval, Tree Farm 4 will comply with Subsection (2). Subsections (3), (4) and (5) of the statute to Tree Farm 4, rel' fine platting and therefore are not applicable For subdivisions or portions thereof proposed within a Surface Mining Impact) Area (SMA) zone under Title 18 of the Deschutes County Code . FINDINGS: The Hearings Officer finds'' this criterion Is not applicable because the subje property is not located within a 'SIA Zone. E. The su Surveyo bdivision name ha r. been ap proved by the County Tree Farm 4, 24.7 -14 -300248 -CU, 247-14-00 249 -TP Page of 1 7 FINDINGS: Exhibit ;?„ to the Tree Farm 4 burden of proof indicates the proposed names for The Tree Farm cluster/PUDs have been approved by the County Surveyor, therefore satisfying this criterion. Section 17.1 05, Access to Subdivisi No proposed subdivision shall be approved unless 'it will be accessed by roads constructed to County standards and by roads accepted for rtahitenance responsibility by a unit of local or state government This standard is met if the s bdi ision 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 4 will be from Skyl €hers Road, a designated county collector road unproved to the county's collector road standards and maintained by the county, therefore satisfying this criterion. ce Section 17.16.1 5, Traffic pact S to dies Gu Wanes for Traffic Impact Studies The following vehicle trip generation thresholds shall determine the level and scope of transportation analysis required for a new or expanded development. Traffic Impact Analysis (TIA) If the development or change in use will generate more than 200 trip ends and 20 or more PM peak hour trips, then a Traffic Impact Analysis (TIA) shall be required . r FINDINGS: The applicant subrnitted a traffic study prepared by Kittelson & Associates, included in the record as Exhibit "H" to the burden of proof for Tree Farm 4. The traffic study was submitted ' because the applicant's traffic engineer predicted traffic generated by the 50 dwellings in The Tree Farm would generate over 400 trip ends. The traffic study, concludes traffic generated by The Tree Farm will not exceed the capacity of affected transportation facilities at buildout, or in 2017 and 2022 with the addition of other traffic from -the surrounding area. The traffic study also found that no additional right-of-way or improvements are required, and neither the road department nor the city indicated the need for addition right-of-way' or improvements, Therefore, the Hearings Officer finds the applicant's proposal satisfies this criterion. 2. C hapter 17.36, Doig n Standards Tree Far 4, 247=14 -000248 -CU, 247 -14 -000249 -TP Page 89 of 117 Sectio n 17,36 .0 20,Streets The location, width and grade of streets shallbe considered' n 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 or the continuation of the principal streets existing in the oining subdivision or partition or of their property projection when, adjnlraing 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 Farm roads in conformance with the applicable county local road standards — i.e., the public local road standards for Sage Steppe Drive, and the private local road standards for the private roads in Tree Farm 4. The proposed road layout generally follows the topographical contours of The Tree Farm and Tree Farm 4, and wall provide direct access to each proposed residential lot. Separate multi -use paths are proposed along all new roads to provide adequate circulation for bicycles and pedestrians and adequate separation from vehicular traffic, There are no principal streets in adjoining partitions or subdivisions that require the continuation of those streets into Tree Farm 4. No alterations to road layout or design were identified by the road department. For, these, reasons, the Hearings Officer finds Tree Fara 4 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 privately owned. Planned devblo:•: cents shall include ubllc streets where necessary to accommpdatepresent and, fa tes ,througl 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/PUUDs. Sage Steppe Drive would have a dedicated b0> -foot right-of-way 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 Farm property to Crosby Drive. The applicant states ail private roads within The Tree Farm will' be subject to public access easements to be shown on the final plats for The Tree Farm.- '' in his January 6, 2015 letter on behalf of Rio Lobo, Mlles Conway states the applicant is offering only a "temporary" public access easement over the system of Tree Farrn roads, and therefore The Tree Farm HOA, which would own and manage the subdivision roads, could erect barriers to "through traffic' within the `<subdivision. Mr. Conway is mistaken The applicant's burden proof for Tree Farm 4 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 Tree Fara 4, 247-14-000243- U, 24 7 14 -000249 -TP Page 9 0of'l17 In his August 28, 2014 comments on the applicant's proposal, 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 RidgelineDrive 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 language 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 "necessityn test. +fir Condit argues a requirement that all PUD roads, and/or the proposed secondary access road, be dedicated to the public would constitute an unconstitutional `'taking" under the Fifth Amendment to the U.S. Constitution as interpreted in Nollan v. California Coastal Commission 483 US 825, 107 8 Ct 3141, 97 L Ed 2d 677 (1987), Dolan v. City of Tigard, 512 US 374, 114 Ct 2309, 129 L Ed 2d 304 (1994), and Schultz v. City of Grants Pass, 133 S et 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 propertyIn response, LandWatch argues the Miller Tree Farm property is subject to the county's jurisdiction because the applicant proposed the secondary emergency access road across that property, and Miller Tree Farm owns both the adjacent property and The Tree FarmThe Hearings Officer disagrees. The applicant proposed off-site 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 Mr. Russell ww does not have a sufficient nexus with, and is not roughly proportional to, traffic impacts from The Tree Farm development. I agree with Mr. Condit's analysis, set forth in his December 30, 2014 letter as follows; 'A public street is be generated by developme t oflie Rio Lobo property under the existing UAR- ecessary to accommodate the through traffic that would lat." (Emphasis added.) It is the err ergency access road' that vaili be 'inter with public roads that will connect Sage St. oss the tiller Tree Farm property for the secondary ime as the Miler Tree Farm property is developed e Drive and Skyliners Road. Tree Farr: 4, 24 -14- a0 248 -CU, 247-14x0 249 -TP Page 91 of 117 10 zoningAttached as Exhibit 4 is a December 29, 2014 analysis provided by Joe Bessran, PE, of Kittelson responding to Rio Lobo's December 11, 2014, testimony prepared by Marten Law and Lancaster Engineering ('Kittelson 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 sites on the Rio Lobo Property.' As the County notes, `jtJhe transportation effects fon the surrounding street system] of such nominal development would be de minimis' r Rio Lobo argues that `future through traffic' has to include consideration of fl a potential development of the Rio Lobo properly as a destination resort or 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 properly as destination resort would require compliance with the multiple criteria of DCC Chapter 19.106, wh ch, at a irrrmrm, would require a new traffic impact analysis and approval of a Master Most significantly, as noted in the , ittelson 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 Plan.' 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 imminent, viable, or would otherwise be compliance with Chapter 19.106. Although LIAR -10 zoning does anticipate eventual urbanization, urbanization of the Rio Lobo properly requires subsequent legislature decisions by the City and the County in compliance with state law, and would bring the property under the City's transportation surisdiction. 11 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.'6 There are thus rnr ftipie future opportunities to obtain the necessary connections in the event the properties are added to the U B. Such speculative future development does not justify imposition requiring the Applicant to dedicate additional right-of-way or cons. under the County Code or the Takings Ciause as interpreted in Schultz. s tae Applicant has addressed the impacts on future connectivity that arise development by providing, for and dedicating Sage Steppe right -of -v. right-of-way will be available for use at such time as Rio Lobo andibr Miller Tree Parra properties are developed and the requirement for its dedication and construction can be imposed at that time. The fact that Rio Lobo may have to await development of the Miller Property for the connection to Skyliners Road to Tree Farm 4, 247 -14 -000248 -CU, 247 -14 -000249 -TP` Page 92 of 117 be dedicated and constructed puts Rio Lobo in no different position than it is in rrdw. indeed, the dedication of Sage Steppe ensures that a connection will occur at this point pursuant to DCC 17.36.020(B) when doveio, .nett of the Miller Property occurs, For these reasons, dedication of the Sage Steppe right-of-way by the Applicant addresses the future connectivity impacts on surrounding properties that arise from the development of the Tree Farm property. No additional exactions are warranted under the Takings Clause, 13indeed, the County is only requesting dedication of additional right-of-way: it is not requesting any change in the construction of the street system. The requirements - focal public streets and local private streets are virtually the same. See DCC Chapter Table A. ''8Given tine Anderson Ranch relative location of the Rio Lobo property visa -vis the Miller Property and the ty [located north of the Rio Lobo property], which are directly adiacent to tr':e c urgent Bend city limits, the Rio Lobo property i r.nlil sly 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 17.6.020() does not require the applicant to dedicate a public road --- either off-site or within The Tree Farm - as part of The Tree Farre development in order to provide access from the Rio Lobo property to Skyliners Road. b. Section 17.6.040, Existing Streets Whenever existing streets, ''adjacent to or within a tract, are of inadequate width to accommodate the increase in traffic, expected from the subdivision or partition by the county roadway network plan, additional rights of way shall be provided at the time of the land division by the applicants During consideration of the tentative plan for the subdivision or partition, the Planning Director or Hearings Body, together with the Public Works' Director, shall determine whether irovemernts 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 ori such streets will be directly affected by the proposed subdivision or partition. FINDINGS: There are, no existing streets adjacent to Tree Farm 4, and therefore the Hearings, Officer finds this criterion is not applicable to Tree Farm 4. c. Section 17.6.00, Continuatio n of Street Subdivision or partition streets whic streets in contiguous territory s centerlines coincide. h constitute the hall FINDINGS: The Hearings Officer finds this criterion is not applic no streets that would constitute a continuation of other streets. d Section 17.3 6.0 60, Minimum Ri Tree Farni 4, 247'i4 -000248 -CU, .47 -14 -000249 -TP be aligned ontinuation of so that their ble because Tree Fara 4 has ht of Way and Roadway Width Pace 9 of 117 The street right of way and roadway surfacing widths shall be in conformance with standards and specifications set forth in chapter 17.48 of this title, Where chapter 17,48 refers to street standards found hi a zoning ordinance, the standards in the zoning ordinance shall prevail; FINDINGS: The applicant proposes to improve ail >.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 ai'l'' 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 Farre. For these reasons, I find Tree Farm 4 satisfies this criterion. Section 17.36.070, Future Reser bd sion Where a tract of <land ,,is divided into more, the Hearings Body may requ parcels and streets such as to pe conformity to the street requirements con ots or parcels of an acre or re an arrangement of lots or rrnit future resubdivision in tamed in this title, FINDINGS: The applicant's burden of proof for Tree Farm 4 states the applicant intends that The Tree Farm never will be annexed into the Bend UGB or redeveloped. The applicant has proposed deed restrictions for The Tree Farm open, space tracts that would preclude further division or development thereof. However, as discussed in the findings above, the Hearings 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, ''i find it is not necessary or appropriate to require an arrangement of lots in Tree Farm 4 permitting future resubdivision, Section 17036>O80, Future Extension of Streets When necessary to give access to o division of adjoining land, streets shat of the subdivision) or partition permit a satisfactory future be extended, to the boundary 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- site secondary emergency access road, to accommodate future through traffic from the, Rio Lobo property. For these reasons, i' find Tree Farm 4 satisfies this criterion. g Section 17.36.160, 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 Tree Farm = , 247-14 000248 -CU, 247 -14 -000249 -Tl Page 94 of 7 adequate protection of residential properties and to afford separations sof through and local traffic; AH 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, FINDINGS; Tree Farm 4 does not abut Skyliners Road, a designated county collector therefore the Hearings Officer finds this criterion is not applicable to Tree Farm 4. h. Section 17.36.110 s treets Adjacent to Rail roads, F ree oad and ys an d` Parkways When the area to be divided adjoins or contains a railroad, freeway or parkway, provision may be required for a street approximately parallel to and on each side of such right of way at a distance suitable for use of the and 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,. FINDINGS: The Hearings Officer finds this criterion is not applicable because The Tre and Tree Farm 4 are not adjacent to a railroad, freeway or parkway. Fl N ci3 Section 1x.36 120, Street Names Exce used Farm pt for extensions of existing , streets, no street name shall be which will duplicate or be confused with the name of an a nearby city or in the County. Street names and nform to the established pattern in the County, existing street in numbers shall co DINGS: Exhibit "Cr to the Tree Farm 4 burden of proof indicates the applicant has received my approval for all'' Tree Farm road names, therefore satisfying this criterion. Section 17.36.130, Sidewalks A. `Within an urban growth boundary, sidewalks shall be installed on both sides of a public road or street' any in any special pedestrian way within the subdivision or partition, and -\: any 2.on\o.\ and a te.3\. I' 2\,roved accordance with<the subdivision or partition. FINDINGS: The Hearings Office r fin not located within the Bend UGB. T re d s this criterion is not ap Farm 4, 247 -14 -000248 -CU, 247 -14 -000249 -TP plica !Die because Tree Farm 4 is Pae 95of117 Within an urban area, sidewalks shall be ,required along,; frontage roads only on the side of the frontage road abutting the development. FlN ING ; The Hearings Officer finds this criterion is not applicable' because there are � o frontage roads in Tree Farm 4. C. Sidewalk requirements for areas outside of urban area are set forth in section 17A8.175. In the absence of a special requirement set forth by the Road Department Director under DCC 1748.630,, sidewalks and curbs are never required in rura areas outside unincorporated communities as, that term is defined in Title 18. FINDING: The Hearings Officer finds no sidewalks are required located in a rura area outside unincorporated communities. n Tree Far rr 4 because it is Section 36.140 Bicycle. Pedestrian and Transit Requirements Ped estrian and Bicycle Circulation withi n Subd ivisio rt, 1< The tentative plan for a proposed subdivision shall provide fuer 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) nlinimize such interference from automobile traffic that wit's 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 Illu ti -use path systemincluding 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 recreationiontain bike trails within the open space tracts and linking with trails in Shevlin Park and the DNF to the west. For these reasons, the Hearings Officer finds Tree Farm 4 satisfies this criterion. B. Subdivision Layout Cul-de-sacs or dead-end streets shall be allowed only where, due to topographical or environmental constraints, the size;, and shape of the, parcel, or a lack of through -street connections in the area, a street connection is determined by the Planning Director or Hearings Body to be infeasible or inappropriate, In Tree Farre 4, 247 "#4 -000248 -CU, 24714.0002.49 -TP Page 96 of 117 such instances, where applicable and feasible, there shall be a bicycle and pedestrian connection connecting the ends of 'cul-de-sacsto streets, or neighborhood activity' centers on the opposite side of the block, FINDINGS: The applit••ant proposes cul-de-sacs at the eastern terminus of Ridgeline Court in Tree Farm 1 and at the western tern elms of Canopy Court in Tree 'Farre . The Hearings Officer has found 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 a connection will reduce the walling or cycling distance to an existing or planned neighborhood activity center by 400 feet and by at least 50 percent over other available routes. FINDINGS: The Hearings Officer finds this criterion is not applicable to Tree arm 4 because there are no existing or planned neighborhood activity centers for which, mid -block connections are warranted or necessary. FINDING Local roads shall align and connect with themselves across collectors and arterials. Connect€tins to existent ., of rlannd atreets and undevel roer°ties shall be provided at no greater than 400 foot intervals. r Connections shall nrat be more than 400 feet' I n_g_an shall be as straight as possible, Fac il Iles and linprovements Bikeways may be provided by either a separate paved path or an on -street bike ane, consistent with the requirements of DCC Title, 17. S: The Hearings Office across S I e. y l i n e r s Road. Pedestrian access may be provided by sidewalks or a separate paved path, consistent with the requirements of DCC Title 17. Connectr, ns shall have a,20 - least a 1O foot usable'surt o Inds there are no existing loch est right-of-way. with (Emphasis added.)...... ds that mu st be aligned 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 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 emorandum that the Tree Fara.°4, 247-14-0 024 -GU. 247 -14 -000249 -TP Page s i of 11 underscored language must be read in the context of the title of this section -- "E3icycle, Pedestrian and Transit Requirem nts's -- and the rest of the section which addresses bicycle and 'pedestrian connections. In particular, Mr. Russell notes the terms "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 languageis that, at most it establishes a requirement, of 10 -foot -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'' interpretation of the connection requirement, but argues this requirement should not be applied to rural subdivisions because it would produce an absurd result. For example, he notes that if The Tree Farm lots along the Rio Lobo border were 10 acres in size, the 400-foot-intervali400-foot-long connections would bisect the lots and create paths 'leading to nowhere."32 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. co€m€pl€ante 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 PVDs on nearby properties: Tumalo Creek Development (CU-05- 17, CU-0 -17, TP -05-958) (adjacent to the Rio Lobo property on the north); Cascade Highlands (CEJ -02-73,, TP -02-931) (The Highlands at Broken Top subdivision across Skyliners Road to the south): and Sheviin Heights (Anderson Ranch) (ZC 0O 5, U-00-112, TR -00-916) (north of the Rio Lobo property). A review of these decisions indicates the connection standard was not applied to these PLIDs 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 bicycldipedestrian€ path connection requirement is applicable to The Tree Farre, I should grant an exception under Section 19.104,070(C), discussed in the findings above, in light of The Tree Farm's demonstrated benefits in general, and the extensive multi -use path/trail system proposed for The Tree Farm, The Hearings Officer agrees with "r, Russell that read in context, the 'connections" required by Section 1' 7.36 140(B)(3) and (4) are bicycle/pedestrian path connections and not road connections, also agree with Mr. Condit that application of this requirement to rural subdivisions including The Tree Farm would be inappropriate and infeasible. Finally, I 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 pathitrail system, For the foregoing reasons, the Heari approval of the exception described a ngs Officer finds Tree Farm 4 satisfies these criteria'with bove. Section 17.36.150, Bloc Pis A, General. The length, width and shape of blocks shall accommodate the need for adequate building size, street width, and direct trawl routes for pedestrians and cyclists through the subdivision and to nearby neighborhood activity centers, and shall be compatible with the limitations of the topography. 32 As noted in the findings above under the UAR-10 Zone, the n rnu lot width in zon is 300 feet. Tree Farm >4, 247-14 0 0248 > , 247-14- 00249 -TP Page 98 of 117 FINDINGS: Section 17.08.030 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 tines of a city." The Hearings Officer finds Tree Farm 4 does not contain any 'blocks" inasmuch as no area of land within the proposed development is bounded by streets or the other listed features. Within an urban growth boundary, no block 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 DCC 17,36,10., FINDINGS: Tree Farm 4 is not located finds this criterion is not applicable. Sect ithin the Ben on 17.36,160 Eas ements d UB, Th erefore, e Hearings 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 Easement" on the tentative and final plat; they shall be at least 12 feet in width and centered on lot lines where possible, except utility pole guyline easements along the rear of lots or parcels adjacent to unsubdivided,,land may be reduced to 10 feet in width, FINDINGS; ; The Tree Farm 4 burden of proof states the applicantintends 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 Flan included in the record as Exhibit '.E" to the burden of proof, The Hearings Officer finds that as a condition of proval the applicant will be required to show all MUEs on the final plat for Tree Farm 4. ap Drainage. If a tract s traversed by a watercourse such as a dratnageway, channel or stream, there shall be provided a stormwater easerne it 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 parkways parallel to major watercourses or drainageways may be required. FINDINGS: The Hearings Office€r••' finds this criterion is n property is not traversed by a watercourse. Section 17,6.170, Lots Size 'a 0 nd Sha a police pe The size,, width and orientation of lots appropriate for the location of the land divi development and use contemplated, and sha Tree Fa ra€ 4, 247-14-e 0248 CU. 247. -14.000249 -Tl ble be e the subject or parcels shall be ion and/or the type of be consistent with the Page of 11, lot or parcel size provisi the fol A. ons of Titles 16 through 21 of this code, with lowing exceptions: in areas not to be served bY a public sewer, minimum ot and parcel sizes shall permit compliance with the requ rements of the Department of Environmental Quality and the County Sanitarian, and shall be sufficient to permit adequate sewage disposal. Any problems posed by soil' structure and water table > and related to sewage disposal by septic tank shall be addressed and resolved in the applicant's initial plan. FINDINGS: : The;, proposed residential lots in Tree Farm 4 will be two acres in size. The applicant submitted a septic suitability study, included in the record as Exhibit "F" to the Tree Farm 4 burden of proof, indicating the soils on the subject property are suitable for on-site septic' systems. In addition, the applicant > proposes to estab ish building envelopes on each lot within which dwellings must be constructed, As discussed above, 1 have granted an exception to the minimum 'lot width for Lot 1 in Tree Farm 1. And 1 have found the applicant will be required as a condition of approval to obtain an approved septic site evaluation for each residential lot in Tree Farm 4 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-10 Zones, and large enough to accommodate on-site septic systems. Section 1736,16 0, F. n tag e A. Each lot or parcel shaIl abut upon a public road, or when located in a planned development or cluster development, private road, for at lest 50 feet, except for lots or parcels fronting on the bulb of a cul de sac, then the, minimum frontage shall be 30 feet, and except for partitions off of U,S, Forest Service or Bureau of Land Management roads. Frontage for partitions off U.S. Forest Service or Bureau of Land Management roads shall be decided on a case by case basis based on the location of the property, the condition of the road, and the orientation of the proposed parcels, but shall be at least 20 feet. in the La Pine Neighborhood Planning Area Residential Center District, lot' widths may be less than 50 feet in with, as specified in DCC 13.61, Table 2: La Pine Neighborhood Planning Area Zoning Standards. Road frontage standards, in destination resorts shall be subject to review in the conceptual master plan. An side lot liras shall be at right angles to street radial to curved streets wherever practical, nes or FINDINGS: With the exception of Lot 1 in Tree Farm 1, all proposed residential lots 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 Farre 1, l approved an exception to the 50 -foot road frontage requirement for Lot 1 based on my finding that the benefits of the proposed oldster/PUDs justify the requested exceptions. Generally, Tree Farm 4 lot lanes are at right angles to Golden Mantle Loop. For the foregoing reasons,1 find Tree Farm 4 satisfies this criterion. Tree Farm »4. 247 14 -000248 -CU, 247 -14 -000249 -TP Page 100 of 117 Section 17,36,190. Throug h Lots Lots or parcels with double frontage should be avoided except where they are essential to provide separation of residential development from major street or adjacent nonresidential activities to overcome specific disadvantages of topography and orientation. A planting screen easement of at least 10 feet in width and across which there shall be no rightof access may be required along the lines of lits or parcels abutting such a traffic artery or other incompatible use FINDINGS: Section 17.03,030 defines "through lot' ds "an interior lot having frontage on two streets," The Tree Farm 4 tentative plan shows Lots 31 and 32 will have frontage on both Golden Mantle Loop and Ridgeline Drive, However, I find no planting screen easement is required on these lots' in order to prevent road access' across these bats. g. Section 17,36.20 0 Corner 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 >shalI have sufficient extra width to meet the additional side yard requirements of the zoning district in which they are located, FINDINGS: The Hearings Officer finds this criterion is not applicable because Tree Farre 4 is located outside the Bend U B. Section 17.36.210, Soar Access Performance A. As much alar access as feasible' shall'' be provided each lot or parcel in every new subdivision or partition, considering, topography, development pattern and existing vegetation, The 'lot lines of bats or parcels, as far as feasible, shall be oriented to provide solar access at ground level at the southern building line two hours before and after the soar zenith from September 22nd to March 21st. If it is not feasible to provide soar access to the southern building line, then soar access, if feasible, shall be provided at 10 feet above ground level at the southern building line two hours before and after the solar zenith from September 22nd to March 21st, and three hours before and after the solar zenith from March 22nd to September 21st, This solar access shall be protected by solar height restrictions on burdened properties for the benefit of lots or parcels receiving the solar access` if the solar access for any lot or parcel, either at the southern building line or at 10 feet above the southern building >line, required by this performance standard is not feasible, supporting information must be flied with the, application, Tree Farm 4, 247 -14 -000248 -CU 247'-14-Q0 249 -TP Page 101 of 117 FINDINGS: : The Hearings Officer finds the size, shape and orientation of the residential lots in Tree Farm 4 will`>allow for the dwellings on these lots to meet the solar access standards. Section 17.36.220, Underground Facilities Within an urban growth boundary, all permanent utility services to lots or parcels in a subdivision or partition shall he provided from underground facilities„ provided, however, the Flearings 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 this section is not applicable because the property is located outside the Bend UGB. Section 17,36 260 , Fare Hazards Whenever possible, a minimum of two points of access to the subdivision or partition shall be provided to provide assured access for emergency vehkes and ease resident evacuation. FINDINGS: The applicant proposes two points of access to The Tree Farm and Tree Farm 4 -- the' main PUD road that intersects with Skyliners Road at the southern boundary of Tree Farm 1, and the proposed secondary emergency access road running from the southern terminus of Sage Steppe 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. I 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 allow use of the emergency access by lots in Tree Farms 4 and 5. Section 17,36.280, Water and Sewer Lines Where required by the applicable zoning ordinance, water and sewer lines shall be constructed to County and city standards and specifications. Required water mains and service lines shall' be installed prior to the curbing and paving of new streets in all new subdivisions or partitions. FINDINGS: No new sewer lines are proposed because residential lots in Tree Farm 4 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 stanards''and specifications therefor. Section 7,g,9O' rad ividual Wells Tree Farm 4, 247-14-0 0248 -CU, 247-14-000249-T F Page 102 of 117 In any subdivision or partition where individual wells are proposed, the applicant shall provide documentation of the depth and quantity of potable water available from a minimum of two wells within one mile of the proposed land division. Notwithstanding DCC 17.3$ 300, individual wells for subdivisions are allowed when parcels are larger than 10 acres. FINDINGS: > The applicant ha 's stated its preferred alternative for providing domestic water to the residential bats in Tree Farm 4 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 Avian Water Company, the applicant proposes to provide domestic water through one or more groundwater wells. The applicant submitted as Exhibit "lel" to the Tree Farm 4 burden of proof well lags 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 4 satisfies this criterion. Section 17.3 6 30 0Q Public Wa ter System In any subdivision or partition where a public water system is required or proposed, plans for the water system shall be submitted and approved by the appropriate state or federal. FINDINGS: The Hearings Officer finds that if the residential lots in Tree Farm 4 are served by City of Bend or Avion water service, compliance vitt this criterion will be accomplished through the, city's or Avian`s compliance with applicable public water system requirements. 3. Chapter 17.44, Park Devblopm en Section 17.4.010. Dedication of Land For subdivisions or partitions outside of an urban growth boundary, the developer shall set aside a minimum area of the development equal to $350 per dwelling unit within the development, if the land is suitable and adaptable for such purposes and is generally', located in an area planned for parks. For either DCC ``'17.44.010 (A) or (B), the developer shall either dedicate the land set aside to the public or develop and provide maintenance for the land set aside as a private park open to the public, The Panning Director or Hearings Body shall determine whether or not such land is suitable for park purposes if the developer dedicates the land set aside in accordance with DCC '17.44.010(A) or (B), any approval by the Planning Director or Hearings Body shal be subject to the condition that the County or appropriate park district accept the deed dedicating such land. Tree Farm 4, 247 -14 -000248 -CU, 24i -14 -000249 -TP Pace 103 0 7 DCC 17.44.010 shell not apply to the subdivision or partition of lands Iodated within the boundaries of the Bend Metro Park and Recreation D strict or the Central Oregon Park and Recreation ,>District FINDINGS: The record indicates ail proposed residents the boundaries of the;, park district, and therefore the H are not applicable a lots in Tree Farrn 4 are i€ c ted within eerinps Officer finds these requirements b. Section 17,44,0 0,, Fee in Lieu, of Dedication A. In the event there is no suitable park or recreation area or site in the proposed subdivision or partition, or adjacent thereto, then the developer shall, in lieu of setting aside and, pay Into a park acquisition and development fund a >;sum of money equal to the fair market value of the land that ill have been donated under DCC 17.440010 above,, For the purpose of determining the fair market value, the latest value of the land,,, unpltted and without improvements,as shown on the County Assessor's tax roil shell be used. The sum so contributed shell 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 shell be made for neighborhood, or community facilities at the discretion of the Board and/or> applicable park district. DCC 17,44.020 shell not apply to subd ivision or partition of lends located within the boundaries of the Bend Metro Park and ,Recreation Distr,ct or the 'Central Oregon Park and Recreation District. FIND 1NGS: The Hearings Officer finds that because all proposed residential lots are located within the boundaries of the park district, this section does not apply, Cha p ter 17.48, Design a rid Construction Section 17,48140, Bi keways General Design Grlte 1 r€ pecifications in Tree Fera 4 Bikeways shall" be designed in accordance with the current standards and guidelines of the Oregon (ODOT) Bicycle and Pedestrian Flan, the American Association of State Highway Transportation Officials (AASHTO) Guide for Development of New Bicycle' Facilities, and the Deschutes County', Bicycle Master Plan, See DCC 17,48 Table B All collectors and arterials shown on the County Transportation Plan map shall be constructed t€ Tree Farre 4, 247-14-00248 GU. 247 14-0 0 0249 -TP Page 1 04 of 117 M include bikeways as defined by the Deschutes County Bicycle Master Pan. If interim road standards are used, interim bikeways andlor walkways shall be provided. These interim facilities shall be adequate to serve bicyclists and pedestrians until the flare of road upgrade. "-use Path 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 less 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 mufti -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 Farm, the m€uIti-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 ected low traffic volumes, based on my finding that the benefits from The Tree Farm justify ption. For these reasons, and with the exception granted for the eight -foot path, i find rn 4 satisfies these criteria. proj the exce Tree Far Br Bi con ke Lanes. Six foot bike lanes shall be used on new D. 5 struction of curbed arterials and houlder Bikeways. collectors Shoulder bikeways shall be used on new constru of uncurbed arterials and collectors. ction Shoulder' bikeways shall be at least four 'feat wide. Where the travel lane on an existing arterial or collector is not greater than eleven feet, the bikeway shall be a'''rnsnsrhum of four feet wade. FINDINGS: : The Hearings Officer finds these criteria are not, applicable because no new collectors or arterials are proposed. Tree Faris 4, 247 -14 -000248 -CU, 247-14-000249-T' Page 105 of 117 Mountain Bi ke Trails. Mountain '''bike (dirt or other unpaved surface trails may be used as recreational or interim transportation facilities. Trails used for transportation shall have a two foot minimum tread width and a six foot minimurn clearing, width centered over the trail, and a minimum overhead clearance of seven feet. Trails used solely' for recreational use may be narrower with less clearing of vegetation. FINDINGS: As shown on Exhibit ',C" to the Tree Farm 4 burden of proof, the applicant) proposes a network of soft -surface recreation/mountain bike trails linking with trails in Sheviin Park and in the DNF to the west. A segment of one of these trails would traverse the open space tract in Tree Farm 4, Therefore, the Hearings Officer finds these criteria are applicable to Tree Fara 4 The applicants Tree Farm 4 burden of proof states the proposed recreation/mountain bike trails will satisfy, these standards, and l find the applicant will be required as a condition of approval to do so. Section 17A8.160, Road Development Requirements - Standards A. Subdivision Standards. An 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 assoclation»in a planned unit development. FINDING: The applicant proposes to dedicate to the public and to improve Sage Steppe Drive i€ compliance with the county's standards for public rural roads, and to improve all 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 above, the record indicates the county is not accepting new roads into its road maintenance system. For these reasons, the Hearings Officer finds Tree Farm 4 satisfies this criterion,, B. provements of Public Rig its of Way, The developer of a subdivision or partition will be required to improve all public ways that are adjacent or within the land dev&loprr ent. A11 ''improvements within public rights of way shalt conform to the improvement standards designated in DCC Title 17 for the applicable road classification, except where a zoning ordinance- sets forth different standards for a;,;,particular zone. FINDINGS: The only public' right-of-way adjacent to the subject property is Skyliners Road, an improved county collector. As discussed above, the road department did not identify any necessary improvements to Skyliners Road. The applicant proposes to, improve all PUD roads Tref: Far 4, 247 -14 -000248 -CU 247-14-00 249 -TP Page 106 of 117 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 4 satisfies this criterion, 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 appl cable standard set forth in a zoning ordinance). The applicable standard shall be determined with reference to he road's classification under the relevant trarsporttion plan. For the purposes of this section a primary access road s a road ''leading to the subdivision from an existing paved county, city or state 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 Ridgelln€e Drive. The Hearings Officer finds the applicant will be required as a condition of approval to improve the segments of these roads within Tree Farm 4 to the county's standards for local private roads in Table "A4 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 oafs in those developments. Secondary Access Roads. When deemed necessary by the County Road Department or Dommur ity Development, Department, a secondary access road shall be constructed to the subdivision. Construction shall be to the se standard used for roads within the subdivision, FINDINGS: The road department did riot identify the need for a secondary access road, However, the applicant proposes to construct a temporary emergency access road from the southern terminus of Sage Steppe Drive south through the adjacent Miller Tree Farm property to Crosby Drive. The applicant proposes to improve this emergency access road to the fire department's standards for fire apparatus access roads, including a 24 -foot -wide all-weather surface. As discussed above, this ernergency access road will be an interim access until' the Miller Tree Farm property is developed with public roads to which Sage Steppe Drive can connect. Under these circumstances, the Hearings Officer finds the proposed level of improvement is appropriate for the secondary access road,33 Stubbed Roads. Any proposed road that terminates at a development boundary shall' be constructed with a paved cul- de -sac bub.,, FINDINGS: The, Hearings Officer finds this criterion Is not applicable to cul-de-sacs are proposed for Tree Farrn 4, 33 The burden of roof for Tree Farm 4 states the applicant would request a variance to the requirement tnat the secondary access road be paved. However, in an e-mail message dated August 15, 2014, the applicant's representative Rorny Mortensen clarified, the applicant, is not seeking a variance and does not helve -ye one is required. Tree Farm 4 bec e n 0 Tree Farm 4, 247`'14 -OO 248 C1�, 247.14-00 249 -TP Page 107 of 11 Cul-de-sacs. Cul-de-sacs shall have a tenth of less than 600 feet, unles a longer length is approved by the applicable fire protection district, and more than 100 feet from the center of the bulb to the intersection with the main road, The maximum, grade on the bulb shall be four percent. FINDINGS. No cul-de-sacs are proposed in Tree F r€ n 4, and therefore the Hearings Officer finds this criterion is not applicable. As discussed above, I have found the cul-de-sacs proposed for he eastern end of'''Ridgeline Court in Tree Farm 1 and the western end of Canopy Court in Tree Farm 3 are justified by the topography and/or lack of through street connections in the vicinity, However, because the proposed cul-de-sac at the end of Canopy Court is longer than 600 feet, 'l found in my Tree Farm 3 decision that the applicant will be required as a condition of approval to obtain and submit to the Planning Division written documentation from the fire department that it has approved the length of Canopy Court. c. Section 17.48.180, 'private Roads The following minim um road standards shall ap A. The minimum paved roadway width planned unit developments and cl two -foot wide gravel shoulders, ply for private roads: shall be 20 feet in uster developments with Minimum radius of curvature, 50 feet; Makin um ra de, 12 perces: t;, FINDINGS: The applicant's burden of proof for Tree Farm 4 states the private roads will meet these standards, and the Hearings Officer finds the applicant will be required' to construct the PUD's private roads in compliance with these standards as a condition of approval. D. At east one road intersection for each name sign $ road; be provided' at each FINDINGS: The Hearings Officer finds the applicant will be required and€t€ors of approval to comply with this criterion. A method for continuing road mantenance acceptable to the County FINDINGS: The applicant proposes that The Tree Farm HOA will own and maintain all tree farm roads. The Hearings Officer finds the applicant will be required as a condition of approval to execute a road maintenance agreement with the county that is acceptable to the county. 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 developants, shoulder bikeways .shall be a minimum of four feet wide, paved and striped, with no ort -street parking,, allowed within the bikeway, and when private roads are Tree Farm 4, 247.14-000248 CU, 247 -14 -000249 -TP Face 108 of 117 develo const ped to a width of less than 28 feet, bike pa meted to County 'standards shall be required. the 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 Farm 3 would'' have a 26 -foo -wide 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 4 satisfies this criterion. d. Secti on 17.4 .190, Dra nage Mini um Requirements. Drainage facilities shall be designed and constructed to receive and/or transport at mast a design storm as defined in the current Central Oregon Stormwater Manual created by Central Oregon Intergovernmental' Council and all surface drainage water corning to and/or passing through the development or roadway The system shell be development. desig ned for maimu allowa ble 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 shales 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 nfiltrat€on facilities will be designed for a fifty-year storm event. The drainage plan notes that because of the site's topography, natural drainage patterns on The Tree Farm generally are toward Turnalo Creek to the west and to the undeveloped open space to the east, However, the applicant states none of the runoff from impervious areas such as roads and driveways will create any additional drainage contributions to Tumalo Creek as no surface water will be disposed of off-site. The applicant also proposes that if hydrological calculations determine additional runoff storage is needed, the applicant will construct a catch basin near the main entry to The Tree Farm at Skyliners Road. The Hearings Officer has found that prior to submitting for approval the final plat for any part of The Tree Farm the 'applicant will be required as a condition of approval to submit to the Planning Division a statement from a registered professional engineer stating whether an additional',' runoff storage basin is necessary, and if such a facility is determined to be necessary, the applicant will be required as a condition of approval to show it on the final plat for Tree Farm 4 and to construct it. l find that with imposition of this condition of approval Tree f=arm 4 will satisfy this criterion. Finally, the Hearings Officer finds, the drainage plan'' for Tree Farm 4 need not be designed to serve the site with 'maximum allowable development" --- i.e.; 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` Tree Farm 4, 247 -14 -000248 -CU, 247--14-000249-T Pa±e109of 17 to record deed restrictions permanently prohibiting tracts. Noncurbed ections development on The Tree Farre open space Road culverts shall be concrete or minimum design life of 50 years. All cross >;culverts shad larger. be 18 inches' with a in diameter or Culverts shall be placed in natural drainage areas and shall provide positive drainage. FIi DINGS: The applicant's burden of proof for Tree Farm 4 states culverts used for The Tree Farm will be corrugated metal pipe with a minimum fifty-year design life, and that two 18 -inch culverts and one 24 -inch culvert will be installed, The Hearings Officer finds the applicant will be required as a condition of approval to place ail culverts in natural drainage areas and provide positive drainage. FINDINGS: The applicant's Drainage Swales. The Design Engineer is responsible to, design a drainage Swale adequate to control <a design storm as defined in the Central Oregon Stormwater``''Manual created by Central Oregon Intergovernmental Council: burd en of proof for Tree Farm 4 states the drainage swales will be t. Therefore, the Hearings Officer finds Tree Farm 4 satisfies designed for a 0 -year storm even this criterion: ., Drainage Plans. A complete set of drai,r€age plans including hydraulic and hydrologic calculations shall be incorporated in all road improvement plans, FINDINGS: The applicant's burden of proof for Tree Farm 4 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' development. The Hearings Officer finds the applicant'' will be required as a condition of approval to incorporate the drainage plan for Tree Farm 4 into the road improvement plan for Tree Fara 4, and to provide to the Planning Division a copy of that plan before submitting the Tree Farm 4 final plat for approval'. Drill H oleso Dril' holes are prohibited. G. lr jection wells (drywells) are pro way. hibited in the public right -of - FINDING: The Hearings Officer finds the applicant's proposal' court because no drill holes or injection wells are proposed. For the foregoing reasons,,, the Hearings Officer finds Tree Fa conditions of approval described above will satisfy, all applicable criteria in Titl hese crite ria r€n 4 satisfies. or €€t'h the Tree Farm >4. 247-14-00024 - 247 -14 -000249 -TP e 17. Page 110 of 117 COMPREHENSIVE PLANS FINDINGS: Comprehensive plans can be a potential source of approval standards for quasi- judicial land use applications. The Flight Shop v. Deschutes County, Or LUBA (LUBA No. 2013-073,, January 10, 2014). Even if a comprehensive plan provision does not constitute an independently applicable mandatory approval criterion, it may nonetheless represent a relevant and necessary consideration that must` be reviewed and balanced with other relevant plan provisions pursuant to ordinances that require that the proposed land use be consistent 'with applicable plan provisions. See, Bot .man v. City of Eugene, 51 Or LUA 426 (2006). Therefore, the Hearings Officer finds that whether the county's comprehensive plans app y to Tree Farm 4 depends on whether their text and context indicates they include mandatory standards, requirements, and/or considerations applicable to quasi-judicial development approvals. FI' DIN Desc hu tes Co d my Corn prehensive P Ian GS The applicant and staff identified the following 1. Chapter 2 Resource ana 9 men plan provisions as applica t Section Gaal 1, Maintain and enhance a diversity of wildlife and habitats.,, Policy 2.6.8, Balance protection of wildlife with vvildland fi prvate ands in the desinatedWildiand Urban Interface; b' re midge. t o r; FINDINGS: The Hearings Officer finds this goal and policy are written in aspirational terms and appear directed at the county rather than to applicants for land use approval. Therefore, I find these provisions are not applicable to Tree Farm 4. 2. Chapter 3, Rural Gro asa th Man Goa Is a nd Polio es Goal 1 Maintain the rural charas Deschutes County. Poi' cy 3.3.1. The mini be 10 acres. m r rpt er and ety of parcel size for new ru housing in unincorporated I residential parcels s hal FINDINGS: : The Hearings Officer finds this policy is written''' n mandatory terry s suggesting it applicable to Tree Farm 4. I have found Tree Farm 4 complies with the ten -acre minimum size for lots or parcels in the RR -10 and UAR-10 Zones, and therefore 1 find It also is consistent with this;, plan policy.,, Policy 3.3.4. Encourage new subdivisions development patterns, such as cluster development, tha community and environmental ipacts. to incorporate alternative t raid FINDINGS: The Hearings Offi For the foregoing reasons, the Hearings Officer finds 1_ree Farm 4 is consistent aiapplicable county comprehensive plan goals and policies identified by planning staff. G'. Bend Area General tlan34 1. Chapter 5: Rousing and Residential Lands 3 6. Sidewalks 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. FINDINGS: The Hearings Officer finds this plan provision is written in mandatory terms, suggesting it is applicable to Tree Farm 4. However, as discussed in the findings above, the applicant does not propose sidewalks, and I have found they are not required in rural areas under Title 17. instead, the applicant proposes a network of paved multi -use paths along all new PUD roads. I find this path network constitutes an alternate system that will provide adequate pedestrian access within Tree Farm 4, and therefore it is consistent with this plan policy. 2 Cha pter 8: Pu ilio Facilities and Services 15. Dry wells or storm drains with appropriate water quality treatment using landscaping, retention ponds or other approved treatment controls shall be used for surface drainage control. 16. The preservation and use of natural drainage ways drainage shall be required in new developments as possible. for storm much as 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 Elimination System MS4 Stormwater Permit, the City's Stormwater Master Plan and Integrated Stormwate Management Plan, and Total Maximum Dally Load requirements). Low impact site designs shall be encouraged. 27. Development on slopes in excess of 10 percent shall require special consideration to prevent construction -related and post -cons truction erosion. 34 The Bend Area General Plan applies to is nds within the Bend urban area rye., r . 247-14 }00248 -Cu, 247 4 -000249 -TP Pag e 12 of 117 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 4. 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 starmwater runoff infiltrates into native soil to the maximum degree possible and does not run off into TurRalo Creek or onto other off-site areas. For the foregoing reasons; I find the drainage plan for Tree Farm 4 is consistent with these plan policies. For the foregoing reasons, the Hearings Officer finds Tree Farm 4 ''is consistent with the applicable urban area comprehensive plan policies identified by planning staff. IV. DEC IS ON: Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby DEMES the applicant's proposed conditional use, tentative plan, and site plan for a cluster development/PUD on the subject property, to be called Tree Farm 4. In the event this d ecision is appealed to the Board of County Commissioners, and the Board peal and approves the applicant's proposal on appeal, the Hearings Office such approval be SUBJECT TO THE FOLLOWING CONDITIONS 0 elects to hear the ap RECOMMENDS APPROVAL: r F 1. This approval for Tree Farm 4 is based upon the applicant submitted tentative plan, site plan, burden of proof statements, and written and oral testimony,;, Any 'substantia' change to the approved plan will require new land use applications and approvals. PRIOR TO SU B WTI NG THE FI NAL SUBDIVISION,' PLAT FOR AP 2. The appUcant/owner shall approval'' for The Tree Farr} demonstrate to the Planrrin g of line adjustments have been met. PROVAL: Division that conditions of The applicant/owner shall submit to the Planning Division an updated title report for Tree Farm 4. The applicant/owner shall submit to the Planning Division for review and approval a copy of nonrevocabie deed restrictions for the Tree Farm 4 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 nonrevocabie deed restrictions and shall provide copies of the recorded deed restrictions to the <Planning Division. The applicant/owner shall record with the D homeown er's a The applicant/owner shall record with the conditions and restrictions for Tree Fara 4. The applicant/owner shall Tree Farm 4, execute and Tree Farm 4, 247 -14 -000248 -CU, 247-14-00249-TP249-TP Deschutes Coun ecord ty Clerk th e covenants, Conditions of Approval Agreem ent for Page 11 of 117 The applicant/owner shall execute and record with the Deschutes County Clerk a development agreement for the private roads in Tree Farm 4 on a form approved by Deschutes County Legal Counsel. The development agreement shall', incorporate the drainage plan for Tree Farm 4. The applicant shall provide a copy of the recorded development agreement to the Planning Division. The applicant/owner shall submit to the Deschutes County Road Department for its review and approval a draft Road Maintenance Agreement outlining the maintenance responsibilities for all;; new roads in Tree Farrn 4, 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 with the Deschutes County Clerk the wildfire plan and WMP for the Tree Farm 4 open space tract. The applicant/owner shall provide copses of these recorded management agreements to the Planning Division, 11. The applicant/owner shat lot in Tree Farrn 4. 12. The a obtain an ap proved septic site evaluation for each residential pplicantlowner shall obtain from the Deschutes County Road Department an access permit for the new road connection to Skyliners Road in Tree Farm 1. The applicant/owner shall obtain from the Deschutes County Road Department a gate permit for the gates on the new secondary emergency access road for The Tree Farm. 14. The applicantiowner shall submit to the 'Planning Division proof of City of Bend approval> to extend domestic water service to Tree Fara 4. If City of Bend water is not available, prior to final plat approval for any Tree Farm development the applicant shall submit to the Planning Division proof that domestic water is available via the alternative means identified by the applicant. 15, If the applicant/owner elects, or is required to, provide water to The Tree Farm through means other than extension of city water service, the applicant/owner' shall provide to the Planning Division ' a water system analysis performed by a registered professional engineer and demonstrating water service from the alternative domestic water source will provide at each residential lot water pressure of at least 40 psi during peak demand periods, 20 psi residual pressure, and 2,000 gpm for fire flow. 16, The applicant/owner shall provide to the Planning Division a statement from a registered professional engineer indicating whether a runoff storage basin is necessary. 17. The applicant/owner shall subs €it to the Planning Bend Fire Department that all standards for subd emergency access road, have been met 18. The appllcant!owner shall Division written verification from the vision roads, incl€ ding the secondary pay aII taxes for Tree Farm 4 in accordance with ORS 92.095. Tree Farm 4, 247 -14 -000248 -CU. 247 -14 -000249 -TP Pa ge 4 of 117 WITH OR ON THE FINAL SU 20 DIVISION;, P LAT: The applicant/owner shall prepare the fi 17of the Deschutes County Code, inc Section 17.24.060. nal plat for Tree Farm 4 in accordance with Title ud"€ng all the necessary info rmation required by The applicant/owner shall show the folloyving on the final pi a fo Tree r 4: the exact lot size of each residential lot, and of the open space tract which shall be platted as a separate tract, the build mg envelope for each all easements of record and existing rights-of-way;;;; a statement of we e. all utilityeasements; f. all g>• p rig hts a s required ublic access easements; and by ORS 92.120; if a runoff storage basin is necessary, the location of the storage basin. 211. The surveyor or registered ,Iprof essional engineer sub€fitting the final plat for Tree Farm 4 shall submit' information to the Deschutes County Road Department showing the location of any existing roads in relationship to the road right-of-way; This 'information' can be submitted on a worksheet and does not necessarily have to be on the final plat. All existing road facilities and new road improvements are to be located within legally established or dedicated right-of-ways. in no case shall a road improvement be located outside of a dedicated road right-of-way. If research reveals that inadequate right-of-way exists or, that the existing roadway is outside of the legally established or dedicated right- of-way, additional right-of-way will be dedicated as directed by the Deschutes County Road Department to meet current county standards. 22_ The final plat for Tree Farm 4 shall be signed by all persons with an ownership interest PRIOR 23 the property, as well as the Deschutes County Assessor and Tax Collector, TO0 R WITH CONSTR u CTION: The applicantJowner shall obtain from the Deschutes County Road Department approve of all construction plans for all required road improvements prior to commencement o any construction. 24 All private road designs shall be in accordance with the standards in Table "A" of the Deschutes County Code for rural local private roads, 25. All private roads constructed in Tree Farm 4 shall include bicycle as proposed on the tentative subdivision, plan and burden of proof. 26. The applicant/owner shat approval of the, Desch construct all road tes County Road De Tree Farm` 4, 247 -14 -000248 -CU. 247-14-000249-Tf a lapter 17.48 a nd ped es nd n path s improvements under the inspection and partment. The road department may accept Page 11€ 5 of 11'i 27. 28 29 certification of improver ents 92.097. by registered professional engineer The applicant/owner shall assure that all road im surveyed and staked in accordance with DCC 17.48.2 pursuant to ORS provements in Tree Farre 4 are 00 The applicant/owner shall place all culverts in natural drainage areas and provide positive drainage. If a runoff storage basin is determined to be necessary, the, applicant/owner shall construct such a basin at the lowest point in "free 'amn 1. or in such other location as determined to be appropriate by a registered professional engineer' 30. The applicant/owner shall install all utilities underg 31 The applicant/0 each road. r shall insta at round. least one road na me at each intersection for 32. If the applicant/owner provides domestic' water service to Tree Farm 4 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: 33. The applicant/owner shall install on the residential lot side of the gate at the southern terminus of Sage Steppe Drive at least one means of opening the gate by Tree Farm residents and guests, such as special keys, key codes and/or automatic gates, 34. The applicant/owner shall construct all recreation/mountain bike rails with a two -foot minimum tread width and a six foot minimum clearing width centered over the trail, and a rnirimur overhead clearance of seven feet. FO LLOW1N G FII NAL PLAT APPR OVAL: 35. The applicant/owner shall begin constrc: of the date this decision becomes fdna Director may allow; AT ALL TIME S 36 The applicant/owner shall satisfy a protection within Tree Farm 4 n of Tree aurins 1, 2 al or such longer period of requirements of the Bend Fire l epartment for fire 37. The applicant/own e'r shall lirr€it uses permitted in the Tree Farm 4 open space tract to management of natural resources, trail systems, and low -intensity outdoor recreation uses, and shall prohibit golf' courses, tennis courts, swimming pools, marinas, ski runs or other developed recreational uses of similar intensity and off-road vehicle use on the open space tract. The applicant/owner shall enforce these open space restrictions and prohibitions through the Tree Farm 4 covenants, conditions and restrictions. The applicant/owner shall install any fencing in the WA -zoned portion of Tree accordance with the WA Zone standards therefor. Tree 'Farre 4, 247.14 -000248 -CU, 247 -14 -000249 -TP Farm 4 n' Page l 16 of 117 The applicant/co aner shall assure the building height and setback standards in the UAR- 10, RR -10 and A-10 Zones are met for dwellings in Tree Farm 4. 40, The applicant/owner shall assure that address numbrs are, provided for each delling in Tree Farm 4 as required by the Oregon Fire Code. D u RATIO N OF APP ROVAL: 41'. The applicant/owner ' shall complete al ll conditions of approval and apply 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 void. 42. The applicant/owner shall complete all conditions of approval and appy for final pat approval from the Planning Division for Tree 'Farms 4 and 5 within four (4) years of the date this decision becomes final, or obtain an extension in accordance with the provisions of Title 22 of the Deschutes County Code Dated this 18th day of March , 2015 Mailed this 18 day of I Iarch, 2015 Karen H. Green, Hearings Officer THIS DECISION BECOMES E FINAL TW UNLESS APPEALED BY A' PARTY OF I ELVE (12) DAYS NTE REST Tree 'Farre 4, 247 4 -000248 -CU, 247 -14 -000249 -TP AFTER TH E DATE OF 11AILING, Page '117 of; Co munity Developrri eat Mop art m e of Planning Diviskrn Building Safety Division Environmental Division Did ision ocu CE F<w. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97700-6005 (541):3.68-6575 FAX (541)385-1764 RTIFICATE OF MAILING ALE NU BERS: 247 -14 -000242 -CU, 243 -TP 'INTENTS MM MAP/TAX LOT N UM LE BE RS: certify that on the 18th day of March 10, 2015, was/were nailed by fig; address(es) set forth on the attached list. C Ronny Mortensen The Tree Farm, LLC ( 409 NW Franklin Avenue Bend, OR 07701, Ken Pirie a ker Macy 1 SW Oak St #200 Portland; OP 7204 rey Condit Miller Nash LLP 3400 US Bancorp Tower 11 SW Fifth Avenue 1 Portland, OR 07204-3S9 9 247 -14 -000244 -CU, 245 -TP 247 -14 -000246 -CU, 247 -TP 247 -14 -000248 -CU, 249 -TP 247 -14 -000250 -CU, 251 -TP'' H earing s Office r Dec si ons Tree Farms 1 thru 17-11-35D00-0400; 17.11-6002, 6205, 6207, 6208, 6209, 6210, 6211, 6212 and 6213 015, the attached notice(s)/report(s), dated postage prepaid, to the person(s) and Dated this 18th day March„ 2015. UNITY D EV LOP E NT DEPARTMENT By: +1oonli ht B Per P hariey Miller }tiller Tree Farm 110 NE reenwood Avenue Bend, OR 97701 Ron Hand VVHPacific 123 SW Columbia Street Bend,; OR 97702 Dale Van Vaikenburg Brooks Resources Corpdratior 409 NW Franklin Avenue Bend, OR 97701 d with1 i Connie Peterson 2203 NW C eam ter Drive Bend, OR 97701-2203> Doug Wickham 61971 Ki'Idonan Court Bend, OR 97702 Corey Heath & Nancy Bruener Oregon Department of Fish '& Wildlife 61374 Darrell Road Bend, OR 97702 l iachelle Healy & Steve Jorgensen Bend Metro Parks and Recreation District' 799 SW Columbia Street Bend, OR 97702 �yies Conway Marten Law 404 SW o umbia Bend, OR 97702 Street, Suite 212 A J€ hnson 2522 NW Grassing Drive Bend, OR 97701 Kelly Esterbrook 16322 S yliners Ro Bend, OR 97701 ad Paul Dewey 1539 NW Vicksburg Avenue Bend, OR 97701 Christine Herrick 2281 NW High Lakes Loop Bend, OR 97701 Larry Medina Bend Fire Department 1212 SW Simpson, Suite Bend, OR 97702 Jennifer Taylor & Ch 19001 Squirreitail Loop Bend, , OR 97701 ristmne Pollard George Weurtnner P.O. Box 8359 Bend, OR 97708 Edward & Lynn Funk 2138 Toussaint Drive Bend, OR 97701 Deschutes County Ed Keith, Forester George Kolb, Road Dad rtr en Peter Russell, CDD