HomeMy WebLinkAboutWidgi Creek - Fairway AppealCommunity Development Department
Planning Division Building Safety Division Environmental Soils Division
P.O, Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/cdd/
MEMORANDUM
DATE: April 24, 2015
TO: Board of County Commissioners
FROM: Will Groves, Senior Planner
RE: Whether to hear Kine & Kine Properties appeal of a Hearings Officer's decision.
File Nos. 247-14-000395-TP, 247-14000396-SP, and 247-14-000397-LM (247
15-000206-A)
Before the Board of County Commissioners (BOCC) is an appeal filed by Kine & Kine
Properties. The appeal is submitted in response to a Deschutes County Hearings Officer's
decision that a proposed subdivision does not comply with all applicable regulations. The
appellant requests the BOCC formally consider the decision.
BACKGROUND
The applicant, Kine & Kine Properties, requested approval of a nine-lot, zero-lot-line subdivision
called "The Refuge at Widgi Creek," as well as site plan and Landscape Management (LM)
review for dwellings on the proposed subdivision lots, on property in Widgi Creek zoned Resort
Community (RC) and LM and located between Seventh Mountain Drive and the first fairway of
the Widgi Creek Golf Course.
The Hearings Officer issued a decision on April 6, 2015 finding that the proposal does not
comply with all applicable regulations. On April 17,2015 Kine & Kine Properties appealed the
decision to the BOCC.
The 150-day period for issuance of a final local decision under ORS 215 expires on June 15,
2015.
APPEAL
The notice of appeal describes several assignment of error. These are summarized below, with
references to those pages within the decision where the Hearings Officer addressed the issue.
(a) The Hearings Officer erred when she concluded Comprehensive Plan Policy 4.8.2
applies to the subject property and requires it to remain as a golf course or be developed
for open space or recreation uses. H.O. Decision, p. 23-28.
Quality Services Performetl with Pride
(b) The Hearings Officer erred when she used the "physically developed" exception process
as a basis to conclude the BOCC intended to limit future development at Widgi Creek to
all but 14 acres. H.O. Decision, p. 12,26-28.
(e) The Hearings Officer erred when she concluded Comprehensive Plan Policy 4.8.2. was
intended to maintain the status quo at Widgi Creek as of 2001. H.O. Decision, p. 24.
(d) The Hearings Officer erred when she concluded the subject property was "developed"
as a golf course. H.O. Decision, p. 25-28. 1. The version of the H.O. Decision received
by Appellant did not contain page numbers. Therefore, for purposes of specificity, the
Appellant numbered the pages, attached the Decision hereto and refers to those page
numbers to identify the issues on appeal in the assignments of error.
(e) The Hearings Officer erred when she concluded the configuration of the driveways for
Lots 8 and 9 did not create a safe environment within the meaning of DCC 18.124.060C.
H.O. Decision. p. 45.
(f) The Hearings Officer erred when she concluded the configuration of Lots 8 and 9 will
create safety hazards and therefore not be harmonious within the meaning of DCC
18.124.060E. H.O. Decision, p. 46.
(g) The Hearings Officer erred when she concluded the proposed subdivision and
residential development will not be consistent with the land use patterns of the area.
H.O. Decision, p. 55.
(h) The Hearings Officer's decision violates Article I, Section 18 of the Oregon Constitution
and the Fifth Amendment of the U.S. Constitution by interpreting the County Code in a
way that results in a taking of private property for public use by requiring the private
property owner to devote his property to golf course or community use for the benefit of
the community.
The appellant requests de novo review. In deciding whether to hear an appeal, the BOCC may
consider only the notice of appeal, the record of the proceedings below and discussions with
staff regarding the record and any staff recommendations. DCC 22.32.030(D). No additional
comments from the parties are allowed.
If the BOCC decides to hear the appeal, the review shall be on the record unless the BOCC
decides to hear the appeal de novo. The BOCC may hear this matter de novo if it finds the
substantial rights of the parties would be significantly prejudiced without de novo review and it
does not appear that the request is necessitated by failure of the appellant to present evidence
that was available at the time of the previous review. The 80CC may also choose as de novo
review when, in its sole judgment, a de novo hearing is necessary to fully and properly evaluate
a significant policy issue relevant to the proposed land use action (DCC 22.32.027(B)(2)(c) and
(d».
The BOCC may, at its discretion, determine that it will limit the issues on appeal to those listed
in the notice of appeal or to one or more specific issues from among those listed on the notice of
appeal (DCC 22.32.027(8)(4».
DECLINING REVIEW
File Nos. 247-14-000395-TP, 247-14000396-SP, and 247-14-000397-LM (247-15-000206-A) Page 2 of3
If the BOee decides that the Hearings Officer's decision shall be the final decision of the
county, then the BOee shall not hear the appeal and the party appealing may continue the
appeal as provided by law. The decision on the land use application becomes final upon the
mailing of the BOee's decision to decline review. In determining whether to hear an appeal, the
BOee may consider only:
1. The record developed before the Hearings Officer;
2. The notice of appeal; and
3. Recommendations of Staff (See: DeC 22.32.035(B) and (D».
STAFF RECOMMENDA1"ION
Reasons to hear:
1) There are a number of significant code interpretation issues for which LUBA will
be obligated to defer to the BOee if the interpretation is at least plausible. The
BOee may want to reinforce or refute some or all of the Hearing Officer's
findings/interpretations prior to LUBA.
Reasons not to hear:
1) eDD Staff and Legal believes the hearings officer decision is well reasoned and
well written and could be supported as is on appeal.
2) The policy and interpretative questions are limited to the Widgi Creek
development and would not impact land use outside of that resort community.
3) The "Mile Post One" case (TP-14-1024, SP-14-8, LM-14-17) that was not heard
by the BOee is presently on appeal at LUBA. The outcome of that appeal may
impact the criteria that apply to the current appeal. The uncertain timing of the
"Mile Post One" LUBA decision adds complexity to the current decision.
4) The applicant may challenge the denial at LUBA as a remedy to the Hearing
Officer's denial.
Attachments
1. Hearing Officer's decision
2. Notice of Intent to Appeal
3. Draft Order to not hear this matter
File Nos. 247-14-000395-TP, 247-14000396-SP, and 247-14-000397-LM (247-15-000206-A) Page 3 of 3
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Declining Review of Hearings Officer's *
Decision in File Nos. 247-14-000395-TP, 247* ORDER NO. 2015-029
14000396-SP, and 247-14-000397-LM (247-15*
000206-A). *
WHEREAS, Appellant, Kine & Kine Properties, appealed the Hearings Officer's decision in application
number 247-14-000395-TP, 247-14000396-SP, and 247-14-000397-LM; and
WHEREAS, Section 22.32.027 of the Deschutes County Code allows the Board of County
Commissioners (Board) discretion on whether to hear appeals of Hearings Officer's decisions; and
WHEREAS, the Board has given due consideration as to whether to review this application on appeal;
now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. That the Board will not hear on appeal application number 247-14-000395-TP, 247
14000396-SP, and 247-14-000397-LM (247-15-000206-A) pursuant to Title 22 of the Deschutes County Code
and other applicable provisions of the County land use ordinances.
Section 2. The appellants shall be granted a refund of some of the appeal fees, according to County
procedures.
Dated this ___of ______, 2015 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ANTHONY DEBONE, Chair
ALAN UNGER, Vice Chair
ATTEST:
Recording Secretary TAMMY BANEY, Commissioner
PAGE 1 OF I-ORDER No. 2015-029
IN A MATTER BEFORE
THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
KINE AND KINE PROPERTIES, ) NOTICE OF APPEAL
) File Numbers 247-14-000395-TP,
Applicant! Appellant. ) 247-14-000396-SP, 247-14-000397-LM
) Decision of Deschutes County
) Hearings Officer
)
1. DCC 22.32.010 Who May Appeal.
Appellant Kine and Kine Properties was the applicant below, a party to the proceedings and is
entitled to appeal under DCC 22.32.0 I O(A)(I).
2. DCC 22.32.015 Filing Appeals.
Appellant Kine and Kine Properties submits the attached Notice of Appeal fonn, the appeal fee
and the following statement of issues on appeal.
3. DCC 22.32.020 Notice of Appeal.
The present Notice of Appeal includes the following statement of issues relied upon'for appeal, a
request for de novo review and the reasons why the Board should review the Hearings Officer's
decision and why it should do so de novo for the issues on appeal.
4. Issues on Appeal.
The Hearings Officer's decision is in error in the following ways:
(a) The Hearings Officer erred when she concluded Comprehensive Plan Policy 4.8.2
applies to the subject property and requires it to remain as golf course or be developed for open
space or recreation us~s. H.O. Decision, p. 23-28.1
(b) The Hearings Officer erred when she used the "physically developed" exception
process as a basis to conclude the Board intended to limit future development at Widgi Creek to
all but 14 acres. H.O. Decision, p. 12,26-28.
(c) The Hearings Officer erred when she concluded Comprehensive Plan Policy 4.8.2.
was intended to maintain the status quo at Widgi Creek as of200t. H.O. Decision, p. 24.
(d) The Hearings Officer erred when she concluded the subject property was
"developed" as golf course. H.O. Decision, p. 25-28.
I The version of the H.O. Decision received by Appellant did not contain page numbers. Therefore, for purposes of
specificity, the Appellant numbered the pages, attached the Decision hereto and refers to those page numbers to
identify the issues on appeal in the assignments of error.
Page 1 -NOTICE OF APPEAL
PDX\J26937\194291ITMLIIS7292SS.1
(e) The Hearings Officer erred when she concluded the configuration of the
driveways for Lots 8 and 9 did not create a safe environment within the meaning of
DCC 18.124.060C. H.O. Decision, p. 45.
(f) The Hearings Officer erred when she concluded the configuration of Lots 8 and 9
will create safety hazards and therefore not be hannonious within the meaning of
DCC 18.124.060E. H.O. Decision, p. 46.
(g) The Hearings Officer erred when she concluded the proposed subdivision and
residential development will not be consistent with the land use patterns of the area.
RO. Decision, p. 55.
(h) The Hearings Officer's decision violates Article J, Section 18 of the Oregon
Constitution and the Fifth Amendment of the U.S. Constitution by interpreting the County Code
in a way that results in a taking of private property for public use by requiring the private
property owner to devote his property to golf course or community use for the benefit of the
community.
5. Request for De Novo Review.
Appellant requests review by the Board because the Hearings Officer interprets the Resort
Community Ordinance and the findings for that Ordinance, as adopted by the Board, for the first
time. She interprets it incorrectly in many instances and in a way which precludes future
development of private property.
De novo review is required because it is necessary to fully and properly evaluate several
significant policy issues relevant to the proposed land use action. Specifically, de novo review is
necessary to fully evaluate and correct the Hearings Officer's conclusions regarding the scope,
intent and meaning ofthe Resort Community zone, the supporting plan policies and definitions
and to correct her unfounded conclusions that the County took a physically committed exception
to Goal 4 and rezoned the community for Resort uses only to maintain the status quo.
DATED this at:ray of---C,.A(-#-F-..:-r-=-/-L/----. 2015.
dlZf):'
. Tia M. Lewis, OSB # 933437
Of Attorneys for Appellant
Page 2 -NOTICE OF APPEAL
POx\126937\19429l\TML\15729255.1
DECISION OF DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBERS: 247-14-000395-TP, 247-14-000396-SP, 247-14-000397-LM
APPLICANT: Kine and Kine Properties
1133 N.W. Wall Street, Suite 1
Bend, Oregon 97701
PROPERTY OWNER: Bhelm, LLC
18707 S.W. Century Drive
Bend, Oregon 97701
APPLICANT’S ATTORNEY: Tia M. Lewis
Schwabe, Williamson & Wyatt
549 S.W. Mill View Way, Suite 100
Bend, Oregon 97702
APPLICANT’S ENGINEER: HWA, Hickman, Williams & Associates, Inc.
62930 O.B. Riley Road, Suite 100
Bend, Oregon 97701
OPPONENTS’ ATTORNEY: Michael H. McGean
Francis Hansen & Martin LLP
1148 N.W. Hill Street
Bend, Oregon 97701
Attorney for Elkai Woods HOA, Elkai Woods Fractional HOA,
and Widgi Creek HOA
REQUEST: The applicant requests approval of a nine-lot, zero-lot-line
subdivision called “The Refuge at Widgi Creek,” as well as site
plan and LM review for dwellings on the proposed subdivision
lots, on property in Widgi Creek zoned RC and LM and located
between Seventh Mountain Drive and the first fairway of the
Widgi Creek Golf Course (Fairway application).1
HEARING DATE: January 6, 2015
RECORD CLOSED: February 3, 2015
I. APPLICABLE STANDARDS AND CRITERIA:
A. Title 17 of the Deschutes County Code, the Subdivision/Partition Ordinance
1. Chapter 17.16, Approval of Subdivision Tentative Plans and Master
Development Plans
1 The applicant also submitted applications for tentative plan, site plan and LM review approval for an 8-
lot, zero-lot-line subdivision in Widgi Creek on common area developed with a pool, community building,
and parking lot (File Nos. 247-14-000391-TP, 247-14-000393-SP, 247-14-000493-LM) (Pool application).
* Section 17.16.100, Required Findings for Approval
* Section 17.16.105, Access to Subdivisions
2. Chapter 17.20, Zero Lot Subdivision
* Section 17.20.010, Requirements
* Section 17.20.100, Required Findings for Approval
3. Chapter 17.36, Design Standards
* Section 17.36.020, Streets
* Section 17.36.040, Existing Streets
* Section 17.36.050, Continuation of Streets
* Section 17.36.060, Minimum Right of Way and Roadway Width
* Section 17.36.080, Future Extension of Streets
* Section 17.36.120, Street Names
* Section 17.36.130, Sidewalks
* Section 17.36.140, Bicycle, Pedestrian and Transit Requirements
* Section 17.36.150, Blocks
* Section 17.36.160, Easements
* Section 17.36.170, Lots – Size and Shape
* Section 17.36.180, Frontage
* Section 17.36.190, Through Lots
* Section 17.36.200, Corner Lots
* Section 17.36.210, Solar Access Performance
* Section 17.36.220, Underground Facilities
* Section 17.36.230, Grading of Building Sites
* Section 17.36.250, Lighting
* Section 17.36.260, Fire Hazards
* Section 17.36.270, Street Tree Planting
* Section 17.36.280, Water and Sewer Lines
* Section 17.36.300, Public Water System
4. Chapter 17.44, Park Development
* Section 17.44.010, Dedication of Land
* Section 17.44.020, Fee in Lieu of Dedication
5. Chapter 17.48, Design and Construction Specifications
* Section 17.48.160, Road Development Requirements -- Standards
* Section 17.48.180, Private Roads
B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.04, Title, Purpose and Definitions
* Section 18.04.030, Definitions
2. Chapter 18.08, Basic Provisions
* Section 18.08.020, Existing Agreements and Zoning Permits
3. Chapter 18.84, Landscape Management Combining Zone
* Section 18.84.020, Application of Provisions
* Section 18.84.030, Uses Permitted Outright
* Section 18.84.050, Use Limitations
* Section 18.84.080, Design Review Standards
* Section 18.84.090, Setbacks
* Section 18.84.095, Scenic Waterways
4. Chapter 18.110, Resort Community Zone
* Section 18.110.010, Purpose
* Section 18.110.020, Seventh Mountain/Widgi Creek and Black Butte Ranch
Resort Districts
* Section 18.110.060, Development Standards
5. Chapter 18.116, Supplementary Provisions
* Section 18.116.030, Off-Street Parking and Loading
* Section 18.116.031, Bicycle Parking
* Section 18.116.180, Building Setbacks for the Protection of Solar Access
6. Chapter 18.124, Site Plan Review.
* Section 18.124.030, Approval Required
* Section 18.124.060, Approval Criteria
* Section 18.124.070, Required Minimum Standards
C. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.04, Introduction and Definitions
* Section 22.04.020, Definitions
2. Chapter 22.20, Review of Land Use Action Applications
* Section 22.20.055, Modification of Application
3. Chapter 22.24, Land Use Action Hearings
* Section 22.24.140, Continuances and Record Extensions
D. Deschutes County Comprehensive Plan
1. Chapter4, Urban Growth
* Section 4.3, Unincorporated Communities
* Section 4.8. Resort Communities
* Section 4.8, Resort Community Policies
I. FINDINGS OF FACT:
A. Location. The subject property is identified as Tax Lot 2001 on Deschutes County
Assessor's Map 18-11-00. The area proposed for the subdivision consists of 0.9 acres
located between Seventh Mountain Drive and first fairway of Widgi Creek Golf Course.
B. Zoning and Plan Designation. The subject property is zoned Resort Community (RC)
and Seventh Mountain Widgi Creek Resort (SMWCR) District, and is within the
Landscape Management (LM) Zone associated with Century Drive. The property is
designated Resort Community on the Deschutes County comprehensive plan map.
C. Lot of Record. The applicant stated the subject property is a legal lot-of-record because it
has received multiple previous land use approvals, including: (1) a sign permit (S-05-9);
(2) LM review (LM-05-110) and site plan approval (SP-05-34) for construction of the
existing golf course maintenance/storage building; and (3) a lot line adjustment (LL-08-42).
However, the staff report states the applicant has misidentified the legal-lot-of record and
that two legal lots comprise the subject property, described as follows.
Legal Lot 1: That portion of Tax Lot 2001 on Assessor's map 18-11-00 that is east of the
Cascade Lakes Highway (also known as Century Drive), and south and west of Seventh
Mountain Drive; Tax Lot 3600 on map 18-11-22A; Tract A in the Seventh Mountain Golf
Village Subdivision; Tax Lot 1800 on map 18-11-22DA; Tract B in the Elkai Woods
Townhomes Phase I Subdivision that is west and north of Elkai Woods Townhomes
Phase I, II, and IV Subdivisions, and west of Elkai Woods Townhomes Phase V; and
“Replat of Lots 21 thru 28 and Common Areas 6 & 7 Elkai Woods Townhomes Phase
III”, that is north of the Points West Subdivision, north of Tax Lot 9000 on map 18-11-
22C, and east of Tax Lot 1701 on map 18-11-22C. The staff report states this legal lot is
approximately 40 acres in size.
Legal Lot 2: That portion of Tax Lot 2001 on Assessor's map 18-11-00 that was left as a
remainder lot following platting of the Seventh Mountain Golf Village Subdivision and
that is surrounded by Tract A, Tract B, and Lots 77-85 and 87-107 of that subdivision.
The staff report states this legal lot is approximate 26 acres in size.
D. Site Description. The subject property consists of the two legal lots described in the
findings above, comprising a portion of the Widgi Creek Resort Community (Widgi
Creek) that includes the golf course, club house, restaurant, golf maintenance facilities,
and sewer pump station. The specific area proposed for the nine-lot zero-lot-line
subdivision is 0.9 acres located between Seventh Mountain Drive and the first fairway of
Widgi Creek Golf Course on the south side of Seventh Mountain Drive. This area is level
to generally rolling with vegetation consisting of scattered juniper and ponderosa pines
trees, a few deciduous trees, native brush and grasses, and lawn areas. The site
surrounds a community mailbox facility.
E. Surrounding Zoning and Land Uses. The subject property is located within Widgi
Creek which consists of a mixture of residential and recreational facilities, including
single-family detached and attached dwellings, a golf course, club house, tennis courts,
pool, and private roads, bicycle paths and golf cart paths. One of the legal lots is
surrounded by the Seventh Mountain Golf Village Subdivision. The other legal lot is
located north of the Inn of the Seventh Mountain (Seventh Mountain) resort, the Points
West Phase I townhome community (Points West), and the Elkai Woods Townhomes
Subdivisions (Elkai Woods). The Seventh Mountain development consists of
approximately 240 condominium units as well as resort facilities including conference
facilities, two pools, a restaurant, and an ice skating rink. All of the surrounding
developments are zoned RC designated Resort Community. Widgi Creek abuts
Cascade Lakes Highway on the north and the Deschutes River canyon on the south.
The Deschutes National Forest (DNF) surrounds Widgi Creek and Seventh Mountain.
F. Land Use History. The Seventh Mountain resort was established prior to the county’s
adoption of land use regulations. The Seventh Mountain/Widgi Creek/Elkai Woods
developments have a long land use history dating back to at least 1983 when Widgi Creek
received its original land use approval (Z-83-7, MP-83-1, CU-83-107). The staff report lists
the following land use permits and approvals as applicable to Tax Lot 2001:
MC8922
Modification Of Conditions For The Golf Course At The Inn Of The Seventh
Mountain
MC9021 Modification Of Conditions For The Expansion To The Inn
MC9014
Modification Of Conditions For The Inn Of The Seventh Mountain’s Subdivision
Plat
PA908 Extension Of City Sewer Line To Inn
TP90735 Tentative Plat For 107 Lots At The Inn Of The Seventh Mountain
MC9018
Modification Of Conditions To Allow A Sales Office For New Lots At The Inn of
The Seventh Mountain
MC9024 Modification Of Conditional Use Permit
V9112 Variance To Sign Code Permit
S9137 Sign For Seventh Mt. Golf Village
SP9121 Clubhouse Site Plan
S9136 Sign For Seventh Mountain Golf Village
AD9428 Ad For Widgi Creek
SP9445 Minor Alteration For Sales Office At Restaurant
AD9516
Declaratory Ruling For Status Of Widgi Creek/Seventh Mountain Golf Village,
And Condo Site
FP951 Financial Segregation
MP9519
Partition To Divide Remainder Lot At Widgi Creek/Seventh Mountain Golf
Village
SP9672 Site Plan Review For Golf Course Clubhouse
SP9674
Site Plan Review For Amenities Complex For The Elkai Woods Townhome
Development Within In Widgi Creek PUD
TP96857 Tentative Plat/Master Plan For 86 Townhouse Lots--Elkai Woods
SP9610 Site Plan For 8 Townhouse Units--Phase I Elkai Woods
SP965 Site Plan Approval For Improvements To Maintenance Facility.
FPA9714 Final Plat Approval For Elkai Woods Townhomes At Widgi Creek
FPA9749 Final Plat Review For Phase Ii Elkai Woods
SP9731 Site Plan Review For Elkai Woods Phase Ii
SP9752
Site Plan For Permanent Restrooms To Replace Temporary Restrooms For
Golf Course
SP9857 Site Plan For Phase III Of Elkai Woods At Widgi Creek
SP9842 Site Plan For Elkai Amenities Buildings
FPA997 Final Plat Review For Elkai Woods Phase III
FPA0011 Final Plat Review Of TP-96-857
LM05110 Landscape Management Site Plan For Sign.
SP0534 Site Plan For New Storage Building For Widgi Creek Golf Course
LL0842 Lot Line Adjustment
SP0915 Site Plan Review For Addition To Storage Building
G. Procedural History: These applications were submitted on November 17, 2014, and were
accepted by the county as complete on December 17, 2014. Therefore, the 150-day period
for issuance of a final local land use decision under ORS 215.427 would have expired on
May 18, 2015.2 The Hearings Officer conducted a site visit to the subject property and
vicinity on January 6, 2015, accompanied by Senior Planner Will Groves. A combined public
hearing on the applicant’s Fairway and Pool proposals was held on January 6, 2015. At the
hearing, the Hearings Officer disclosed my observations and impressions from my site visit,
received testimony and evidence, left the written evidentiary record open through January
27, 2015, and allowed the applicant through February 3, 2015 to submit final argument
pursuant to ORS 197.763. The applicant submitted its final argument on February 3, 2015
and the record closed on that date. Because the applicant agreed to extend the written
record from January 6 through February 3, 2015, under Section 22.24.140 of the procedures
ordinance, the 150-day period was tolled for 28 days and now expires on June 15, 2015. As
of the date of this decision, there remain 70 days in the extended 150-day period.
H. Proposal. The applicant proposes to create a nine-lot, zero-lot-line subdivision to be
called “The Refuge at Widgi Creek” on land located between Seventh Mountain Drive
and the first fairway of the Widgi Creek Golf Course. The applicant also requests site
plan approval and LM review for the proposed townhome dwellings on the subdivision
lots. The applicant’s original proposal included six off-street parking spaces on the north
side of Seventh Mountain Drive. However, the applicant withdrew that proposal.
The staff notes the applicant’s burden of proof addresses only the proposed 9-lot, zero-lot-
line subdivision and does not discuss the status of the nearly 40-acre “remainder lot” that
would be created as the result of platting the proposed subdivision or the 26-acre “Legal
Lot 2.” In its final argument, the applicant stated it has no immediate development plans
for these two remainder lots, and agrees to a condition of approval that would preclude the
applicant from seeking building permits on either of the remainder lots without first
obtaining land use review and demonstrating water is available.
I. 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 Senior Transportation Planner and Road Department (road
department); the City of Bend Fire Department (fire department); and the Oregon
Department Water Resources (OWRD), Watermaster-District 11. These comments are
set forth verbatim at page 5 of the staff report and are included in the record. The
following agencies did not respond to the request for comments or submitted a “no
comment” response: the Deschutes County Assessor and Building Division; the City of
Bend Planning Department and Public Works Department; the Oregon Department of
Transportation (ODOT); Pacific Power; and CenturyLink.
2 As the 150th day falls on a Saturday, under Section 22.08.070 the 150th day is Monday, May 18, 2015.
J. Public Notice and Comments. The Planning Division mailed individual written notice of
the applicant’s proposal and the public hearing to the owners of record of all property
located within 250 feet of the boundaries of Tax Lot 2001. The record indicates this
notice was mailed to the owners of 25 tax lots. In addition, notice of the public hearing
was published in the Bend “Bulletin” newspaper, and the subject property was posted
with a notice of proposed land use action sign. As of the date the record in this matter
closed, the county had received 52 letters from the public and two petitions signed by a
total of 159 persons. In addition, 12 members of the public testified at the public hearing.
Public comments addressed both the Fairway and Pool proposals and are discussed in
the findings below.
III. CONCLUSIONS OF LAW:
A. Summary:
The Hearings Officer has found that because the proposed subdivision site was “developed as
golf course” in 2001, it is subject to Comprehensive Plan Policy 4.8.2 which requires that the
site remain as golf course or be developed for open space or recreation uses. Consequently I
cannot approve the proposed residential subdivision. However, because I anticipate this
decision will be appealed to the Board of County Commissioners (board), in the event the board
elects to hear the appeal and to assist the board and county staff in that appeal, I have included
in this decision findings concerning the proposal’s compliance with applicable provisions of the
comprehensive plan and Titles 17 and 18, as well as recommended conditions of approval.
B. Preliminary Issues:
1. Effect of Pending LUBA Appeal.
FINDINGS: On September 29, 2014, the Hearings Officer issued a decision granting tentative
plan, site plan, and LM approval for a 24-lot, zero-lot line subdivision called “Mile Post One” in
Widgi Creek. (Arrowood, TP-14-1024, SP-14-8, LM-14-17). In that decision, I held the RC Zone
governs development in Widgi Creek and superseded the Widgi Creek master plan. Opponents
in Arrowood, who also are opponents of the subject application, appealed my decision to LUBA.
As of the date of this decision, LUBA had not issued its decision on the Arrowood appeal. I
understand opponents in the subject application have presented the same arguments
concerning application of the master plan in their appeal to LUBA as they have here. Therefore,
LUBA’s decision in the Arrowood appeal likely will be relevant to the subject applications.
Nevertheless, in the absence of a stay of the Fairway and Pool applications from LUBA, and/or
the applicant’s agreement to toll the 150-day period while the LUBA appeal is pending, I find I
cannot delay issuing the subject Fairway and Pool decisions.
2. Incomplete Application.
FINDINGS: In his January 6, 2015 memorandum, Michael McGean, attorney for opponents
Elkai Woods Homeowners Association, Elkai Woods Fractional Homeowners Association, and
Widgi Creek Homeowners Association (hereafter “HOAs”), stated:
“As the staff report notes, the County Transportation Planner finds that the
application is lacking a Site Traffic Report under DCC 18.16.310(F). The
application in its current form must therefore be denied. If applicant applies to
modify its application under DCC 22.20.055, the application should be re-noticed
and re-set for a new hearing.”
There is no section 18.16.310(F) in Title 18. The Hearings Officer assumes Mr. McGean meant
to cite Section 17.16.115(F) of the subdivision ordinance which establishes minimum
requirements for a site traffic report. In response to the aforementioned comments from the
county’s Senior Transportation Planner Peter Russell, the applicant submitted a site traffic
report on January 20, 2015. I find submission of this report following the county’s acceptance of
the applicant as complete did not constitute a modification under Section 22.20.055.
“Modification of application” is defined in Section 22.04.020 as:
* * * the applicant’s submittal of new information after an application has been
deemed complete and prior to the close of the record on a pending application
that would modify a development proposal by changing one or more of the
following previously described components: proposed uses, operating
characteristics, intensity, scale, site layout (including but not limited to changes in
setbacks, access points, building design, size or orientation, parking, traffic, or
pedestrian circulation plans), or landscaping in a manner that requires the
application of new criteria to the proposal or that would require the 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 site traffic report did not constitute a modification
because it did not change the development proposal. Rather, it constituted new evidence that
clarifies and supports the applicant’s proposal. Therefore, I find the applicant was not required
to submit a modification application, and the county was not required to re-notice the application
or set it for a new hearing.
In her December 12, 2014 letter, opponent Barbara Munster, President of the Widgi Creek
HOA, argued the subject application was incomplete and should not have been accepted by the
county because “there are several blanks in” the application. However, Ms. Munster does not
identify what information she considers missing from the application. She does state her belief
that the applicant incorrectly identified the applicable zoning of the subject property as SMWCR
when “it has always been Resort Community.” The Hearings Officer finds the SMWCR
designation is correct and reflects the area within the Widgi Creek RC Zone in which the subject
property is located.
3. Resort Community Zoning and Designation.
FINDINGS: Several opponents argue Widgi Creek is not a “resort community” and therefore
should not be subject to the RC Zone. As discussed in the findings below, the county’s decision
to designate and zone Widgi Creek a “resort community” was made by the board in 2001. That
decision is final and is not before me in this matter.
4. Need. Opponents argue there is no need for the proposed new dwellings. The Hearings
Officer finds need for housing is not an approval criterion for the applicant’s proposal under
Titles 17 and 18.
5. Savings Clause. Opponents argue that the Widgi Creek master plan remained in effect after
the board’s adoption of the RC Zone based on the following language in Section 18.08.020:
DCC Title 18 does not repeal, abrogate or impair any existing easements,
covenants, deed, restrictions or zoning permits such as preliminary plat and
partition approvals, conditional use permits, nonconforming use permits,
temporary use permits, special exceptions or building permits.
This “savings clause” was included in Title 18 when it was adopted in 1979. The Hearings
Officer finds this language signifies that any land use approvals and permits in effect on the date
Title 18 took effect would continue to be valid. In other words, the effect of the “savings clause”
was to apply Title 18 prospectively. In my decision in Arrowood, I held that if the board had
intended to preserve Widgi Creek’s master plan as the controlling regulation for Widgi Creek
development it would have included a “savings clause” in Ordinance Nos. 2001-047 and 2001-
048. The board did not do so. I found the lack of a “savings clause” in those ordinances
indicates the board intended the RC Zone to apply to future development in Widgi Creek. I
adhere to that holding here.
C. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
RESORT COMMUNITY ZONE STANDARDS
1. Chapter 18.110, Resort Community Zone
a. Section 18.110.010, Purpose
The purpose of the Resort Community Zone is to provide standards
and review procedures for development in the communities of Black
Butte Ranch and the Inn of the Seventh Mountain/Widgi Creek. The
provisions of this chapter shall apply to any Resort Community that
is planned pursuant to OAR 660 Division 22.
FINDINGS: As was the case in the aforementioned Arrowood application, the threshold issue in
the Fairway and Pool applications is the relationship between the RC Zone and the Widgi Creek
master plan approved in 1983. In Arrowood, the Hearings Officer found the master plan was
superseded by the RC Zone when it was adopted and applied to Widgi Creek in 2001. I also
found the property for which Arrowood sought approval to develop the Mile Post One
subdivision was specifically identified by the board in 2001 as available for development, and
the board stated it intended that future residential development of any remaining undeveloped
land within Widgi Creek “would be subject to” the RC Zone provisions. In my decision, I also
noted that when former Hearings Officer Anne Briggs approved Arrowood’s development plan
for the Points West Subdivision (TP-06-968, SP-06-13, LM-06-34), she rejected the HOAs’
argument that the Widgi Creek master plan forbade further development within Widgi Creek.
Her decision was not appealed.
Opponents of the applicant’s Fairway and Pool applications argue this Hearings Officer’s
decision in Arrowood was wrong, and that the Widgi Creek master plan prohibits further
residential development in Widgi Creek in general, and on the proposed fairway and pool sites
in particular. They submitted extensive evidence and argument in support of their position. For
the reasons set forth in my Arrowood decision, I adhere to my holding that the RC Zone
superseded the master plan and now governs development within Widgi Creek. However,
because I find it is likely my Fairway and Pool decisions will be appealed to the board, I include
the following detailed findings concerning the relationship between the Widgi Creek master plan
and the RC Zone.
In the Hearings Officer’s Arrowood decision I included the following brief history of the RC Zone:
“In 1997 the Land Conservation and Development Commission (LCDC) adopted
Division 22 of its administrative rules (OAR Chapter 660) to establish statewide
policies and procedures for planning and zoning of ‘unincorporated communities.’
OAR 660-22-0010 included within ‘unincorporated communities’ the category of
‘resort community,’ defined as ‘an unincorporated community that was
established primarily for and continues to be used primarily for recreation and
resort purposes.’
In 1998, as part of its required ‘periodic review,’ the county began the
‘unincorporated community planning project’ for the Seventh Mountain and Widgi
Creek resorts in order to conform them with LCDC’s ‘unincorporated community’
administrative rules. In December of 2001 the county adopted Ordinance No.
2001-48, effective March 13, 2002, amending Title 18 to adopt new definitions, to
take exceptions to the applicable statewide land use planning goals for both the
Black Butte Ranch and Seventh Mountain/Widgi Creek resorts, to adopt the
Resort Community Zone through Chapter 18.110, and to adopt new zoning and
comprehensive plan maps for the Seventh Mountain/Widgi Creek resorts to
include them within the Resort Community Zone and plan designation in general,
and the SMWCR Zone in particular. The record indicates these amendments
subsequently were acknowledged by LCDC.” 3
Prior to adoption of the 2001 ordinances, Widgi Creek was zoned Forest Use (F-3) which did
not allow a resort. Widgi Creek had not been approved as a destination resort under Goal 8
(Recreational Needs) and its implementing administrative rules. Therefore, to comply with the
“unincorporated community” administrative rules, the county had to take three steps for Widgi
Creek: (1) adopt an exception to Goal 4 (Forest Lands); (2) adopt comprehensive plan and
zoning ordinance provisions implementing the “unincorporated community” administrative rules;
and (3) adopt a plan amendment, map amendment, and zone change to designate and zone
Widgi Creek “resort community.” These steps were accomplished through the adoption of
Ordinance Nos. 2001-047 and 2001-048, which also implemented the “unincorporated
community” administrative rules for Black Butte Ranch.
The board adopted extensive findings in support of Ordinances 2001-047 and 2001-048. These
findings are somewhat contradictory, and as a result both the applicant and opponents point to
these findings as support for their respective positions. For the reasons set forth below, the
Hearings Officer finds that when the board adopted the RC Zone and applied it to Widgi Creek,
it intended the RC Zone, and not the Widgi Creek master plan, to govern development in Widgi
Creek.
1. Goal Exception. The board adopted a “physically developed” exception to Goal 4 for Widgi
Creek under Oregon Administrative Rules (OAR) 660-004-0025 which states:
(1) A local government may adopt an exception to a goal when the land
subject to the exception is physically developed to the extent that it is no
3 The board also adopted Ordinance 2001-047, also effective March 13, 2002, amending the
comprehensive plan and zoning ordinance to take an exception to Goal 4, and to adopt the RC Zone and
designation, for Widgi Creek.
longer available for uses allowed by the applicable goal. Other rules may
also apply, as described in OAR 660-004-0000(1).
(2) Whether the land has been physically developed with uses not allowed by
an applicable goal will depend on the situation at the site of the exception.
The exact nature and extent of the area found to be physically developed
shall be clearly set forth in the justification for the exception. The specific
area(s) must be shown on a map or otherwise described and keyed to the
appropriate findings of fact. The findings of fact shall identify the extent
and location of the existing physical development on the land and can
include information on structures, roads, sewer and water facilities, and
utility facilities. Uses allowed by the applicable goal(s) to which an
exception is being taken shall not be used to justify a physically developed
exception. (Emphasis added.)
Ordinance No. 2001-047 includes the following findings in support of the “physically developed”
exception for Widgi Creek:
“The Inn/Widgi site is already developed to an extent which, for all practical
purposes, limits its use to the type of resort uses that already exist. Resort
Community zoning is being adopted concurrent with this exception. The resort
community zoning uses permitted in the County zoning ordinance, Title 18
of the County Code, will further limit any future development to resort
related uses only.
* * *
The County is proposing a goal exception based on the existing physical
developments on the property, which are not allowed under Goal 4. These
physical developments include the existing Inn of the Seventh Mountain resort
and condominium facility and the existing Widgi Creek residential and golf course
facility. The site is also developed with expanses of paved roads, parking areas
and vehicle storage and maneuvering areas. The physical improvements at the
Inn of the Seventh Mountain are illustrated and described in detail on Figure 3, a
site plan drawing covering this 80-acre site. Figure 4, an aerial photograph of the
site and surrounding lands, also illustrates development of the site. As indicated
on these exhibits, the property is physically developed with resort facilities and
accessory uses including condominiums, convention facilities, restaurants, and
numerous recreational facilities (pool complex, spa, ice/roller rink, volleyball pit,
tennis courts, equestrian center, etc.)
A small 1.2-acre area formerly used for on-site sewage treatment, located near
the boundary with Widgi Creek to the east, might be redeveloped some day for
resort uses, but no plans exist as of now for this to occur. This area is
surrounded by resort development and could only be redeveloped in the future
for resort purposes. A second area on the property, approximately 13 acres in
size, of which only about 8-9 acres is usable due to steep slopes down to the
Deschutes River, could possibly be developed in the future for resort
facilities such as a lodge, single-family or multi-family dwellings, or
conference center.
* * *
Widgi Creek was approved in 1983 as a resort including 107 single-family
homes, 103 townhouses, a regulation golf course and appurtenant golf facilities,
including clubhouse, driving range and maintenance facilities. The physical
developments at Widgi Creek encompass 237 acres and are shown on Figures 5
and 6 (an aerial photograph). The layout for town homes, known as Elkai Woods,
is depicted on Figure 6. When Widgi Creek was approved it was zoned F3. In
1992, when the County amended its Forest zone and discontinued the F3 zone
to comply with legislative changes, the resort became zoned F2 and became a
nonconforming use.
As of November 2001, 70 single-family homes have been constructed and all
single-family lots have been sold. The majority of townhomes have been
constructed. The remaining town homes are expected to be completed in 2002.
Similar to the Inn of the Seventh Mountain, Widgi Creek has never been
approved as a Goal 8 destination resort, however the development of the site
justifies a ‘physically developed; exception to Goal 4. As illustrated in the Figures,
Widgi Creek is for all practical purposes built-out.” (Bold and underscored
emphasis added.)
Opponent HOAs argue the above-underscored language signifies the board found no further
development could occur in Widgi Creek beyond the uses and densities approved in 1983. The
Hearings Officer disagrees. The board expressly identified two undeveloped areas within Widgi
Creek totaling approximately 14 acres that could be developed in the future “for resort facilities”
including single-family dwellings. One of those areas was approved for development of the Mile
Post One subdivision. In addition, the board’s “built-out” language must be read in its context of
supporting a “physically developed” exception to Goal 4. That exception required the county to
find Widgi Creek was physically developed to the extent that it is no longer available for uses
permitted on forest lands. In that context, I find the above-underscored language means that as
of the date of the board adopted the exception to Goal 4, it found all but approximately 14 acres
of the 237-acre Widgi Creek had been physically developed, that any future development within
Widgi Creek would be as a resort and not for forest uses, and therefore Widgi Creek qualified
for a “physically developed” exception because it was no longer available for forest uses.
Finally, the Hearings Officer finds the above-quoted language in bold type indicates the board
understood and intended that there could be future development within Widgi Creek, but that
any such development would be governed by the provisions of Title 18. As discussed in detail in
the findings below, the board adopted comprehensive plan policies that both contemplate
potential redevelopment of developed land within Widgi Creek, and strictly limit that
redevelopment in terms of the type and density of uses. However, there is no reference to the
Widgi Creek master plan in either the plan policies or the RC Zone.
2. Resort Community Designation and Zoning. As part of its adoption of the “resort
community” designation and zoning for Widgi Creek, OAR 660-022-0060 required the county to
demonstrate its process afforded adequate opportunities for Widgi Creek owners and residents
to participate. The board’s findings in support of the RC designation and zoning state adopted in
Ordinance No. 2001-47 state in relevant part:
“The meetings were well attended by resort staff and representatives, particularly
at the [Black Butte] Ranch where the Board of Directors for the owner’s
association and resort staff took a very active role in reviewing policies and draft
ordinance language. Attendance by and contact from individual landowners at
both resort areas, and by agency staff, was generally sparse. This may have
been due to a perception that significant changes would not occur at either resort
as a result of this project work because both resorts are substantially built out
and have their own internal controls for future development in accordance with
approved master plans.
This is a correct perception for the most part. However, the 82-acre exception
area that would be included in the Ranch boundary and an internal piece of land
encompassing approximately 8-9 buildable acres at Inn/Widgi both offer
significant potential for some additional development. This potential could not be
realized at either resort unless and until rezoning to a Resort Community
designation occurs, concurrent with the exceptions to Goal 4 previously
described. However, development in each of these exception areas will be
limited by the zoning ordinance restrictions in Chapter 18.110 of the
County zoning ordinance.” (Underscored and bold emphasis added.)
Opponents argue the above-underscored reference to master plans signifies the board intended
future development in the resorts would be governed by those plans. Again, the Hearings
Officer disagrees. I find this language also must be read in its context as part of the board’s
explanation for the lack of significant resort landowner participation in the public meetings
concerning adoption of the RC Zone -- presumed to be due to their “perception” that no
significant changes would occur following that rezoning. However, I find the above-quoted
language in bold type makes clear the board understood and intended that future development
in Widgi Creek following the RC designation and zoning would be governed by Title 18 and the
provisions of the RC Zone – not by the master plans.
Through Ordinances 2001-047 and 2001-048 the board also adopted comprehensive plan
policies and zoning regulations implementing the “unincorporated communities” administrative
rules, the purpose of which is set forth in OAR 660-022-0000 as establishing statewide policy for
planning and zoning unincorporated communities in rural Oregon. They are defined in OAR
660-022-010(9) primarily as lands: (a) subject to an exception to Goal 3 or 4; (b) located outside
a city and urban growth boundary (UGB); and (c) falling within the definition of one of the four
types of unincorporated communities – e.g., “resort community.” OAR 660-022-0030(2),
governing planning and zoning for unincorporated communities, states the county “may
authorize any residential use and density * * * subject to the requirements of” OAR 660-022
(emphasis added). OAR 660-022-030(6), (7), and (8) establish the parameters for county zoning
ordinance provisions governing uses allowed in unincorporated communities as follows:
(6) County plans and land use regulations shall ensure that new or expanded
uses authorized within unincorporated communities do not adversely
affect agricultural or forestry uses.
(7) County plans and land use regulations shall allow only those uses which
are consistent with the identified function, capacity and level of service of
transportation facilities serving the community, pursuant to OAR 660-012-
0060(1)(a) through (c) [Transportation Planning Rule].
(8) Zoning applied to lands within unincorporated communities shall ensure
the cumulative development:
(A) Will not result in public health hazards or adverse environmental
impacts that violate state or federal water quality regulations; and
(B) Will not exceed the carrying capacity of the soil or of existing water
supply resources and sewer services.
Under the administrative rules, the county’s comprehensive plan and zoning ordinance
provisions for unincorporated communities must assure new and expanded development does
not exceed the capacity of available infrastructure. OAR 660-022-0040(7) requires counties to
include findings demonstrating compliance with the unincorporated communities rule.
The board’s findings in support of Ordinances 2001-047 and 2001-048 include the following
pertinent findings under Paragraphs (7) and (8) of OAR 660-022-0030 and OAR 660-022-050
dealing with community public facilities plans:
“The Resort Community designation will not allow any new types of uses to be
developed other than resort-related facilities as both communities are
substantially developed as resorts. * * *
* * *
Inn/Widgi: Inn/Widgi has its own wells and uses city sewer services. Existing
services meet current needs and are not in danger of becoming insufficient.
Weekly water testing is done in conformance with all prescribed standards. The
state may also conduct well testing, at their discretion.* * *
* * *
Both the Ranch and Inn/Widgi have existing water and sewer facilities that are
adequate. Neither community is in a groundwater limited area nor is there a
history of failing wells.”
None of these findings states or implies that new or expanded development of Widgi Creek as a
“resort community” is limited by its master plan. To the contrary, these findings make clear
future development will be constrained by the RC designation and zoning and by the availability
and adequacy of infrastructure. The Hearings Officer finds the lack of reference to the master
plan in these findings is not inadvertent given the purpose of the unincorporated community
rules to establish standards for development of what are essentially urban uses in rural areas. A
resort community master plan could be inconsistent with those rules by, for example, permitting
development of a type or density exceeding the capacity of available infrastructure, or falling
outside the uses permitted in a “resort community.”
Finally, neither the RC Zone nor the resort community policies in Chapter 4.8 of the
comprehensive plan, discussed in detail in the findings below, makes reference to the Widgi
Creek master plan. Rather, they identify permitted uses and limitations thereon solely by
reference to the RC Zone and OAR Chapter 660-022. For example, Plan Policy 4.8.27 for
Resort Communities states new uses and expansion of existing uses in Widgi Creek that
require land use approval “shall be approved only upon confirmation from the City of Bend that
sewer service can be provided.”
For the foregoing reasons, the Hearings Officer finds there is nothing in the county’s 2001
adoption of a Goal 4 exception or RC designation and zoning for Widgi Creek that identifies the
Widgi Creek master plan as applicable to Widgi Creek development. To the contrary, the
board’s findings in support of the exception and rezoning overwhelmingly support the conclusion
that the board intended the RC Zone to govern such development.
b. Section 18.110.020. Seventh Mountain/Widgi Creek and Black Butte
Ranch Resort Districts.
A. Uses permitted outright. The following uses and their
accessory uses are permitted subject to the applicable
provisions of DCC 18.110.050:
1. Single-family dwelling.
FINDINGS: The applicant proposes to develop a nine-lot zero-lot-line subdivision with single-
family dwellings which are permitted outright in the RC Zone. As discussed below, zero-lot-line
subdivisions for single-family dwellings are permitted outright under Section 18.110.060(J).4
c. Section 18.110.060, Development Standards
A. Setbacks.
1. Single-Family Dwelling. The following setbacks shall
be maintained for single-family dwellings and
accessory uses on residential parcels:
* * *
B. Other Setbacks. The following setbacks shall be maintained
for buildings and structures, based on the applicable
provision(s) of DCC Title 18:
1. Solar Setback. The setback from the north lot line shall
meet the solar access setback requirements in DCC
18.116.180 for south roof protection.
FINDINGS: As discussed in the findings below, under Section 18.110.060(J)(2) the proposed
dwellings on zero-lot-line subdivision lots are not subject to the front, side and rear year
setbacks, or the solar setback, and therefore the standards in these paragraphs do not apply.
2. Waterway Setback. All structures, buildings or similar
permanent fixtures shall be set back from the ordinary
high water mark along all streams and lakes a
minimum of 100 feet measured at right angles to the
ordinary high water mark.
FINDINGS: The record indicates the proposed homesites would be at least 1,500 feet from
ordinary high water mark of the Deschutes River, therefore satisfying this criterion.
4 The staff report questions whether the six proposed off-site parking spaces would be a permitted use in
the RC Zone. However, as discussed above, the applicant withdrew its request for these parking spaces.
3. Building Code Setbacks. In addition to the setbacks
set forth herein, any greater setbacks required by
applicable building or structural codes adopted by the
State of Oregon and/or Deschutes County under DCC
15.04 shall be met.
FINDINGS: The Building Division did not identify any additional building code setbacks.
4. Rimrock Setbacks. Setbacks from rimrocks shall be
maintained as provided in DCC 18.84 or DCC
18.116.160, whichever is applicable.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the record
indicates there is no rimrock as defined in Section 18.04.030 on or adjacent to the subject
property.
5. Scenic Waterway. The applicable provisions in DCC
18.84 shall be met.
FINDINGS: The record indicates the proposed homesites are located outside of the scenic
waterway corridor associated with the Deschutes River.
6. Floodplain. The applicable provisions in DCC 18.96
shall be met.
FINDINGS: The record indicates the proposed subdivision is not located in a floodplain.
C. Building Height.
1. Resort Facility and Resort Utility Building. No resort
facility or resort utility building or structure shall be
erected or enlarged to exceed 40 feet, or 30 feet when
the provisions in DCC 18.84.080 are applicable, unless
a variance for a greater height is approved. For the
purposes of DCC 18.110.060(C)(1) an application for a
height variance may be granted provided the Planning
Director or Hearings Body makes only the following
findings:
* * *
FINDINGS: The subject property and the proposed subdivision are located within the LM Zone
associated with the Cascade Lakes Highway and therefore the design review standards in
Section 18.84.080 area applicable. The applicant submitted an application for LM site plan
review. The applicant’s burden of proof states the proposed dwellings will not exceed 30 feet in
height from natural grade. The Hearings Officer recommends that if the applicant’s proposal is
approved on appeal, such approval should be subject to a condition of approval requiring
compliance with the 30-foot height limit.
2. All Other Buildings. No building or structure used for
purposes other than a resort facility or resort utility,
including a single-family dwelling, shall be erected or
enlarged to exceed 30 feet in height, except as
provided by DCC 18.120.040.
FINDINGS: The applicant does not propose any buildings or structures other than the dwellings,
and therefore this criterion is not applicable.
3. Scenic Waterway. The applicable provisions in DCC
18.84 shall be met.
FINDINGS: The proposed homesites are located outside of the scenic waterway corridor
associated with the Deschutes River.
D. Lot Coverage.
1. Single-family dwelling. The maximum lot coverage by
a single-family dwelling and accessory structures shall
be 40 percent of the total lot.
FINDINGS: As discussed below, under Section 18.110.060(J)(2) zero-lot-line lots are not
subject to these lot coverage standards.
2. All Other Buildings. The maximum lot coverage by
buildings and structures used for purposes other than
a single-family dwelling shall be determined by the
spatial requirements for yard setbacks, landscaping,
parking and utilities.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant
does not propose any buildings other than single-family dwellings.
E. Off-Street Parking and Loading.
1. Single-Family Dwelling. Off-street parking shall be
provided for a minimum of two motor vehicles per
dwelling.
2. All Other Uses. Off-street parking and loading shall be
provided subject to the requirements of DCC 18.116.
FINDINGS: The applicant’s submitted site plan shows each of the nine proposed dwellings will
have a two-car garage as well as a 20-foot-long driveway providing sufficient space for two
more parking spaces, for a total of four off-street parking spaces for each dwelling. Therefore,
the Hearings Officer finds the applicant’s proposal satisfies this criterion. No other uses are
proposed for the lots.
F. Outdoor Lighting. All outdoor lighting shall be installed in
conformance with DCC 15.10.
FINDINGS: The Hearings Officer finds that if the applicant’s proposal is approved on appeal,
such approval should be subject to a condition of approval requiring the applicant to install any
outdoor lighting in conformance with the county’s outdoor lighting standards in Chapter 15.10 of
the Deschutes County Code.
G. Excavation, Grading and Fill and Removal. Excavation,
grading and fill and removal within the bed and banks of a
stream or lake, or in a wetland shall be subject to DCC
18.128.040(W), unless the activity meets the exception
provisions in DCC 18.120.050.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant
does not propose excavation, grading or fill and removal within the bed and banks of a stream
or lake or in a wetland.
H. Signs. All signs shall be constructed in accordance with the
provisions of DCC 15.08.
FINDINGS: The Hearings Officer finds that if the applicant’s proposal is approved on appeal,
such approval should be subject to a condition of approval requiring installation of any signs in
conformance with the sign regulations in Chapter 15.08 of the Deschutes County Code.
I. Lot Requirements.
1. Single-Family Dwelling. A new lot for a single-family
dwelling served by a community or public sewerage
system shall have a minimum area of 6,000 square feet
and a minimum average width of 60 feet, except that a
corner lot shall have a minimum average width of 70
feet. A new lot for a single-family dwelling served by
an on-site septic system shall have a minimum area of
22,000 square feet and a minimum average width of
100 feet. Any new residential lot shall have a minimum
width at the street of 50 feet, except for a lot on a cul-
de-sac, in which case the minimum width shall be 30
feet.
FINDINGS: As discussed below, under Section 18.110.060(J)(2) the proposed zero-lot-line
subdivision is not subject to the lot requirements in this subsection.
2. All Other Uses. Every lot created for purposes other
than residential use shall have dimensions for lot area,
width and depth necessary for yard setbacks,
landscaping, parking and utilities for the proposed
use.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the proposed
subdivision does not include anything other than residential uses.
J. Land Divisions
1. General. Notwithstanding any provision to the contrary
contained herein or in other parts of the County Code,
roads within the Resort Community Zone may be
private roads and new lots or parcels may be created
that have access from, and frontage on, private roads
only. These roads must meet the private road
standards of DCC Title 17, and are not subject to
public road standards of DCC Title 17. An agreement
acceptable to the County Road Department and
County Legal Counsel shall be required for the
maintenance of new private roads.
FINDINGS: The proposed subdivision lots would have access from Seventh Mountain Drive, a
private road within the Widgi Creek development. No new private roads are proposed.
Compliance with the private road standards in Title 17 is discussed in the findings below.
2. Zero Lot Line Subdivision. Notwithstanding any
provision to the contrary contained herein, zero lot line
subdivisions for single-family residences shall be
allowed in the Resort Community Zone in accordance
with the provisions of DCC Chapter 17.20. Zero lot line
subdivisions are not subject to the setback provisions
of 18.110.060(A), solar setback standards of
18.110.060(B)(1), lot coverage provisions of
18.110.060(D) or lot requirements of 18.110.060(I)(1).
FINDINGS: The proposed zero-lot-line subdivision is not subject to the building setback, solar
setback, or lot coverage requirements applicable to other subdivisions in the RC Zone.
For the foregoing reasons, the Hearings Officer finds the applicant’s proposal satisfies, or with
imposition of the above-described recommended conditions of approval, will satisfy all
applicable provisions of the RC Zone.
COMPREHENSIVE PLAN
C. Deschutes County Comprehensive Plan
1. Section 4.8, Resort Communities
Background
A Resort Community is characterized as an unincorporated community that
was established primarily for, and continues to be used primarily for,
recreation and resort purposes (OAR 660-022-0010(6). It includes
residential and commercial uses and provides for both temporary and
permanent residential occupancy, including overnight lodging and
accommodations.
* * *
Inn of the Seventh Mountain/Widgi Creek
* * *
Land Use
The Inn of the Seventh Mountain/Widgi Creek community boundary
includes 260 acres (23 for the Inn and 237 for Widgi Creek). The
property is used for recreational amenities, rental and residential
units. The western boundary is Century Drive. The southern
boundary is generally the Deschutes River Canyon. The entire resort
community is bordered by the Deschutes National Forest.
The predominant land use at the Inn is resort use with overnight
lodging and recreation facilities for tourists, in addition to a
restaurant, meeting rooms and a retail/rental sport shop. The
predominant land use for Widgi Creek is residential, with single-
family residential development and condominium units, in addition
to a golf course. Fire and sewer services are currently provided by
the City of Bend, with water service provided by on-site well. Utility
services will continue to be provided in the current manner.
* * *
2. Section 4.8, Resort Community Policies
General Resort Community Policies
Policy 4.8.1 Land use regulations shall conform to the requirements of
OAR 660 Division 22 or any successor.
Policy 4.8.2 Designated open space and common area, unless otherwise
zoned for development, shall remain undeveloped except for
community amenities such as bike and pedestrian paths,
park and picnic areas. Areas developed as golf courses shall
remain available for that purpose or for open
space/recreation uses.
* * *
Policy 4.8.4 Residential minimum lot sizes and densities shall be
determined by the capacity of the water and sewer facilities to
accommodate existing and future development and growth.
* * *
Inn of the Seventh Mountain/Widgi Creek Public Facility Policies
* * *
Policy 4.8.27 New uses or expansion of existing uses that require land use
approval shall be approved only upon confirmation from the
City of Bend that sewer service can be provided. (Emphasis
added.)
FINDINGS: Opponents argue the above-underscored language in Policy 4.8.2 prohibits the
applicant’s proposed 9-lot, zero-lot-line subdivision because it would be located on an area
“developed as” the Widgi Creek golf course and therefore it must “remain available for that
purpose or for open space/recreation uses.” The applicant responds that the proposed
subdivision site is not, and never has been, “developed as golf course” and therefore this policy
is not applicable. The Hearings Officer finds that in order to resolve this dispute I must
determine: (1) whether this plan policy constitutes an approval criterion for development in
Widgi Creek; and (2) whether the proposed subdivision site can be considered “developed as
golf course.” Each of these issues is addressed in the findings below.
1. Policies as Approval Criteria. In Save Our Skyline v. City of Bend, 48 Or LUBA 192 (2004),
LUBA held a comprehensive plan is a “potential” source of approval standards for quasi-judicial
land use permit applications. LUBA described the proper analysis of the effect of plan provisions
as follows:
“Local governments and this Board have frequently considered the text and
context of cited parts of comprehensive plans and concluded that the alleged
comprehensive plan standard was not an applicable approval standard. Stewart
v. City of Brookings, 31 Or LUBA 325, 328 (1996); Friends of Indian Ford v.
Deschutes County, 31 Or LUBA 248 258 (1996); Wissusik v. Yamhill County, 20
Or LUBA 246, 254-55 (1990). Even if the comprehensive plan includes
provisions that can operate as approval standards, those standards are not
necessarily relevant to all quasi-judicial land use permit applications. Bennett v.
City of Dallas, 17 Or LUBA at 456. Moreover, even if a plan provision is a
relevant standard that must be considered, the plan provision might not
constitute a separate mandatory approval criterion, in the sense that it must be
separately satisfied, along with any other mandatory approval criteria, before the
application can be approved. Instead, that plan provision, even if it constitutes a
relevant standard, may represent a required consideration that must be balanced
with other relevant considerations. See Waker Associates, Inc. v. Clackamas
County, 111 Or App 189, 194, 826 P2d 20 (1992) (‘a balancing process that
takes account of relative impacts of particular uses on particular [comprehensive
plan] goals and of the logical relevancy of particular goals to particular uses is a
decisional necessity’).
Before considering whether particular plan provisions must be applied as
approval standards when considering individual land use permit applications, it is
appropriate, as the hearings officer did in this case, to consider first whether the
comprehensive plan itself expressly assigns a particular role to some or all of the
plan’s goals and policies. Downtown Comm. Assoc. v. City of Portland, 80 Or
App 336, 339, 722 P2d 1258 (1986); Eskadarian v. City of Portland, 26 Or LUBA
98, 103 (1993); Schellenberg v. Polk County, 21 Or LUBA 425, 429 (1991); Miller
v. City of Ashland, 17 Or LUBA 147, 167-69 (1988). We review the hearings
officer interpretation of the BAGP [Bend Area General Plan] to determine if her
interpretation is correct. McCoy v. Linn County, 90 Or App 271, 275-76, 752 P2d
323 (1988).”
The Hearings Officer most recently addressed the issue of application of plan policies to a
quasi-judicial land use application in my decision in Leading Edge Aviation (A-13-4, SP-13-7),
on remand from LUBA. In that case, I found nothing in the county’s comprehensive plan, plan
policies, Transportation System Plan (TSP), Bend Airport Master Plan (AMP), or Bend Airport
Layout Plan (ALP) constituted an applicable approval standard for the applicant’s proposed site
plan for development at the Bend Airport. I made the following relevant findings:
“In Bothman v. City of Eugene, 51 Or LUBA 426 (2006), LUBA was asked to
consider the effect on a zone change application of a geographically-specific
‘area plan’ adopted as part of the city’s comprehensive plan. The area plan
language stated its policies were ‘guides’ for land use actions within the area
subject to the plan, required the city to ‘recognize’ existing uses in the area, and
‘discouraged’ the city from rezoning the subject property. LUBA held that
although this area plan did not expressly prohibit rezoning the subject property
and was not couched in absolute terms, it nevertheless expressed a strong policy
preference that the subject property retain its existing zoning. LUBA held that
‘read in context the policy clearly mandates that the city be guided by -- at a
minimum, consider -- that preference in the context of an application to rezone
the subject property.’ LUBA remanded for the city to reconsider its rezoning
decision in light of this policy.
Based on LUBA’s direction on remand, as well as the analysis in Save Our
Skyline, the Hearings Officer finds I must examine the text and context of the
comprehensive plan, TSP, AMP and ALP to determine if any provisions therein
prohibit the siting of the applicant’s fueling station on the subject property. And
because the Bend Airport AMP and ALP are, like the area plan in Bothman,
geographic- and site-specific plans adopted as part of the comprehensive plan, I
must also determine whether and to what extent these plans are to be
considered and balanced with other policy considerations in evaluating the
applicant’s site plan application.”
In Leading Edge, the Hearings Officer reviewed the comprehensive plan and found numerous
statements therein indicating the plan was not intended to establish approval criteria for the
applicant’s quasi-judicial land use application.
Based on the Hearings Officer’s Leading Edge decision and the cases cited therein, I find my
analysis of the plan policies at issue here must begin with an examination of the comprehensive
plan text to determine whether the plan itself expressly assigns a particular role to some or all of
the plan’s policies.
The preamble of the comprehensive plan includes the following language:
The Deschutes County Comprehensive Plan is a statement of issues, goals and
policies meant to guide the future of land use in this County. This Comprehensive
Plan is intended to recognize the expectations and rights of property owners and
the community as a whole.
Use of this Plan
The Comprehensive Plan is a tool for addressing changing conditions,
markets and technologies. It can be used in multiple ways, including:
* * *
To guide public decisions on land use policy when developing land
use codes, such as zoning or land divisions.
* * *
This Plan does not prioritize one goal or policy over another.
Implementation of this plan requires flexibility because the weight given to
the goals and policies will vary based on the issue being addressed.
The Plan is not intended to be used to evaluate specific development
projects. Instead, the Plan is a 20-year blueprint to guide growth and
development. (Emphasis added.)
The preamble describes plan policies as follows:
Policies: Statements of principles and guidelines to aid decision making by
clarifying and providing direction on meeting the Goals. (Emphasis added.)
Thus, the comprehensive plan appears to contemplate that plan policies will serve only as
guidelines. However, the plan policies themselves, and particularly Policy 4.8.2, are written in
mandatory language that strongly suggests they were not intended to be mere “guidelines.”
In Bothman, cited above, LUBA held the city erred in not “considering” a geographically-specific
plan policy stating the city should “recognize” an area’s existing zoning and “discourage” its
rezoning. LUBA stated the policy was relevant to the proposed rezoning because it expressed a
“strong preference” for the area’s existing zoning. In contrast, Policy 4.8.2 states areas in Widgi
Creek developed as golf courses “shall” remain available for that purpose or for open
space/recreation uses. The Hearings Officer finds this language clearly expresses more than a
“preference” for golf course, open space or recreational development. Moreover, the context of
this policy – i.e., the county’s 2001 adoption of a “physically developed” Goal 4 exception and
RC designation and zoning for Widgi Creek – explains this mandatory language. As discussed
in the findings above, both the goal exception and the redesignation and rezoning were
intended to authorize continuation of the existing resort which was a nonconforming use in the
Forest Zone, while also limiting uses in accordance with the unincorporated communities
administrative rules. In other words, the board did not want Widgi Creek to be redeveloped as a
large urban-density residential subdivision located miles from the Bend urban growth boundary.
For the foregoing reasons, the Hearings Officer finds Policy 4.8.2 establishes a mandatory
approval criterion for Widgi Creek development.
2. Areas “Developed As Golf Courses.” The proposed subdivision site is located between
Seventh Mountain Drive and the north side of the first fairway of the Widgi Creek Golf Course.
The record indicates, and the Hearings Officer’s site visit observations confirmed, that between
the road and the fairway are scattered trees and native brush and grasses, mowed lawn areas,
a paved golf cart path, and a community mailbox site and associated off-street parking area.
The proposed site also is located outside the white out-of-bounds markers for the first fairway.
However, the record indicates that was not always the case. The parties agree that prior to 2009
there were no out-of-bounds stakes at or near the north side of the first fairway.5 The parties
5 The parties also disagree as to the applicant’s purpose in setting the out of bounds stakes in 2009.
Mr. Hudspeth testified the property owner placed the out of bounds stakes in their present locations after
consultation with the OGA and in order to increase the pace of play. However, in an e-mail message
dated January 8, 2015, attached to the HOA’s January 20, 2015 submission, Gretchen Yoder of the OGA
disagree as to the location of the out of bounds area prior to 2009, and its significance in
determining whether Policy 4.8.2 applies to the proposed subdivision site.
The Hearings Officer finds the location of the out of bounds area prior to 2009 is relevant
because Policy 4.8.2, adopted in 2001, states areas developed as golf courses shall “remain”
available for that purpose or for open space/recreation uses. The ordinary definition of “remain”
is “to continue; to remain standing, endure, outlast.” Webster’s New World Dictionary and
Thesaurus, Second Edition. Based on this definition, and in the context of Policy 4.8.2
discussed above, I find the term “remain available” means Policy 4.8.2 was intended to maintain
the status quo as of 2001. Therefore, I must determine whether the proposed subdivision site
was “developed as golf course” in 2001.
Section 18.04.030 defines “golf course” in relevant part as follows:
“Golf course” means an area of land with highly maintained natural turf laid out
for the game of golf with a series of nine or more holes, each including a tee, a
fairway, a putting green and often one or more natural or artificial hazards. A “golf
course” may be a nine or 18-hole regulation golf course or a combination of nine
and 18 hole regulation golf course consistent with the following: * * * (Emphasis
added.)
Based on the Hearings Officer’s site visit observations, I find the proposed subdivision site does
not contain any of the golf course features listed in this definition. And the record indicates the
physical characteristics of the site have not changed in any meaningful way since 2001.
However, I find the site nevertheless may have been “developed as golf course” in 2001 based
on its location relative to the out of bounds for the first fairway.
The term “out of bounds” is not defined in Section 18.04.030 or elsewhere in Title 18. The
Hearings Officer understands that in the context of the rules of golf, the term refers to areas that
are beyond the boundaries of the developed golf course, and from which a player may hit a ball
but must take a one stroke penalty. I also understand that out of bounds areas are set by the
governing body of the golf course and may be marked by reference to stakes, other physical
features, or a line on the ground.6 Therefore, I find that out of bounds areas are not part of a
“golf course” as defined in Title 18, but delineate the outer boundary of the golf course.
The parties disagree about the location of the first fairway out of bounds areas prior to
placement of the existing out of bounds stakes in 2009. The applicant’s final argument states in
relevant part:
“The area between fairway one all the way to the road was played and treated as
out of bounds until the out of bounds markers were installed 5-6 years ago. The
out of bounds markers were not moved. They were installed for the first time on
disavowed any knowledge of discussions between the OGA and Widgi Creek about placement of out of
bounds states. She went on to state:
“OGA typically will not tell a course where to place their Out of Bounds (OB) stakes. We
suggest that they be on the edge of property lines. Occasionally there will be a valid
reason for on-course Out of Bounds. But that is a case by case discussion.”
6 See, United States Golf Association (USGA) Rules and Decisions, 2012-2015.
this hole and were installed and/or moved on eight other holes, upon consultation
with the OGA [Oregon Golf Association], to increase pace of play and achieve
uniformity of widths on the course.” (Emphasis added.)
Opponents counter that prior to placement of the current out-of-bounds stakes for the first
fairway in 2009, the out of bounds line was the south edge of Seventh Mountain Drive.
Opponents rely primarily on Hearing Exhibit 3, a copy of the undated “Widgi Creek Golf Club
Yardage Book” published by “The Staff of Widgi Creek Golf Club.” (“yardage book”). The
yardage book includes: (a) a color diagram of the entire golf course with residential lots; and (b)
a diagram for each of the eighteen holes showing the tees, fairway and green, and yardage
calculations from different tees to landmarks along the fairway and green. The diagrams appear
to include most if not all of the proposed subdivision site as part of Hole #1. The yardage book
also provides “Local Rules” for golfers which include the following:
“Out of bounds consists of any inside roads and white stakes surrounding the
outer perimeter.”
The Hearings Officer finds that because Seventh Mountain Drive is a private road located
entirely within Widgi Creek, it constitutes an “inside road” for purposes of this rule. The record
indicates there were no “white stakes” on the proposed subdivision site prior to 2009. In his
written testimony, included in the record as Attachment PH-15 to the applicant’s January 20,
2015 submission, Brad Hudspeth, General Manager of Widgi Creek Golf Course since 2005,
stated that prior to 2009 “there were never any out of bounds markers on Hole #1 in the area of
the proposed development.” I find from this evidence that prior to the owner’s placement of the
out of bounds stakes in 2009, the out of bounds area for the first fairway extended to the
southern edge of Seventh Mountain Drive, and therefore the proposed subdivision site was not
out of bounds in 2001 when Policy 4.8.2 was adopted.7
The remaining question is whether the 2001 location of the first fairway out of bounds area on
the south side of Seventh Mountain Drive made the proposed subdivision site “developed as
golf course” in 2001. Again, the parties disagree as to whether the proposed site was part of the
golf course before placement of the out of bounds stakes. In his written testimony, Brad
Hudspeth stated that “during his tenure” the proposed subdivision site never was “developed as
golf course.”8 In response, opponent David Black, a Widgi Creek resident since 2001, stated in
a letter dated January 7, 2015, that the proposed subdivision site was “previously mowed and
‘in play’ all the way to the Seventh Mountain Road that parallels the 1st hole fairway.” The
Hearings Officer finds Mr. Black’s testimony is somewhat ambiguous in describing the proposed
subdivision site as “in play” and therefore part of the golf course since, as discussed above,
golfers may play a ball that lands out of bounds. I also agree with the applicant that mere
7 The applicant included as attachment PH-19 to its January 27, 2015 submission a copy of what the
applicant describes as the “current course guide for Hole #1.” This document consists of a diagram of
Hole 1 and depicts the hole as much narrower than it is shown in the yardage book, apparently reflecting
the location of the out of bounds stakes placed in 2009. However, as discussed above, the Hearings
Officer has found the current out of bounds location is not relevant to the question of what the board
considered to be the developed golf course in 2001.
8 In her final argument, the applicant’s attorney Tia Lewis stated that Mr. Hudspeth testified the proposed
subdivision site “has never been developed as part of the course.” The Hearings Officer finds that is an
overstatement as Mr. Hudspeth stated his knowledge only goes back to 2005 when he became general
manager of the golf course.
mowing of the propose subdivision site does not mean it was part of the golf course inasmuch
as Widgi Creek includes many open space and common areas that also are mowed.
In his written testimony, Mr. Black also stated:
“The proposed building site on fairway #1 was part of the original golf course.
When out of bounds stakes are moved, it does not create a void. The area is
either golf course or open space. If out of bounds stakes are moved to facilitate
approval of townhomes, per the applicant’s request, this creates a void – a space
that is neither golf course nor open space and thus subject to no land use rules
or requirements.”
The Hearings Officer finds this statement expresses the essential question posed by the
applicant’s proposal under Policy 4.8.2 – i.e., in what category of land is the proposed
subdivision site? This issue also was raised by opponents to the Points West Subdivision
approved by Hearings Officer Briggs in 2006. The applicant’s final argument states Hearings
Officer Briggs found Policy 4.8.2 allows “undeveloped” portions of golf courses to be developed
with residential uses. I find Hearings Officer Briggs’ decision does not support the applicant’s
proposal in this case. The decision states in relevant part:
“The question that must be answered is whether land that is not clearly
developed for golf course uses or depicted as open space in the comprehensive
plan or on approved developed documents is nevertheless either ‘designated
open space[.] * * * common area’ or ‘developed as a golf course’ for the purposes
of this policy. * * * With respect to the argument that other undeveloped areas
included in the tax lot that comprises the golf course are part of the developed
area of the golf course and must be retained for that use, the question is harder
to resolve. As the neighbors note, areas that are rough or natural can be part of a
golf course, even if they are not developed in the sense that they are manicured
or paved. Here, the applicant submitted testimony from the Widgi golf course pro
that not all of the natural areas are marked with ‘out of bounds’ signs that
distinguish between the golf course proper and other areas. He testified that
none of the course’s rough areas extended to the subject property.
The findings adopted by the Board of County Commissioners in support of the
amendments regarding the Inn/Widgi Creek resort community contemplate
additional residential development within the area of the subject property,
specifically 8-9 acres near the rim rock and the former Inn sewage treatment
facilities. Those areas appear to be included within the subject property’s
boundaries. Therefore, it is not inconceivable that areas the neighbors assumed
would remain undeveloped would be built upon at some point. Here, the
evidence supports a finding that only those areas that were specifically identified
as open space or common area on the Widgi Creek plat are subject to that
portion of the policy. The subject property does not include any areas subject to
those designations. In addition, the language of the policy, which requires that
‘developed golf courses’ be retained, implies that undeveloped portions of golf
courses may, in some circumstances, be developed. Here, the applicant
presented evidence that the ‘out of bounds’ markers form the boundary between
the ‘developed golf course’ and other areas. That evidence is substantial
evidence to support a finding that the proposed development is consistent with
this policy.” (Emphasis added.)
The above-underscored language indicates Hearings Officer Briggs considered “developed golf
course” could include roughs and other non-manicured areas, and that the boundary between
the “developed golf course” and other (potentially developable) areas was the out of bounds
markers. This Hearings Officer has found from the record in this case that in 2001 the out of
bounds for the first fairway was Seventh Mountain Drive. Therefore, consistent with Hearings
Officer Briggs’ analysis, I have found the proposed subdivision site -- which includes both
mowed and “rough” or natural areas -- was within the “developed golf course” in 2001 and
therefore falls within the restriction of Policy 4.8.2.
The applicant argues the owner of the golf course has the right to modify the course in any way
it sees fit, such as moving the out of bounds location, and thereby may create land that falls
outside Policy 4.82 and developable with residential uses. The Hearings Officer disagrees. The
policy was adopted in 2001 to implement the county’s adoption of a “physically developed”
exception to Goal 4, and to adopt and implement a “resort community” plan designation and
zoning, for Widgi Creek. As discussed above, the county made the following relevant findings
concerning the status of Widgi Creek in 2001:
“A small 1.2-acre area formerly used for on-site sewage treatment, located near
the boundary with Widgi Creek to the east, might be redeveloped some day for
resort uses, but no plans exist as of now for this to occur. This area is
surrounded by resort development and could only be redeveloped in the future
for resort purposes. A second area on the property, approximately 13 acres in
size, of which only about 8-9 acres is usable due to steep slopes down to the
Deschutes River, could possibly be developed in the future for resort facilities
such as a lodge, single-family or multi-family dwellings, or conference center.
* * *
Widgi Creek was approved in 1983 as a resort including 107 single-family
homes, 103 townhouses, a regulation golf course and appurtenant golf facilities,
including clubhouse, driving range and maintenance facilities. The physical
developments at Widgi Creek encompass 237 acres and are shown on Figures 5
and 6 (an aerial photograph). The layout for town homes, known as Elkai Woods,
is depicted on Figure 6.”
The board found that as of 2001 the Widgi Creek development consisted of a residential
component (approval for 107 single-family dwellings and 103 townhouses), a resort component
(regulation golf course and appurtenant facilities, clubhouse, and tennis courts), common areas
and open space, and infrastructure including roads, pathways, and sewer and water facilities.
These approvals and facilities were the basis of the county’s determination that Widgi Creek
qualified for a “physically developed” exception and was “for all practical purposes built out.”
The board also found Widgi Creek included two specific areas that were not physically
developed or built out, and identified them as available for potential future development, and
those areas were approved for development of the Points West and Mile Post One
Subdivisions. Finally, the board incorporated the aerial photos and diagrams attached to
Ordinance Nos. 2001-047 and 2001-048 as Figures 3, 5, 6 and 7 showing Widgi Creek and
Elkai Woods as they existed and/or were approved in 2001. Figures 5 and 6 show the location
and layout of the approved residential lots in Widgi Creek, as well as the Widgi Creek Golf
Course and appurtenant facilities, the clubhouse and tennis courts, and the private roads.
Based on the board’s goal exception and RC Zone findings and supporting documents, the
Hearings Officer finds that with the exception of the developable 8-9 acres identified in the
board’s findings, the board concluded the approvals and developed elements of Widgi Creek
that existed in 2001 constituted the status quo that Policy 4.8.2 was intended to preserve. And I
find the board intended residential development of the 8-9 acres would be governed by the RC
Zone and by plan Policy 4.8.4 which states:
Residential minimum lot sizes and densities shall be determined by the capacity
of the water and sewer facilities to accommodate existing and future development
and growth.
Based on the foregoing analysis, the Hearings Officer finds that when Policy 4.8.2 was adopted
in 2001, the board intended it to assure all Widgi Creek areas that were “physically developed” –
everything except the two identified undeveloped areas – would continue in their then-current
uses or would be developed with “community amenities” or “open space/recreation uses.” I find
that because the proposed subdivision site was not identified as within the 8-9 developable
acres in Widgi Creek, the site was “developed as golf course,” “open space” or “common area”
and therefore subject to Policy 4.8.2. I find it is most likely the board considered the proposed
subdivision site to be part of the developed golf course in 2001 considering the site’s location
and the fact that it looks like all of the other vegetated land within and surrounding the golf
course tees, fairways and greens on the aforementioned aerial photos and diagrams of Widgi
Creek attached to Ordinance Nos. 2001-047 and 2001-048.
Because the Hearings Officer finds the proposed subdivision site is subject to Policy
4.8.2 as property “developed as golf course” in 2001, I find I cannot approve the
proposed residential subdivision. However, because I anticipate this decision will be
appealed to the board and the board may elect to hear the appeal, to assist the board and
county staff I have included in this decision findings concerning the proposal’s
compliance with applicable provisions of the comprehensive plan and Titles 17 and 18,
as well as recommended conditions of approval.
LANDSCAPE MANAGEMENT ZONE STANDARDS
2. Chapter 18.84, Landscape Management Combining Zone (LM)
a. Section 18.84.020, Application of Provisions
The provisions of DCC 18.84 shall apply to all areas within one-
fourth mile of roads identified as landscape management corridors
in the Comprehensive Plan and the County Zoning Map. The
provisions of DCC 18.84 shall also apply to all areas within the
boundaries of a State scenic waterway or Federal wild and scenic
river corridor and all areas within 660 feet of rivers and streams
otherwise identified as landscape management corridors in the
Comprehensive Plan and the County Zoning Map. This distance
specified above shall be measured horizontally from the centerline
of designated landscape management roadways or from the nearest
ordinary high water mark of a designated landscape management
river or stream. The limitations in DCC 18.84.020 shall not unduly
restrict accepted agricultural practices.
FINDINGS: The proposed subdivision lots would be located within the landscape management
corridor for the Cascade Lakes Highway, and therefore the LM Zone applies to the applicant’s
proposal.
b. Section 18.84.030, Uses Permitted Outright
Uses permitted in the underlying zone with which the LM Zone is
combined shall be permitted in the LM Zone, subject to the provisions
in DCC 18.84.
FINDINGS: Single-family dwellings are permitted outright in the SMWCR Zone, and therefore
also are permitted outright in the LM Zone.
c. Section 18.84.050, Use Limitations
A. Any new structure or substantial alteration of a structure
requiring a building permit, or an agricultural structure, within
an LM Zone shall obtain site plan approval in accordance with
DCC 18.84 prior to construction. As used in DCC 18.84
substantial alteration consists of an alteration which exceeds
25 percent in the size or 25 percent of the assessed value of
the structure.
B. Structures which are not visible from the designated roadway,
river or stream and which are assured of remaining not visible
because of vegetation, topography or existing development
are exempt from the provisions of DCC 18.84.080 (Design
Review Standards) and DCC 18.84.090 (Setbacks). An
applicant for site plan review in the LM Zone shall conform
with the provisions of DCC 18.84, or may submit evidence that
the proposed structure will not be visible from the designated
road, river or stream. Structures not visible from the
designated road, river or stream must meet setback standards
of the underlying zone.
FINDINGS: The applicant’s proposal includes new single-family dwellings. The staff report
states, and the Hearings Officer’s site visit observations confirmed, that at least some of the
proposed dwellings will be visible from Cascade Lakes Highway. Therefore, I find the LM Zone
design review standards are applicable to the applicant’s proposal.
d. Section 18.84.080, Design Review Standards
The following standards will be used to evaluate the proposed site
plan:
A. Except as necessary for construction of access roads,
building pads, septic drainfields, public utility easements,
parking areas, etc., the existing tree and shrub cover
screening the development from the designated road, river or
stream shall be retained. This provision does not prohibit
maintenance of existing lawns, removal of dead, diseased or
hazardous vegetation; the commercial harvest of forest
products in accordance with the Oregon Forest Practices Act,
or agricultural use of the land.
FINDINGS: The applicant’s burden of proof states with respect to this criterion:
“As shown on the attached Tentative Plan and Site Plan sheets, the lot
configuration and building footprint has been designed to preserve as many trees
as practicable. Those which are directly impacted by development will be
removed and replaced with a similar species elsewhere in the development.
Those trees which will remain in place will be protected during the construction
process.
Visibility from Century Drive will be minimal. The project is located over 450 feet
from Century Drive and is screened by substantial vegetation. There are large
stands of mature ponderosas and junipers along the roadway and several
landscaped berms between the roadway and the Widgi Creek golf course. At the
southern edge of the fairway, there are additional stands of mature ponderosas
and junipers between the golf course and the subject property. Except as
necessary for the construction infrastructure and building pads, the Applicant
intends to retain all tree and shrub cover screening the development from
Century Drive.”
Opponents expressed concern that because of the property owner’s previous tree removal from
areas between the proposed subdivision site and Cascade Lakes Highway, the proposed
dwellings will be much more visible from the highway than they might have before the trees
were removed. However, the Hearings Officer finds this criterion does not address the
adequacy of screening from off-site trees and vegetation. Rather, it focuses on the removal and
retention of trees on the subject site. I further find that because of the nature and density of the
proposed dwellings, the majority of trees on the proposed subdivision site will have to be
removed. The staff report states, and I agree, that if the applicant’s proposal is approved on
appeal, such approval should be subject to a condition of any approval requiring that all trees
and shrubs not required to be removed for construction shall be retained and protected to
provide as much screening of the dwellings as possible from the highway.
B. It is recommended that new structures and additions to
existing structures be finished in muted earth tones that
blend with and reduce contrast with the surrounding
vegetation and landscape of the building site.
C. No large areas, including roofs, shall be finished with white,
bright or reflective materials. Metal roofing material is
permitted if it is non-reflective and of a color which blends
with the surrounding vegetation and landscape. This
subsection shall not apply to attached additions to structures
lawfully in existence on April 8, 1992, unless substantial
improvement to the roof of the existing structure occurs.
FINDINGS: The record includes both paint/finish samples and color samples shown on the
printed building elevation drawings submitted by the applicant. However, the staff report states,
and the Hearings Officer agrees, that there is a difference between these two sets of color
samples. For this reason, I find that if this proposal is approved on appeal, such approval should
be subject to a condition of approval requiring the applicant to submit to the Planning Division
true color samples of the finish and roofing prior to issuance of any building permits. I further
find the submitted color samples must be muted earth tones (e.g., browns, greens, or grays)
that blend and reduce contrast with the surrounding vegetation and landscape of the building
site. Finally, I recommend that any approval be subject to a condition of approval prohibiting
large areas, including roofs, from being finished with white, bright or reflective materials, or with
reflective metal roofing material.
D. Subject to applicable rimrock setback requirements or
rimrock setback exception standards in Section 18.84.090, all
structures shall be sited to take advantage of existing
vegetation, trees and topographic features in order to reduce
visual impact as seen from the designated road, river or
stream.
FINDINGS: The Hearings Officer finds this criterion is not applicable because there is no
rimrock on or adjacent to the proposed subdivision site, and due to distance and topography
none of the proposed dwellings would be visible from the Deschutes River. I find the proposed
lots have been sited on the subject site in the only possible way that will allow nine zero-lot-line
lots and townhome dwellings, and not to take advantage of available existing vegetation and
trees to reduce visual impact as seen from the highway. However, given the site’s location on
the main entry road to Widgi Creek, I find there is no alternative siting of the proposed
subdivision lots that would provide significant advantages over the proposed site with regard to
existing screening from Cascade Lakes Highway.
E. Structures shall not exceed 30 feet in height measured from
the natural grade on the side(s) facing the road, river or
stream. Within the LM zone along a state scenic waterway or
federal wild and scenic river, the height of a structure shall
include chimneys, antennas, flag poles or other projections
from the roof of the structure. This section shall not apply to
agricultural structures located at least 50 feet from a rimrock.
FINDINGS: The applicant’s burden of proof states the proposed dwellings would not exceed 30
feet in height as measured from the natural grade on the side facing Cascade Lakes Highway.
As discussed above, there is no rimrock on the subject property, and no dwelling would be
visible from the Deschutes River. The Hearings Officer finds that if the applicant’s proposal is
approved on appeal, such approval should be subject to condition of approval restricting the
height of dwellings to 30 feet.
F. New residential or commercial driveway access to designated
landscape management roads shall be consolidated
wherever possible.
FINDINGS: The Hearings Officer finds this criterion is not applicable because no new access to
Cascade Lakes Highway is proposed.
G. New exterior lighting, including security lighting, shall be
sited and shielded so that it is directed downward and is not
directly visible from the designated road, river or stream.
FINDINGS: The Hearings Officer finds that if the applicant’s proposal is approved on appeal, such
approval should be subject to a condition of approval requiring the applicant to install any exterior
lighting in compliance with the county’s outdoor lighting ordinance, and shielded and directed
downward so as not to be visible from Cascade Lakes Highway.
H. The Planning Director or Hearings Body may require the
establishment of introduced landscape material to screen the
development, assure compatibility with existing vegetation,
reduce glare, direct automobile and pedestrian circulation or
enhance the overall appearance of the development while not
interfering with the views of oncoming traffic at access points
of views of mountains, forests and other open and scenic
areas as seen from the designated landscape management
road, river or stream. Use of native species shall be
encouraged.
FINDINGS: The Applicant has submitted a landscape plan as Sheet L01 of the tentative plan.
The landscape plan proposes to preserve a few existing pine trees along the edges of the site,
and to introduce landscaping along the street side of the proposed dwellings. Opponents argue,
and the Hearings Officer agrees, the proposed landscape plan will not provide screening of the
proposed dwellings from Cascade Lakes Highway. As discussed above, opponents noted the
property owner previously removed some trees from the area between the highway and the
proposed subdivision site, thus reducing the amount of available screening. However, at the
public hearing, the Hearings Officer noted that my impression from my site visit was that the
proposed subdivision site would have about the same amount of vegetative screening from the
highway as currently exists between the highway and the closest single-family dwellings to the
north on the west side of Golf Village Loop. Therefore, I find no reason to require additional
screening vegetation to be planted.
I. No signs or other forms of outdoor advertising that are
visible from a designated landscape management river or
stream shall be permitted. Property protection signs (no
trespassing, no hunting, etc.) are permitted.
FINDINGS: The applicant has not proposed any signs or other forms of outdoor advertising
which would be visible from the Deschutes River, and therefore this criterion is not applicable.
J. A conservation easement as defined in section 18.04.280
"Conservation Easement" and specified in section 18.116.220
shall be required as a condition of approval for all landscape
management site plans involving property adjacent to the
Deschutes River, Crooked River, Fall River, Little Deschutes
River, Spring River, Squaw Creek and Tumalo Creek.
Conservation easements required as a condition of
landscape management site plans shall not require public
access.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the proposed
subdivision site is not adjacent to the Deschutes River.
e. Section 18.84.090, Setbacks
* * *
B. Road Setbacks. All new structures or additions to existing
structures on lots fronting a designated landscape
management road shall be set back at least 100 feet from the
edge of the designated road unless the Planning Director or
Hearings Body finds that:
FINDINGS: The applicant’s submitted site plan shows all proposed structures are over 400 feet
from Cascade Lakes Highway, therefore satisfying this criterion.
C. River and Stream Setbacks. All new structures or additions to
existing structures shall be set back 100 feet from the
ordinary high water mark of designated streams and rivers or
obtain a setback exception in accordance with DCC
18.120.030. For the purpose of DCC 18.84.090, decks are
considered part of a structure and must conform with the
setback requirement.
FINDINGS: The applicant’s submitted site plan shows all proposed dwellings would be at least
1,500 feet from the ordinary high water mark of the Deschutes River. The proposal does not
include on-site sewage disposal. Therefore, the Hearings Officer finds the applicant’s proposal
satisfies this criterion.
f. 18.84.095, Scenic Waterways
Approval of all structures in a State Scenic Waterway shall be
conditioned upon receipt of approval of the State Parks Department.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the proposed
dwellings would not located in a State Scenic Waterway.
For the foregoing reasons, and with imposition of the recommended conditions of approval, the
Hearings Officer finds the applicant’s proposal will satisfy all applicable LM Zone standards.
SUPPLEMENTARY PROVISIONS
3. Chapter 18.116, Supplementary Provisions
a. Section 18.116.030, Off-Street Parking and Loading
A. Compliance. No building or other permit shall be issued until
plans and evidence are presented to show how the off-street
parking and loading requirements are to be met and that
property is and will be available for exclusive use as
off-street parking and loading. The subsequent use of the
property for which the permit is issued shall be conditional
upon the unqualified continuance and availability of the
amount of parking and loading space required by this title.
FINDINGS: The submitted site plan shows there is space on each proposed lot for at least four
off-street parking places per dwelling, including two spaces within each garage and two spaces
on the driveways. Therefore, the Hearings Officer finds the applicant’s proposal satisfies the off-
street parking requirements discussed below under Paragraph C of this section.
B. Off-Street Loading. Every use for which a building is erected
or structurally altered to the extent of increasing the floor
area to equal a minimum floor area required to provide
loading space and which will require the receipt or
distribution of materials or merchandise by truck or similar
vehicle, shall provide off-street loading space on the basis of
minimum requirements as follows:
FINDINGS: The Hearings Officer finds this criterion is not applicable because the proposed
dwellings do not require a loading berth.
C. Off-street parking. Off street parking spaces shall be provided
and maintained as set forth in DCC 18.16.030 for all uses in all
zoning districts. Such off-street parking spaces shall be
provided at the time a new building is hereafter erected or
enlarged or the use of a building on the effective date of DCC
Title 18 is changed.
D. Number of spaces required. Off-street parking shall be
provided as follows:
* * *
1. Residential.
Use Requirements
One, two and three family
dwellings
2 spaces per dwelling unit
FINDINGS: The applicant proposes four off-street parking spaces for each dwelling, including
two spaces in the garages and two spaces on the driveways, therefore satisfying this criterion.
As noted above, the applicant originally proposed six additional off-street parking spaces on the
opposite side of Seventh Mountain Drive but withdrew that part of its proposal.
E. General Provisions. Off-Street Parking
1. More Than One Use on One or More Parcels. In the
event several uses occupy a single structure or parcel
of land, the total requirement for off-street parking
shall be the sum of requirements of the several uses
computed separately.
FINDINGS: The applicant proposes only a single residential use on each new residential lot.
However, as discussed in the Findings of Fact above, the proposed subdivision site is part of
two larger legal lots, including Legal Lot 2 on which the clubhouse and associated facilities are
located. For this reason, the staff report recommends the applicant be required to account for all
uses on both legal lots to assure compliance with this paragraph. In its January 20, 2015
submission, the applicant included a summary of development and copies of all subdivision
plats for Seventh Mountain Golf Village, Elkai Woods Townhomes, and Widgi Creek, showing
107 lots for detached single-family dwellings, of which nine are vacant, and 86 platted
townhome lots. However, the Hearings Officer finds this information is not responsive to staff’s
request for information about uses and parking requirements on the subject property. Therefore,
I find that if the applicant’s proposal is approved on appeal, such approval should be subject to
a condition of approval requiring the applicant to show all uses and existing off-site parking
spaces on the two legal lots comprising the subject property, and the sum of all off-street
parking requirements for those uses.
2. Joint Use of Facilities. The off-street parking
requirements of two or more uses, structures or
parcels of land may be satisfied by the same parking
or loading space used jointly to the extent that it can
be shown by the owners or operators of the uses,
structures or parcels that their operations and parking
needs do not overlap at any point of time. If the uses,
structures or parcels are under separate ownership,
the right to joint use of the parking space must be
evidence by a deed, lease, contract or other
appropriate written document to establish the joint
use.
FINDING: The Hearings Officer finds the applicant does not propose that the off-street parking
spaces for the proposed dwellings would be used for additional uses, and therefore I find this
criterion is not applicable.
3. Location of Parking Facilities. Off-street parking
spaces for dwellings shall be located on the same lot
with the dwelling. Other required parking spaces shall
be located on the same parcel or another parcel not
farther than 500 feet from the building or use they are
intended to serve, measured in a straight line from the
building in a commercial or industrial zone. Such
parking shall be located in a safe and functional
manner as determined during site plan approval. The
burden of proving the existence of such off-premise
parking arrangements rests upon the applicant.
FINDINGS: The applicant’s submitted site plan shows that all required off-street parking spaces
would be located on each proposed residential lot, therefore satisfying this criterion.
4. Use of Parking Facilities. Required parking space shall
be available for the parking of operable passenger
automobiles of residents, customers, patrons and
employees only and shall not be used for the storage
of vehicles or materials or for the parking of trucks
used in conducting the business or used in
conducting the business or use.
FINDINGS: The Hearings Officer finds that if the applicant’s proposal is approved on appeal,
such approval should be subject to a condition of approval requiring that parking spaces for the
dwellings be available for the parking of operable passenger automobiles of residents only and
shall not be used for the storage of vehicles or materials or for the parking of trucks used in
conducting the business or used in conducting the business or use.
5. Parking, Front Yard. Required parking and loading
spaces for multi-family dwellings or commercial and
industrial uses shall not be located in a required front
yard, except in the Sunriver UUC Business Park (BP)
District and the La Pine UUC Business Park (LPBP)
District and the LaPine UUC Industrial District (LPI),
but such space may be located within a required side
or rear yard.
FINDINGS: The Hearings Officer finds this criterion is not applicable because no multi-family
dwellings or commercial or industrial uses are proposed.
F. Development and Maintenance Standards for Off-Street
Parking Areas. Every parcel of land hereafter used as a public
or private parking area, including commercial parking lots,
shall be developed as follows:
1. Except for parking to serve residential uses, an off-
street parking area for more than five vehicles shall be
effectively screened by a sight obscuring fence when
adjacent to residential uses, unless effectively
screened or buffered by landscaping or structures.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the proposed
parking will serve residential uses.
2. Any lighting used to illuminate off-street parking areas
shall be so arranged that it will not project light rays
directly upon any adjoining property in a residential
zone.
FINDINGS: The Hearings Officer finds that if the applicant’s proposal is approved on appeal,
such approval should be subject to a condition of approval requiring that any lighting used to
illuminate off-street parking areas be installed so that it will not project light directly upon any
adjoining property.
3. Groups of more than two parking spaces shall be
located and designed to prevent the need to back
vehicles into a street or right of way other than an
alley.
FINDINGS: At the outset, staff questions whether this criterion is applicable to the applicant’s
proposal where, as here, the applicant is only required to provide two parking spaces per
dwelling, and the parking spaces are not truly in “groups” but rather are located on adjacent
residential lots, some of which have abutting driveways. The Hearings Officer finds this
subsection applies to parking lots or areas for uses that require more than two spaces, and not
to optional parking spaces provided on residential driveways. Read otherwise, this paragraph
could prohibit the typical residential driveway design that allows vehicles to back onto a street.
Therefore, I find this criterion is not applicable.
4. Areas used for standing and maneuvering of vehicles
shall be paved surfaces adequately maintained for all
weather use and so drained as to contain any flow of
water on the site. An exception may be made to the
paving requirements by the Planning Director or
Hearings Body upon finding that:
a. A high water table in the area necessitates a
permeable surface to reduce surface water
runoff problems; or
b. The subject use is located outside of an
unincorporated community and the proposed
surfacing will be maintained in a manner which
will not create dust problems for neighboring
properties; or
c. The subject use will be in a Rural Industrial
Zone or an Industrial District in an
unincorporated community and dust control
measures will occur on a continuous basis
which will mitigate any adverse impacts on
surrounding properties.
FINDINGS: The Hearings Officer finds none of the exceptions in this subsection applies to the
applicant’s proposal. The submitted tentative plan shows that all driveways will be paved and
will connect to Seventh Mountain Drive which also is paved. Opponents raised concerns about
existing stormwater drainage problems in the vicinity of the subject property and potential
contribution to those problems from the proposed dwellings. I find that if the applicant’s proposal
is approved on appeal, such approval should be subject to a condition of approval requiring that
the applicant to design, construct and maintain the paved driveways so that any surface water
drainage will be contained on each lot or diverted to existing storm drain facilities.
5. Access aisles shall be of sufficient width for all
vehicular turning and maneuvering.
FINDINGS: The Hearings Officer finds this criterion is not applicable because no access aisles
are proposed.
6. Service drives to off-street parking areas shall be
designed and constructed to facilitate the flow of
traffic, provide maximum safety of traffic access and
egress and maximum safety of pedestrians and
vehicular traffic on the site. The number of service
drives shall be limited to the minimum that will
accommodate and serve the traffic anticipated. Service
drives shall be clearly and permanently marked and
defined through the use of rails, fences, walls or other
barriers or markers. Service drives to drive in
establishments shall be designed to avoid backing
movements or other maneuvering within a street other
than an alley.
7. Service drives shall have a minimum vision clearance
area formed by the intersection of the driveway
centerline, the street right of way line and a straight
line joining said lines through points 30 feet from their
intersection.
FINDINGS: The Hearings Officer finds these criteria are not applicable because no service
drives are proposed.
8. Parking spaces along the outer boundaries of a
parking area shall be contained by a curb or bumper
rail placed to prevent a motor vehicle from extending
over an adjacent property line or a street right of way.
FINDINGS: The Hearings Officer finds the proposed garage parking spaces will be sufficiently
contained within the garage structure so that no curbs or bumpers are required.
G. Off-Street Parking Lot Design. All off-street parking lots shall
be designed subject to County standards for stalls and aisles
as set forth in the following drawings and table:
(SEE TABLE 1 AT END OF CHAPTER 18.116)
1. For one row of stalls use "C" + "D" as minimum bay
width.
2. Public alley width may be included as part of
dimension "D," but all parking stalls must be on
private property, off the public right of way.
3. For estimating available parking area, use 300-325
square feet per vehicle for stall, aisle and access
areas.
4. For large parking lots exceeding 20 stalls, alternate
rows may be designed for compact cars provided that
the compact stalls do not exceed 30 percent of the
total required stalls. A compact stall shall be eight feet
in width and 17 feet in length with appropriate aisle
width.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant
does not propose a “parking lot.”
c. Section 18.116.031, Bicycle Parking
New development and any construction, renovation or alteration of
an existing use requiring a site plan review under this title for which
planning approval is applied for after the effective date of Ordinance
93-005 shall comply with the provisions of this section.
A. Number and Type of Bicycle Parking Spaces Required.
1. General Minimum Standard. All uses that require
off-street motor vehicle parking shall, except as
specifically noted, provide one bicycle parking space
for every five required motor vehicle parking spaces.
Except as specifically set forth herein, all such parking
facilities shall include at least two sheltered parking
spaces or, where more than 10 bicycle spaces are
required, at least 50 percent of the bicycle parking
spaces shall be sheltered
FINDINGS: The Hearings Officer finds this criterion is not applicable because each proposed
dwelling is required to have fewer than five off-street parking spaces.
d. Section 18.116.180, Building Setbacks for the Protection of Solar
Access
FINDINGS: As discussed above, under Section 18.110.060(J)(2), dwellings in the proposed
zero-lot-line subdivision are not subject to solar setbacks.
For the foregoing reasons, and with imposition of the above-described recommended conditions
of approval, the Hearings Officer finds the applicant’s proposal will satisfy all applicable approval
criteria in the supplementary provisions.
SITE PLAN REVIEW CRITERIA
4. Chapter 18.124, Site Plan Review
a. Section 18.124.030, Approval Required
A. No building, grading, parking, land use, sign or other required
permit shall be issued for a use subject to DCC 18.124.030,
nor shall such a use be commenced, enlarged, altered or
changed until a final site plan is approved according to DCC
Title 22, the Uniform Development Procedures Ordinance.
B. The provisions of DCC 18.124.030 shall apply to the
following:
1. All conditional use permits where a site plan is a
condition of approval;
2. Multiple-family dwellings with more than three units;
3. All commercial uses that require parking facilities;
4. All industrial uses;
5. All other uses that serve the general public or that
otherwise require parking facilities, including, but not
limited to, landfills, schools, utility facilities, churches,
community buildings, cemeteries, mausoleums,
crematories, airports, parks and recreation facilities
and livestock sales yards; and
6. As specified for Flood Plain Zones (FP) and Surface
Mining Impact Area Combining Zones (SMIA).
7. Non-commercial wind energy system generating
greater than 15 to 100 kW of electricity.
C. The provisions of DCC 18.124.030 shall not apply to uses
involving the stabling and training of equine in the EFU zone,
noncommercial stables and horse events not requiring a
conditional use permit.
D. Noncompliance with a final approved site plan shall be a
zoning ordinance violation.
E. As a condition of approval of any action not included in DCC
18.124.030(B), the Planning Director or Hearings Body may
require site plan approval prior to issuance of any permits.
FINDINGS: The applicant’s proposal does not fall within any of the use categories listed in this
section as requiring site plan approval. However, the Hearings Officer finds site plan approval is
required for the applicant’s proposal because zero-lot-line subdivisions require site plan
approval under Chapter 17.20 of the subdivision ordinance. Compliance with the site plan
approval criteria is addressed in the findings below.
b. Section 18.124.060, Approval Criteria
A. The proposed development shall relate harmoniously to the
natural environment and existing development, minimizing
visual impacts and preserving natural features including
views and topographical features.
FINDINGS:
1. Natural Environment. The Hearings Officer finds the natural environment consists of native
vegetation and topography within Widgi Creek and on surrounding public forest lands. As
discussed above, the applicant’s proposal would require the removal of trees from the proposed
subdivision site, as well as some minor grading. The applicant has submitted a landscape plan
which proposes to replace trees removed for construction on the subject site with trees planted
elsewhere in Widgi Creek. As discussed in the findings above, I have found the applicant will
not be required to provide screening vegetation in addition to the proposed landscaping show in
the submitted landscape plan. However, I have recommended that the applicant be required as
a condition of approval to submit true color samples for the dwelling exterior finishes to assure
they will blend with the natural environment. I find the applicant’s proposal will preserve the
natural topography to the extent possible considering development constraints. I also find that
although the applicant’s proposal will have some visual impacts on Cascade Lakes Highway,
those impacts will be comparable to the view impacts on the highway from existing homes on
the west side of Golf Village Loop.
2. Existing Development. The Hearings Officer finds existing development consists of the rest
of the Inn/Widgi Creek resort community, including residential uses, resort-related commercial
uses (e.g., the clubhouse restaurant), the golf course and appurtenant facilities, tennis courts,
pool, private roads and paths, and other infrastructure. Opponents argue the applicant’s
proposal will not relate harmoniously with the golf course, other residential development, and
the Widgi Creek entrance. Each of these issues is addressed in the findings below.
a. Golf Course and Residential Uses. Opponents argue the placement and orientation of the
nine proposed lots will not be harmonious with the golf course because the dwellings will
interfere with golf course play due to their proximity to the course and the glare from windows.
Opponents also argue the location of the proposed dwellings will create an unreasonable safety
risk for residents of the dwellings and their guests from flying golf balls. The record indicates the
vast majority of existing Widgi Creek lots front on the golf course and the existing dwellings
thereon have varying distances from the tees, fairways and greens.
The parties disagree as to what constitutes an adequate “safety corridor” for golf course holes,
and whether the proposed nine-lot subdivision would permit sufficient separation between the
dwellings and golf play. In oral and written testimony, several opponents described incidents in
which Widgi Creek residents and/or their guests were hit or nearly hit by flying golf balls.
Opponents also submitted written testimony from golf course designer John Fought describing
the general safety standards and setbacks between golf courses and dwellings. The record
indicates Mr. Fought is a former professional golfer and a member of the American Society of
Golf Course Architects, and has designed or been involved in the design of 17 golf courses in
the northwest, including courses in the Black Butte Ranch, Sunriver, and Crosswater resorts in
Central Oregon. Mr. Fought stated the minimum safety setback around a golf tee is 100 feet and
the minimum safety setback for fairway areas is 175 feet from the centerline of the fairway
measured perpendicular to the centerline at a point 500 feet from the tee. Mr. Fought also
recommended that an additional 40-foot “building setback” should be added to the 175-foot
setback. He stated these are minimum safety setbacks and that he often utilizes a 200-foot
setback from the centerline for “the modern game.” Mr. Fought submitted a diagram of the
recommended setbacks overlaid on the Widgi Creek first fairway showing that a significant
portion of the proposed subdivision site is located within 175 feet of the fairway centerline.
In rebuttal, the applicant noted the Widgi Creek Golf Course was designed by Robert Muir
Woods, a very well-known golf course designer. The applicant also included several documents
in its January 27, 2015 submission. PH-20 is an aerial photograph of the Widgi Creek Golf
Course with a diagram labeled “Typical Course Safety Limits” showing a 120-foot setback from
the fairway centerline measured from a “variable” distance from the tee. Although it is difficult to
tell because of the scale and colors of the aerial photograph, it appears the “typical” course
safety corridor has been superimposed on the first fairway on the photo and that the majority of
the proposed subdivision site is outside that corridor. PH-21 is the same aerial photograph with
opponents’ proposed 175-foot setback safety corridor superimposed on Hole #1. That photo
and diagram show the majority of the proposed subdivision site would fall inside that setback.
PH-22 is a letter dated January 25, 2015 from Brad Hudspeth and Paul Rozek, Head
Superintendent of the Widgi Creek Golf Course, stating that John Fought is “well-respected
among his peers,” but that if his recommended safety corridor had been utilized in the design of
Widgi Creek, the golf course “would have very few homes on it as most of the existing homes
fall within these distances.” The letter goes on to state that eight of the eighteen Widgi Creek
holes (Holes 7, 8, 13, 14, 15, 16, 17, and 18) have dwellings located closer than 100 feet from
the tee and/or closer than 175 feet from the fairway centerline. For example, the letter states
one building on Hole 15 is 96 feet from the green, one dwelling on Hole 16 is 93 feet from the
fairway centerline, one dwelling on Hole 17 is 147 feet from the fairway centerline, and one
dwelling on Hole 18 is 90 feet from the fairway centerline. Attached to the letter are diagrams of
Holes 1 and 15-18 showing the location of the proposed townhomes is “consistent with the
existing development of Widgi Creek Golf Course and are outside the safety setbacks already
used” on the course. Finally, the applicant submitted as PH-23 a letter from Louis Bennett, Head
Golf Professional at Tetherow Golf Club, located a few miles from Widgi Creek, stating in
relevant part:
“After viewing where the proposed townhomes would be built, I do believe they
would have no impact on this golf hole as it is played today and that the houses
would be well out of the ‘danger zone,’ so to speak.
The first hole at Widgi Creek is a slight dogleg left and the proper tee shot is to
favor the left side of the fairway which leads straight to the green. This puts the
right side [the side on which the proposed dwellings would be sited] with
significant room to keep your ball inbounds. This hole is also a very short Par 4
hole and calls for an iron tee shot, or possibly a hybrid, to put your ball in position
for a short approach shot to the green. Because an iron or hybrid does not hit the
ball as far as a driver, they are much easier to control the trajectory and less
likely to go way off target. As the hole plays now, it takes a significant mishit to fly
out of bounds. For those who use a driver, if they do miss to the right they will be,
more than likely, 50 to 100 yards past where the last proposed townhome would
be built, as the homes are back closer to the teeing area.
The idea that a 175 foot safety zone from the center of the fairway is standard for
all holes is not supported by any research or publications that I am familiar with.
There is certainly a safe zone for each hole, but the distance will vary depending
on topography, vegetation, the play of the hole, the length of the hole, location of
the green, etc.
Every golf course is different and I have seen existing homes on many golf
courses that are closer than those at Widgi Creek. In Widgi Creek’s particular
case, the existing homes on many of the holes are closer than the proposed
homesites on hole #1.
To summarize, if the townhomes are developed on the first hole at Widgi Creek, I
firmly believe they will have no impact on how the hole plays and that townhomes
will not be in imminent danger of being hit by stray golf balls.”
The Hearings Officer finds from this evidence that the setbacks from the proposed dwellings to
the first fairway will be consistent with dwelling setbacks from other Widgi Creek fairways, but
will be much less than those recommended by Mr. Fought. The question, then, is whether the
hazard posed to residents and guests from golf balls flying toward the townhomes in their
proposed location is so significant that the townhomes would not relate harmoniously to existing
development. I find this is a close question. However, I am persuaded by the testimony of Mr.
Bennett – who, in contrast to Mr. Hudspeth and Mr. Rozek who work for Widgi Creek, appears
not to have any personal interest in the outcome of this application – that the risk of off-course
balls hitting the proposed dwellings or their residents is not significant, and that the proposed
townhome location will not interfere with play on Widgi Creek Hole #1. Therefore, I find the
applicant’s proposal will relate harmoniously to the golf course and residential development.
b. Views. Opponents argue the nine proposed dwellings will not relate harmoniously to nearby
residential development because they will interfere with views of the first fairway and the rest of
the golf course south of Seventh Mountain Drive from the nearest existing single-family homes
on Golf Village Loop. Although these views are not of mountains or other iconic Central Oregon
geography, they nevertheless are scenic views of the local terrain. Nevertheless, the Hearings
Officer finds that in the absence of view easements or other similar measures, residents of the
nearby dwellings on Golf Village Loop do not have an entitlement to preservation of their
existing views to the south.
Opponents also argue the applicant’s proposal will not relate harmoniously with the existing
entrance to Widgi Creek because it will place dwellings in an area that currently is in a more
natural state and visible from Cascade Lakes Highway. However, as discussed in the site plan
findings in this decision, the Hearings Officer has found the proposed dwellings will be no closer
to, and no more visible from, the highway than the existing dwellings on the west side of Golf
Village Loop. While the proposed dwellings will change the appearance of this part of Widgi
Creek, I find that given existing residential development near the entrance, this change will not
be so jarring as to be disharmonious with the entrance.
Finally, opponents argue the proposed metal roofs on the dwellings would not be harmonious
with views from nearby residences or Cascade Lakes Highway. However, as discussed in the
findings above, Section 18.84.080(A) specifically allows metal roofing material if it is non-
reflective and of a color that blends with the surrounding vegetation and landscape. The
Hearings Officer finds that if the applicant’s proposal is approved on appeal, such approval
should be subject to a condition of approval requiring that if the proposed dwellings have metal
roofs, those roofs are non-reflective and of a color that blends with the surrounding vegetation
and landscape.
d. Mailboxes. Opponent Barbara Munster argues the applicant’s proposed subdivision would
interfere with Widgi residents’ use of the mailbox facility located along Seventh Mountain Drive
between proposed Lots 7 and 8. The Hearings Officer finds the mailboxes and the parking area
between the mailboxes and Seventh Mountain Drive will be included in Tract “A” of Widgi Creek
which includes Seventh Mountain Drive. I also find the configuration of the dwellings on Lots 7
and 8 will place the garages and driveways away from the mailbox parking area. For these
reasons, I find nothing in the applicant’s proposal will interfere with residents’ use of the
mailboxes.
For the foregoing reasons, the Hearings Officer finds the proposed dwellings will relate
harmoniously to the natural environment and existing development, minimizing visual impacts
and preserving natural features including views and topographical features.
B. The landscape and existing topography shall be preserved to
the greatest extent possible, considering development
constraints and suitability of the landscape and topography.
Preserved trees and shrubs shall be protected.
FINDINGS: The applicant’s burden of proof states it proposes relatively little grading for
construction of the proposed dwellings and that it has taken care to site the dwellings to preserve
landscaping to the greatest extent possible. Based on the Hearings Officer’s site visit
observations, I agree with the applicant that minimal grading will be required on the proposed
subdivision site. As discussed above, I have found the applicant’s proposal will require the
removal of most of the trees and vegetation on the site, preserving very little existing vegetation.
However, I have found that preservation of more vegetation is not necessary considering the
number of dwellings proposed and the development constraints therefor. I find that if the
applicant’s proposal is approved on appeal, such approval should be subject to a condition of
approval requiring the applicant to retain and preserve all existing vegetation on the subject site
that is not required to be removed for construction, in order to screen the proposed dwellings from
Cascade Lakes Highway.
C. The site plan shall be designed to provide a safe
environment, while offering appropriate opportunities for
privacy and transition from public to private spaces.
FINDINGS: The applicant’s burden of proof states with respect to this criterion:
“The site plan is designed to provide a safe environment for vehicular movement,
pedestrians and bicycles. The roadways within the Widgi Creek development are
sized and designed to accommodate shared vehicle, bicycle and pedestrian use.
Given the low volume of traffic expected, Seventh Mountain Drive is fully
adequate to accommodate the traffic and the ample off street parking ensures
safe design and function of the subdivision with golfers and pedestrians.”
Opponents have raised safety concerns regarding potential risks to residents of the proposed
dwellings and their guests from flying golf balls. As discussed in detail in the findings above,
incorporated by reference herein, the Hearings Officer has found the applicant’s proposal will
relate harmoniously to existing development – e.g., the golf course – considering safety issues.
For those same reasons, I find the applicant’s proposal also will provide a safe environment
considering the adjacent golf course.
Opponents also argue the applicant’s proposal will create safety hazards on Seventh Mountain
Drive which abuts and would provide access to all nine proposed lots. The applicant’s burden of
proof states Seventh Mountain Drive has a 24-foot pavement width with rolled curbs. However,
opponents state the segment of Seventh Mountain Drive adjacent to the subject site has only a
20-foot pavement width. They also note, and the Hearings Officer’s site visit observations
confirmed, that a portion of Seventh Mountain Drive abutting the subject site splits around a
large tree and open space area, effectively creating a one-way couplet. They state their belief
that each half of the split roadway is only approximately 10 feet wide. Opponents argue the
proposed site plan will not provide a safe environment for two reasons, each of which is
addressed in the findings below.
1. Width of Seventh Mountain Drive. Opponents argue Seventh Mountain Drive does not
have sufficient width to handle the additional traffic that would be generated by the nine new
dwellings in addition to existing vehicle, bicycle and pedestrian traffic. As discussed in findings
elsewhere in this decision, based on the applicant’s traffic analyses the Hearings Officer has
found Seventh Mountain Drive has the capacity to handle vehicular traffic generated by the
proposed subdivision. I share opponents’ concerns about the road’s adequacy to handle
pedestrian and bicycle traffic along with vehicle traffic, particularly since the record indicates the
golf cart path adjacent to the subject site generally is not available for bicycle or pedestrian
traffic during the six- to seven-month golf season. Nevertheless, I find that because the two
proposed subdivisions will add only 98 ADTs and only 9 p.m. peak hour trips to the Seventh
Mountain Drive traffic, it will have minimal if any impact on the volume of traffic on the road.
2. Backing Onto Seventh Mountain Drive. The submitted site plan shows that all proposed
dwellings would require the backing of vehicles from garages and driveways onto Seventh
Mountain Drive. Opponents argue this configuration is unsafe because Seventh Mountain Drive
is the main entrance into Widgi Creek and has the level of traffic, and no other dwellings on
Seventh Mountain Drive requiring backing onto the road. The Hearings Officer finds there are
other dwellings farther to the south on Seventh Mountain Drive that require backing of vehicles
onto the road. However, I agree with opponents that the southern segment of the road has
much less traffic. As noted in the findings below, the applicant’s traffic analyses indicate traffic
on Seventh Mountain Road northwest of Golf Village Loop is twice what it is southeast of Golf
Village Loop (approximately 1,500 ADTs and approximately 740 ADTs, respectively), with
roughly half of the traffic turning at Golf Village Loop.
Seven of the nine proposed lots – Lots 1 through 7 -- would be located southeast of the Golf
Village Loop intersection where traffic is lighter. However, Lots 8 and 9 would be located
northwest of the intersection where traffic is heavier. And the submitted site plan shows the
driveways for Lots 8 and 9 are configured so vehicles leaving those garages and driveways
would be required to back onto the single-lane segment of Seventh Mountain Drive, and
vehicles leaving Lot 8 would be required to back into the Seventh Mountain Drive/Golf Village
Loop intersection. In an e-mail message dated January 6, 2015, Scott Ferguson of Ferguson &
Associates, the applicant’s traffic engineer, stated:
“The difficulty of access to a residential lot on 7th Mountain Drive (owing to traffic
flow on 7th Mountain Drive) would be no more or less difficult than any typical
residential subdivision”
The Hearings Officer disagrees with Mr. Ferguson’s conclusion with respect to ingress and
egress from the driveways for proposed Lots 8 and 9. I find the location of these driveways on
the one-way segment of Seventh Mountain Drive – which opponents testified has only 10 feet of
pavement width – and at or immediately adjacent to the intersection with Golf Village Loop, has
the potential to create traffic conflicts at the intersection and to force vehicles to back across the
narrow traffic lane and onto the open space area between the two segments of Seventh
Mountain Drive. For these reasons, I find the applicant’s proposed site plan does not create a
safe environment for Lots 8 and 9 and therefore does not satisfy this criterion.
D. When appropriate, the site plan shall provide for the special
needs of disabled persons, such as ramps for wheelchairs
and Braille signs.
FINDINGS: The Hearings Officer finds that if the applicant’s proposal is approved on appeal,
such approval should be subject to a condition of approval requiring the applicant to comply with
all requirements of the Americans with Disabilities Act (ADA) identified by the county during the
building plan review and permitting process for the dwellings.
E. The location and number of points of access to the site,
interior circulation patterns, separations between pedestrians
and moving and parked vehicles, and the arrangement of
parking areas in relation to buildings and structures shall be
harmonious with proposed and neighboring buildings and
structures.
FINDINGS: The Applicant proposes access to the dwellings from Cascade Lakes Highway via
Seventh Mountain Drive, an existing private road. The applicant proposes off-street parking within
the attached garages and on the driveways. As discussed in the findings above, opponents have
raised concerns about the safety of pedestrians and bicyclists on Widgi Creek roads in general,
and on Seventh Mountain Drive in particular, with the addition of traffic from the applicant’s two
proposed new subdivisions. The Hearings Officer finds the golf cart paths throughout the
development cannot provide a safe and reliable pathway for pedestrians and bicyclists during the
golf season. For this reason, I have found that because the applicant’s two proposed subdivisions
will generate such minimal additional traffic, they will have minimal impact on traffic volumes on
Widgi Creek roads. Nevertheless, as discussed in the findings above, incorporated by reference
herein, I have found the proposed location and configuration of Lots 8 and 9 will create safety
hazards on Seventh Mountain Drive because vehicles leaving those lots will back onto the narrow,
single-lane section of the road and at points in or adjacent to the intersection with Golf Village
Loop. For these same reasons, I find the applicant’s proposed access points and internal
circulation patterns will not be harmonious.
F. Surface drainage systems shall be designed to prevent
adverse impacts on neighboring properties, streets, or
surface and subsurface water quality.
FINDINGS: The Applicant’s burden of proof states all surface water drainage will be contained
on site through a system of drainage swales, retention/infiltration basins, and/or culverts. The
Hearings Officer finds that if the applicant’s proposal is approved on appeal, such approval
should be subject to a condition of approval requiring the applicant to install all surface drainage
systems in conformance with the applicable Department of Environmental Quality (DEQ) design
standards for such systems, and to provide to the Planning Division prior to final plat approval
certification by a licensed professional engineer that drainage facilities have been designed and
constructed in accordance with the current Central Oregon Stormwater Manual9 to receive
and/or transport stormwater from at least the design storm (as defined in the current Central
Oregon Stormwater Manual) for all surface drainage water including stormwater coming to
and/or passing through the development.
G. 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 and buffered or
screened to minimize adverse impacts on the site and
neighboring properties.
9 The staff report states the manual can be found at the following website:
www.lcog.org/documents/sub_action/CentralOR_StormwaterManual_201008.pdf
FINDINGS: The applicant argues, and the Hearings Officer agrees, that all features described in
this paragraph can be located within the garages and enclosed storage closets for each
proposed dwelling, thereby satisfying this criterion. The applicant notes mailboxes for the
dwellings would be located in the existing mailbox facility adjacent to the subject property.
H. All above-ground utility installations shall be located to
minimize adverse visual impacts on the site and neighboring
properties.
FINDINGS: The applicant’s burden of proof states the applicant proposes to install all utilities
underground with the exception of “standard above-ground power transformers and standard
franchise utility pedestals and facilities.” The submitted site plan does not identify the location of
these proposed above-ground facilities or illustrate what they would look like or how they would
be screened. Therefore, the Hearings Officer finds that if the applicant’s proposal is approved
on appeal, such approval should be subject to a condition of approval requiring the applicant to
submit a revised site plan showing the location and design of any above-ground utility facilities
and how they will be screened with vegetation or otherwise so that adverse visual impacts on
the site and neighboring properties are minimized.
I. Specific criteria are outlined for each zone and shall be a
required part of the site plan (e.g. lot setbacks, etc.).
FINDINGS: Compliance with the standards in the RC and LM Zones is addressed in the
findings above.
J. All exterior lighting shall be shielded so that direct light does
not project off-site.
FINDINGS: The Hearings Officer finds that if the applicant’s proposal is approved on appeal,
such approval should be subject to a condition of approval requiring the applicant to install all
exterior lighting in compliance with the outdoor lighting ordinance in Chapter 15.10 of the
Deschutes County Code, and to install all fixtures so that they are shielded and downcast to
prevent direct light from projecting off-site.
K. Transportation access to the site shall be adequate for the
use.
1. Where applicable, issues including, but not limited to,
sight distance, turn and acceleration/deceleration
lanes, right-of-way, roadway surfacing and widening,
and bicycle and pedestrian connections, shall be
identified.
2. Mitigation for transportation-related impacts shall be
required.
3. Mitigation shall meet applicable County standards in
DCC 17.16 and DCC 17.48, applicable Oregon
Department of Transportation (ODOT) mobility and
access standards, and applicable American
Association of State Highway and Transportation
Officials (AASHTO) standards.
FINDINGS: The applicant submitted as Exhibit “F” to its burden of proof a “Trip Generation
Letter” dated October 15, 2014 and prepared by Ferguson & Associates for both the Fairway
and Pool applications. This letter concluded that since the predicted trip generation for the
proposed subdivisions would be less than twenty p.m. peak hour trips (4:00 p.m. to 6:00 p.m.
weekdays), no further traffic analysis is required by the county code. In his December 10, 2014
comments on the applicant’s proposal, the county’s Senior Transportation Planner Peter Russell
stated the applicant’s trip generation letter was not adequate for the following reasons:
“The most recent edition of the Institute of Traffic Engineers (ITE) Trip
Generation Handbook indicates a Condo/Townhome (Land Use 230) generates
5.81 weekday trips per unit and 0.52 p.m. peak hour trips per unit. The proposed
nine-lot subdivision would generate 52.29 daily trips (9 X 5.81). Deschutes
County Code (DCC) at 18.16.310(C)(3)(a) states a site traffic report is required
for a use that will generate more than 50 daily trip ends. The applicant's traffic
engineer has misread the County's requirements for a Site Traffic Report. DCC
18.16.310(C)(3)(b) sets two thresholds for analysis. The first is the use will
"...cause the site to generate 50-200 daily trip ends..." The 9-unit subdivision
meets this test. The second portion of DCC 18.16.310(C)(3)(b) states "...and less
than 20 peak hour trips..." The proposed use will generate 4.68 p.m. peak hour
trips, which is less than 20. The applicant's traffic engineer has made the
understandable mistake that 20 p.m. peak hour trips is the floor for a Site Traffic
Report whereas it's actually the ceiling. This can be seen by comparing the
language at DCC 18.16.310(C)(3)(c) which sets the thresholds for a Traffic
Impact Study (TIA) at "more than 200 trip ends and 20 or more peak hour trips."
The applicant's traffic analysis as submitted does not meet the requirements set
by DCC 18.116.310(C)(3) nor contain the required elements for an STR set forth
at DCC 18.116.310(D through F).”
In response to Mr. Russell’s comments, the applicant submitted additional traffic analyses as
attachments PH-9 and PH-10 to its January 20, 2015 submission. PH-10 is an e-mail message
dated January 6, 2015 from Ferguson & Associates including a “preliminary analysis” of traffic
on Seventh Mountain Drive generated by the 107 single-family dwellings and 86 townhome
dwellings existing in Widgi Creek. This analysis concluded these dwellings generate 1,518
ADTs on Seventh Mountain Drive northwest of Golf Village Loop, of which 152 are p.m. peak
hour trips, and 738 ADTs on Seventh Mountain Drive southeast of Golf Village Loop, of which
70 are p.m. peak hour trips. The analysis concluded this traffic “is within the range of what can
be expected in a residential subdivision, which is typically up to 1,500 vehicles per day, but has
been noted to exceed 3,000 vehicles per day in some circumstances.”
PH-9 is a “site traffic report” dated January 12, 2015, and prepared by Ferguson & Associates.
This report predicted the nine proposed dwellings would generate 52 average daily vehicle trips
(ADTs) of which 5 trips would occur during the p.m. peak hour. The traffic report analyzed the
impact of traffic from the applicant’s Pool proposal – i.e., “eight townhomes that have recently
been approved,10 – and predicted those homes would generated 46 ADTs of which 4 trips would
be during the p.m. peak hour. Therefore, the traffic site report predicted the two subdivisions
10 The Hearings Officer assumes the eight townhomes referred to are the eight dwellings proposed in the
applicant’s Pool application even though these townhomes have not been approved.
would generate 98 ADTs of which 9 trips would be during the p.m. peak hour. The traffic
analysis concluded the two Seventh Mountain Drive intersections that would be affected by this
additional traffic – Cascade Lakes Highway and Golf Village Loop – would continue to function
at acceptable levels of service. The analysis also concluded site and stopping distances at both
intersections are adequate.
Based on the applicant’s January 2015 traffic analyses, the Hearings Officer finds the addition
of traffic predicted to be generated by the applicant’s proposed nine-lot subdivision will not
exceed the capacity of affected transportation facilities, and therefore no mitigation is required.
c. Section 18.124.070, Required Minimum Standards
A. Private or shared outdoor recreation areas in residential
developments.
1. Private Areas. Each ground-level living unit in a
residential development subject to site plan approval
shall have an accessible outdoor private space of not
less than 48 square feet in area. The area shall be
enclosed, screened or otherwise designed to provide
privacy for unit residents and their guests.
FINDINGS: The applicant’s burden of proof states the proposed dwellings will have ground-level
spaces with accessible private outdoor patios and yards in excess of 48 square feet in size. The
Hearings Officer finds that if the applicant’s proposal is approved on appeal, such approval
should be subject to a condition of approval requiring the applicant to provide these private
areas for each dwelling.
2. Shared Areas. Usable outdoor recreation space shall
be provided for the shared use of residents and their
guests in any apartment residential development, as
follows:
a. Units with one or two bedrooms: 200 square
feet per unit.
b. Units with three or more bedrooms: 300 square
feet per unit.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant
does not propose any apartment residential development.
3. Storage. In residential developments, convenient areas
shall be provided for the storage of articles such as
bicycles, barbecues, luggage, outdoor furniture, etc.
These areas shall be entirely enclosed.
FINDINGS: The applicant’s burden of proof states each dwelling (all over 3,000 square feet in
size) will have adequate storage within the dwelling and two-car garage to accommodate the
listed items. The Hearings Officer finds the applicant’s proposal satisfies this criterion.
B. Required Landscaped Areas
1. The following landscape requirements are established
for multi-family, commercial and industrial
developments, subject to site plan approval:
a. A minimum of 15 percent of the lot area shall be
landscaped.
b. All areas subject to the final site plan and not
otherwise improved shall be landscaped.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant’s
proposal is for single-family dwellings and not a multi-family, commercial or industrial
development.
2. In addition to the requirement of DCC
18.124.070(B)(1)(a), the following landscape
requirements shall apply to parking and loading areas:
a. A parking or loading area shall be required to
be improved with defined landscaped areas
totaling no less than 25 square feet per parking
space.
b. In addition to the landscaping required by DCC
18.124.070(B)(2)(a), a parking or loading area
shall be separated from any lot line adjacent to
a roadway by a landscaped strip at least 10 feet
in width, and from any other lot line by a
landscaped strip at least five feet in width.
c. A landscaped strip separating a parking or
loading area from a street shall contain:
1) Trees spaced as appropriate to the
species, not to exceed 35 feet apart on
the average.
2) Low shrubs not to reach a height greater
than three feet zero inches, spaced no
more than eight feet apart on the
average.
3) Vegetative ground cover.
d. Landscaping in a parking or loading area shall
be located in defined landscaped areas which
are uniformly distributed throughout the
parking or loading area.
e. The landscaping in a parking area shall have a
width of not less than five feet.
f. Provision shall be made for watering planting
areas where such care is required.
g. Required landscaping shall be continuously
maintained and kept alive and attractive.
h. Maximum height of tree species shall be
considered when planting under overhead
utility lines.
FINDINGS: In previous decisions, the Hearings Officer has held that unlike the requirements of
Paragraph (B)(1) of this section that apply only to multi-family and commercial uses, the
requirements in Paragraph (B)(2) of this section apply to all uses. However, the staff report
questions whether the standards in Paragraph (B)(2) should apply where, as here, the required
“parking area” consists of two off-street parking spaces within an enclosed garage. I find that for
this reason the standards in Paragraph (B)(2) do not apply to required off-street parking spaces
for single-family dwellings.
C. Nonmotorized Access.
1. Bicycle Parking. The development shall provide the
number and type of bicycle parking facilities as
required in DCC 18.116.031 and 18.116.035. The
location and design of bicycle parking facilities shall
be indicated on the site plan.
FINDINGS: Compliance with bicycle parking requirements is discussed in the findings above.
The Hearings Officer has found that because only two off-street parking spaces are required for
each proposed dwelling no bicycle parking is required.
2. Pedestrian Access and Circulation
a. Internal pedestrian circulation shall be provide
in new commercial, office and multi-family
residential developments through the clustering
of buildings, construction of hard surface
pedestrian walkways, and similar techniques.
b. Pedestrian walkways shall connect building
entrances to one another and from building
entrances to public streets and existing or
planned transit facilities. On site walkways shall
connect with walkways, sidewalks, bikeways,
and other pedestrian or bicycle connections on
adjacent properties planned or used for
commercial, multi family, public or park use.
c. Walkways shall be at least five feet in paved
unobstructed width. Walkways which border
parking spaces shall be at least seven feet wide
unless concrete bumpers or curbing and
landscaping or other similar improvements are
provided which prevent parked vehicles from
obstructing the walkway. Walkways shall be as
direct as possible.
d. Driveway crossings by walkways shall be
minimized. Where the walkway system crosses
driveways, parking areas and loading areas, the
walkway must be clearly identifiable through
the use of elevation changes, speed bumps, a
different paving material or other similar
method.
e. To comply with the Americans with Disabilities
Act, the primary building entrance and any
walkway that connects a transit stop to building
entrances shall have a maximum slope of five
percent. Walkways up to eight percent slope
are permitted, but are treated as ramps with
special standards for railings and landings.
FINDINGS: The applicant’s burden of proof states these criteria do not apply because it does not
propose new office, commercial or multi-family residential developments. The staff report states
staff previously has interpreted this section to require compliance with Paragraph (a) only for
multi-family residential developments, and to require compliance with Paragraphs (b) through (e)
for all developments subject to site plan review. The Hearings Officer finds the wording of this
subsection is somewhat ambiguous. Nevertheless, I find that reading the subsection as a whole
strongly suggests that it was not intended to apply to individual dwellings requiring site plan
approval. For example, Paragraph (b) addresses connections between multi-family dwelling
buildings. Paragraphs (b) and (e) address multiple building entrances. And Paragraph (d)
discusses speed bumps and other features typically found in commercial or multi-family parking
and maneuvering areas. For these reasons, I find this subsection does not apply to the applicant’s
proposal.
For the foregoing reasons, the Hearings Officer finds the applicant’s proposal does not satisfy
all applicable site plan approval criteria.
SUBDIVISION STANDARDS
C. Title 17 of the Deschutes County Code, the Subdivision/Partition Ordinance
1. Chapter 17.20, Zero Lot Line Subdivision
a. Section 17.20.010, Requirements
In addition to the general provisions for subdivision and partitioning
set forth in DCC Title 17, any application for a zero lot line
subdivision or partition shall meet the following requirements:
A. The tentative plan shall indicate all lot divisions, including
those along the common wall of duplex units.
FINDINGS: The applicant proposes a nine-lot, zero-lot-line subdivision. The submitted tentative
plan shows all lot divisions for the proposed development. The record indicates there are no
duplexes with common walls. As discussed in the findings above, the subject property includes
two legal lots of record and therefore, if approved, the applicant’s proposed subdivision would
create a remainder lot approximately 40 acres in size that is developed with the Widgi Creek
Golf Course. The staff report notes the applicant’s proposed tentative subdivision plan does not
show this remainder lot. The Hearings Officer finds that in order to assure compliance with this
criterion, if the applicant’s proposal is approved on appeal, such approval should be subject to a
condition of approval requiring the applicant to show the remainder lot, and all existing uses
thereon, on the final plat for the proposed subdivision.
B. Independent utility service shall be provided to each unit,
including, but not limited to, water, electricity and natural gas,
unless common utilities are approved by the affected utility
agency and are adequately covered by easements.
FINDINGS: The applicant proposes to provide independent utility service including sewer,
water, electricity, cable, and phone service to each lot. The applicant’s burden of proof states
electricity, cable, and telephone infrastructure already exists along the abutting segment of
Seventh Mountain Drive, and that these facilities and services will be extended to each
proposed new lot. The Hearings Officer finds that if the applicant’s proposal is approved on
appeal, such approval should be subject to a condition of approval requiring the applicant to
install these utility service facilities for each residential development unit.
C. Prior to the granting of final approval for creation of a zero lot
line subdivision or partition, the Planning Director shall
require the applicant(s) to enter into a written agreement in a
form approved by the County Legal Counsel that establishes
the rights, responsibilities and liabilities of the parties with
respect to maintenance and use of any common areas of the
unit, such as, but not limited to, common walls, roofing, water
pipes and electrical wiring. Such agreement shall be in a form
suitable for recording, and shall be binding upon the heirs,
executors, administrators and assigns of the parties.
FINDINGS: The applicant’s burden of proof states the proposed Covenants, Conditions and
Restrictions (CC&Rs) for “The Refuge at Widgi Creek” will be similar to the CC&Rs approved for
the Elkai Woods Townhomes development and will be refined as necessary prior to final plat
approval. The Hearings Officer finds that if the applicant’s proposal is approved on appeal, such
approval should be subject to a condition of approval requiring that prior to final plat approval
the applicant must submit draft CC&Rs for the proposed subdivision to the Deschutes County
Legal Counsel for its review and approval, and record the CC&Rs with the Deschutes County
Clerk following legal counsel’s approval.
Opponents questioned whether and how any new HOA formed for the proposed new
subdivision will coordinate with the three existing HOAs. The Hearings Officer finds that given
the adverse positions of the applicant and the HOAs in this and the Pool application, it is
unlikely any of the HOAs would be interested in assuming responsibility for "The Refuge at
Widgi Creek.” Nevertheless, I find that potential conflicts among the HOAs are not a reason to
deny the applicant’s proposal.
D. Each zero lot line subdivision or partition proposal shall
receive site plan approval prior to submission of the final
plat. Site plan approval shall be granted only upon a finding
that the design, materials and colors proposed for each
dwelling are harmonious and do not detract from the general
appearance of the neighborhood.
FINDINGS: The applicant has applied for site plan approval. However, as discussed in the
findings above, the Hearings Officer has found the applicant’s proposal does not satisfy all
applicable site plan approval criteria.
The submitted burden of proof does include elevation drawings for the proposed dwellings,
showing the townhomes are designed to resemble single-family dwellings. The applicant has
stated exterior building materials will include natural stone and wood timbers, and exterior colors
will be muted earth tones to blend with the natural environment and the structures within the
Widgi Creek resort. Opponents argue the proposed metal roofs are incompatible with nearby
residential development. However, as discussed in the site plan findings above, the Hearings
Officer has found Section 18.84.080(A) specifically allows metal roofing material if it is non-
reflective and of a color that blends with the surrounding vegetation and landscape.
2. Chapter 17.16, Approval of Subdivision Tentative Plans and Master
Development Plans
a. Section 17.16.100, Required Findings for Approval
A tentative plan for a proposed subdivision shall not be approved
unless the Planning Director or Hearings Body finds that the
subdivision as proposed or modified will meet the requirements of
DCC Title 17 and DCC Title 18 through 21, and is in compliance with
the comprehensive plan. Such findings shall include, but not be
limited to, the following:
A. The subdivision contributes to orderly development and land
use patterns in the area, and provides for the preservation of
natural features and resources such as streams, lakes,
natural vegetation, special terrain features, agricultural and
forest lands and other natural resources.
FINDINGS:
1. Orderly Development. The Hearings Officer finds that for purposes of this approval criterion,
“orderly development” is development that is served by adequate public facilities and services
and utilities. The applicant proposes to develop a nine-lot, zero-lot-line subdivision that will have
access from Cascade Lakes Highway via Seventh Mountain Drive, a private road improved to
the county’s private road standards. The proposed dwellings will receive water from the SMGV
Water Co. water system, will be served by the City of Bend sewer system, and will have utility
services through extension of existing utility facilities serving the adjacent developments.
Therefore, I find the proposed subdivision will contribute to orderly development in the area.
2. Land Use Patterns. The existing land use pattern in the area surrounding the subject
property consists of resort and residential development within the Inn/Widgi Creek. The staff
report states, and the based on the Hearings Officer’s site visit observations I agree, that
existing residential development reflects a variety of dwelling styles and densities, and
surrounding development includes private roads, resort amenities such as the clubhouse, tennis
courts and pool, and the Widgi Creek Golf Course. I find the proposed single-family dwellings
will be of comparable size to many of the detached single-family dwellings in Widgi Creek and
will be similar to the townhome developments in Elkai Woods.
Opponents argue the applicant’s proposal will not contribute to the land use pattern in the area
because the subdivision will be located on part of the Widgi Creek Golf Course. As discussed in
the findings above, incorporated herein, the Hearings Officer has found the applicant’s proposal
is prohibited by Comprehensive Plan Policy 4.8.2 which requires areas developed as golf
course to remain available for that use. For these same reasons, I find the applicant’s proposal
will not be consistent with existing land use patterns in the area.
3. Preservation of Natural Features and Resources. The record indicates the proposed
subdivision site does not have any streams or special terrain features. The Widgi Creek
development has man-made lakes and other features, native vegetation including scattered
pine trees and native brush and grasses, as well as introduced landscaping such as golf course
tees, fairways and greens. The proposed subdivision site is located within the LM Zone
associated with Cascade Lakes Highway. The Hearings Officer has found that if the applicant’s
proposal is approved on appeal, such approval should be subject to a condition of approval
requiring the applicant to preserve existing vegetation except that vegetation required to be
removed for construction. I find that with imposition of this condition of approval the Applicant’s
proposal will preserve natural features and resources.
For the foregoing reasons, the Hearings Officer finds the applicant’s proposal does not satisfy
this criterion.
B. The subdivision will not create excessive demand on public
facilities and services, and utilities required to serve the
development.
FINDINGS: Public facilities and services affected by the proposed subdivision include domestic
water, sewer, roads, storm drainage, police and fire protection, and schools. Each of these
facilities and services is addressed in the findings below.
1. Domestic Water. The applicant’s burden of proof states the proposed subdivision will be
served by the existing Widgi Creek Water System which is a shared system owned by SMGV
Water Company and Bhelm, LLC. The well permit for this water system is included as Exhibit G
to the applicant’s burden of proof. The burden of proof states the water system is supplied by
ground wells permitted through the OWRD with water quality and distribution regulated under
Oregon’s Drinking Water Quality Act, administered by the Drinking Water Services (DWS)
division of the Oregon Health Authority. The applicant states the well permit is for a total of 107
single family dwellings, 103 condominiums, and 130.9 acres of irrigation, commercial uses and
ponds. The applicant states that because currently there are 107 single family residential lots
and 86 townhomes platted at Widgi Creek, there remain 17 “condominium” units on the current
well permit. The proposed subdivision would add nine residential units.
The staff report questions whether the proposed townhome units, at over 3,000 square feet in
size, reasonably can be considered “condominium” units for purposes of the well permit. The
Hearings Officer assumes staff’s concern relates to the amount of water usage predicted for
different types of dwellings. In addition, opponents testified about occasional drops in water
pressure in Widgi Creek. I understand staff’s and opponents’ concerns about water capacity,
particularly in light of the board’s intent, discussed in the comprehensive plan findings above,
that future residential development in Widgi Creek be limited by water and sewer capacity. For
this reason, I find that if the applicant’s proposal is approved on appeal, such approval should
be subject to a condition of approval requiring the applicant to provide to the Planning Division
written documentation from the SMGV Water Company that there is sufficient capacity in the
water system and well permit to serve the nine dwellings proposed in this application and the
eight dwellings proposed in the applicant’s Pool application.
2. Sewer. The applicant’s burden of proof states the proposed subdivision would be served by
an extension of and connection to City of Bend sewer facilities pursuant to the existing sewer
service agreements between the city and SMGA Partnership (1992) and Widgi Creek, included
in Exhibit “C” to the applicant’s burden of proof. The applicant proposes that sewer service lines
be extended to each lot in accordance with the city’s standards and specification. Included as
Exhibit “D” to the applicant’s burden of proof is a “Sewer Analysis Memo” dated July 14, 2014
and prepared by the city’s Engineering Division. The memo states the following with respect to
the applicant’s Fairway application:
“First Fairway Site – There is an existing 8-inch gravity main located on the
northern boundary of the proposed development site within Golf Village Loop.
There is a proposed sewer mainline within Seventh Mountain Drive on the
northern boundary. It is assumed for the sake of analysis that flows generated by
this development shall be directed at said pipe. A peak summer day average flow
rate of 1.73 GMP [gallons per minute] was assumed for the sake of modeling the
development of 9 single family lots (9 EDUs [equivalent dwelling units] @ 0.19
GMP/DU) as provided by the applicant.” (Bold and underscored emphasis in
original.)
The memo stated the city did not identify any areas of concern in its analysis, but that the
applicant would be required to upgrade the city’s existing lift station on the Widgi Creek Golf
Course prior to final plat approval. The memo also stated the applicant would be required to
submit a new sewer analysis application when “the final locations of the 38 lots” for which the
applicant requested sewer service in Widgi Creek are determined.11 The Hearings Officer finds
the city’s sewer analysis memo indicates there is sufficient sewer system capacity to serve the
nine proposed lots. I find that if the applicant’s proposal is approved on appeal, such approval
should be subject to a condition of approval requiring that before final plat approval the applicant
submit a new sewer analysis memo from the city documenting that sewer capacity is still
11 Opponents expressed concern about the applicant’s reservation of sewer capacity for 38 additional
dwellings in Widgi Creek and questioned where all of those dwellings would be located. The Hearings
Officer finds I need not address that issue because the only applications before me are the Fairway and
Pool applications that together propose 17 dwelling units.
available, and written documentation from the city that all required upgrades to the
aforementioned lift station have been completed.12
Opponent HOAs argue extension of city sewer service to the proposed subdivision requires an
exception to Goal 11, Public Facilities and Services, because they claim the original extension
of sewer to the Inn/Widgi was not under an approved Goal 11. They are mistaken. The record
includes a copy of Ordinance No. 90-039 through which the county took a “reasons” exception
to Goal 11 to allow the extension of city sewer facilities to Seventh Mountain Golf Village and
the Inn of the Seventh Mountain. The ordinance also adopted an amendment to the
comprehensive plan adding the following paragraph:
The County shall not allow any further connection to the sewer line extended to
the Inn of the Seventh Mountain destination resort outside of the City of Bend’s
acknowledged urban growth boundary. (Emphasis added.)
The HOAs apparently believe the above-underscored language precludes serving the
applicant’s proposed subdivision with city sewer. The Hearings Officer disagrees. The findings
in support of the exception include the following:
“BASIC FINDINGS:
* * *
9. The interest in the sewer line extension arises from The Inn’s plans for a
237-acre expansion, which was authorized pursuant to case files M-83-1
and CU-83-107, and which was last modified in file MC-88-1. The project
is scheduled for completion by December 31, 1991.
* * *
CONCLUSIONARY FINDINGS:
2. * * * [T]he use of the sewer line will be limited to The Inn of the Seventh
Mountain, an existing resort whose expansion has been reviewed and
approved in conformance with all local land use regulations. Therefore,
the expansion of this key facility to the resort is consistent with the
capabilities of the land and planned growth of the community.
3. The purpose of the amendment is to allow a specific user, The Inn of the
Seventh Mountain, to connect to the City of Bend’s sewerage system. * *
*
4. The proposed amendment would allow The Inn to replace or substitute
the current on-site sewage disposal system with the City’s sewage
system. * * * The amendment would not result in the establishment of
12 The July 2014 sewer memo states its analysis is valid for six months, and therefore it would have
expired in January of 2015. The applicant submitted into the record as an attachment to its January 20,
2015 submission, an electronic mail message dated January 13, 2015 from the city’s engineer stating the
sewer capacity reserved for Widgi Creek continues to be reserved from the date of the applicant’s land
use application.
any new use, it would only alter the method of sewage disposal and the
provider of that service. For these reasons, the requirements of OAR 660-
04-020(2)(c)[“reasons” exception] are satisfied.” (Bold and underscored
emphasis in original.)
The Hearings Officer finds it is clear from these findings that the county took an exception to
Goal 11 to extend city sewer service to what is now Widgi Creek – i.e., the approved 237-acre
expansion to the original Inn of the Seventh Mountain -- and therefore the plan language
prohibiting “any further connection” to the sewer line extended to the Inn/Widgi applies to any
uses other than the Inn/Widgi resort.
3. Storm Drainage. The applicant’s burden of proof states all surface water drainage will be
contained on site through a system of a system of drainage swales, retention/infiltration basins,
and/or culverts. As discussed in the findings above, the Hearings Officer has found that if the
applicant’s proposal is approved on appeal, such approval should be subject to a condition of
approval requiring the applicant to install all surface drainage systems in conformance with the
applicable DEQ design standards for such systems, and to provide to the Planning Division
before final plat approval certification by a licensed professional engineer that drainage facilities
have been designed and constructed in accordance with the current Central Oregon Stormwater
Manual.
4. Roads. The applicant proposes access to the new subdivision dwellings from Cascade Lakes
Highway via the existing Seventh Mountain Drive. As discussed in the findings above,
incorporated by reference herein, the Hearings Officer has found that based on the applicant’s
January, 2015 traffic analyses, traffic predicted to be generated by the proposed nine new
dwellings will not exceed the capacity of Seventh Mountain Drive or its intersections with Golf
Village Loop and Cascade Lakes Highway.
5. Police Protection. Widgi Creek is served by the Deschutes County Sheriff who did not
comment on the applicant’s proposal.
6. Fire Protection. In his December 26, 2014 comments on the applicant’s proposal, Bend Fire
Marshal Larry Medina identified a number of applicable standards in the Oregon Fire Code
applicable to the proposed new subdivision, including requirements for fire apparatus access
roads, fire protection water supplies, and visible address numbers. The Hearings Officer finds
that if the applicant’s proposal is approved on appeal, such approval should be subject to a
condition of approval requiring the applicant to assure the subdivision complies with all
requirements identified by the fire department, and to submit to the Planning Division prior to
final plat approval written documentation from the fire department that all such requirements
have been met.
7. Schools. The Hearings Officer finds Widgi Creek is located within the boundaries of the
Bend-LaPine School District. The district did not submit comments on the applicant’s proposal.
However, I am aware the district responds in a variety of ways to accommodate additional
students who may move into new developments. In particular, the school district typically
requests that roads within the development have sidewalks to accommodate student
pedestrians, and that the developer be required to provide the school district with a perpetual
easement to allow school district vehicles to travel across private roads. The Hearings Officer
finds that if the applicant’s proposal is approved on appeal, such approval should be subject to a
condition of approval requiring that the applicant record a perpetual easement allowing Bend-
LaPine School District vehicles to travel across Seventh Mountain Drive.
8. Utilities. The Hearings Officer finds utilities including electric, cable and telephone service are
available to the proposed subdivision because they currently are provided to existing development
within Widgi Creek.
For the foregoing reasons, and with imposition of the recommended conditions of approval, the
Hearings Officer finds the applicant’s proposal will not create excessive demand on public
facilities and services and utilities.
C. The tentative plan for the proposed subdivision meets the
requirements of ORS 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 a nine-lot, zero-lot-line subdivision to be known as “The Refuge at Widgi Creek.”
The Hearings Officer finds this subdivision name conforms to Subsection (1) of the statute.
Subsection (2) of this statute requires that roads be laid out to conform with existing plats on
adjoining property, that streets and roads held for private use are clearly indicated on the
tentative plan, and that all reservations or restrictions relating to such private roads and streets
are set forth on the plat. As discussed in the Findings of Fact above, the proposed subdivision
site is part of two much larger legal lots of record that are part of the Seventh Mountain Golf
Village Subdivision. However, there are no adjoining platted residential lots with which “The
Refuge at Widgi Creek” must conform. As discussed above, the subdivision would take access
from Seventh Mountain Drive, an existing private road within Widgi Creek. The Hearings Officer
finds that if this subdivision is approved on appeal, such approval should be subject to a
condition of approval requiring the applicant to show on the final plat the private road status of
Seventh Mountain Drive and any public easements.
The Hearings Officer finds Subsections (3), (4) and (5) of the statute relate to final platting and
therefore are not applicable to the applicant’s proposal for tentative plan approval.
D. For subdivision or portions thereof proposed within a Surface
Mining Impact Area (SMIA) zone under DCC Title 18, the
subdivision creates lots on which noise or dust sensitive uses
can be sited consistent with the requirements of DCC 18.56, as
amended, as demonstrated by the site plan and accompanying
information required under DCC 17.16.030.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject
property is not within a SMIA Zone.
E. The subdivision name has been approved by the County
Surveyor.
FINDINGS: The Hearings Officer finds that if the applicant’s proposal is approved on appeal,
such approval should be subject to a condition of approval requiring the applicant to obtain
approval of the subdivision name from the Deschutes County Surveyor.
c. Section 17.16.105, Access to Subdivisions
No proposed subdivision shall be approved unless it would be
accessed by roads constructed to County standards and by roads
accepted for maintenance responsibility by a unit of local or state
government. This standard is met if the subdivision would 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,
by demonstrating that the road accessing the subdivision from a
collector or arterial meets relevant County standards and has been
accepted for maintenance purposes.
FINDINGS: The proposed subdivision would have frontage on Seventh Mountain Drive, a private
road platted as part of the Seventh Mountain Golf Village Subdivision, Tract A, which connects to
Cascade Lakes Highway, an ODOT-maintained arterial road. In its comments on the applicant’s
proposal, the road department stated all private roads providing access to the proposed
subdivision meet the county’s private road standards.
3. Chapter 17.36, Design Standards
a. Section 17.36.020, Streets
A. The location, width and grade of streets shall be considered
in their relation to existing and planned streets, topographical
conditions, public convenience and safety, and the proposed
use of land to be served by the streets. The street system
shall assure an adequate traffic circulation system for all
modes of transportation, including pedestrians, bicycles, and
automobiles with intersection angles, grades, tangents, and
curves appropriate for traffic to be carried, considering the
terrain. The subdivision or partition shall provide for the
continuation of the principal streets existing in the adjoining
subdivision or partition or of their property projection when
adjoining property which is not subdivided, and such streets
shall be of a width not less than the minimum requirement for
streets set forth in this chapter.
FINDINGS: The proposed subdivision would have frontage on and access from Cascade Lakes
Highway, an ODOT-maintained arterial road, with residential lot access via the existing Seventh
Mountain Drive, a private road platted as Tract A in the Seventh Mountain Golf Village Subdivision
and improved in accordance with the county’s standards for private roads. The applicant does not
proposed any new streets. Therefore, the Hearings Officer finds the applicant’s proposal
satisfies this criterion.
B. 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 developments shall include public streets
where necessary to accommodate present and future through
traffic.
FINDINGS: The subject property is located in a RC Zone where private roads are allowed under
Section 18.110.060(J)(1). No new roads are proposed. Therefore, the Hearings Officer finds the
applicant’s proposal satisfies this criterion.
b. Section 17.36.040, 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 or by the County roadway network
plan, additional rights of way shall be provided at the time of the
land division by the applicant. During consideration of the tentative
plan for the subdivision or partition, the Planning Director or
Hearings Body, together with the Road Department Director, shall
determine whether improvements to existing streets adjacent to or
within the tract, are required. If so determined, such improvements
shall be required as a condition of approval for the tentative plan.
Improvements to adjacent streets shall be required where traffic on
such streets will be directly affected by the proposed subdivision or
partition.
FINDINGS: Neither the road department nor the county’s Senior Transportation Planner identified
any required right-of-way or improvements to Seventh Mountain Drive or Cascade Lakes Highway
to accommodate traffic generated by the proposed subdivision. Nevertheless, opponents
expressed concern that Seventh Mountain Drive is not wide enough to accommodate additional
traffic from the proposed subdivision. As discussed in the findings above, based on the applicant’s
traffic analyses, the Hearings Officer has found the proposed subdivision will add such a small
amount of additional traffic to Seventh Mountain Drive that the road’s capacity will not be
exceeded, and the intersections of Seventh Mountain Drive with Cascade Lakes Highway and
Golf Village Loop will continue to function at acceptable levels of service. Therefore, I find the
applicant will not be required to construct any road improvements. However, as also discussed
above, I have found the location and configuration of proposed Lots 8 and 9 will require vehicles
to back onto the narrow, one-way segment of Seventh Mountain Drive, and into the intersection
with Golf Village Loop, thereby creating unacceptable safety hazards.
c. Section 17.36.050, Continuation of Streets
Subdivision or partition streets which constitute the continuation of
streets in contiguous territory shall be aligned so that their
centerlines coincide.
FINDINGS: The Hearings Officer finds this criterion is not applicable because no new streets
are proposed.
d. Section 17.36.060, Minimum Right of Way and Roadway Width
The street right of way and roadway surfacing widths shall be in
conformance with standards and specifications set forth in DCC
17.48. Where DCC 17.48 refers to street standards found in a zoning
ordinance, the standards in the zoning ordinance shall prevail.
FINDINGS: The applicant’s proposal does not include any new streets or improvements to
existing streets. The proposed dwellings would have frontage on and access from Seventh
Mountain Drive. The record indicates that road is improved with 20 feet of paved surface as
required for private roads in Table A of Title 17. The Hearings Officer finds neither the RC nor
WA Zone establishes street standards. Compliance with the private road standards in Section
17.48.180 is discussed in the findings below.
e. Section 17.36.080, Future Extension of Streets
When necessary to give access to or permit a satisfactory future
division of adjoining land, streets shall be extended to the boundary
of the subdivision or partition.
FINDINGS: The Hearings Officer finds that because the adjoining land to the south is developed
as the Widgi Creek Golf Course, it will not be further divided or developed with other uses. I find
adjoining land on each side of the proposed subdivision site has frontage on and access to
Seventh Mountain Drive.
f. Section 17.36.120, Street Names
Except for extensions of existing streets, no street name shall be
used which will duplicate or be confused with the name of an
existing street in a nearby city or in the County. Street names and
numbers shall conform to the established pattern in the County and
shall require approval from the County Property Address
Coordinator.
FINDINGS: The Hearings Officer finds this criterion is not applicable because no new streets
are proposed.
g. Section 17.36.130, Sidewalks
* * *
C. Sidewalk requirements for areas outside of urban areas are set
forth in DCC 17.48.175. In the absence of a special requirement
set forth by the Road Department Director under DCC
17.48.030, sidewalks and curbs are never required in rural
areas outside unincorporated communities as that term is
defined in DCC Title 18.
FINDINGS: The subject property is located in an unincorporated community and therefore this
criterion is applicable. Compliance with the provisions of Chapter 17.48 is addressed in the
findings below.
h. Section 17.36.140, Bicycle, Pedestrian and Transit Requirements
A. Pedestrian and Bicycle Circulation within Subdivision.
1. The tentative plan for a proposed subdivision shall
provide for bicycle and pedestrian routes, facilities
and improvements within the subdivision and to
nearby existing or planned neighborhood activity
centers, such as schools, shopping areas and parks in
a manner that will:
a. Minimize such interference from automobile
traffic that would 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 staff report questions whether the provisions of this paragraph apply where, as
here, Widgi Creek includes an existing shared-use system connecting dwellings with resort
amenities. Staff also questions whether residents of the proposed dwellings will have legal
access to the resort-wide shared-road system. The Hearings Officer finds that if the applicant’s
proposal is approved on appeal, such approval should be subject to a condition of approval
requiring the applicant to submit to the Planning Division before final plat approval written
documentation (such as recorded easements) showing residents of the proposed dwellings will
have legal access to all paths leading to resort amenities.
2. Subdivision Layout.
a. Cul-de-sacs or dead-end streets shall be
allowed only where, due to topographical or
environmental constraints, the size and shape
of the parcel, or a lack of through-street
connections in the area, a street connection is
determined by the Planning Director or
Hearings Body to be infeasible or inappropriate.
In such instances, where applicable and
feasible, there shall be a bicycle and pedestrian
connection connecting the ends of cul-de-sacs
to streets or neighborhood activity centers on
the opposite side of the block.
b. Bicycle and pedestrian connections between
streets shall be provided at mid-block where the
addition of a connection would reduce the
walking or cycling distance to an existing or
planned neighborhood activity center by 400
feet and by at least 50 percent over other
available routes.
c. Local roads shall align and connect with
themselves across collectors and arterials.
Connections to existing or planned streets and
undeveloped properties shall be provided at no
greater than 400-foot intervals.
d. Connections shall not be more than 400 feet
long and shall be as straight as possible.
FINDINGS: The Hearings Officer finds these criteria are not applicable because the proposed
subdivision does not include any cul-de-sacs or dead-end streets, there is no grid system with
typical blocks in the area, no new streets are proposed, and the subdivision would have access
from Cascade Lakes Highway via an existing private road.
3. Facilities and Improvements.
a. Bikeways may be provided by either a separate
paved path or an on-street bike lane, consistent
with the requirements of DCC Title 17.
b. Pedestrian access may be provided by
sidewalks or a separate paved path, consistent
with the requirements of DCC Title 17.
c. Connections shall have a 20-foot right of way,
with at least a 10-foot usable surface.
FINDINGS: Again, the staff report questions whether the existing shared-use road system in
Widgi Creek will satisfy this criterion by being available to residents of the proposed dwellings.
As discussed in the findings above, the Hearings Officer has found that if the applicant’s
proposal is approved on appeal, such approval should be subject to a condition of approval
requiring the applicant to provide to the Planning Division prior to final plat approval written
documentation (such as recorded easements) showing residents of the proposed dwellings will
have legal access to all paths leading to resort amenities.
i. Section 17.36.150, Blocks
A. General. The length, width and shape of blocks shall
accommodate the need for adequate building site size, street
width and direct travel routes for pedestrians and cyclists
through the subdivision and to nearby neighborhood activity
centers, and shall be compatible with the limitations of the
topography.
FINDINGS: The Hearings Officer finds this criterion is not applicable because there is no grid
system with typical blocks in Widgi Creek.
B. Size. 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 17.36.140.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject
property is located outside of an urban growth boundary.
j. Section 17.36.160, Easements
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.
B. Drainage. If a tract is traversed by a watercourse such as a
drainageway, channel or stream, there shall be provided a
stormwater easement or drainage right of way conforming
substantially with the lines of the watercourse, or in such
further width as will be adequate for the purpose. Streets or
parkways parallel to major watercourses or drainageways
may be required.
FINDINGS: The applicant proposes to show utility easements on the final subdivision plat, and
the Hearings Officer finds that if the applicant’s proposal is approved on appeal, such approval
should be subject to a condition of approval requiring the applicant to do so. The applicant
proposes that the dwellings be served by City of Bend sewer facilities pursuant to a sewer
service license/agreement between the applicant and the city. The record indicates there are no
water courses such as a drainage way, channel or stream on the proposed subdivision site.
k. Section 17.36.170, Lots-Size and Shape
The size, width and orientation of lots or parcels shall be
appropriate for the location of the land division and for the type of
development and use contemplated, and shall be consistent with the
lot or parcel size provisions of DCC Title 18 through 21.
FINDINGS: The Hearings Officer finds the size, width and orientation of the proposed lots are
appropriate for the proposed zero-lot-line subdivision and for the remainder golf use parcel.
l. Section 17.36.180, Frontage
A. Each lot or parcel shall abut upon a public road, or when
located in a planned development or cluster development, a
private road, for at least 50 feet, except for lots or parcels
fronting on the bulb of a cul-de-sac, then the minimum
frontage shall be 30 feet, and except for partitions off of U.S.
Forest Service or Bureau of Land Management roads. In the
La Pine Neighborhood Planning Area Residential Center
District, lot widths may be less than 50 feet in width, as
specified in DCC 18.61, Table 2: La Pine Neighborhood
Planning Area Zoning Standards. Road frontage standards in
destination resorts shall be subject to review in the
conceptual master plan.
B. All side lot lines shall be at right angles to street lines or
radial to curved streets wherever practical.
FINDINGS: The applicant’s burden of proof states these criteria are not applicable because
Section 18.110.060(J) exempts zero-lot-line subdivisions from the lot width and frontage
requirements in this section. The staff report questions whether such exemptions are applicable
to requirements in Title 17. In the Hearings Officer’s decision in Arrowood, cited above, I held
without analysis or discussion that the zero-lot-line lots proposed in that decision were exempt
from compliance with this section. I find it would not be appropriate to require compliance with
the frontage standards in Title 17 while exempting the subdivision from equivalent requirements
in Title 18. Therefore, I adhere to my holding in Arrowood.13
m. 17.36.190, Through Lots
Lots or parcels with double frontage should be avoided except
where they are essential to provide separation of residential
development from major street or adjacent nonresidential activities
to overcome specific disadvantages of topography and orientation.
A planting screen easement of at least 10 feet in width and across
which there shall be no right of access may be required along the
lines of lots or parcels abutting such a traffic artery or other
incompatible use.
FINDINGS: The Hearings Officer finds this criterion is not applicable because no lots or parcels
with double frontage are proposed.
n. 17.36.200, 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 shall 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 the subject
property is not located in an urban growth boundary.
o. 17.36.210, Solar Access Performance
A. As much solar access as feasible shall be provided each lot
or parcel in every new subdivision or partition, considering
topography, development pattern and existing vegetation.
The lot lines of lots or parcels, as far as feasible, shall be
oriented to provide solar access at ground level at the
southern building line two hours before and after the solar
13 The Hearings Officer notes former Hearings Officer Briggs also found, without discussion, that the
proposed Points West zero-lot-line subdivision she approved in 2006 was exempt from the Title 17
frontage requirements.
zenith from September 22nd to March 21st. If it is not feasible
to provide solar access to the southern building line, then
solar access, if feasible, shall be provided at 10 feet above
ground level at the southern building line two hours before
and after the solar zenith from September 22nd to March 21st,
and three hours before and after the solar zenith from March
22nd to September 21st.
B. This solar access shall be protected by solar height
restrictions on burdened properties for the benefit of lots or
parcels receiving the solar access.
C. If the solar access for any lot or parcel, either at the southern
building line or at 10 feet above the southern building line,
required by this performance standard is not feasible,
supporting information must be filed with the application.
FINDINGS: For the reasons set forth in the findings above concerning street frontage,
incorporated by reference herein, the Hearings Officer finds Section 18.110.060(J)(2) exempts
the applicant’s proposal from the solar access standards in this section and in Title 18.
p. 17.36.220, Underground Facilities
Within an urban growth boundary, all permanent utility services to
lots or parcels in a subdivision or partition shall be provided from
underground facilities; provided, however, the Hearings Body may
allow overhead utilities if the surrounding area is already served by
overhead utilities and the proposed subdivision or partition would
create less than 10 lots. The subdivision or partition shall be
responsible for complying with requirements of DCC 17.36.220, and
shall:
* * *
FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject
property is not located in an urban growth boundary.
q. 17.36.230, Grading of Building Sites
Grading of building sites shall conform to the following standards,
unless physical conditions demonstrate the property of other
standards:
A. Cut slope ratios shall not exceed one foot vertically to one
and one half feet horizontally.
B. Fill slope ratios shall not exceed one foot vertically to two
feet horizontally.
C. The composition of soil for fill and the characteristics of lots
and parcels made usable by fill shall be suitable for the
purpose intended.
D. When filling or grading is contemplated by the subdivider, he
shall submit plans showing existing and finished grades for
the approval of the Community Development Director. In
reviewing these plans, the Community Development Director
shall consider the need for drainage and effect of filling on
adjacent property. Grading shall be finished in such a manner
as not to create steep banks or unsightly areas to adjacent
property.
FINDINGS: Based on the Hearings Officer’s site visit observations, I find the proposed
subdivision site is essentially level and therefore minimal grading will be required. The Hearings
Officer finds that if the applicant’s proposal is approved on appeal, such approval should be
subject to a condition of approval requiring the applicant to comply with the grading standards in
this section.
s. 17.36.250, Lighting
Within an urban growth boundary, the subdivider shall provide
underground wiring to the County standards, and a base for any
proposed ornamental street lights at locations approved by the
affected utility company.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject
property is not located in an urban growth boundary.
t. Section 17.36.260, Fire Hazards
Whenever possible, a minimum of two points of access to the
subdivision or partition shall be provided to provide assured access
for emergency vehicles and ease resident evacuation.
FINDINGS: Access to the subject property is from Cascade Lake Highway via Seventh
Mountain Drive, an existing private road. In addition, the record indicates there is an emergency
access/egress near the northeast corner of the adjacent Points West Subdivision that connects
Seventh Mountain Drive to Elkai Woods Road in the W idgi Creek resort. The Hearings Officer
finds that if the applicant’s proposal is approved on appeal, such approval should be subject to a
condition of approval requiring the applicant to provide to the Planning Division before final plat
approval written documentation that the existing emergency ingress/egress for Widgi Creek will
be available to the residents of the proposed new dwellings.
u. 17.36.270, Street Tree Planting
Street tree planting plans, if proposed, for a subdivision or partition,
shall be submitted to the Planning Director and receive his approval
before the planting is begun.
FINDINGS: The applicant did not address this criterion in its burden of proof. The Hearings
Officer finds the applicant’s proposed landscape plan does not appear to propose any street
trees. Therefore, I find this criterion is not applicable.
v. 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: The applicant proposes to serve the new dwellings with domestic water via the
existing private community water system owned and operated by SMGV Water Company and
Bhelm, LLC). Sewage treatment would be provided through connection to existing City of Bend
sewer facilities. The Hearings Officer finds that if the applicant’s proposal is approved on
appeal, such approval should be subject to a condition of approval requiring the applicant to
construct all water and sewer lines to the applicable county and city standards and
specifications, to install all required sewer and water mains prior to any street paving, and to
provide to the Planning Division before final plat approval written verification that water and
sewer lines have been extended to each lot.
w. Section 17.36.300, Public Water 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 agency. A
community water system shall be required where lot or parcel sizes
are less than one acre or where potable water sources are at depths
greater than 500 feet, excepting land partitions. Except as provided
for in DCC 17.24.120 and 17.24.130, a required water system shall be
constructed and operational, with lines extended to the lot line of
each and every lot depicted in the proposed subdivision or partition
plat, prior to final approval.
FINDINGS: The proposed lots are less than one acre in size and therefore a community water
system is required. The applicant proposes to provide domestic water through connection to the
existing private community water system owned and operated by SMGV Water Company and
Bhelm, LLC. The Hearings Officer finds that if the applicant’s proposal is approved on appeal,
such approval should be subject to a condition of approval requiring that prior to final plat
approval: (1) the water system shall be operational with lines extended to each lot; (2) any and
all required plan review and approval of the water system by the Oregon Health Division (OHD)
shall be performed; and (3) the applicant shall provide to the Planning Division written
verification from the OHD of that review and approval.
4. Chapter 17.44, Park Development
a. Section 17.44.010, Dedication of Land
A. For subdivisions or partitions inside an urban growth
boundary, the developer shall set aside and dedicate to the
public for park and recreation purposes not less than eight
percent of the gross area of such development, if the land is
suitable and adaptable for such purposes and is generally
located in an area planned for parks.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject
property is not located within an urban growth boundary.
B. 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.
C. 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.
D. The Planning Director or Hearings Body shall determine
whether or not such land is suitable for park purposes.
E. 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 shall be subject to the condition
that the County or appropriate park district accept the deed
dedicating such land.
F. DCC 17.44.010 shall not apply to the subdivision or partition of
lands located within the boundaries of a parks district with a
permanent tax rate.
FINDINGS: The subject property is located outside of an urban growth boundary and outside the
boundaries of the Bend Metro Park and Recreation District. In the Hearings Officer’s decision in
Arrowood I made the following findings under this section:
“The Hearings Officer finds that in light of the subject property’s location more or
less in the center of a resort area that provides numerous recreational amenities
and opportunities, and the proposed configuration of the subdivision, the proposed
subdivision does not have land that is suitable and adaptable for park purposes
and the applicant need not set aside park land. Rather, the applicant must comply
with Section 17.44.020 discussed below.”
The Hearings Officer finds that although the proposed subdivision site is not in the center of the
Widgi Creek resort, nevertheless it is in close proximity to the many recreational amenities and
opportunities provided in the resort. Therefore, I find the applicant need not set aside or dedicate
park land in the proposed subdivision, but will be required to comply with Section 17.44.020.14
14 The Hearings Officer notes former Hearings Officer Briggs came to the same conclusion concerning the
lack of necessity to set aside or dedicate park land in her 2006 decision approving the Points West
Subdivision.
b. Section 17.44.020, Fee in Lieu of Dedication
A. In the event there is no suitable park or recreation area or site
in the proposed subdivision or partition, or adjacent thereto,
then the developer shall, in lieu of setting aside land, pay into a
park acquisition and development fund a sum of money equal
to the fair market value of the land that would have been
donated under 17.44.010 above. For the purpose of
determining the fair market value, the latest value of the land,
unplatted and without improvements, as shown on the County
Assessor's tax roll shall be used. The sum so contributed shall
be deposited with the County Treasurer and be used for
acquisition of suitable area for park and recreation purposes
or for the development of recreation facilities. Such
expenditures shall be made for neighborhood or community
facilities at the discretion of the Board of County
Commissioners and/or applicable park district.
B. DCC 17.44.020 shall not apply to subdivision or partition of
lands located within the boundaries of a parks district with a
permanent tax rate.
FINDINGS: The Hearings Officer finds that if the applicant’s proposal is approved on appeal,
such approval should be subject to a condition of approval requiring the applicant to pay a fee in
lieu of dedication of park land in the amount of $3,150 ($350 x 9 dwelling units).
5. Chapter 17.48, Design and Construction Specifications
a. Section 17.48.160, Road Development Requirements-Standards
A. Subdivision Standards. All roads in new subdivisions shall
either be constructed to a standard acceptable for inclusion
in the County maintained system or the subdivision shall be
part of a special road district or a homeowners association in
a planned unit development.
FINDINGS: The applicant does not propose any new roads to serve the new subdivision. The
proposed zero-lot-line lots would have access from Seventh Mountain Drive, an existing private
road in Widgi Creek.
b. Section 17.48.180, Private Roads
The following minimum road standards shall apply for private roads:
A. The minimum paved roadway width shall be 20 feet in
planned unit developments and cluster developments with
two foot wide gravel shoulders;
B. Minimum radius of curvature, 50 feet;
C. Maximum grade, 12 percent;
D. At least one road name sign will be provided at each
intersection for each road;
E. A method for continuing road maintenance acceptable to the
County;
F. Private road systems shall include provisions for bicycle and
pedestrian traffic.
1. In cluster and planned developments limited to ten
dwelling units, the bicycle and pedestrian traffic can
be accommodated within the 20-foot wide road.
2. In other developments, shoulder bikeways shall be a
minimum of four feet wide, paved and striped, with no
on street parking allowed within the bikeway, and
when private roads are developed to a width of less
than 28 feet, bike paths constructed to County
standards shall be required.
Table A Footnote (8) 20’ allowed for cul-de-sac’s and roads
with low anticipated traffic volumes as long as
separate multiple use paths are provided. 28’ width
required (including the required 4’ striped shoulder
bikeway in each direction) for circulator and primary
subdivision access roads and other roads when
separate multiple use paths are not provided.
FINDINGS: The staff report identifies this section as applicable to the applicant’s proposed
subdivision because it is not a planned unit or cluster development. The Hearings Officer finds
this section is not applicable because the applicant does not propose any new roads for the
subdivision and the subdivision lots will take access from Seventh Mountain Drive. And in any
case, the record indicates Seventh Mountain Drive has at least 20 feet of pavement width,
thereby satisfying the private road standards in Table A to Title 17. As noted in the findings
above, neither the road department nor the county’s senior transportation planner identified the
need for additional right-of-way for or improvements to Seventh Mountain Drive to
accommodate traffic generated by the new subdivision.
IV. DECISION:
For the foregoing reasons, the Hearings Officer hereby DENIES the applicant’s proposed
tentative subdivision plan, site plan, and LM review.
In the event this decision is appealed to the Board of County Commissioners, and the Board
elects to hear the appeal and approves the applicant’s proposal on appeal, the Hearings Officer
RECOMMENDS such approval be SUBJECT TO THE FOLLOWING CONDITIONS OF
APPROVAL:
1. This approval for a nine-lot, zero-lot-line subdivision is based on the applicant’s
submitted tentative plan, site plan, burden of proof, supplemental memoranda, exhibits,
and written and oral testimony. Any substantial change to the approved tentative plan
and/or site plan shall require new land use applications and approvals.
PRIOR TO SUBMITTING THE FINAL SUBDIVISION PLAT FOR APPROVAL:
2. The applicant/owner shall submit to the Planning Division a revised site plan showing:
a. the location and design of any above-ground utility facilities and the manner of
screening with vegetation or otherwise so that adverse visual impacts on the site
and neighboring properties are minimized;
b. true color samples of the finish and roofing materials, demonstrating exterior
finishes are in muted earth tones (e.g., browns, greens, or grays) that blend and
reduce contrast with the surrounding vegetation and landscape of the building
site, and that large areas, including roofs, are not finished with white, bright or
reflective materials; and
c. the remainder lot, all existing uses thereon, all off-site parking spaces thereon, and
the sum of all off-street parking requirements.
3. The applicant/owner shall provide to the Planning Division written documentation from
the SMGV Water Company that there is sufficient capacity in its water system and well
permit to serve the nine dwellings approved in this decision and the eight dwellings
approved in the Pool decision (247-14-000391-TP, 247-14-000393-SP, 247-14-000394-
LM).
4. The applicant/owner shall obtain approval of the subdivision name from the Deschutes
County Surveyor.
5. The applicant/owner shall submit to the Planning Division written documentation from
the City of Bend Fire Department that all requirements for fire apparatus access roads
and fire protection water supplies have been met.
6. The applicant/owner shall submit to the Planning Division a new sewer analysis memo
from the City of Bend documenting that sewer capacity is still available, and written
documentation from the City of Bend that all required upgrades to the existing lift station
on the Widgi Creek Golf Course have been completed.
WITH OR ON THE FINAL PLAT:
7. The applicant/owner shall prepare the final plat in accordance with Title 17 of the
Deschutes County Code, including all the necessary information required by Section
17.24.060.
8. The applicant/owner shall show on the final plat:
a. the exact lot size of each residential lot;
b. all easements of record and existing rights-of-way;
c. a statement of water rights as required by ORS 92.120;
d. all utility easements; and
e. all public access easements.
9. The final plat shall be signed by all persons with an ownership interest in the property, as
well as the Deschutes County Assessor and Tax Collector.
10. The applicant/owner shall record with the Deschutes County Clerk a perpetual easement
allowing Bend-LaPine School District vehicles to travel on Seventh Mountain Drive.
11. The applicant/owner shall provide to the Planning Division certification by a licensed
professional engineer that drainage facilities have been designed and constructed in
accordance with the current Central Oregon Stormwater Manual to receive and/or
transport stormwater from at least the design storm (as defined in the current Central
Oregon Stormwater Manual) for all surface drainage water including stormwater coming
to and/or passing through the development.
WITH CONSTRUCTION:
12. The applicant/owner shall assure that no dwellings exceed thirty (30) feet in height.
13. The applicant/owner shall install any outdoor lighting in conformance with the county’s
outdoor lighting standards in Chapter 15.10 of the Deschutes County Code.
14. The applicant/owner shall install any signs in conformance with the sign regulations in
Chapter 15.08 of the Deschutes County Code.
15. The applicant/owner shall install all surface drainage systems in conformance with the
applicable Department of Environmental Quality (DEQ) design standards for such
systems. to construct all water and sewer lines to the applicable county and city
standards and specifications, to install all required sewer and water mains prior to any
street paving, and to provide to the Planning Division before final plat approval written
verification that water and sewer lines have been extended to each lot.
16. The applicant/owner shall assure compliance with all requirements of the Americans with
Disabilities Act (ADA) identified by the county during the building plan review and
permitting process for the dwellings.
17. The applicant/owner shall comply with the county’s grading standards in Section
17.36.230.
18. The applicant/owner shall provide for each dwelling a ground-level space with an
accessible private outdoor patio and yard in excess of 48 square feet in size.
19. If the approved dwellings are constructed with metal roofs, the applicant/owner shall
assure those roofs are non-reflective and of a color that blends with the surrounding
vegetation and landscape.
20. The applicant/owner shall install all utilities underground.
21. The applicant/owner shall provide domestic water service to each approved dwelling
through extension of and connection to the SMGV water system.
22. The applicant/owner shall provide sewer service to each approved dwelling through
extension of and connection to the City of Bend sewer system.
AT ALL TIMES:
23. The applicant/owner shall not seek building permits for structures on the remainder lot
without first obtaining land use review and demonstrating that domestic water is available
for any such building and/or use.
24. The applicant/owner shall assure that parking spaces for the dwellings are available for
the parking of operable passenger automobiles of residents only and are not used for
the storage of vehicles or materials or for the parking of trucks used in conducting the
business or used in conducting the business or use.
25. The applicant/owner shall install any lighting used to illuminate off-street parking areas
so that it will not project light directly upon any adjoining property.
26. The applicant/owner shall retain and preserve all existing vegetation on the subject site
that is not required to be removed for construction to provide as much screening of the
dwellings as possible from the highway.
27. The applicant/owner shall assure that address numbers are provided for each dwelling in
as required by the Oregon Fire Code.
28. The applicant/owner shall maintain the paved driveways for the approved dwellings so
that any surface water drainage will be contained on each lot or diverted to existing
storm drain facilities.
DURATION OF APPROVAL:
29. The applicant/owner shall complete all conditions of approval and apply for final plat
approval from the Planning Division within two (2) years of the date this decision
becomes final, or obtain an extension the approval in this decision in accordance with
the provisions of Title 22 of the County Code, or the approval shall be void.
Dated this 6th day of April, 2015. Mailed this 6th day of April, 2015.
____________________________
Karen H. Green, Hearings Officer
THIS DECISION BECOMES FINAL TWELVE DAYS AFTER THE DATE OF MAILING
UNLESS TIMELY APPEALED.