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FILE NUMBERS:

APPLICANT/OWNER:

ATTORNEY:

REQUEST:

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F 0. Box60A5 1fi tIW Lafayette Avenue 8end. Oregon 9770&6005(54 ¡)388-65?5 FAX (541)385-1764

http : //rvww. co. desch utes.or.us/ cdd/

FINDINGS AND DECISION

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Joyce E. Coats Revocable Trust63285 Skyline Ranch RoadBend, OR 97701

Tia M. LewisSchwabe, Williamson & WYatt360 S.W. Bond Street, Suite 400Bend, OR 97702

A conditional use permit for a nonfarm dwelling on a 4Q-acre parcet inan Exclusive Farm Use (EFU-TRB) Zone, along with site plan reviewfor a house in the Surface Mining lmpact Area (SMIA) and LandscapeManagement (LM) Combining Zones'

STAFF GONTACT: Kevin Harrison, Principal Planner

I. APPLICABLE CRITERIA:

Title 18 of the Deschutes County Code, County ZoningChapter 18.16, Exclusive Farm Use (EFU) Zones..

1g.16.d30, Conditional uses permitted - High value and nonhigh value farmland18.16.050, Standards for dwellings in the EFU zones1 8. 1 6.055, Land divisions1 8.1 6.060, Dimensional standards18.16.070, Yards1 8.16.080, Stream setbacks18.1 6.090, Rimrock setback

chapter 18.56, Surface Mining lmpact Area (SMIA) Combiningzone18.56.050, Conditional uses permitted18.56.070, Setbacks18.56.080, Use limitations18.56.090, SPecific use standards18.56.100, Site plan review and approval criteria18.56.110, Abbreviated SMIA site plan review

Qwtítt1 Scrvices llerþnned zuith ltrirle

A.

B.

c.

18.56.120, Waiver of Remonstrance18.56.140, Exemptions

Chapter 18.84, Landscape Management (LM) Combining Zone18.84.040, Uses permitted conditionally1 8.84.050, Use Iimitations

Chapter 18.88, Wildlife Area (WA) Combining Zone18.88.040, Uses permitted conditionally1 8.88.060, Siting standards18.88.070, Fence standards

1I. BASIC FINDINGS

LOCATION: The subject property is at 19210 Tumalo Park Road, Bend, and isidentified on Deschutes County Assessor's Map No. 17-11-12 as tax lot 900.

LOT OF RECORD: The subject property is a legal lot of record as documented in LR-98-6 and LR-07-37.

ZONING: The property is zoned Exclusive Farm Use - TRB subzone (EFU-TRB). lt isdesignated agriculture on the Deschutes County Comprehensive Plan. The property isalso within the Surface Míning lmpact Area (SMIA), Landscape Management (LM) andWildlife Area (WA) Combining Zones.

PROPOSAL: The applicant is proposing to establish a nonfarm dwelling on a 40-acreparcel in the,EFU zone. .The applicant is also.requesting site plan review for a new housein the SMIA and LM combining zones.

SITE DESCRIPTION: The subject property has rolling topography, with ridges generallyrunning in an east-west direction. The property has a vegetative cover of mixed juniperand ponderosa pines in the overstory and rabbitbrush, sagebrush, antelope bitterbrushand bunch grasses in the understory. The property is fenced and shows no signs ofirrigation or past farm use. Access to the property is via a dirt driveway that extendsnorth from Tumalo Park Road, a paved public road.

SURROUNDING LAND USES: The subject property is in an area that can becharacterized as scattered rural residential, with small-scale farm use and severalsurface riining operations. Propedies to the north, east and west are zoned ExclusiveFarm Use; properties located to the southwest, across Johnson Road, are zoned Forest.The property immediately to the south is also zoned Exclusive Farm Use, whileproperties to the southeast are zoned Surface Mining (Site # 293). Further to the southproperties are zoned Rural Residential.

The attributes of the adjoining and nearby EFU properties are summarized in thefollowing table.

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Table and N EFU Tax Lots

157C157G, 155D157C, B5A

NYY

NY

4.51O81419.51?

17-11-17-11-17-11-

11, 1

11, I11, 1

001002100

West

CraigShannonRosenberg

157C, B5A, 141C,1018Y N78t2517-11-12,200Murphy

EastB5AN40t4017-11-12,800Coats

Souf/¡

NY

157C,'34C, 364, 68834C,364,52D,157C,72157C,155D,34C,364,52

NN

20119320lo17lO

North. ..

DaúenportParker .

Pa¡,ker

17-11-12,20117-11-11, 90017.11-11,901

r.., { -..

SOILS:'.The subject property contains the following soil types:

o B5A, Lundgren sandy loam (O-3% slopes). The Lundgren series consists of well-drained so¡ls formeO in volcanic ash over glacial outwash. Native plants are

n . ,,ponderosa:'p¡ne,.antelope bitterbrush and,ldaho fescue.. .Available water capacity isabout 4 inches and maþr uses are irrigated cropland and livestock grazing. The soilcapability class is 6s fór non-irrigated land; it ís not rated for irrigated land. lt is notniçjh-valúe farmland. This soil is typically used for forest land and livestock grazing.

o 157C, Wanoga-Fremkle-Rock outcrop complex (o-15% slopes). This complexconsists of 35% Wanoga and similar soils, 30% Fremkle and similar soils and 20%Rock outcrop. Theselsoils are typically found on hillslopes and are formed fromvolcanic ash over tuff or basalt. Native plants are ponderosa pine, antelope

, b'ttte;Ùrush and ldaho fescue. The Wanoga soils are well-drained, with an availablewater capacity of abo,ut 5 inches. The soil capability class is 4e when irrigated, and6e,when not-irrigated. The Fre-mkle soils are also well-drained, with an availablewater capacity olabout 3 inches. The soil capability class is 4e when irrigated, and6e when not irrigated. The Rock outcrop is capability class L This complex is nothigh-value farmiánd. This complex is typically used for forest land and livestockgrãzing. Thq proposed building envelope submitted by the applícant spans bothsoils types.

PUBLIG,AGENGY GOMMENTS: The Planning Division mailed notice to several publicagencies and received the following comments:

Deschutes CountYsubmitted:

Road Department: The following comments were

Access to parcel witt be off of Tumalo Park Road versus Johnson Road' Meetsaccess requirements of County Code.

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2. County Transportation Planner: The following comments were submitted

I have reviewed the transmittal materials for CU-13-9/LM-12-34/SMA-13-5 toestablish a non-farm Dwelling near the northeast corner of the intersectíon ofJohnson Market RoadlTumalo Park Road at 19210 Tumalo Park Road, Bend,aka 17-11-12, Tax Lot 900. No traffic study is required, but the applicant willneed to pay a transportation system development charge (SDC).

The most recent edition of the lnstitute of Traffic Engineers (ITE) Trip GenerationHandbook indicates a single-family residence (Land Use 210) generates anaverage of 10 daily weekday trips and one p.m. peak hour trip. DeschutesCounty Code (DCC) at 17.16.115(C)(4)(a) states no traffic analysis is required forany use that will generafe /ess than 50 new weekday trips.

BOCC Ordinance 2008-059 as amended sefs an SDC rate of $3,673 per peakhour trip. Given the ITE rate printed above, the proposed land use will generatea síngle p.m. peak hourtrip so fhe applicable SDC,s $3,673. The applicant doesneed to'know the County is in the midst of updating rT SDG rates and the Board isscheduled to hold a public hearing on June 5, 2013, on Resolution 2013-020.Under that resolution, the updated SDC rate for a single-family honie is proposedto drop to $3,044. The resolution also contains proposed language that forapplicants that may start the process under the rate set'by Resolution 2008-059and end the process under Resolution 2013-020, the County will use the lower ofthe two SDC rafes.

Deschutes Gounty Building Safety Division: No comments submitted

County Assessor: No comments submitted

Property Address Goordinator: No comments.

Bend Fire Department The following comments were submitted.

An approved water supply eapable of supplying the required fire flow for fireprotection shall be 'provided to premises upon which facilities; buildings orpoftions of buildings are hereafter constructed or moved into or within thejurisdiction

Approved numbers or addresses sha// be placed on all new and existingbuildings in such a position as to be ptainty visible and tegible from the street orroad fronting the property. Said numbers shall contrast with their bac4groundand be visible at night. Dwellings that are located off of street frontage shall posta visible approved reflective address sign at the entrance to their driveway.

Fire apparaúus access roads shall be placed within 150 feet of all exterior walls ofthe first floor of all buildings. Fire apparafus access roads shall have anunobstructed width of not less than 20 feet designed with a uniform all-weatherdriving surface to support the imposed GMV of 75,000 lbs. and a verticalclearance of nof,/êss than 13 feet 6 inches. Turning radius shall be nat less than45 feet and gradient shall not exceed 12 percent unless the authorities having

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jurÌsdiction approve a variance. Dead-end access roads rn excess of 150 feet in'tength shall'bìe provided with approved provisions for the turning around of fire

apþaratus. A cul-de-sac, hammerhead or other means for the turning around offire apparatus maY be aPProved.

7. Tumalo lrrigation District: No comments submitted.

8. Deschutes County Enúironmental Soils: No comments submitted'

9. Oregon Department of Fish and Wildlife: No comments submitted.

PUBLIC COMMENTS: The Planning Division mailed notice of the application to allproperty owners within 750 feet of the subject property. No comments were received.

REVIEW PERTOD: This application was submitted on April 16, 2013. lt was acceptedas complete on May 13,2013. Staff conducted a site visit on May 10, 2013 and did notobservé a notice of-land use sign. l-lowever, the appiicant submitteO -" Lll9 Use ActionSign Affidavit for the application showing that the sign was posted on April 25,2013'

LAND USE'HISTORY: The property has been the subject of the following land useapplications:

o LR-SB-6 and LR-07-37. The subject property has been found to be a legal lot of recordunder two sepârate applications.

K.

t¡r CONCLUSIO RY FINDINGS

TtrLE l8 OF THE DESCHUTES COUNTY CODE, COUNTY ZONING

A. CHAPTER 18.16, EXCLUSIVE FARM USE ZONES.

1. Section Cofarmland.

The fotlowing ¿rses may be allowed in the Exclusíve Farm lJse zones oneither hígh vátue falmtãnd or non-hig.h value farmland.subiect to applicableprouisions of the Comprehensive PIan, DCC 18.16.040 and 18.16.050, andother applicable secfíons of Title 18.

A. Nonfarm dwelting

FINDING: The applicant is proposing to establish a nonfarm dwelling on property that has nowater rights. Therefore, the property is non-high value farmland.

2 Section 18. 16 05O Standards r Dwellinos in the EFLJ Zones

Dweltings listed in DCC 18.16.02:5 and 18.16.030 may be allowed under theconditiõns set fo¡7h below for each kind of dwelling, and all dwellings aresubject to the landowner for the properiy upon which the dwelling is

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placed, signing and recording in the deed records for the County, adocument binding the landowner, and the landowner's successors lninterest, prohibiting them from pursuing a claim for relíef or cause of actionalleging injury from farming or forest practices for which no action or claimis allowed under ORS 30.936 or 30.937.

Nonfarm Dwelling.

One single-family dwellîng, including a manufactured home inaccordance with secúion 18.116.070 of this títle, not provided inconjunction with farm use may be permítted on an existing lot orparcel subject to the following criteria:

a

I

The Planning Director or Hearings Body shall make findíngsthat:

The dwelling or activifies associated with the dwelling will notf.orce a significant change in or significantly increase fhe cosúof accepted farming practices, as defined in ORS215.203(2)(c), or accepted forest practices on nearby landsdevoted to farm or foresf use.

FINDING: The applicant will be required to sign and record the waiver listed above as acondition of any approval. Properties to the southwest, across Johnson Market Road, arezoned Forest Use, but, since the predominant tree species in this area is juniper, and basedon a staff site visit, staff finds that there are no lands.devoted to forest use on nearby lands.Therefore, the proposed dwelling will not force a significant change in or significantly increasethe cost of forest practices on nearby lands.

Properties located to the east, west and north, across Johnson Market Road, are zoned EFUand several adjacent or nearby properties are irrigated and show signs of farm use. There isirrigated farm land to the northeast, and west, across Johnson Market Road. These propertiesare located over 500 feet from. the proposed home, are engaged in small-scale extensiveoperations and are buffered by topography and woodland from the proposed dwelling. For thesereasons staff finds the dwelling will not force a significant change in, or significantly increase thecost of, accepted farming practices on adjacent or nearby lands devoted to farm use.

ii. The proposed nonfarm dwetling does noú materialty alter thestability of the overall land use pattern of the area. Indetermining whether a proposed nonfarm dwetling will alterthe stability of the land use pattern in the area, the countyshall consider the cumulative ímpact of nonfarm dwellings onother lots or parcels in the area similarly situated, by applyingthe standards under OAR 660-033-0130(4)(a)(D), and whethercreation of the parcel wilt tead to creation of other nonfarmparcels, to the detriment of agriculture in the area.

FINDING: On June 1, 1998, the Land Conservation and Development Commission adoptedamendments to the administrative rules implementing Goal 3, Agricultural Lands (OAR Chapter660-033) to incorporate case law and to clarify the analysis under the "stability" approval

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cr¡terion. The rules continue to apply the three-step "stability" analysis first articulated in

Sweeten v. Clackamas County,17 Or LUBA 1234 (1989). The rules are as follows:

(D) The dwelling wilt not materiatly alter the stability of the overall,land use patternof the area. Ii determining whether a proposed nonfarm dwelling will alter thestabilíty of the land use pa{tern in the area, a county shall consíder the cumulatíveimpaci ofpossrble new-nonfarm dwellings and parcels on other lots or parcels inthê area simitarly situated. To address this standard, the county shall:

(i) Identify a study area'for the cumulative impacfs anatysls. The stydyarea,shatt include'at least 2000 acres or a smaller area not less than7000 acres, if the smaller area is a élistinct agricultural area based ontopography, soil types¡.land use'pattern, or the type of farm or ranchoierat¡óné''or piactices that distinguish ît from other, adiacenta'gricult:ural areas. Findings shatt descrîbe the study area, ifsbôundaries, the location of the subiect parcel withín this area, whythe selecÚed .area is representatíve of the land use patternsurrounding the subiect parcel and is adequate to conduct theanalysis re'quired by thís standard. Lands zoned for rural residential. or other urban or nonresource uses sha// not be included in thestudy area;

(ií) tdentify within the study area the broad types of farm uses (írrigatedor no-nirrigated crops,.pasture or grazing lands), the number,Iocation and type of existing dwettíngs (farm, nonfarm, hardship,etc.), and the dwetting developtment.trends srnce 1993. . Deter¡ninethe' potential number of nonfarm/lot of 'record dwellings that couldbe àpproved under subsecfío ns (3)(a) and section 4 of this rule,incluãing identificatíon of predomínant soil classifications, theparcels created prior to January 7, 1993, and the parcels larger.than-the minimum loi size that may be divíded to create new parcels fornonfarm dwettings under. ORS .215.263(4). The findings shalldescribe the existíng land use pattern of the study area including

. the distribution and arrangement of existing uses and the land usepattern that could result from approval of fhe possible nonfarmdwettings under thís subparagraph ;

(¡i¡) Determine whether approval of the proposed nonfarmllot of record' : dwettings together with existing nonfarm dwellings will materiallyalter the staøitity o the land use pattern in the area. The stability of

, the land use pattern witt be materially altered if the cumulative effectof exístíng and potentíal nonfarm dwellings will make ít moredifficult fór the existíng types of farms in the area to contínueoperatíon due to diminíshed opportunitíes to expand, purchase or' ,éase farmland, acquire water rights or diminish the number of tractsor acreage in farm use in a manner that will destabílíze the overallcharacter of the studY area;

Cumulative lmpacts Analysis Area. The County has applied an area ofanalysis including all EFU-zoned land located within a one-mile radius of thesubjåct propedy'J boundaries and including approximately 2,000 acres (hereafter

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called "study area"). Staff finds this area of analysis is suitable to provide acomprehensive analysis of the character of the area surrounding the subjectproperty because of its size and the number of parcels located within it. Asindicated in a foregoing finding, the study area is zoned Exclusive Farm Use(EFU), Rural Residential (RR-10), Forest Use (F-2) and Surface Mining (SM).Staff estimates that approximately one-half of the study area is zoned EFU.

There are 44 EFU-zoned tax lots in the study area (excluding the subjectproperty). Two of these tax lots are in public (state) ownership. The remaining42 tax lots are in private ownership. The privately owned parcels in the studyarea range in size from 0.04 to 201 âGrês: Nineteen of the tax lots in the studyârêâ:ârê 20 acres or less in size (45o/o), twelve tax lots are between 20+ and 40acres in size (29o/o), eight tax lots are between 40 and 80 acres in size (19o/o),and three tax lots are larger than 80 acres (7%).

Types of Farm Uses. The EFU zoned land in the study area involves farmingprimarily in the form of irrigated pasture and livestock grazing. Twenty-one (21)of the tax lots in the study area are receiving farm tax deferral, and all but four ofthem appear to have some kind of farm use occurring. The amount of waterrights on these farm deferred properties ranges from zero to 93.17 acres. Basedupon the amount of irrigation and the size of the parcels in the study area, staffestimates a total of 474 acres (acreage that ís possibly being irrigated) areengaged in farm use and approximately 1,078 acres are not engaged in farmuse. As discussed above, the predominant farm practices include irrigatedpasture and livestock grazing.

The record indicates that the study area is located within the Tumalo lrrigationDistrict. The study area includes. soil type(s) classified as high value (36A and1528), and as nonhigh value (34C, 388, 61C, 62D, 72C, B5A, 101E, sBC, 141C,155D and 157C).

Existing Dwellings. The record indicates that 26 of the 42 privalely-owned taxlots in the study area have dwellings. These dwellings were built in the followingyears: 5 dwellings prior to 1979, I dwellings from 1979 to 1992, and 1 3 dwellingsfrom 1993 to present.

Staff finds that the dwellings developed prior to 1979 predated the County's EFUzone and therefore were not subject to EFU zoning requirements. The Idwellings developed between 1979 and 1992 include 2 farm dwellings and 1

nonfarm dwelling. The dwellings constructed up until the late 1980's in this timeperiod were not necessarily reviewed as either farm or nonfarm dwellings. Of the13 dwellings constructed in 1993 or after, 3 were nonfarm dwellings, 3 were lot ofrecord dwellings, 5 were farm dwellings and 2 were replacement dwellings.

Dwelling Development Trends Since 1993. As discussed above, 13 of thedwellings constructed in 1993 or after were nonfarm dwellings, lot of recorddwellings, replacement dwellings or farm dwellings. No new farm dwellingshave been approved in the study area under the income standards adopted in1 995.

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5 potential Nonfarm Parcels. Seventeen of the privately owned tax lots in thestudy atea are vacant. One of the vacant tax lots (17-11-11; 3A2) is almostentirely irrigated, according to Assessor's records- This property probably wouldnot qúalify for a nonfarm- dwelling. There are no properties that have validconOit¡onât use permits for nonfarm dwellings that have not been constructed.Therefore, staff iinds that there are a potential 16 nonfarm dwellings that couldbe established on vacant properties.

Of the existing tax lots, there are nine within the study area (17-11-1, tax lots40S, 700, ZOl, lOg; 17.11-11, tax rlot 2OO;'17-11-12, lax lots 200, 201, 2O2 and300) that have enough irrigation water',to qualify for an irrigated land div-ision,where a small, dry uñprodr;1¡ug portion of a farm property is partitioned olf floma larger farm paicel itrat qualifies under sections 18.16.055 and 18.16-065 ofTi¡e 18. There ¿¡g g privately owned,tax lots that could qualify for a non-irrigatedland division under OöC 19,10.055(G). There are also several properties that donot qualify for a non-irrigated land division because they lack frontage on a publicroad. Stâtf RnOs that ihere is potential for an additional 17 nonfarm dwellingsthrough partitioning of properties. This is an estimate because all new nonfarmp"r"e'|" would havé to'be reviewed under both the conditional use criteria for anonfarm dwelling and the paÉition criteria.

potential Nonfarm Dwellings. Theoretically, if all of the existing and potentialproperties identified above were,approved for nonfarm dwellings there could bean additional 33-such dwellings,(16 vacant parcels, and additional dwellings oneach of the parcels potentially capable of a land division)'

It is not clear whether a nonfarm dwelling can:be approved on each parcel, sincethey are reviewed on a case by case básis. The dwellings have to be reviewedfor iheir effect on the stability ót tne land use pattern, whether they are on landgenerally unsuitable land foi the production of crops or livestock, and whether¡rey w¡il cause a significant change in or significantly increase the cost ofaccepted farming,practices on adjacent land.

Staff will assume for purposes of.review that up to 33 new nonfarm dwellings couldbe developed, based on the 16 vacant parcels, and the 17 hax lots potentiallyeligible for a partition.

Potential Lot of Record Dweltings. under section 18.16.050(E) and oAR 660-033-130(3), a lot of record dwelling may be sited on an EFU-zoned parcel onnonhigh'välue farmland if 'the parcel was created and acquired by the currento*n"r].pr.ior to -January 1 , 1985, has continuously been owned by the presentowner,àincê then, and if the lot or parcel,on which the dwelling will be sited waspart of a tract on November 4,1993, no dwelling exists on another lot or parcelihrt *"r part of that tract. Under Section 18.16.050(F) and OAR 660-033-130(3Xc), a lot of record dwelling may,be sited on high value farmland if it meetsthe

'ciiieria for a lot of record-dwelling on non-high value farmland and theplanning Division finds the parcel cannot practically be managed for farm use,,due to extraordinary circumstances inherent in the land or its physical setting,"such as "very steep slopes, deep ravines ..' ol'other similar natural or physicalbarriers."

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The Planning Division has previously determined that lot of record dwellings canbe difficult to obtain, given the requirement for ownership prior to 1985, and theland cannot be suitable for farming based on the above factors. Some parcelsmay qualify for a lot of record dwelling, but without a specific analysis of eachand every parcel, this determination cannot be made. Staff notes that three ofthe tax lots in the study area have been approved for a lot of record dwelling.

Stability and Character of the Land Use Pattern of the Area. Based upon theabove findings, staff finds the land use pattern and character of the study area isa mix of farm use, rural residential and vacant land with larger forest zonedproperties to the southwest and surface mining to the southeast. Much of theEFU zoned residential development within the study area occurred on or after1993, most of which were nonfarm dwellings. The.land use,pattern will continueto be farming and rural residential on those properties not suitable for farm use.The proposed dwelling will be consistent with the land use pattern of the area byallowing a nonfarm dwelling on dry, unproductive property.

Effect on Stability from Proposed Non-irrigated Partition and NonfarmDwellings. Approval of the proposed nonfarm dwelling will make a total of 27dwellings in the study area. The cumulative effect of adding this nonfarm dwellingwill not "materially alter the stabílity of the land use pattern in the area" by making itmore difficult for the existing farms to continue operation due to diminishedopportunities to expand, purchase of lease farmland, acquire water rights or bydiminishing the number of tracts or acreage in farm use. The property does notcontain any water rights and,does not appear to have ever been in farm use. lt is awooded tract that separates small, scattered farming activíties to the west, acros,sJohnson Market Road, and,to the northeast from larger surface mining activities tothe southeast. The proposed nonfarm dwelling will be located interior to the tract,well separated from any farming activities.

The approval of the pr:oposed nonfarm dwelling will not set a precedent for thewholesale approval of nonfarm dwellings to the detriment of surrounding farming.Historical aerial photos show that all of the properties currently employed iR farmuse have remained so over the years. Each proposed nonfarm dwelling isreviewed on the conditions that pertain to a subject property and the surroundingatea. For these reasons staff finds that the proposed nonfárm dwelling will notmaterially alter the stability of the land use pattern in the area.

I'1. The proposed nonfarm dwelling is sifuated on anexisting lot or parcel, or a portion of a lot or parcel,that is generally unsuitable for the production of farmcrops and livestock, or merchantable tree specíes,considering the terrain, adverse soi/ or landconditions, drainage and flooding, vegetation, locationand size of the tract.

2. For the purposes of DCC 18.16.050(G) only, "unsuitabílity,, shatt bedetermined with reference to the following:

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a.

A tot or parcel is not "generally ungqitab!9" simply because itis foo smatl to be farmed profitably by itself. If a lot or parcelcan be sold, leased, rented or otherwisê tftâ;ttãllêd as part of acommercial farm or ranch; it is'not "generally unsuítable"' AIot or parcel is presumed to be suitable íf it rs composedpredominantty of class l-vl s;oils, Jusf because a lot or parcel'is unsuitable for one farm use does not mean it is not suítablefor another fa;rm use. If the parcel ís under forestassessme nt, the area is not "generally unsuitable" simplybecautse it is too small fo be managed for forest productionprofitabty bY itself.

c. If a 1ot or paicel under forest assessrnent can be sold, leased,rented o-r otherwise managed as a part of a forestry

: , operation, it is not "generally uinsuitable". If a lot or parcel is

"";$¡:: ï:i:;"j:'ji';ffiï":ii :i':",r'::;:;i: :i';?::;,:i,i ;"1, c ubic feet of wood fiber per acre per year. If a lot or parcel is: under forest assessn?e nt; to be found compatible and not. . s eriously ínterfere wíth foresf uses on surrounding land it

!,i;i,i::iiiî';"i"::1:'il::'J"':!":"i'::":"';'::"i:::r:;"';[surrounding land-

FINDING: The property consists of mixed juniper and ponderosa pine woodland, with juniper asthe dominant tree öp"õ¡"r. Those properties in the area with similar soil characteristics are infarm use if they are in resource use at all. Staff finds that the property is generally unsuitable forforest usê because juniper is not a commercial species'

The property has no irrigation water rights but is located wíthin the boundaries of Tumalo lrrigationDistrict. 'Thé property is not receivingépecial assessment for farm orforest use. Based on a staffsite visit properties tô ttre west, souihwest and northeast contain irrigated farmland: There is anirrigation'ditóh or canal on the subject properly that cuts across the northwest corner. Withoutirrilation the soils on the property aie all'Class 6s or higher, unsuitable for crop production.

To determine whether it is feasible to use the property for livestock grazing, staff estimates thevalue of beef production based on the following assumptions, which have been derived throughconsultation with OSU Extension Service:

. One Animal Unit Month (AUM) is the equivalent to the forage required for a 1,000pound cow and calf to giaze for 30 days (700 pounds of forage). According to the

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A lot or parcel shatl not be considered unsuitable solelybecause of size or location if it can reasonably be put to farmor forest use in coniunction with other land. lf the parcel isunder forest assessr??ent, the dwelling shall be situated upongenerally unsuitable land for the production of merchantablelree späcíes recognized by the Forest Practices Rules,considering the terrain, adverse soil or land conditions,drainage ind flooding, vegetation, location and size of theparcel.

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soil data sheets for the soils on the subject property, in a normal year 700 lbs./acredry weight of forage can be produced.. On good quality forage, an animal unit will gain 2 pounds per day.. Two animal units will eat as much in one month as one animal unit will eat in twomonths.o Forage production on dry land is not continuous: Once forage is eaten, it generallywill not grow back untilthe following spring.. An average market price for beef is $1.20 per pound.

Based on these assumptions, the value of beef production on the property can be calculatedusing the following formulas:

30 days x 2tbS/day/acre = 60 lbs. beef/acre1 acre per AUM

60 lbs. beef/acre x 40 acres x $1.20/lb. - $2,880

Thus, the value of beef production on this property would be $2,880. This figure does not takeinto account any land clearing, fencing, veterinary, feeding, watering, purchase price of animalsor other costs associated with livestock grazing. Staff finds that a prudent farmer would notinvest in a livestock grazing operation with this anticipated gross return and that thisdemonstrates that the property is generally unsuitable for livestock grazing. Ultimately, stafffinds that the subject property is generally unsuitable for farm use, meeting this criterion.

IV. The proposed nonfarm dwelling is not within one-quarter míleof a dairy. farm, feed.'lpt or sa/es yard, unless adequateprovisiqns are made and approved hy the Planning Directoror Hearings Body for a þuffer between such ¿rses. Theestablishment of a buffershall be designed based uponconsideration of suçh factors as prevailing winds, drainage,expansion potential of affected agricultural uses, open spaceand any other factor that may affect the livability of thenonfarm dwelling or the agriculture of the area.

FINDING: The property is not within one-quarter mile of a dairy farm, feed lot or sales yard,meeting this criterion.

Road access, fire and police sel-r'ces and utility systems (i.e.electrical and telephone) are adequate for tt¡e use.

FINÐlNG: The applicant submitted the following information to demonstrate that public servicesand utilities are adequate:

Electricity. Central Electric Cooperative (CEC). A will-serve letter has beensubmitted.

Road access. The applicant intends to access the property from Tumalo ParkRoad, which is consistent with the comments from the County Road Department.

3, Telephone. CenturyLink and cell phone service is available in the area.

I

2

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v.

FINDING: As determined in LR-98-6, the property was created by deed in 1961. This criterionis satisfied.

J. Loss of tax deferral. Except as provided in DCC 18'16.050(l)(2)'pursuant fo ORS 215.236, a nonfarm dwelling on a lot or parcel in an-Exclusíve Farm lJse zone that is or has been receivíng specialassessrne nt may be approved onty on the condition that before abuilding permítrs rssue{ the applícant must produce evidence fromthe Cõinty Assessor's Office that the parcel upon whích thedwetting is proposed has been disquatified for special assessmenfat value for ,'farm use under ,ORS 308.370 or other specialassessrnent under oRs 308.765, 321.352, 321.730 or 321.815, andthat any additionat:tax' or penatty. ím posed h¡r. the Co u nty Assessoras a result of disqualification has been paid,

FINDING: According to Assessor's records, the property is not receiving special assessmentfor farm use. Therefore, this criterion is not applicable'

3. . Section 18.16.070. Yards

4. Domestic water. On-site well.

5. Fire protecfion. Deschutes County Rural Fire Protection District No. 2.

6. Police protection. Deschutes County Sheriff.

Based on these findings, staff fìnds that required services are adequate for the use

The nonfarm dwelling shall be ¡ocated on a lot or parcelcreated prior to January 7, 7993, or was created or is beingcreated as a nonfarm parcel under the land divisionstandards in DCC 15.16.055(8) or (C).

A. The front yard shalt be a minimum of: 40 feet from a properiy line frontingon a locai street, 60 feet from a properfy line fronting on a collector sfreef,and 100 feetfrom a properTy:linefrontíng on an arterial street.

FINDING: The property has frontage on Johnson Market Road, a designated collector, andTumalo park Road,'a local street. 'The applicantrs plot plan shows a building envelope that isapproximately 600 feet from Johnson Market Road and 200 feet from Tumalo Park Road.Therefore, this criterion is satisfied.

B. Each side yard shalt be a minimum of àS feet, except that for a nonfarmdwelling froposed on property with side yards adiacent to propertycurrently'emptoyed in farm'us, and receíving special assesstnent for farmuse, the side yard shall be a minimum of 1A0 feet'

FINDING: The proposed use is a nonfarm dwelling and abuts tax lot 200, which is currentlyemployed in farm use. Therefore, a 1OO-foot setback is required from both of these propertylines.

'The applicant's plot plan shows a building envelope located 200_.feet from the eastproperty line and 400 feet from the north property line. This criterion is satisfied.

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c. Rear yards shall be a minímum of 25 feet, except that for a nonfarmdwelling proposed on property with a rear yard adjacent to propertycurrently employed in farm use, and receiving special assessrnent for farmuse, the rear yard shall be a minimum of 100 feet.

FINDING: As discussed above, the proposed dwelling is a nonfarm dwelling and tax lot 200,which abuts the subject property along the north and east property lines, is currently employedin farm use. Therefore, a 100-foot setback is required from these property lines. Theapplicant's plot plan shows a building envelope located 200 feet from the east property line and400 feet from the north property line. This criterion is satisfied.

D. In addition to the sefbacks set forth herein, any greater sefþacks requíredby applicable building or structural codes adopted by the Sfafe of Oregonand/or the County under DCC 15.04 shall be met.

FINDING: Staff is not aware of any greater setback required by applicable building or structuralcodes. However, that will be determined by the Building Division when a buildíng permit issubmitted.

Section 18.16.060. Dimensional Standards

Building height. No building or structure shall be erected or enlarged toexceed 30 feet in height, except as allowed under DCC 18.120.040.

FINDING: The applicant did not specify a building height: .However, staff finds that with anappropriate condition of approval, this criterion can be satisfied

5. Section 18.16.080 Stream Setbacks

To permit better light, air, vision, stream pollution control, protectíon of fishand wildlife areas and presentation of natural scenic amenities and vistasatong sfreams and lakes, the following setbacks shall apply:

A. All seu/age dr'sposal ínst?llations, such as sepfic tanks and septicdrainfields, shall,be sef back from the ordinary high water mark along allsúreams or lakes a minimum of 100 feet, measured at right angfes to theordinary hígh water mark. In those cases whetre practical dífficultiespreclude the location of the facilities af a distance of 100 feet and theCounty Sanítarian fínds that a closer location will not endanger health, thePlanning Director or Hearings Body may permit the location o:f thesefacilities closer to the stream or lake, but ín no case closer than 25 feet.

B. All structures, buildings or similar permanent fixtures shall be set backfrom the ordinary hígh water mark along all streams or lakes a minímum of100 feet measured at right angles to the ordinary.high water mark.

FINDING: These criteria are not applicable because there are no streams or lakes on or nearthe property.

4.

E.

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6. Section

Notwithstanding the provisions of DCC 18.16.070, setbacks from rimrock shallbe as provided-in OiC tA.tt6.160 or 18.84.090, whichever is applicable.

FINDING: This criterion is not applicable because there is no rimrock on the property.

B. CHAPTER 18.56, SURFACE MINING COMBINING ZONE

1. Section 18.56'030, Application of Provisions

The standards set for-th ín DCC 18.56 shatl apply in addition to those speclfiedin DCC Tifle lB for the underlyíng zone. If a conflíct in regulations or

i.: standards occurs, the provisions of DCC 18.56 shall govern.

FINDING: The standards under Dcc 1g.56 are addressed in the following findings. The proposeddwelling is subject to SMIA ¡'eview. : ::

2 Sectíon 1B 56 050. uses rmitted:

R

,Uses perm'itted conditíonally shall be fhosethe underlying zone(s) with which the SMIAsubject to att condítions of the SMIA Zone.

identified as condítional uses inZone is'combined and'shall be

FINDING:i¡

The proposed dwelling is allowed conditionally in the EFU zone and is also allowedconditionally in the SMIA zone.

Section 1 8.56.070 Setbacks:

A. No noise-sensifiye or dusú-se nsitíve use or structure established orconstructed after the designation o:f the SMIA Zone shall be locatedwithin 250 feet of any su¡-face mining zone, except as provîded for ínSecfion 18.56.130.

FINDING: The surface mining site (Site No. 293) is located on tax lots 500, 600' 700 and 800(east half) as shown on Deschutes County Assessor's map 17-11-12. Th9_s]te plan submitted withìne appt¡óation indicates the proposed dwelling will be set back at least 250 feet from the closestboundäry associated with the surface mining zone. This criterion is met'

ii: B. .,No noisersensitivè or dust sensifive use or structure established orconstructed after the designatíon of the'SMIA zone shall be locatedwithin one-quarÍer mile of any existing or proposed suúace míning

: processin g or storage síte, uniess the appticant demonsfrafes that the'proposed-use will not prevent the adiacent surtace:mining operatíon'from meeting the sefbacks, standards, and conditions set forth ín DCC

, ' 18.52.090, 18:52.110, and 18'52'140, respectively'. :'.\

FINDING: ln the ESEE Findings and Decision for site No. 293, processing is allowed only on thewesterly portion of tax lot 500 ãnd on tax lot 600. The proposed building envelope is located. at

teast z;obo feet from the surface mining processing area. The setback provisions of section

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18.52.090(8) are met because the applicant proposes to locate the proposed dwelling more thanone-quarter mile from the designated processing site.

Staff also notes section 18.52.140 is not applicable to this application, since the mining site ispreexisting and is not subject to this section.

Additional sefbacks in the SMIA zone may be requíred as part of the site planreview under DCC 18.56.104.

FINDING: Additionalsetbacks will not be required

An exceptíon to the 250-foot setback in DCC 18.56.070(A) shall be allowedpursuant to a written agreement for a lesser setback made between the ownero;f the norse-sensitive or dusf-sensitive use or structure located within 250feet of the proposed surface míning activity and the owner or operator of theproposed surface mine. Such agreement shall,be notarized and recorded inthe Deschutes County Book of Records and shall run with the land. Suchagreement shall he submitted and consídered at the time of site plan review orsite plan modifi cation.

FINDING: The proposed dwelling will be set back from the mining boundary at least 250 feet.Therefore, no exception is required or requested.

4. Section 18.56.090, Specific Use Standards

The following standards shall apply in the SMIA Zone:'

New dwellings, new noise-sensífive and dust-sensítive.gses'or structures, andadditions to dwellings or norse and dust-sensitive uses or structures inexistence on the effective date of Ordinance No. 90.014 which exceed 70percent of the size of the existing'dwelling or use, shall be subject to thecriteria esfab/lsfied in DCC 18.56.100.

FINDING: The proposed dwelling is a new dwelling, and it is subject to the criteria listed in DCC18.56.100.

5. Section 18.56.100. Site Plan ApprovalC¡'iteria

B Site plan review and approval, pursuant to the County Uniform LandUse Action Procedures Ordinance,:shall be rëquired for alluses ín fheSMIA Zone príor to the commencement of any,construction or use.

FINDING: The applicant has applied for site plan review for the proposed dwelling, which is beingreviewed and processed under Tllle 22.

D. The site plan shall be approved if the Planning Director or HearingsBody finds that the site plan is consísúent with the site-specifíc ESEEanalysis in the surtace mining element of the Comprehensíve Plah andthat the proposed use will not prevent the adjacent surtace miningoperation from meeting the sefbacks, standards, and conditions setforth ín DCC 18.52.090, 18.52.110, and 18.52.140, respectively.

c.

D.

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FINDING: The following findings address the proposal's consistency with the site-specific ESELanalysis for the adjacenl surfaCe mine. These findings also address how the proposed dwellíngwill ñot prevent the adjacent surface mining operation from meeting the setbacks, standards, andconditíons set forth in Chapter 18.52, Surface Mining zone.

Gonformance with ESEE Analysis in the Gomprehensive Plan

The ESEE (Economic, Social, Environmental, and Energy) analysis adopted by the countyfor Site No. 2g3, indicates that land uses in conflict with surface mining will be allowed tooccur pursuant to OAR 660-16-010 (paragraph #27). Although residential developmen! is a

. confliciing use in relation to a surfaòe m¡ne, the county determined in the ESEE analysisthat, "New conflicting and 'noise.sensitive' and 'dust-sensitive' uses, such as single-familydwellings, may be. rlt"d *ithin the SMIA zone only if the applicant has signed a waiver ofremonstrance precluding protest of any surface mining activities, and. closer that % mile tostorage and piocessing-sites only if the applícant can demonstrate that the proposed usewill not.rr"" a mining operationto violate siting standards..." (paragraph 27)._Staff findsthat the applicant's froposal ,will be consistent with the site-specific ESEE analysis,therefore, ii ihe setback standards specific in Section 18:52.090, 18.52.110, and 18.52j40are met. Noise standards are addressed below.

Gonformance with Section 18.52.090

Subsection 1g.s2.090(A) requires a 250-foàt setuacr for surface mining activities fromnoise-sensitive or dusi-sensitive uses. The information submitted indicates a 250-footsetback from the surface mining site, meeting this standa¡'d- ' , .,i

'

Subsection 18.52,090(8) requires that a mining operator locate storage of resourcematerials, processing operations.and storage of equipment which create noise and dust atleast one-quarter mile from any noise or dust sensitive use, unless the operatordemonstrates the following:

a. Due to parcel size, topography, existing vegetation, or location of conflictinguses or resources, there is no on-site location for the storage,and processingof material or storage of equipment which will have less noise or dust impact;and

b. Alt noise control and air quality standards of this title can be met by theproposed use for which the exception is requested

FINDING: The applicant has proposed locating the dwelling more than one-quarter mile from themining operations which create noise and dust. Therefore, the subsection 18:52.090(8) criteria aremet.

Conformance with Section 18.52-110 of Title 18

This section details the siting and the performance standards that a'mining operation mustmeet.

a. Access, The mining operator must meet the standards specified under thissubsÇt¡on, regardlãss-of applicant's proposal. Access to the mining site is

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from Tumalo Park Road. Applicant's proposal meets the requirement ofSection 18.56.100(D), therefore, since the proposed use will not prevent theadjacent surface mining operation from meeting the required setbacks,standards and conditions for road access to public roads and all on-siteroads.

b. Screeninq. The m ining operator is required to visually screen miníngoperations from noise and dust sensitive uses only if it is a new site or if siteplan review is required.

FINDING: The applicant's proposal meets the requirement of Section 18.52.100 (D) since theproposed use will not prevent the adjacent surface mining operation from meetíng the requiredstandards and conditions for supplied screening, based on the fact that Site No. 293 is a pre-existing site and is exempt from these requirements unless the surface mÍning operation isexpanded.

c. Air Qualitv. The mining operator is required to meet discharge and duststandards prescribed by the Department of Environmental Quality (DEQ) airquality regulations.

FINDING: Staff finds that the proposed use will not cause the sufface mining operator to violateDEQ dust standards because those standards are in force regardless of the presence of thehouse. Since Site No. 293 is a pre-existing site, the county has no jurisdiction to regulate theoperation unless the site is expanded.

d. Erosion Gontrol.

FINDING: This subsection does not apply to the surface mining operation because it is a pre-existing site. These criteria only apply if the síte is expanded.

e. Streams and Drainage.

FINDING: Again, because Site No. 293 is a pre-existing site, these criteria do not apply unless thesite is expanded.

f. Equipment removal.

FINDING: The mining operator is not affected by this requirement because mining operations areoccurring at a pre-existing site. However, the applicant's proposal has no effect on whetherequipment is removed from the mining site after mining and reclamation is completed.

g. Flood Plain.

FINDING: The mining operation on Site No. 293 is not being conducted within a flood plainTherefore, staff finds this criterion is not applicable.

h. Noise.

FINDING: This subsection requires a mining operation to not create noise from vehicles,equipment, or accessory uses which are audible off the site and which exceeds DEQ noise control

c u-1 3-9/SMA-1 3-5/LM-1 3-24 1B

standards. Based on DEe noise tables, staff estimates the trucks, bulldozer and loader used onthe site generate 86 dBA (decibels, A-weighted scale) of noise on the site'

Noise decreases with distance from a source according to the following noise attenuation formulaused bY DEQ:

2o rog D/50

The letter D represents the distance between the source of noise and the location where noise isheard. The applicant's proposed dwelling is at least 250 feet from the surface mining zone

, boundary, and an additional,'3s0 feet to thã dosest mining area located on the east half of tax lot.,800: Using the attenuation formula, staff finds the noiqe ievel drops'by 21.6 dBA (20 log 6Q0/50)

by the tinie noise generated .at the mining site reaches the applicant's proposed homesite'T'herefore, staff estirñates the noise level at the proposed homesite to be 64.4 dBA due to currentoperations.

Noise generated at this mining site is required to meet the standards found in Table 7 of oAR 340-35-035: for existing industriaisources oi noise. This table sets forth the L50, L10, and L1 noiselevels between the hours of 7 a.m. and 10 p.m. to be 55 dBA,60dBA, and 75 dBA,,respectively'Lso, L10, and L1 refer to the level of no¡seihat is expected to occur during 5oo/o, 10o/o, and 1% inany'given hour, or 30 minutes, 6 minutes, or 36 seconds, respectively.

Due to the type of equipment,and the duration of particular phases of activity during mining,.thecounty geneially consioärs the L10 noise level for medium duration noises to be the appropriatestandard to evaluate for mining operations. The L10 standard is 60 dBA, based on the abovementioned Table 7. The above findings indicate the noise reaching the site:w-ill reaoh of level. of64.4 dBA. Staff finds the placement o-f a dwelling in the location shown will cause current miningoperations to, violate DECit noise standaids. Tñerefore, in order to meet this criterion theaþplicant will either have.to site,the dwelling so that it.is at least 1,000 feet from the closestsurface.mining area or provide a noise stuOy demonstrating that the proposed locationmeets the standard: This.means the house w¡Íl have to be located at least 650 feet from thesoutheast corner of the subject property. This will be attached as a condition of any approval.

i. Hours of OPeration.

FINDING:, This mining site must meet standards for operating hours for industrial sites regardlessof applicant's proposã¡. Staff finds the applicant's proposal meets the requirement of Sectionf g.S'6.f 00 (D), and that the proposed use wilt not prevent the adjacent surface mining operationfrom meeting the applicable standards.

j. Drillinq and Blastinq.

FINDING: lf drilling and blasting is part of the DOGAMI permit for this site, then it is able tocontinue to do so bãcause it is a pre-existing site. county regulations would only come into play ifthe site were to expand. Thus, the proposãd house would not cause the surface mining operatorto violate these standards.

FINDING: This standard, limiting excavation to five-acre areas at one time, is applicable to thismining site under its DoGAMI peimit. Therefore, staff finds the applicant's proposal does not haveto demonstrate compliance with this requirement.

k. Extractio Site Size.

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l. Fish and Wildlife Protection.

FINDING: This standard requires fish and wildlife values required in the ESEE analysis beprotected. Because this is a pre-existing site, the ESEE conditions are not applicable to thismining site at this time. Therefore, this standard is not applicable to the applicant's proposal.

m. Surface Water Manaqement.

FINDING: Management of water resources ín a manner that meets DEQ and DOGAMI standardsis required regardless of aþplicant's proposal. Applicantls proposal meets the requirement of18.56.100(D), therefore, since the proposed use will not prevent or affect in any manner the abilityof the adjacent surface mining operation from meeting the required standards.

n Storage of Equipment.

FINDING: This standard regarding the limitation of equipment necessary for the mining operationis not affected in any manner by the proposed residence.

o. Securitv Plan.

FINDING: This standard does not apply to the applicant's proposal as the mining activity occurson a pre-existing site.

p. ESEE lmpacts Resolved

FINDING: This standard does not apply to the applicantrs proposal as the mining'site operated asa pre-existing site and is therefore not required to meet the ESEE conditions at this time.

Conformance with Section 18.52.140of Title lA; Conditional Use Criteria

FINDING: The criteria in this section must be met by a mine operator to obtain a conditional usepermit for certain activities such as crushing, processing aggregate ínto cement, expansion orreplacement of a pre-existing dwelling, or off-site sale of the mineral resource. Since this is a pre-existing site, these criteria would only be applicable if the operator wanted to expand the site.

6. Section 18.56.120, Waiver of remonstrance:

The applicant for site plan approval in the SMIA zone shall sign and record in theDeschufes County Book of Records a statement declaring that the applicant and hissuccessors will not now or in the future complain about the allowed su¡-face miningactivities on the adjacent surtace mining site.

FINDING: The applicant will comply with this criterion when, as a condition of approval, theapplicant signs and records a Waiver of Remonstrance in the Deschutes County Book of Records.The waiver form will be prepared by the County and must be recorded with the County Clerk'soffice prior to issuance of any building permit for the dwelling.

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c CHAPTER I8.84, LANDSCAPE MANAGEMENT COMBINING ZONE

I Section 1 020. Aoplication Provisions

The provisions of this chapter shall apply to all areas within one'foufth mileof 'roads identified as landscape management corridors in theComprehensive.Plan and the County Zoning Map. The provisions of thiscnapter shatt atso apply to alt areas within the boundaries of a Sfafe scenicwatenany or Federát'w¡td anA scenrc livgr çorridor and -all areas wífhin 660feet of íiv"rt and streams otherwise,identified a landscape ma,nagementcorridors in the comprehensive plan and the County Zoning Map. Thedistance specified äbore shali be measured horizontally from thecenterlíne of des:ignated'landscape management roadways or from thenearest ordinary high water mark of a designated landscape managemeyt,river or stream. fn" fm¡t"tion in this section shall not unduly restrictaccePted agri c ultu ral Practi ces

FINDING: Johnson Market Road is identified on the county Zoning Map as the landscapemanagement feature. The subject property falls within the.LM combining zone associated with thisroad.

-Therefore, the provisionsof this chapter are applicable to the proposed use.

Section 18.84.040. Uses Permitted Conditionallv

Uses permitted ín the underlying zone wilh which !\9 LM Zone is c,o.r,n.hí\edshall'be permitfed as conditiõnat uses in the LM Zone, subiect to theprovisions in DCC 18.84.

2.

FINDING: The proposed dwelling is permitted as a conditionai use in the EFU zone, and ispermitted conditionally inrthe LM zone; . , '

3.

A. Any new structure or substantial atteration of a structure requiring anuíUing permit, or an agrícultural structure, wíthin an LM Zone shallobtaín-site ptatn approial in accordance with DCC 18.84 prior toconstruction;, As used in DCC 18,84 substantíal alteration consisfs_of an alteration whích,,exceeds 25 percent in the size or 25 percent offhe assessed value of the structure. ' l

FINDING: The proposed dwelling requires a building permit, and is subject to landscapemanagement review.

B. Structures which are not visibte from the designated roadway, riueror stream and which are assured of remaining notvisíble because ofvegetation, topography or existíng development-are exempt from tl9próvisions oi pêc'18;84.080,(Design Revíew Standards) and DCC'18.84.090 (Setbacks). An apptícable'for síte plan review in the LMZone shati conform-wíth the provisions of DCC 18.84, or may submítevidence that the proposed structure witt not be visible from the

c u-1 3-9/S M A-1 3-5 I LM-1 3-24 21

designated road, river or stream. Súrucfures not visible from fromthe desígnated road, ríver or stream must meet setback standards ofthe underlying zone.

FINDING: The subject property is adjacent to Johnson Market Road. The proposed buildingenvelope is located approximately 600 feet east of the road. The existing vegetation betweenthe dwelling and the road, as well as the distance (600 feet) will prevent the structure from beingvisible from the road. Provided that screening vegetation between the house and the road isretained, this criterion is satisfied. As a condition of approval the applicant will be required tomaintain vegetation between the house and the road, except as provided in DCC 18.84.080(A).With this condition the proposed dwelling is exempt from all other provisions of DCC 18.84.080and 18.84.090.

D. CHAPTER 18.88, WILDLIFE AREA COMBINING ZONE.

a. Section 18.88.040. Uses Permitted Conditio¡alllr

A. Except as provided in DCC 18.88.040(8), in a zone in which the WAZone is combined, the conditional uses permitted shall be thoseperm¡tted conditionally by the underlying zone subiect to theprovisions of the Gomprehénsive Plan, DCC 18.128 and otherapplicable provisions of this title.

FINDING: The proposed dwelling is a conditional use in the EFU zone and, thus, it is permittedconditionally in the WA zone. Applicable provisions of this title and the Cornprehensive Plan areaddressed in this decision.

Section 18.88.060. Sitinq Standards.

A. Setbacks shall be those described in the underlying zone with whichthe WA Zone is combined.

B. The footprint, including decks and porches, for new dwellings shall belocated entirely within 300 feet of public roads, private roads orrecorded easements for vehicular access existing as of August 5,1992...

FINDING: Setbacks Within the EFU zone are discussed above. The property abuts JohnsonMarket Road along its west boundary and Tumalo Park Roâd along its south boundary. Both ofthese roads existed as of August 5, 1992.

Additionally, the applicant provided an aerial photograph dated 1985 which, the applicant asserts,shows a road that enters the property in the northeast corner, travels southwesterly towardsJohnson Market Road, and then turns south and east, traveling northeasterly until it exits theproperty to the east in about the center of the property. Staff:confirmed the existence of this roadduring a site visit on May 10, 2013. This road is shown on the applicant's plot plan; most of theproposed building envelope is within 300 feet of this road. The southeast corner of the plot planextends 350 feet away from the road. This portion of the building envelope cannot beapproved without the applicant demonstrating that this site meets DCC 18.88.060(BX1). Thisshall be made a condition of any approval.

b

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The following fencing provisions shall apply as a condition of approval forany new fences consiructed as a part of development of a property incoñjunction with a conditional use permit or site plan review...

FINDING: The applicant has not proposed a fence as part of this development. However, in orderto ensure compliance with this criterion, an appropriate condition of approval with be imposed'With such a condition this criterion can be satisfied

c. Section 1 B 88.070. Fence ards.

tv. CONGLUSIONS:

The proposed conditional use application can meet the requirements of Title 18 of theDeschutes County Code

V. DECISION:

APPROVAL, subject to the following conditions.

VI. GOND ONS OF APP OVAL:

Approval is based upon the submitted plan. Any substantial change to the approved plan willrequire a new application.

The applicant shall obtain an access permit for any new access to Tumalo Park Roadprior to issuance of the building permit for the dwelling.

A.

B.

c.

D.

E.

F.

G,

The applicant shall obtain all necessary permits from the Deschutes CountyEnvironmental Soils and Building Safety Divisions.

prior to issuance of the building permit for the dwelling, the applicanVowner shall sign andrecord with the County Clerk a'document binding the landowner, and the landowner'ssuccessors in interest, prohibiting them from pursuing a claim for relief or cause of actionalleging injury from farming or fórestry practices for which no action or claim is allowedunder ORS 30.936 to 90.937.

The maximum building height for the house is 30 feet.

lf a new fence is proposed as part of this development it must meet the requirements ofDCC 18.88.070(A), except as allowed in DCC 18.88.070(8)'

prior to issuance of a building permit for the dwelling, the applicant shall sign and recordwith the County Clerk a statement declaring the applicant and his successors will not nowor in the future complain about the allowed surface mining activities on the adjacentsurface mining site.

The applicant shall either site the dwelling so that it is at least 1,000 feet from the closestsudacä mining area or provide a noise study from a qualified sound engineer

H.

c u -1 3-9/S M A-1 3-5 I LM-1 3-24 23

t.

J

demonstrating that the proposed location meets the DEQ noise standard. This means thehouse will have to be located at least 650 feet from the southeast corner of the subjectproperty.

Except as provided in DCC 18.84.080(A), the applicant shall retain existing vegetationbetween Johnson Market Road and the house.

The footprint of the house shall be located entirely within 300 feet of the road locatedwithin the subject property, and which is shown on the applicant's plot plan.

VII. DURATION OF APPROVAL:

." The applicant shall apply for a building permit for the proposed nonfarm dwelling withinfour (4) yea-rs of the date this decision becomes final, or obtaÍn an extension under Title 22 ofthe County Code, or this approval shall be void.

The applicant shall apply for a building permit for the house in the SMIA and LMCombining Zones within two (2) years of the date this decision becomes final, or obtain anextension under Tille 22, or this approval shall be void.

This decision becomes final twelve (12) days after the date of mailing, unless appealedby a party of interest.

DESCHUTES COUNTY PLANNING DIVISION

Written by: Kevin Harrison, Principal Planner

Dated this 13th day of May, 2013 Mailed this 13th day of May, 2013

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Gommunity Ðevelopment Departmentptsnriing,Diúislon Bullding Såtet¡¡ Þivisltrn Eùi¡ronr¡e¡ital Soils Divislonfi

P;O. Boxr60Ó5 '117 NW

........:..,'.,..\tlNOTICE OF DECISION

The Deschutes :County planning Division has qpproved the land use applications desct'ibed

below: ,

FILE NUMBERS:

LOGATION:

OWNER'':.: :') ::,: : . ' I

,ÁTTORNEY:

'l-afayede Avétriiê' ;Bénd, Oregon 97708-6005(541)3S8-6575 FAX (541)3Bs-r764

http : //wwW.co ¡deschutes.or. us/cddl

:.CU-13-9, SMA-13-5 and L1\A-13-24

The subiect property has an assigned address of 19210 TumaloÞ;tk ñ;ä;àÃo-i'r ¡iäntiiied on Deõchutes county Assessor's MapNo. 1 7-11-12, as tax lot 900.

'

Joyce E. Coats Revocable Trust

Tia M. Lewis' Schw¿be, Williamson & Wyalt ,' . ' ' ':i

SUBJECT:conditiona

uslvqapprovedarea and f

'STÀFF CöttÌACÎ: ' Kèvin Harrison, (541) 385-1401

APPLICABLE GRITERIA:

of Title 22 of the DCC

DECISION: Staff finds that the application meets all applicable criteria, and approval is beinggranted subject to the following conditions:

coN oNS OF AP

Approval is based upon the site plan and information submitted by the applicant. Anysubstantial change in the plan shall require a new application.

A.

Quatity Seruices Pe.rþnned wìth Prírle

B.

c.

The applicant shall oþtain an access permit for any new access to Tumalo Park Roadprior to issuance of the building permit for the dwelling.

The applicant shall obtain all necessary permits from the Deschutes CountyEnvironmental Soils and Building Safety Divisions.

Prior to issuance of the building permit for the dwelling, the applicanUowner shall sign andrecord with the County Clerk a document binding the landowner, and the landowner'ssuccessors in interest, prohibiting them from pursuing a claim for relief or cause of actionalleging injury from farming or forestry practices for which no action or claim is allowedunder ORS 30.936 to 90.937.

The maximum building height for the house is 30 feet.

lf a new fence is proposed as part of this development it must meet the requirements ofDCC 18.88.070(A), except as allowed in DCC 18.88.070(8).

Prior to issuance of a building permit for the dwelling, the applicant shall sign and recordwith the County Clerk a statement declaring the applicant and his successors will not nowor in the future complain about the allowed surface mining activities on the adjacentsurface mining site.

H. The applicant shall either site the dwelling so that it is at least 1,000 feet from the closestsurface mining area or provide a noise study from a qualified sound engineerdemonstrating that the proposed location meets the DËQ noise standard. This means thehouse will have to be located at least 650 feet from the southeast corner of the subjectproperty.

Except as provided in DCC 18.84.080(A), the applicant shall retain existing vegetationbetween Johnson Market Road and the house.

The footprint of the house shall be located entirely within 300 feet of the road locatedwithin the subject property, and which is shown.on the applicant's plot plan.

This decision becomes final twetve (12) days after the date mailed, unless appealed by aparty of interest. To appeal, it is necessary {o submit a Notice of Appeal, the appeal fee of$250.00 and a statement raising any issue relied upon for appeal with sufficient specificity toafford the Hearings Body an adequate opportunity to respond to and resolve each issue.

Copies of the application, all documents and evidence submitted by or on behalf of the applicantand applicable criteria are available for inspection at no cost. Copies can be purchased for25 cents per page. Pending land use applications can be accessed online atwww.deschutes.org/cdd. Click on .CDD lnformation Center" heading; then click on "PendingLand Use Applications" located on right side of page (opens in new window).

NOTICE TO MORTGAGEE, LIEN HOLDER, VENDOR OR SELLER: ORS CHAPTER 215REQUIRES THAT IF YOU RECEIVE THIS NOTICE, IT MUST BE PROMPTLY FORWARDEDTO THE PURCHASER.

Dated this 13th day of May, 2013

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Mailed this 13th day of May, 2013

2

Return To Kevin Harrison, PrinciPal PlannerCommunity DeveloPment DePt.117 NW Lafayette Ave., P.O. Box 6005Bend, OR 97708-6005

FARM AND FOREST MANAGEMENT EASEMENT

Eric W. Coats, Co-Trustee, or his successors in trust, under the Joyce E.. CoatsRevocable Trust, OàteO October 23, 2002, and any _amendments thereto, herein called theGrantor, is the o*À"r of real property described in Exhibit A, and identified or depicte-d onDeschuies County ÀiseJsors n¡ap' r lll-12 as tax lot 900. ln accordance with the conditionsset forth in the decision of the Deschutes County Planning Division, dated tvllY ]3,2013,ãpproving tanO use óermit CU-13-9, Grantor hereby grants to the owner(s) of all propertyáäjâ""Àtio the above described property (Grantees), a þerpetual non-exclusive farm and forestpráctices management easement as follows:

1. The Grantor, his heirs, successors, and assigns, hereby acknowledges by the g-ranting of thìs

easement úat the above-described property is situated in a designated farm zone inDeschutes County, Oregon, and may'be subjected to conditions resulting from farming orfoiest practicãs oñ'aãiiönt'lands. such oper-ations include management and harvesting oftimber, disposal of slash, reforestation, application of chemicals, road construction andmaintenancu,- nV raising,' harvesting and selling crops or by tlu feeding, breeding,managemeni "'iO

sale õf, or the flroduce _of, lÑestock, poultry, fur-bearing animals orhoneylees or for dairying and the sale of dairy products or-any.other agricultural orhortiiultural use or aniriraihusbandry or any combination thereof, and other accepted andcustomary farm and forest managemênt actiúities conducted in accordance with Federal andState Laws. Such farm or foresl management activities ordinarily and necessarily producenoise, Oust, smòie, and other conditioris that may conflict with Grantor's use of Granto/sproperty foi residential purposes. Except as allowed by ORS 30.930 through 30'947 , GrantorirerbOy'waives all commón law rights !o objegt to normal, non-negligent farm and forestmanagemeni ãct¡vit¡es legally cond-ucted on ád¡acent lands that may conflict with Grantor'suse of Grantods property'for'residential purposes, and Grantor hereby gives an easement tothe adjaceni p.ö"r{V owners for the resuliant impact on Grantor's property caused by thefarm and forest management activities on adjacent lands'

Z. Grantor shall comply with all restrictions and conditions for maintaining residences in farmand forest ionàr'that may be required by State, Federal, and local land use laws andregulations. Grantor shall compty iruitn att fire safety regulations developed by the OregonDðpartment of Forestry for residential development within a forest zone'

This easernent is appurtenant to all property adjacent to the above-described property, and shallbind the treirs, suðËJssors, and adsigns ót Grantor, and shall endure for the benefit of theadjacent landowners, their heirs, succðssors, and assigqs, The adjacent landowners, their heirs,,rä""rrorr, and asÀlgnr àr" heieby expressly granted the right of third-party enforcement of thiseasement.

Dated this

- daY of

-,2013GRANTOR

JOYCE E. COATES REVOCABLE TRUST

Eric W. Coats, Co-Trustee

STATE OF OREGON

COUNTY OF

On this

- day of before me, a Notary Public in and for said County

and State, personallY aPPeared the within named Eric W. Coats, known to me to be the Co-Trusteeof the Joyce E. Coats Revocab le Trust, who acknowledged to me that he executed the samefreely and voluntarily on behalf of said Trust

Notary Public forMy Commission ExPires:

SS)))

2013,

2File No. CU-13-9 Farm and Forest Management Easement

Exhibit A

The Northwest Quarter of the Southwest Quarter (NW1/4 SW1/4) of Section Twelve (12),Township Seventeen (17) South, Range Eleven (11) East of theWillamette Meridian, DeschutesCounty, Oregon.

3File No. CU-13-9 Farm and Forest Management Easement

Return To: Kevin Harrison, Principal PlannerDeschutes Co. Comm. DeveloPment117 NW LafaYette, P.O. Box 6005Bend, Oregon 97708-6005

EASEMENT(wAlvER oF REMONSTRANCE)

As a condition of the grant of development approval pursuant_t9 9_h-tp!.t 18 5q^of theDeschutes County Code for iax Lot 900 of Township 17, Range 11 E.W.M.., Section 12, andfurther described on Exhibit A (hereafter referred to as "burdened property"), G¡31to¡ herebygi"nti and/or relinquishes to the owners of record of the property describ-ed in Exhibits B, C andó and furlher deäcribed on the Deschutes County lnventory of Mineral and AggregateResources as Site No. 293 (hereafter referred to as the "benefited property"), as Grantee/s, anyanJ all rights of remonstrance or protest that they may have by virtue.of-ownership of theburdened property or otherwise to the visual, noise, dust, reclamation, traffic and any othersimilar impacts from the following protected activities:

(1) Surface mining activities lawfully co¡{t1ct.e_{in connection with a pre-existing mine,as thatterm iidefined in Sectión 18.52.160(8) of the Deschutes County Code, onthe benefited ProPertY; or

(Z) Surface mining activities that might be lawfully conducted in the future on thebenefited property under county or state permits or exemptions.

Grantors acknowledge that by virtue of such grant they have no remaining rights tocomplain or protest about the protected activities described above.

This Waiver of Remonstrance Easement runs with the land and is binding upon theheirs, successors and assigns of the undersigned's interest in the burdened property or anypersons acquiring through the undersigned an interest in the burdened property'

Dated this

- day of

-,2013

GRANTOR:

JOYCE E. COATS REVOCABLE TRUST

Eric W. Coats, Co-TrusteeSTATE OF OREGON

COUNTY OF

On this day of 2013, before me, a Notary Public in and for saidCounty and State, personally appeared the with in named Eric W. Coats, known to me to be theCo-Trustee of the Joyce E. Coats Revocable Trust, who acknowledged to me that he executedthe same freely and voluntarily on behalf of said Trust

Notary Public for

-

SS)))

My Commission ExPires

Exhibit A

The Northwest Quarter of the Southrvest Quarter (NW-l/4 SW:t]4) of Section

Twelve (12), Townsnü'sääät" 0ïl st"itt' irtngì ett"tn (tl) Bast of the

iüiñffi;üi\'I*tdlan, Deschutes còuntv' oregon'

Waiver 2

Exhibit B

tha Southeast qusrter of the Southeast Quarter and thc Esst ila¡fof the Southyest Qr¡¡rtcr of the Southeait Quarter of SecrionTIglve_(fZ),,all 1¡-lornshtp Scventeen (17)' South, Range Eteven(ll), E¡st òf the h-tlt¡pcttL Nc¡ldt¡n.

3Waíver

Exhibit C

Host höIf o! the southvest quòrtcr of- che-'southeastäüiitäi-isttt¡s¡{Í oi Éectlon-12, rovnahtp l7' Ranseli, E.r{.H.

4Waiver

Exhibit D

-- --- ---+he-S\\¿1l4-ofthe$.W1/4;anrttheSEl/4oftheS\4rll4öfSeõriön i2;lor trip rZSoutlt Range I l, East Willamette Meridian, Deschutes County, Orägon, togetherwith30aoresofwaterrights tobe appurtenant to tl¡e SWl/4 oftheSWiT4 ofSãctiont2,

-EI!!PI right of way for road conveyed ro Deschutæ county as recorded Juty 12,1965 in Volume l&,Page3l I Deed Records.

5Waiver