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Ordinance No. NS-1951 FINDINGS FOR APPROVAL OF A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF BEND AND RIVER’S EDGE INVESTMENTS, LLC AND ANCILLARY APPROVALS NECESSARY TO EFFECTUATE THE AGREEMENT; AND CONDITIONS OF APPROVAL Table of Contents (Note: Due to pagination changes anticipated during transmittal and printing, most page numbers have been omitted from this Table of Contents, and those provided may not be accurate. Findings should be located by reference to section numbers.) Background Facts: (page 3) Ownership of Affected Properties Property Size Location Access Comprehensive Plan and Zoning Designations On-site Land Use/Characteristics Surrounding Planning, Zoning and Land Use Public Utilities and Services Approval Background Summary of Development Allowed: (page 9) Findings and Conclusions for Approval: (page 12) 1.

Introduction

2.

Compliance with Statutory Development Agreement Standards

3.

Compliance with Urban Standard Residential Zone Standards

4.

Compliance with Limited Commercial Zone Standards

5.

Compliance with Waterway Overlay Zone (WOZ) Standards 1 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


6.

Compliance with WOZ Riparian Corridor Subzone Standards

7.

Compliance with WOZ River Corridor Design Review Subzone Standards

8.

Compliance with WOZ Floodplain Subzone Standards

9.

Compliance with Site Plan Approval Standards

10.

Compliance with Design Review Standards

11.

Compliance with Outdoor Lighting Standards

12.

Compliance with Off-Street Motor Vehicle Parking and Loading Standards

13.

Compliance with Conditional Use Permit Standards 13.1 13.2 13.3 13.4 13.5

Additional Roof Height in the Limited Commercial Zone Additional Roof Height in the Urban Standard Residential Zone New Residential Dwelling Units in the Limited Commercial Zone Planned Unit Development and Condominiums in the Urban Standard Residential Zone Off-Site Parking

14.

Justification for “Standard” and/or “Administrative” Variance for Proposed Parking

15.

Compliance with Planned Unit Development Requirements

16.

Land Use Review and Procedures 16.9

Correction of a Clerical Error

17.

Refinement Plan for Certain Portions of the PUD, Excluding the South Riverfront Residential and Hotel Expansion Areas

18.

Additional Findings to Address Testimony Received (page 162)

Conditions of Approval: (page 157)

2 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


FINDINGS FOR APPROVAL Background Facts: Owner:

River’s Edge Investments, L.L.C. C/O Wayne Purcell 3075 N. Business 97 Bend, Oregon, 97701 Phone: (541) 617-7171 Fax: (541) 389-0870

Tax lots:

Assessor’s Map 17-12-29A, Lots 300, 301, 302, 600, 603, 604, 605 and 606; Assessor’s Map 17-12-29B, Lots 101, 102 and 103; Assessor’s Map 17-12-29BC, Lot 1200; Assessor’s Map 17-1229BD, Lots 300, 400 and 500; Assessor’s Map 17-12-29AD, Lots 400 and 4300; Assessor’s Map 17-12-20D, Lot 1200 and 1201; Assessor’s Map 17-12-20DC, Lots 2900, 3000, 3100, 4200, 4600, 4800, 7500, 7600, 7700, 7800, 7900 and 8100; Assessor’s Map 1712-20C, Lot 102; Assessor’s Map 17-12-20CA, Lot 700 (Note: Tax lots listed do include developed PUD parcels (lots) owned by REI and the River’s Edge Golf Course. Tax lots are not listed for developed PUD parcels (lots) owned by individuals and "Common" parcels controlled by the three existing homeowner associations within the PUD; River's Edge Owner's Association Inc., Scenic Heights Owner's Association Inc. and Upper River's Edge Owner's Association Inc.) See Master Development and Topographic Plans.

Property Size:

Hotel Completion Area/ South Riverfront Residential Area: Acres+/North Riverfront Residential Area (Kulsted) Site: Acres+/River’s Edge 2004 PUD total acreage: Acres+/-

22.5 3.3 336.0

Location: The River’s Edge 2004 PUD is located west of Business 97 and the Deschutes River, north and south of Mt. Washington Drive. The existing Riverhouse Hotel and Resort is located at 3075 N. Business 97. Access: The Hotel Completion/South Riverfront Residential Area abuts and has access to Mt. Washington Drive. The North Riverfront Residential Area abuts Golf View Drive and has access to Mt. Washington Drive through the existing Riverhouse II Hotel parking lot. Zoning: Most of the River’s Edge 2004 PUD is plan and zone designated Residential Standard (RS), including the entire North Riverfront Residential Area and 3 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


most of the South Riverfront Residential Area. The Hotel Completion Area is mostly plan- and zone-designated Limited Commercial (CL), with a small notch zoned RS due to a scrivener’s error that is being corrected as part of these approvals. The zoning map and Owner’s plans depict a wedge-shaped island of RS zoning that contains the western abutment of the North Canal Dam and is mostly inundated by the impoundment. Section 16 of these findings explains that the RS wedge shown on the map is the result of an erroneous legal description. Residential Standard areas on the western edge of the Hotel Completion Area will be developed with condominiums, as noted on the Riverhouse Hotel Completion/South Riverfront Residential Area Site Plan drawing P1 in Exhibit B. Some condominium uses will also take place in CL-zoned areas of the property. Portions of the property are also affected by the Waterway Overlay Zone (WOZ) and its subzones, including the Deschutes River Corridor Design Review combining zone, as described in these findings. No River’s Edge development is proposed in the floodplain or floodway. On-Site Land Use/Characteristics: The Hotel Completion, South and North Riverfront Residential Areas do not contain any structures, as defined by the zoning ordinance. The remaining River’s Edge 2004 PUD area is partially developed and partially undeveloped, as shown on Exhibit B, Drawing TP1. The Hotel Completion/South Riverfront Residential Area also contains a parking lot, open vegetated areas and both disturbed and undisturbed high desert vegetation and pine trees. This area was previously a chicken farm and a homestead, with some remnants of those uses visible. In the North Riverfront Residential Area, the river is located at the base of a steep, rocky cliff/slope. Vegetation for the remainder of the North Riverfront area is typical for the area, partially disturbed and partially undisturbed, with rock outcroppings at the southern end of the area that will be preserved. Most of the remainder of the PUD has similar vegetation or has been developed and landscaped, including the River’s Edge Golf course and existing homes in completed Phases I through X. Aerial photographs provided by the Owner show the location of trees and shrubs in the Hotel Completion/South Residential Area and for the entire River’s Edge 2004 PUD. Trees and shrubs in those areas include ponderosa pines, junipers, and smaller, drought-resistant varieties of high desert vegetation common to Bend and surrounding lands. Surrounding Planning, Zoning and Land Use: The east and south boundaries of the Hotel Completion/South Residential Areas abut the Deschutes River. The North Canal Diversion Dam creates a reservoir pool adjacent to the south and southeast ends of these Areas. The pool is 250-300 feet wide, and separates the Hotel Completion/South Residential Areas from a multi-story office building and eight dwellings, in areas zoned for those uses. Water that is not diverted from the impoundment into the North Unit, Swalley or Central Oregon Irrigation Districts’ canals flows over the dam and through several pipes to the base of a ravine characterized by boulders and other rocks. The east bank of the ravine is part of a strip of land controlled primarily by utilities and the Irrigation District, and contains cliffs, high desert and riparian vegetation, the dam, pipes, concrete structures and man-made debris. Division Street and the onramp to the Bend Parkway are located further to the east, beyond the ravine, dam, and utility strip. Also on the east bank of the river, along Mt. Washington Drive and northeast of the property, is the River’s Edge 4 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


commercial office building and associated parking area. River’s Edge Golf Course is west of the Hotel Completion/South Residential Areas. With the exception of portions of the existing approach ramps to the Mt. Washington Drive Bridge and the bridge itself, Mt. Washington Drive is located in an 80-foot right-of-way separating existing and proposed Riverhouse/River’s Edge development. The Deschutes River continues north, under the existing Mt. Washington Bridge and through the existing Riverhouse Hotel and Resort complex. The North Riverfront Residential Area is located on the west bank of the Deschutes River, north of the Riverhouse Hotel, and east of Golf View Drive. Across the River at this location are developed hotel complexes, including the Riverhouse Hotel, and Shilo Inn. The Riverhouse Hotel complex adjoins the North Residential Area to the south, and the Area is otherwise surrounded by residential uses. Utilities/Services: All utilities and services necessary for the development are available at the site or will be provided by the Owner or City in conformance with the Development Agreement. The Owner has agreed to provide subsurface easements and access for the City’s existing sewage pump station in the Hotel parking lot; a storm water easement and storage facility for surface water generated by the public street Mt. Washington Drive and the new public Mt. Washington Drive Bridge; additional right-ofway for construction of the new bridge and approach ramps; and water rights that the City can use to supplement instream flows in the Deschutes River. New trail easements will connect the Deschutes River Trail southwest of the site to Sawyer Park, with a boardwalk, viewpoints, a connection under the new Mt. Washington Bridge, and a new segment of river trail to Sawyer Park. Through these and other exactions outlined in the plans, Agreement, and conditions of approval, and as detailed in these findings, the Owner has met or exceeded its obligation to concurrently provide all needed infrastructure and amenities for the proposed development. Approval Background: Development of the uses outlined in the Development Agreement have been contemplated in less specific form by the City and Owner for many years. On January 28, 1980, the City of Bend Planning Commission approved a resolution for a future “zone change from RS to CH Highway Commercial,” and issued “Preliminary Site Plan approval for a motel/convention center complex” for the area north and south of Mt. Washington Drive, on the west bank of the Deschutes River. On April 16, 1980, the City Council (then Commission) issued what it described as a “binding commitment on the City Commission to rezone the property upon fulfillment by the Owner of all of the above terms and conditions * * *.” The resolution promised that once the conditions were fulfilled, the City would issue an ordinance formalizing a zone change for 23.28 acres of the site from Urban Standard Residential to Highway Commercial. Part 1 of the preliminary site plan submitted in support of the 1980 Intent to Rezone depicted a hotel/resort complex consisting of a pro-shop, restaurant, convention, and recreation center on the 23.28-acre parcel. Part 2 included a golf course and up to 830 condominiums on an additional ± 126 acres, at a density of one unit per 6,000 square feet. 5 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


The 1980 Resolution of Intent to Rezone was adopted pursuant to Section 33(6) of the City of Bend Zoning Code, Ordinance No. 1178. This section was, at the time, the only means authorized by the Code to induce a developer to provide infrastructure improvements at the developer’s own expense in advance of obtaining land use approvals for the contemplated development. The Resolution of Intent to Rezone was the City’s version of a development agreement, prior to the advent of statutorily authorized development agreements in ORS 94.504 - 94.528. It was, in effect, a contract between the developer and the City, establishing what the developer would have to do in exchange for a zone change and other approvals, establishing the elements of the development, and allowing refinement and ultimate construction in phases. At present, the Owner and Brooks Resources are the only developers that are continuing to build various phases of developments that were authorized under such approvals, which both the City and Owner consider to be valid and enforceable agreements between the City and its most senior developers. Resolution 1512 approved a rezone to facilitate development that included a hotel and meeting facility, restaurant, recreational facility, and support buildings and infrastructure; residential developments; a public golf course; and necessary infrastructure to service these and other developments to City standards. The 1980 approvals were not appealed. The City conditioned the approvals upon the developer’s completion of 13 separate conditions of approval that included dedications, construction of the existing Mt. Washington Drive Bridge and other significant exactions. The 13 conditions of approval were as follows: “THE CITY COMMISSION DOES RESOLVE AS FOLLOWS: Section 1. The City Commission hereby indicates its general approval in principal of the proposed rezoning by the adoption of this Resolution of Intent to Rezone. This Resolution and the City’s approval shall be conditioned upon the property owner complying with all of the following terms and conditions: (1) The Owner shall provide the City with $25,000 for City to use in commissioning a traffic and design study for that part of the City affected by this development. The City shall use these funds in its discretion to commission the study. In addition to providing the $25,000 for the study the Owner shall at City’s discretion either (1) install the improvements contemplated by the Butke report (prepared by Owner’s traffic engineer) and pay all of the costs of these improvements (presently estimated at $225,000) or (2) install whatever improvements are recommended by the report City commissions with Owner’s cost for the installation of these improvements to be limited to an amount equivalent to what the cost of the Butke improvements would be. (2) The grade of the arterial street within the development shall not exceed 6% unless there are unavoidable conditions, then the grade shall not exceed 8%, as determined by the City Engineer. 6 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


(3) The design shall incorporate public streets currently not developed to both parcels in the north and south. (4) That all public streets within the development meet the criteria of Section 4 of City’s Subdivision Ordinance. (5) That the developer shall widen the bridge to met minimum standards for arterial width, if it should be approved as the only access to the site. (6) The developer shall agree to install traffic signal according to the specifications of the State Highway Division. (7) Plans shall be submitted to handle storm drainage taking into consideration the total drainage basin. The necessary drainage facilities to handle the total basin shall be installed now, or accommodations made that will allow them to be installed when further uphill development occurs; such as easements and installation of any pipe under roads to be paved at this time. (8) The plan shall be redesigned to provide better circulation to the cu-de-sacs on the north side of the arterial. (9) A public trail shall be dedicated through the project along the irrigation canal, and 8% of the land area shall be dedicated as park land. This would take the form of the trail and a dedication of frontage along the river from the dam north. (10) The developer shall provide all required off-street parking. (11) The developer shall pay to the City a bond for 110% of the estimated cost of all public improvements. (12) The developer shall provide to the City a copy of an agreement between developer and the Tumalo Irrigation District providing protection and prevention of access to the open canal. (13) Sufficient right-of-way shall be conveyed to the City or a street dedicated for public use so as to permit ingress and egress to this property across the river at the point that does not directly connect to Highway 97. The exact location of this new access across the river shall be determined by the City.� 1 Over the past 23 years, and as acknowledged by the City Council in 1998, the 13 conditions have been met. According to the Owner, compliance with the 13 conditions cost the Owner in excess of $2.3 million, in 1980-90 dollars. This, to the substantial benefit of other developments and the community at large. During the same period, the Owner developed ten phases of the River’s Edge Village Planned Unit Development. Development of Riverhouse II began almost immediately, as the owner sought bond financing through the state Economic Development Division for 1

Resolution of Intent to Rezone No. 1512 (1980).

7 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


the convention center and a public golf course. In 1984, Clyde Purcell applied for rezoning of a 2.8-acre portion of the site to accommodate 100+ hotel rooms with office space and a footbridge to the original Riverhouse Hotel. At that time City planning staff noted conformance of the proposed development with the original Master Plan for the site. By 1986, Mr. Purcell completed construction of the Mt. Washington Drive Bridge.

In 1987, Clyde Purcell obtained Site Plan approval for a 9-hole golf course and the first 40 lots of River’s Edge Village, also contemplated by the 1980 Master Plan. The staff report for Finding and Decision S-3487/C-19-87 (November 24, 1987) indicates that the previous PUD Master Plan was being changed “by reducing the overall density of the development from 700 units to 300 units.” Then, in 1991, the Owner acquired additional property from Brooks Resources Corporation, and presented to the City its proposal to expand the River’s Edge Village PUD to add an additional nine holes to the existing golf course and to allow for the development of up to 268 residential units on 166 acres (S-1791/C-8-91/V-12-91). The Owner then proceeded to complete development of the 18-hole, public, River’s Edge Golf Course, to relocate pfirreon cd(daff )]TJ0.0005 Tc0257158 Tw 17.22 0 Ttidge to t

8 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


legislative history of the proceedings to zone the property CL establishes that the purpose of the rezone was to allow the Riverhouse Resort to expand its facilities, including hotel units, resort recreation facilities, accessory resort uses and meeting rooms, onto the resort’s property south of Mt. Washington Drive. Ordinance NS-1701 was a final land use decision, and was not appealed. Two subsequent efforts by the Owner to obtain land use permits to develop the resort facilities have failed. In each instance, City staff and review authorities other than the Council have attempted to interpret zoning code and site-specific zoning ordinances adopted by the Council to establish whether uses proposed by the Owner are allowed. The difficulty of their task has been compounded by the complexity of the design, mix of uses, and the complexity of overlay regulations. These difficulties are resolved by adoption of the Development Agreement, the conditions of approval and these findings, which contain all City code and site-specific ordinance interpretations necessary for approval of the proposed development. The uses proposed by the Owner are allowed on the subject property as specified in, and limited by, the plans, conditions and Development Agreement. These findings, and the Agreement, have been subjected to quasi-judicial review and rights of appeal, as required by law. Development Allowed: Development allowed under the Development Agreement is a continuation and refinement of uses that have been envisioned for the property since 1980, as indicated by the City’s original agreement with the Owner. That development currently includes: an 18-hole public golf course; a pro-shop; more than 100 hotel rooms; pool facilities; approximately 259 single-family homesites in ten phases. The Development Agreement and Conditions of Approval establish the terms and conditions for modification of prior PUD approvals and establishment of the River’s Edge 2004 PUD and Master Plan; site, design, WOZ and all other land use approvals necessary for completion of all elements of the Owner’s plans described in these findings and on the plans as “Phase 1;” and building footprints, setbacks and heights as indicated on the submitted plans and described in the Conditions of Approval. Contemplated as part of the development are a meeting facility; approvals for location and height of a restaurant, spa, 102 additional hotel units, maintenance facilities, 80 condominiums in the South Riverfront Residential Area, and an additional 21 condominiums in the North Riverfront Residential Area, along with trails and other resort amenities as indicated on the plans. The Conditions of Approval provide that prior to construction of uses proposed outside of Phase 1 in areas designated for Hotel Completion, or North or South Riverfront Residential, the Owner shall meet with Planning to determine what additional plans or refinements, if any, are necessary to complete site and/or design review, consistent with the existing, approved plans, the Development Agreement, and these Conditions. The Development Agreement also limits continued development of the PUD to 388 additional single-family homesites, consistent with existing PUD and City density limitations. In return, the Owner will provide additional right-of-way for construction of a new Mt. Washington Drive Bridge; easements for new drainage facilities; pump station 9 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


easements and access; Deschutes River water rights; riparian mitigation, protection and enhancements; new trail easements connecting the south Deschutes River Trail to Sawyer Park; and needed meeting/convention/resort facilities and visitor revenues for the City and community of Bend. The facilities will showcase the Deschutes River to visitors and will serve the meeting space needs of the Riverhouse Hotel, other surrounding hotels, and the Bend community. The project will also serve the public goal of providing “infill development” and best fits the urban form of developing needed facilities near existing infrastructure and existing concentrations of population. The Development Agreement addresses and resolves all outstanding issues related to discretionary approvals required for the development under City planning and zoning ordinances of uses specified in the Agreement and Conditions of Approval. Approval is granted for modification of the Master Plan for the River’s Edge Village Planned Unit Development through adoption of the River’s Edge 2004 PUD. Approvals are also granted to facilitate development under the modified PUD Master Plan, including Site Plan Review and Deschutes River Corridor Design Review for Hotel Completion, and establishment of building footprints, setbacks and heights elsewhere on the site as indicated on the submitted plans and described in the Conditions of Approval. Ancillary and in some cases cautionary approvals are granted that include: correction of a clerical error in a prior zoning ordinance affecting the site; initiation of a Refinement Plan; a Variance (for reduced parking); and Conditional Use Permits for: additional roof height in CL and RS zones; new residential dwelling units in the CL zone; a PUD and construction of condominiums as part of that PUD, in portions of the site zoned Urban Standard Residential; and off-site parking. Findings justifying all approvals, and alternative findings justifying design and PUD exceptions to support the City’s decision on appeal, are provided in this document. All findings necessary for approval and additional, cautionary findings contained in this document, support approval of development that includes a 55,371 square foot conference facility with 28,057 square feet of meeting space, (which includes 12,282 square feet of future meeting space on the Lower Level); 10,300 square feet of restaurant space; maintenance facilities; 102 hotel units; 80 residential condominium units in the South Riverfront Residential Area, and an additional 21 condominiums in the North Riverfront Residential Area; a swimming pool and spa; associated landscaping; riparian mitigation and enhancement; parking and pedestrian paths and connections; and related infrastructure necessary for the proposed expansion of the existing Riverhouse Resort on property zoned CL, Limited Commercial and RS, Standard Density Residential and partially within the Deschutes River Corridor Design Review area. These improvements are depicted in the Riverhouse Hotel Completion/South Riverfront Residential Area Site Plan, and will be developed under Planned Unit Development procedures and standards and other applicable or potentially applicable code requirements. Conflicts between the description of planned development in these findings and the actual plans should be resolved in favor of the plans. As stated, this decision and the Development Agreement are intended to provide authority to the Owner to develop the site as specified in the Agreement, plans and conditions. To the extent a conditional use permit is necessary to allow any of the proposed structures on the site to exceed the CL or RS zone height limitation of 30 feet, that approval is granted and justified in these findings. In this instance, the City is more 10 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


concerned with the aesthetics and functionality of the entire proposal, to operate as a resort that will consistently draw visitors into the City of Bend for vacations, conferences, seminars and sightseeing. Granting the request allows the meeting facility to have a well-articulated roof, and all proposed structures to have aesthetic and functional designs, including proposed rooflines, as encouraged by the City’s Roof Design Standards, BZO 10-10.23A(6)(b)(E)(3) and as preferred by the Council. The proposed roofline for the meeting facility will be located at an elevation of approximately 3578.5 MSL, commensurate with the height of surrounding topography and infrastructure, including the new Mount Washington Drive Bridge. The roof design will be an aesthetic compliment to the structure and the site when viewed from any direction, including the deck of the new bridge. The roofline of the restaurant will not exceed approximately 36.5 feet, the spa is not expected to exceed 30 feet, and the rooflines of the proposed hotel units and condominiums will not exceed 37 feet. Roofline approval conditions are stated in terms of roof pitch and the height of structures from grade to the bottom of the fascia of the primary roof eave. Measurements are made from natural grade for buildings within 100 feet of the ordinary high water mark (OHWM) of the Deschutes River and from finished grade for buildings outside of 100 feet. This is consistent with City practices and policy. Also, to the extent necessary, these findings support the Council’s decision to allow shared parking and establish parking requirements based on need as established by the Owner and Owner’s traffic consultants. Both the variance and PUD sections of the code indicate the Council’s authority to, in this case, identify, and require construction of, only the number of additional parking spaces likely to be needed for the proposed uses. City staff and the Owner have consulted with community members, traffic engineers and ODOT staff to determine the appropriate level of new parking for the proposed uses. As supported by the record, while some independent parking will be required at the meeting facility to appropriately accommodate large (especially local) events, vast new parking fields will not be necessary. Good existing and proposed pedestrian connections, and parking management required by the conditions of approval, will ensure that the level of parking required by the City will be adequate to meet the needs of the meeting facility and other uses proposed for the property. This approach will also allow maximum preservation of existing riparian areas and other natural amenities. Water quality in the Deschutes River will be preserved to the greatest extent possible by limiting the potential for contaminated surface water runoff to enter the river from otherwise unnecessary impervious surfaces. As a condition of approval, parking management will be required, as necessary and appropriate, including scheduling techniques; temporary signage; utilization of existing nearby lots; shuttle services; parking enforcement; and valet or assisted parking. Parking will be subject to monitoring and independent review three years after completion of the development if warranted. If necessary at that time, the Owner will provide additional parking on land near the subject property, utilizing pedestrian connections that are part of the proposed development and/or provide additional parking management acceptable to the City. The project has been designed and configured specifically to address all potentially applicable requirements of the City’s ordinances. The result is a development that makes “highest and best use” of the property; protects and enhances the riparian and trail 11 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


amenities of the Deschutes River; and simultaneously addresses the needs of visitors, the City, and the community. Findings and Conclusions for Approval: The Owner has demonstrated compliance with all applicable criteria of the City of Bend Comprehensive Plan and Zoning Ordinance as detailed in these findings. The record of these proceedings provides the factual basis for approval. The Council has considered and weighed all evidence, arguments and testimony received in these proceedings, and relevant materials incorporated into the current record by reference, and adopts these findings in support of approval of the proposed Development Agreement and Ordinance No. NS-1951. 1. The request is for approval, by Ordinance, of a Development Agreement between the City and Owner to allow development of the property as specified in the Agreement, plans and Conditions of Approval. 2. Statutory Development Agreement Standards. Agreements is contained in ORS 94.504-528. 2.1

Authority for Development

ORS 94.504(1) states: “94.504 Development agreements; requirements; contents. (1) A city or county may enter into a development agreement as provided in ORS 94.504 to 94.528 with any person having a legal or equitable interest in real property for the development of that property.”

FINDING: The Owner is River’s Edge Investments, L.L.C. The City may enter into a development agreement with the Owner who, the record establishes, has a legal interest in the subject property. 2.2

ORS 94.504(2) states: “(2) A development agreement shall specify: (a) The duration of the agreement, which may not exceed four years for a development of fewer than seven lots or seven years for a development of seven or more lots; (b) The permitted uses of the property; (c) The density or intensity of the use; (d) The maximum height and size of proposed structures; (e) Provisions for reservation or dedication of land for public purposes; (f) A schedule of fees and charges; (g) A schedule and procedure for compliance review (h) Responsibility for providing infrastructure and services; 12 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


(i) The effect on the agreement when changes in regional policy or federal or state laws or rules render compliance with the agreement impossible, unlawful or inconsistent with such laws, rules or policy; (j) Remedies available to the parties upon a breach of the agreement; (k) the extent to which the agreement is assignable; and (L) The effect on the applicability or implementation of the agreement when a city annexes all or part of the property subject to a development agreement.” FINDING: The Development Agreement adopted in these proceedings includes all of these required items, as noted in detail herein. 2.3

ORS 94.504(3) states: “(3) A development agreement shall set forth all future discretionary approvals required for the development specified in the agreement and shall specify the conditions, terms, restrictions and requirements for those discretionary approvals.

FINDING: All discretionary approvals required for the phases of development anticipated to occur in the Hotel Completion and North and South Riverfront Residential Areas are granted by the Agreement and Ordinance No. NS-1951 and justified by these findings, subject only to ministerial reviews required by applicable zoning, site development and structural codes. The Agreement states that the parties shall cooperate with regard to future discretionary approvals necessary to complete the River’s Edge 2004 PUD Master Plan. The requirements for those discretionary approvals are set forth in the City’s zoning ordinance and other regulations. These submittals meet the requirement of the statute. 2.4

ORS 94.504(4) states: “(4) A development agreement shall also provide that construction shall be commenced within a specified period of time and that the entire project or any phase of the project be completed by a specific time.”

FINDING: The agreement provides that construction of the meeting facility will be commenced within 2 years of a final decision and after resolution of all pending appeals or less, if any, and will be completed within 2 years of commencement, followed by completion of other planned hotel and resort facilities. This requirement provides legal assurance to the City that the Meeting Facility will be built expeditiously, as planned. A default would place remaining resort and condominium development in jeopardy. Development will continue over time in accordance with PUD, subdivision, and additional development review as required by City codes, to approved heights and densities. 2.5

ORS 94.504(5) states: 13 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


“(5) A development agreement shall contain a provision that makes all city or county obligations to expend moneys under the development agreement contingent upon future appropriations as part of the local budget process. The development agreement shall further provide that nothing in the agreement requires a city or county to appropriate any such moneys.” FINDING: The Development Agreement contains the nonappropriation clause required by this section. 2.6

ORS 94.504(6) states: “(6) A development agreement must state the assumptions underlying the agreement that relate to the ability of the city or county to serve the development. The development agreement must also specify the procedures to be followed when there is a change in circumstances that affects compliance with the agreement.”

FINDING: The agreement states the assumptions underlying the agreement that relate to the ability of the City and Owner to serve the development, directly and by reference to supporting documents. Infrastructure needed to support the maximum densities envisioned in the agreement is planned for under the agreement, to be provided by the City and Owner, to ensure that all infrastructure is provided concurrent with the development to adequately serve the development, existing and anticipated uses. 2.7

ORS 94.508, “Approval by governing body; findings; adoption” states: “(1) A development agreement shall not be approved by the governing body of a city or county unless the governing body finds that the agreement is consistent with local regulations then in place for the city or county.

FINDING: All local regulations that are arguably applicable to the agreement are addressed in these findings, which in turn are based on substantial evidence in the record as a whole. By adopting these findings, and an ordinance establishing the Development Agreement, the Council finds that the Agreement and development authorized under the Agreement are consistent with all local regulations. 2.8

ORS 94.508(2) states: “(2) The governing body of a city or county shall approve a development agreement or amend a development agreement by adoption of an ordinance declaring approval or setting forth the amendments to the agreement. Notwithstanding ORS 197.015(10)(b), the approval or amendment of a development agreement is a land use decision under ORS chapter 197.”

FINDING: Ordinance No. NS-1951, supported by these findings, approves the Development Agreement, which has also been executed by the Owner. Review of the Agreement was by public hearings, following quasi-judicial land use procedures to the 14 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


extent required by State law and City ordinances, and with the right to appeal the decision to the Land Use Board of Appeals. 2.9

ORS 94.513, “Procedures on consideration and approval,” states: “(1) A city or county may, by ordinance, establish procedures and requirements for the consideration of development agreements upon application by, or on behalf of, the owner of property on which development is sought or another person having a legal or equitable interest in that property.”

FINDING: The City has not established procedures and requirements for the consideration of development agreements, as authorized by this section. In the absence of local procedures, the statute applies directly. To ensure full compliance with ORS 94.504 to 94.528 and consistency with all local ordinances, the Owner has applied for all permit approvals arguably necessary to allow fully the uses described in the Agreement and plans. These findings and the record as a whole support the City’s decision in Ordinance No. NS-1951 to issue all of the approvals requested by the Owner, as conditioned by the City, and to complete the development as proposed. 2.10

ORS 94.513(2) states: “(2) Approval of a development agreement requires compliance with local regulations and the approval of the city or county governing body after notice and hearing. The notice of the hearing shall, in addition to any other requirements, state the time and place of the public hearing and contain a brief statement of the major terms of the proposed development agreement, including a description of the area within the city or county that will be affected by the proposed development agreement.”

FINDING: As stated, fully noticed public hearings were held, as required. A copy of the notice, conforming to this section and the requirements of the City’s Procedures Ordinance, is part of the record of adoption. 3. Urban Standard Residential Zone Standards. For the requested uses in Urban Standard Residential (RS) zone portions of the property, the applicable review criteria are found in BZO Section 10-10.10. 3.1

BZO Section 10-10.10(1) states: “(1) Purpose. The RS Zone is intended to provide for the most common urban residential densities in places where community sewer services are or will be available and to encourage, accommodate, maintain and protect a suitable environment for family living.”

FINDING: This section is not an approval standard, but is implemented by section 10-10.10 and other requirements of the zoning code. In this case single-family residences and condominiums are proposed, at common, urban-residential densities (no more than five units per acre). Community sewer services are available to the area, and 15 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


are either available throughout residential portions of the PUD or will be made available as part of the development. The proposed residential units will be suitable for family living as indicated by the Purpose section. 3.2

BZO Section 10-10.10(3) states, in relevant part: “(2) Conditional Uses. The following conditional uses may be permitted subject to a Conditional Use Permit and the provisions of Section 29. *** (i) Planned Unit Developments subject to provisions of Section 30. *** (t)

Condominiums”

FINDING: River’s Edge 2004 is a Planned Unit Development that consists predominantly of residential and recreational uses. Eighty new condominium units are proposed in the South Riverfront Residential Area, zoned CL and RS. The plans include an additional 21 condominium units in the North Riverfront Residential Area, which is zoned RS. Section 13.4 contains findings for approval demonstrating that the PUD and proposed condominium uses are compatible with surrounding uses and that a conditional use permit is justified in this instance to allow those uses. Compliance with BZO Section 30 is demonstrated in section 15. 3.3

BZO 10-10.10(4) states: “(4) Height Regulations. No building or structure shall be hereafter erected, enlarged or structurally altered to exceed 30 feet in height without a conditional use permit.”

FINDING: The proposed condominiums will exceed 30 feet in height to accommodate a sloped roof. The sloped roof helps to maintain compatibility with neighboring homes and helps to reduce the apparent mass of the structures, while maintaining adequate unit size commensurate with resort accommodations envisioned as part of the completion of the Riverhouse Resort. Findings to justify a conditional use permit to allow roof height exceeding 30 feet in the RS zone are included in section 13.2 of these findings. Findings justifying an exception to the 30-foot requirement as part of PUD approval are included in section 15 of these findings. In this instance, the City will measure the height of the buildings from natural grade for units within 100 feet of the OHWM of the Deschutes River, and from finished grade elsewhere. The Owner is allowed to construct condominium units as indicated on the plans to a height of 30 feet as measured from the applicable grade to the bottom of the primary roof eave fascia, and at a roof pitch no greater than 4.5:12. Conditioned in this way, and given the proposed footprint sizes, roof height will not vary significantly from that shown on the attached exhibits, and flexibility will be provided to the Owner to incorporate additional natural features into the landscape design. 3.4

BZO 10-10.10(5) states: 16 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


“(5) Lot Requirements. The following lot requirements shall be observed, provided that the approval authority may allow smaller lots of different housing types in a new subdivision or Planned Unit Development (PUD) approved pursuant to this ordinance and consistent with the Comprehensive Plan designations for preservation of areas of significant interest when these lots or housing types are internal to the subdivision or PUD. (a) Lot Area: A lot in a subdivision or planned unit development approved after December 2, 1998 shall have a minimum area of 4,000 square feet provided that the overall density does not exceed 7.3 dwelling units per gross acre. All other lots shall have a minimum area of 6,000 square feet. New lot development is subject to Section 10.10.10(8) below and shall have an overall density range of 2.0 - 7.3 units per gross acre.” FINDING: Prior to, or as part of the development of the South Riverfront Residential Area, the Owner will apply for and obtain a lot line adjustment or partition establishing a single lot containing all condominium uses anticipated, as required by law. It is anticipated that separate Homeowner Associations and common areas will be established for each condominium area. All lots will exceed 6,000 square feet. Compliance with the RS zone lot requirements as to future residential lots created within the River’s Edge PUD will be ensured through future tentative and final subdivision review(s). The Bend Urban Area General Plan specifies a range of density for the Urban Standard Residential zone from 2.0 to 7.3 units per acre. The overall density of the River’s Edge 2004 PUD, including all types of residential units, is greater than two and will not exceed five units per acre. 3.5

BZO 10-10.10(5)(b) states: “(b) Lot Width. Lots shall have a minimum width of 60 feet except in subdivisions or Planned Unit Developments (PUDs), approved after December 2, 1998, where the minimum width is 40 feet.”

FINDING: The plans demonstrate that the South Riverfront Residential Area will exceed 65 feet at its narrowest width, in compliance with this standard. The minimum width of the North Riverfront Residential Area exceeds 190 feet. Compliance with this standard as to future residential lots created within the River’s Edge PUD will be ensured through future tentative and final subdivision review(s). 3.6

BZO 10-10.10(5)(c) states: “(c) Front Yard: The front yard shall be either a minimum of 20 feet except an existing 40 or 50 foot corner may have one front yard of 10 feet, provided the garage or carport is at least 20 feet from the property line, or a minimum of 10 feet from the property line when the following conditions exist:

17 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


A. The lot is within a subdivision platted after August 6, 1997 and the garage is set back a minimum of 20 feet from the property line, and B. The lot fronts on a local public or private street.” FINDING: To the extent this section applies, the plans demonstrate that the South Riverfront Residential Area front yard setback will vary from 25 feet to over 100 feet deep. In the case of the North Riverfront Residential Area, the front yard, along Golf View Drive, is 75 to almost 180 feet deep. The South Riverfront Residential area condominium lot fronts on Mt. Washington Drive, a local public street, as does the South Riverfront Commercial area. The North Riverfront Residential area fronts on Golf View Drive, a local private street. 3.7

BZO 10-10.10(5)(d) states: “Side Yard: A side yard shall be a minimum of 5 feet and the sum of the two side yards shall be a minimum of 15 feet except that in subdivisions or Planned Unit Developments (PUDs) approved after December 2, 1998, a side yard shall be a minimum of at least 5 feet and the sum of the two side yards shall be a minimum of 10 feet except for zero lot line subdivisions approved pursuant to the City’s subdivision ordinance.”

FINDING: To the extent this section applies, it is satisfied as demonstrated by the plans for both the North and South condominiums. For the South Riverfront Residential Area, the proposed condominium lot extends from the northwest corner of the site to the southeast corner. The side yards are located in those two corners, or ends of the condominium lot, are greater than five feet, and the sum of both of the side yards exceeds 15 feet, demonstrating compliance with this code provision. 3.8

BZO 10-10.10(5)(e) states: “Rear Yard: The rear yard shall be a minimum of 5 feet.”

FINDING: The plans demonstrate compliance with this standard for both residential areas subject to site design review in this proceeding. Compliance with this standard for future PUD residential development indicated on the plans will be determined at the time of tentative and future subdivision review(s). 3.9

BZO 10-10.10(5)(f) states: “Lot Coverage: Maximum lot coverage by buildings and structures shall be 35 percent of the lot area.”

FINDING: The size of the proposed South Riverfront Residential condominium lot is 224,900 square feet (5.2 acres +/-) and the coverage by buildings or structures is 47,250 square feet or approximately 21% of the residential development area, in compliance with this standard. The size of the proposed North Riverfront lot is 3.3 acres and the proposed coverage by buildings and structures is approximately 17,550 square feet, constituting 12.4 percent of the lot area, in compliance with this standard. The City also acknowledges that the adjoining golf course, measured to the center of the golf holes, 18 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


provides a buffer of significantly more open space and is not subject to development. The golf course is in the PUD. 3.10

BZO 10-10.10(5)(h) states: “(h) Solar Setback: Section 26A.”

The solar setback as prescribed in

FINDING: Section 26A contains south wall and south roof protection standards and north lot line setbacks to preserve site access to solar radiation. Solar regulation can be complex due to variations in grade, natural vegetation and seasonal changes. For that reason, BZO Section 10-10.26A(3)(b) delegates to the Planning Director authority to grant exemptions, so that the complex formula for calculating solar heating hours can be avoided when no harm to neighboring solar access is anticipated. In January, 1999, the Development Services Division adopted the “City of Bend Solar Policy” outlining the setback formula, and exempting all lots in a CL zone not abutting a single-family residential zone to the north. In this instance the CL zone abuts Mt. Washington Drive, will not impact neighboring solar access, and is exempt from solar permitting. The north lot line of the north Riverfront Area abuts a platted, vegetated drive to the north, is exempt from permitting, and development proposed in that area will not impact neighboring solar access. Compliance with solar access requirements for future development will be established through tentative and final subdivision review and approval procedures. 3.11

BZO 10-10.10(6) states: “(6) Off-Street Parking. Off-street parking shall be provided as required in Section 24.”

FINDING: Findings demonstrating compliance with the off-street requirements of BZO section 24 are included in section 12 of these findings. 3.12

parking

BZO 10-10.10(7) states: “Other Required Conditions. See section 25 applying to Special Uses.”

FINDING: 3.13

No special uses are contemplated as part of the proposal.

BZO 10-10.10(8) states: “(8) Residential Compatibility Standards The following standards shall apply to new subdivision lots created after the date of adoption and shall be observed (a) Purpose. The residential compatibility standards in this section are intended to provide added protection to residentially zoned properties and existing neighborhoods from potential impacts sometimes associated with increased residential density development. (b) Applicability. The residential compatibility standards shall apply to all RS zoned development properties that are abutting existing residential lots, excluding lots in the RM and RH zoning districts, that have been legally 19 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


created through a subdivision plat and have a minimum lot size of 8,000 square feet or greater. (c) Lot Development Standards. i. No more than two new lots or portions thereof shall adjoin an existing lot boundary. ii. New lots along an adjoining subdivision boundary where existing lots are 20,000 square feet or greater shall be at least 15,000 square feet in area. (d) Building Setbacks The building setback regulations of the Residential Compatibility Standards shall apply to the side and/or rear setbacks of lots that abut the existing development in accordance with the following standards: i. Minimum Rear Yard Setback. The rear yard setback of the subject property shall be the same as the required rear yard setback of the abutting existing ii. Minimum Side Yard Setback. The side yard setback of the subject property shall be the same as the required side yard setback for the abutting existing subdivision. (e) Exceptions. i. When the adjoining existing lot width is greater than 300 feet, the developer may establish a lot pattern along the adjoining subdivision boundary consisting of 15,000 square foot lots with a minimum lot depth of 100 feet. In no instance as described above, shall the new development lots be required by this section to exceed 15,000 square feet in size. This exception may result in more than two (2) new lots abutting an existing large subdivision lot. ii. All lot configurations subject to this section shall conform to the. Residential Compatibility Standards or be approved through a hearing process. iii. Public or private alleys, streets with less than 60-foot right of way, and open space tracts less than 30 feet in width shall not be allowed to abut an existing subdivision boundary as a means of circumventing the compatibility standards provided herein. iv. When the adjoining existing residential development is bordered by a common open space tract less than 30 feet in width, the new development shall be subject to the Residential Compatibility Standards in Section 10.10.10(8) above. FINDING: The proposed development does not create any new subdivision lots at this time, making this provision inapplicable. 4. Limited Commercial Zone Standards. For the requested uses in Limited Commercial areas of the property, the applicable review criteria are found in BZO 1010.15. 4.1

BZO 10-10.15(1) states: “Section 10-10.15, Limited Commercial (CL) Zone (1) Purpose. This zone is intended to establish locations for the development of commercial centers to be provided for the 20 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


shopping and service requirements for large sections of the community and to recognize existing uses both in centers and as parts of commercial strips. New community centers shall be limited to a minimum area of 12 acres of [sic] a maximum area of 20 acres of contiguous land and shall be developed in a manner consistent with the General Plan.” FINDING: This is not an approval standard, but a description of the types of lands that should be zoned Limited Commercial. The site is zoned CL, and the City Council has previously established that the site is suitable for CL uses, and that the types of uses proposed by the Owner are allowed outright in the CL zone. City of Bend and Central Oregon area residents and visitors require resort, transient lodging, convention, catering and recreation services, as an integral part of the local economy. These are all commercial uses that, at the proposed location, are consistent with the General Plan and the CL zone designation. The meeting facility will provide accommodating convention space in a hotel setting. This is a needed economic element in Central Oregon, and will benefit the hospitality industry as well as other industries dependent upon tourism. The proposed building and setting will highlight the beauty of the Deschutes River to the community of Bend and those visiting the City. The proposal is not for a “new community center” but for new facilities as part of an existing hotel and resort complex. 4.2

BZO 10-10.15(2) states: “(2) Permitted Uses. The following uses are permitted in the CL Zone subject to the provisions of Section 23. *** (ff) Motel or hotel. *** (mm) Restaurant, entertainment.

bar

and

cocktail

lounge

including

*** (qq) Planned Unit Development subject to the provisions of Section 30.” FINDING: The proposed meeting facility, hotel units, maintenance, food and beverage service, spa and pool uses are “motel or hotel uses,” and are permitted outright in the CL zone, as part of a motel/hotel/resort facility, and as previously interpreted by the Bend City Council in 1998 with regard to the property. Justification for a Planned Unit Development is included in section 15 of these findings. The Riverhouse Hotel is an existing and outright permitted use in the Limited Commercial zone. The application includes a request to build additional hotel facilities as part of the existing hotel complex, presently located immediately adjacent to, north and northeast of the proposed location. The proposed meeting facilities and other resort amenities are customarily provided in conjunction with, and as part of, the structures and facilities of motels and hotels to accommodate participants in conventions, trade shows, 21 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


seminars, conferences and all manner of business and social gatherings. The proposed facilities will also address a Bend community need by providing a high quality meeting facility capable of accommodating groups that are too large to currently meet in the Bend area. Market analysis conducted by the Owner demonstrates that meeting facilities of the scale proposed are typically situated and marketed in conjunction with a lodging establishment, such as the existing and proposed expansion of The Riverhouse Hotel and Resort. The record contains a statewide survey of meeting facilities and lodgings. The survey demonstrates that meeting facilities are a customary part of motel and hotel complexes, like swimming pools, spas and exercise rooms. The meeting facility envisioned in the 1980 Resolution 1512 would accommodate conventions and other gatherings, allowing participants to find lodging at The Riverhouse Hotel or other nearby hotels and motels. The 1980 application illustrates the original concept of the meeting facility as part of the overall hospitality business plan. The original drawing shows motel buildings interspersed on the site with a “Recreation Center” and a “Convention Center.” This use was considered and acknowledged by the Planning Commission and the City of Bend Commission at that time, with the requirement that the owner fulfill the 13 conditions, now met, prior to obtaining final zone change approval (See Resolution of Intent to Rezone, #1512). The application described the meeting facility as one that was designed to accommodate conventions, where visitors would be attracted to a location on the Deschutes River and also near major shopping centers. As described above, in 1998, the City again confirmed that the proposed uses are appropriate and allowed on the subject parcel, by adopting Ordinance No. NS-1701, rezoning the property to Limited Commercial. Again, findings adopted in support of Ordinance No. NS-1701 state: “The City Council considered the uses that could be developed if the property was rezoned to CH, Highway Commercial. The City Council determined that the more intensive uses allowed in the CH zone are not suitable for development on the rezone property. The Council determined that the uses allowed in the CL, Limited commercial zone would be more appropriate. CL zoning is consistent with the zoning of the Riverhouse Resort, motel, and the applicant’s plan to develop meeting rooms, resort recreation facilities, and accessory resort uses. The applicant concurred.” (emphasis added) Local governments have significant latitude when interpreting their own ordinances in the context of land use decision-making. ORS 197.829(1) states: “(1) The Land Use Board of Appeals shall affirm a local government’s interpretation of its comprehensive plan and land use regulations, unless the board determines that the local government’s interpretation: (a) Is inconsistent with the express language of the comprehensive plan or land use regulation;

22 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


(b) Is inconsistent with the purpose for the comprehensive plan or land use regulation; (c) Is inconsistent with the underlying policy that provides the basis for the comprehensive plan or land use regulation; or (d) Is contrary to a state statute, land use goal or rule that the comprehensive plan provision or land use regulation implements.” The “clearly wrong” shorthand for this statute and Clark v. Jackson County, 2 was recently disavowed by the Court of Appeals in Church v. Grant County, 3 but the principle remains essentially the same. In Just v. City of Lebanon, 4 the Court stated: “We must affirm the city’s interpretation of its own ordinance unless we determine that the city’s ‘interpretation is inconsistent with the express language of the ordinance, considered in its context, or with the apparent purpose or policy of the ordinance.” 5 The initial responsibility for interpreting local legislation lies with the City Council, following PGE v. Bureau of Labor and Industries. 6 In Church v. Grant County, the Court stated: “To the extent our summary description of the standard of review under Clark suggests that LUBA must sustain all but the most unreasonable interpretations of local land use controls, that description is inaccurate. The legitimacy of an interpretation of a local plan and ordinance provision depends on its consistency with the terms of the provision, the context of the provision, and the purpose or policy behind the provisions. Conversely, the validity of the interpretation is not determined solely by the reasonableness of an argument created to support it. The Clark decision and ORS 197.850(9), which was enacted after Clark, are more correctly characterized as consistent with the rules of construction announced in PGE v. Bureau of Labor and Industries, 317 Or. 606, 859 P.2d 1143 (1993).” The Court in PGE stated: “In interpreting a statute, the court’s task is to discern the intent of the legislature.” 7 A reviewing authority is instructed by PGE to look to the text and 2 3 4 5

6

7

313 Or 508, 836 P2d 710 (1992). 187 Or App 518, 523-25, 69 P3d 759 (2003). 193 Or App 121, 88 P.3.307, (2004). Id. at 310, citing Neighbors for Livability v. City of Beverton, 178 Or.App. 185, 190, 35 P.3d 1122 (2001); ORS 197.829; and Church v. Grant County, 187 Or.App. 518, 523-24, 69 P.3d 759 (2003). 317 Or 606, 859 P2d 1143 (1993). See also, Just v. City of Lebanon, supra, where the Court stated: “We begin, as did LUBA, by examining the text and context of Policy 3 to determine the policymaker’s intent. Lincoln Loan Co. v. City of Portland, 317 Or. 192, 199, 855 P.2d 151 (1993) (‘The same rules that govern the construction of statutes apply to the construction of municipal ordinances.’); see also PGE v. Bureau of Labor and Industries, 317 Or. 606, 859 P.2d 1143 (1993) (describing methodology for statutory interpretation).” 317 Or 606, 610.

23 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


context of the enactment as the first step in ascertaining the intent of the drafters. 8 The text of the enactment “is the best evidence of the legislature’s intent,” 9 and “words of common usage typically should be given their plain, natural, and ordinary meaning.” 10 The first level of analysis also involves consideration of the context of the enactment, “which includes other provisions of the same statute and related statutes.” 11 A reviewing authority is specifically instructed “not to insert what has been omitted, or to omit what has been inserted.” 12 If in context, the words used in an enactment are not ambiguous, the inquiry ends there. 13 As a final step, but only to resolve ambiguities in the text or context not resolved by legislative history, the court will employ other maxims of statutory construction, some of which are statutory. 14 One commonly referenced maxim holds that to the extent an enactment is ambiguous, it should be interpreted to avoid absurd results, 15 but the overarching concern when considering the meaning of an ambiguous enactment is to discern the intent of the drafters. A provision is “ambiguous” when it is subject to more than one reasonable interpretation. In a previous decision regarding the subject property, the City’s hearings officer analyzed this issue by first establishing that the text of the City’s CL zoning code provisions were not clear. The hearings officer then concluded that the “context” of the provisions led to an interpretation that meeting rooms on the site “of the size and character” proposed by the Owner are allowed outright only in the MR (Mixed-use Riverfront) and CH (Highway Commercial) zones. 16 The hearings officer noted that “meeting facilities” are listed as allowed in the MR zone, and “meeting halls” are listed as allowed in CH zone, but those uses are not specifically listed as allowed uses in the CL zone. The Council agrees that the CL provision is ambiguous, but does not agree with the hearings officer’s otherwise reasonable interpretation. The “context” relied upon by the hearings officer should have included other relevant City ordinances. 1998 Ordinance NS-1701 applied CL zoning to the site with the specific, stated intent of allowing the types of uses now proposed by the Owner. If the CL provisions of the code were interpreted as proposed by the hearings officer, they would be in direct conflict with Ordinance NS-1701. That result is easily avoided by the Development Agreement, which identifies with clarity the types of uses that the Council believes are allowed outright or conditionally on the site under the CL zoning designation, as applied through Ordinance NS-1701. It is the Council’s responsibility to resolve conflicts between its own enactments and to interpret its enactments in the first instance. 8

Id. at 610-11 Id. at 610. 10 Id. at 611. 11 Id. 12 Id., citing ORS 174.010. 13 Id.: “If, but only if, the intent of the legislature is not clear from the text and context inquiry, the court will then move to the second level, which is to consider legislative history to inform the court’s inquiry into legislative intent.” 14 Id. at 612: “If, after consideration of text, context, and legislative history, the intent of the legislature remains unclear, then the court may resort to general maxims of statutory construction to aid in resolving the remaining uncertainty.” 15 State v. Vasquez-Rubio, 323 Or 275, 283, 917 P.2d 494 (1996); Furler v. Curry County, 31 Or LUBA 1, 5 (1996). 16 Page 6, 10. 9

24 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


The legislative history of the zoning and development of the entire River’s Edge and Riverhouse Hotel expansion project also supports the Council’s interpretation regarding uses allowed on the site, contained in these finding and embodied in the Development Agreement. It is sufficient in this case to note that resort use, including all of the uses now proposed by the Owner and detailed in the Development Agreement and these findings and exhibits, has been anticipated to take place on the subject property since 1980. The Council did not intend, in 1998, to “trick” the Owner into accepting a zoning designation for the property that would not allow use of the property as originally proposed. The CL designation was applied to the site with the intent of facilitating resort use of the property, including meeting facilities of the size and character now proposed by the Owner, and all other uses outlined in the Agreement and these findings. Additionally, the Council finds that the text and context of Ordinance NS-1701 are not ambiguous, but clearly support a conclusion that the uses outlined in the Development Agreement are uses allowed outright on the subject property. The Ordinance states unambiguously that “CL zoning is consistent with the zoning of the Riverhouse Resort, motel, and the applicant’s plan to develop meeting rooms, resort recreation facilities and accessory resort uses. The applicant concurred.” The context of that decision, which was to fulfill a “binding commitment” made to the Owner in 1980, supports such an interpretation, as does the extensive history of development under the 1980 agreement, and the legislative history of Ordinance NS-1701. Ordinance NS-1701 was a “final land use decision.” No appeal was filed. By operation of state law, Ordinance NS-1701 was acknowledged at the close of the 21-day appeal period. The uses allowed under the Development Agreement are consistent with the text and context of the CL zone and the text, context and history of both Resolution No. 1512 and Ordinance NS-1701. 4.3

BZO 10-10.15(3) and (4) state, in relevant part: “(3) Conditional Uses. The following conditional uses may be permitted subject to a Conditional Use Permit and the provisions of Section 29. (a) New residential dwelling units, excluding mobile home parks, that are not a part of an approved commercial use.” *** (p) A building over 30 feet in height. *** (4) Height Regulations. No building or structure shall be thereafter erected, enlarged or structurally altered to exceed a height of 30 feet without a Conditional Use Permit.”

FINDING: A building over 30 feet in height is allowed, conditionally, in the CL zone as are “new residential dwellings.” BZ0 Section 4 defines “condominium” as “a type of residential development.” In conformance with this section, the Owner has applied in these proceedings for conditional use approval to allow condominium units to be 25 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


constructed partially within the CL zone, and to allow buildings over 30 feet in height. As an alternative basis for approval, BZO section 30 allows the City to grant “exceptions” to underlying zone standards, when appropriate as part of a PUD, for the proposed condominiums and building heights without a CUP. To ensure conformance with all arguably applicable standards and compatibility with surrounding uses, the Owner has justified Conditional Use Permit approval of the residential units and proposed building heights of all structures (see section 13 of these findings), as well as PUD exceptions. The approvals granted as part of Ordinance No. NS-1951 allow heights exceeding 30 feet from the applicable grade to the top roof ridge for the meeting facility and other proposed structures as shown on the plans. Because on-site conditions may require variations to approved rooflines and to allow flexibility while ensuring that the intent of the height restrictions are met, the conditions limiting height are stated in terms of roof pitch and the height of structures from the applicable grade (natural or finished) to the bottom of the primary roof eave fascia. No structure can exceed 30 feet from the applicable grade to the bottom of the primary roof eave fascia or exceed a roof pitch of 4.5:12. Findings demonstrating compliance with the conditional use permit standards of BZO 10-10.29 are located in Section 13 of these findings. The hotel units and condominiums will not exceed a height of 37 feet. See section 13 of these findings for additional justification for the height of proposed hotel units and condominiums. 4.4

Lot requirements in the CL zone are as follows: “(5) Lot Requirements. The following lot requirements shall be observed: (a) Lot Area: No requirements. (b) Lot Width: No requirements. (c) Lot Depth: 100 feet. (d) Front Yard: The front yard shall be a minimum of 10 feet. (e) Side Yard: None, except when a side lot line is abutting a lot in an “R” Zone and then the side yard shall be a minimum of 10 feet. The required rear yard shall be increased by 1/2 foot for each foot by which the building height exceeds 20 feet. (f) Rear Yard: None, except when a side lot line is abutting a lot in an “R” Zone and then the side yard shall be a minimum of 10 feet. The required rear yard shall be increased by 1/2 foot for each foot by which the building height exceeds 20 feet. (g) Lot Coverage: Maximum lot coverage by buildings and structures shall be 35 percent of the total lot area. (h) Solar Setback: The solar setback as prescribed in Section 26A.”

FINDING: The subject property is approximately 450 feet in depth, and exceeds the 100-foot minimum. The front yard of the meeting facility, whether defined as the easterly, or riverfront, side of the building, or the Mt. Washington Drive side of the 26 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


L3loce

building, exceeds 10 feet. The deck of the meeting facility will be located 62.4 feet away and uphill from the OHWM of the Deschutes River at its closest point, and the meeting facility building will be located 73.6 feet from OHWM. The northern wall of the meeting facility will be over 20 feet from the proposed new Mt. Washington Drive Bridge and alignment, as depicted in the plans. Side and rear yard calculations do not properly apply to this site, because the lots are all owned by Owner, and the “lot lines” do not “abut” a residential zone—the Owner’s property is sDing2.seen CLr, anRSal zlding3abdo noalotin23lot lin. 27

27 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


FINDING: The development does not include any automobile service stations, automobile sales, or drive-up windows. In conformance with subsection (a), all meeting facility uses will be conducted wholly within the meeting facility, except for off-street parking and loading. In conformance with subsection (b), no production of wares will occur in the proposed structure, and merchandizing will be limited to the areas set aside for retail sales within the meeting facility, in conformance with this section. Subsection (c) is not applicable, because there is no residentially zoned land across an existing or planned street adjacent to the proposed meeting facility site. 5. Waterway Overlay Zone (WOZ) Standards. For the requested uses affected by the Waterway Overlay Zone, the applicable review criteria are found in BZO 10-10.22A. 5.1 The proposal is subject to review under Waterway Overlay Zone standards, because a portion of the Hotel Completion and North and South Riverfront Residential Areas are within the boundaries of the WOZ. The following findings address and demonstrate compliance with provisions of BZO 10-10.22A deemed by the City to be applicable or arguably applicable to the proposed development and Development Agreement. 5.2

Section 10-10.22A(1) of the Waterway Overlay Zone states: “(1) Purpose. The Deschutes River and Tumalo Creek stream corridors within the urban growth boundary of the City of Bend are valuable economic, recreational, scenic and natural resources for the community. The Waterway Overlay Zone (WOZ) is inclusive of all special purpose provisions that pertain to these stream corridors. The WOZ is intended to conserve and enhance the natural resource values of areas along the Deschutes River and Tumalo Creek within the city by: a) Recognizing and respecting the unusual natural beauty and character of the city’s major waterways; b) Protecting and enhancing water quality for human use and aquatic life; c) Conserving and restoring habitat for wildlife, fish and other aquatic life; d) Conserving wetlands; e) Controlling erosion and reducing the effects of flooding; f) Improving coordination between the city and agencies regarding development activities near waterways; g) Promoting development that is compatible with the purposes of the WOZ; h) Promoting the preservation and restoration of native riparian vegetation;

28 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


(i) Maintaining the scenic quality of the canyon and rimrock areas along these waterways; (j) Conserving and protecting property values; and (k) Encouraging development, preservation and enhancement of reasonable public access to major waterways for recreational use and visual enjoyment.” FINDING: This is not an approval standard, but explains what the WOZ standards are intended to achieve. The proposed development has been designed to promote the purposes of the WOZ, as demonstrated by the Owner’s compliance with all applicable WOZ standards, as described in these findings and as supported by the plans and exhibits. The proposed uses will invite the Bend community and visitors onto the site to enjoy natural amenities of this spectacular segment of riverfront. As described above in (b), (c), and (e), the WOZ is intended to enhance river habitat. The Owner has addressed these goals by agreeing to transfer 13 acre feet of water rights to the City. These rights are somewhat unique, because they are currently directly diverted from the Deschutes River. The City will now have the opportunity to use these rights in exchange for future municipal water rights, in the form of required mitigation, or to devote such rights directly to instream uses. Either way, water currently diverted from the river can be left in the stream. This action by Owner allows the City to substantially improve the river, fulfills the above goal, and helps to fulfill the City’s goal of providing adequate water for its citizens. Easements for trails and overlooks will be provided along the river, which will connect to a pedestrian way under the new Mt. Washington Bridge. This will create connectivity from Sawyer Park to the existing Deschutes River Trail south of the site, accomplishing the goals of (f) and (k), above, which are to “improve coordination between the city and agencies regarding development activities near waterways” and “encourag[e] development, preservation and enhancement of reasonable public access to major waterways for recreational use and visual enjoyment.” Pursuant to BMPRD master planning, the Deschutes River Trail south of the subject property is currently connected to Sawyer Park and the northern segment of the trail by way of previously dedicated trail easements by Owner through the River’s Edge Golf Course. Under the Development Agreement, new trails will be dedicated and constructed from the southern Deschutes River Trail, along the Deschutes River to Sawyer Park. An easement to provide for a boardwalk along the impoundment to an overlook is proposed to be constructed by BMPRD. The trail will then continue along the shore of the impoundment, to a second overlook adjacent to the North Canal Dam, with views of the cascading water over the dam and the lower ravine. A short segment of the trail will then proceed through the resort facility, providing pedestrian connectivity for the public, resort users, and condominium residents, and leading to a second viewpoint at the rim. A wildlife biologist and a wetland specialist have conducted extensive surveys of the area and have identified otter and beaver habitat and migratory patterns around the dam abutment. Viewpoints, designed to allow the public to observe these special habitats with the least impact, are provided. This limited 29 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


public access to an otherwise dangerous cliff at this location will also allow the Owner and the BMPRD to provide better protection to the public. A trail along the rim at this location would be dangerous, would require substantial fencing, and would destroy the privacy that hotel guests expect and deserve, with decidedly negative impacts on the economic viability of the hotel. The trail will then lead to the convention facility. At this point, the trail will intersect with the existing fisherman trail access easement at the base of the ravine, previously dedicated to the BMPRD by the Owner, as required by previous approvals. The trail will continue between the convention facility and the river, under the new Mt. Washington Bridge, through the existing Riverhouse Hotel and north, along the river, connecting to existing trails in Sawyer Park, and northern segments of the Deschutes River Trail. To improve views of the ravine and river, the Owner will take necessary and feasible steps to remove industrial debris now located on the eastern bank of the river south of the existing River’s Edge office building, and improve riparian vegetation in that area. All of these proposals will enhance public access to the area for recreational use and visual enjoyment, while conserving property values. 5.3

Section 10-10.22A(2) of the Waterway Overlay Zone states: “(2) Applicability. Provisions of this section apply to all property within the boundaries of the WOZ as shown on the Bend Urban Area Zoning Map and consistent with WOZ boundary determination procedures of subsection 3 below. Many parcels within the WOZ are affected by more than one sub-zone. Where this is the case, applicable development standards for each subzone shall apply within that sub-zone’s boundaries. Standards of this section shall apply in addition to applicable standards of the underlying zone. Where there are conflicts between sub-zone standards, the more restrictive standards shall control. The WOZ includes the following sub-zones: •

Riparian Corridor

Deschutes River Corridor Design Review

River Corridor Areas of Special Interest

Flood Plain”

FINDING: This is not an approval standard. The WOZ-imposed riparian corridor extends onto the site as shown on the plans. The Deschutes River Corridor Design Review standards are addressed in subsequent sections of these findings, and the Flood Plain standards are also addressed below. There are no River Corridor Areas of Special Interest on the site or otherwise affected by the proposal. 5.4

Section 10-10.22A(3) of the Waterway Overlay Zone states: “(3) WOZ Boundary Determination. The WOZ boundary is inclusive of all WOZ sub-zones, as specified in this section. Except for the River Corridor Areas of Special Interest and the Flood 30 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


Plain Sub-Zone, the boundary of all sub-zones shall be determined by distance measurement from the designated waterway. The boundary for the River Corridor Areas of Special Interest SubZone is designated on the Bend Urban Area General Plan Map, and shall be considered to be the outer (upland) edge of the mapped boundary line. Unless otherwise provided for specific WOZ sub-zones, boundary measurements shall be made from the ordinary high water mark. Distance measurements shall be made horizontally and at right angles to the edge of the waterway. FINDING: Section 10-10.4 defines “Ordinary High Water Mark” as “the elevation of bankfull stage.” In turn, BZO 10-10.4 defines “Bank-full stage” as “The elevation at which water overflows the natural banks of a stream, river, or lake and begins to inundate the upland. In the absence of physical evidence, the two-year reoccurrence interval flood elevation may be used to approximate bank-full stage.” OHWM delineation was based on physical site data utilizing global positioning tools. The WOZ-imposed riparian corridor extends from the OHWM onto the site as shown on the plans. In the area of the proposed meeting facility and in the area a short distance above the dam, the WOZ riparian corridor extends 50 feet from OHWM. In the area of the northernmost hotel units, pool and spa, restaurant and the southernmost future condominium units, the WOZ corridor extends 30 feet from OHWM. In the North Riverfront Residential Area, the WOZ riparian corridor extends 30 feet onto the site. (see BZO 10-10.22A.1(1), Table 1) 5.5

Section 10-10.22A(4) of the Waterway Overlay Zone states: “(4) Tree Removal. Consistent with the purposes of this section, and because trees contribute to the overall health of the riparian corridor, removal of existing trees greater than 4 inches in diameter within the WOZ is prohibited, except as follows: a. Where necessary to accommodate an approved development activity; or b. Where the tree is determined by a qualified professional to be diseased or hazardous; or c. Where necessary to mitigate potential fire hazard in accordance with the Fire Protection Act of 1997. Tree removal under this subsection may be authorized by the review authority, based on findings demonstrating conformance with criteria a), b), or c). Where tree removal is proposed apart from an approved development activity, the review authority may authorize removal as a development action. If no hazard will be created, a tree or snag requested for removal may be required to be left in place as wildlife habitat.”

FINDING: No trees will be removed from the WOZ-imposed riparian corridor. In conformance with this section, and in recognition of the importance of trees to the overall 31 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


health and beauty of the riparian corridor, the Owner has proposed preserving all trees on the property that are not necessary to be removed in order to accommodate the proposed development. Additionally, the Owner plans to improve undisturbed vegetation on the site in a manner consistent with sound principles of high desert, wetland and riparian enhancement, and in conformance with all applicable regulations. 5.6

Section 10-10.22A(5) of the Waterway Overlay Zone states: “(5)

Review Process.

a) State Agency Coordination. Within the WOZ, the State of Oregon has jurisdiction over certain development activities. In order to ensure coordination between the City of Bend and affected state agencies, notice of proposed activities within the WOZ will be provided to the Division of State Lands, the Oregon Department of Fish and Wildlife, the Oregon Parks and Recreation Department, and the Department of Environmental Quality, in accordance with provisions of Sec. 10-16.2(8) of the Bend Code.� FINDING: This requirement is imposed on City staff, and is not an approval standard. The Owner has independently consulted with the Division of State Lands, Oregon Department of Fish and Wildlife and the Department of Environmental Quality to obtain additional information regarding the proposed development and to ensure coordination. 5.7

Section 10-10.22A(5)(b) of the Waterway Overlay Zone states: b) Application Information. In addition to application information required under Sec. 10-16.2(2), an application for a development or land use action within the WOZ shall include the following: A. A detailed written explanation of the proposal, including the location, amount, and type (species) of any vegetation to be removed or planted, and any material to be graded, excavated, or filled. B. An explanation of why any proposed grading, excavation, or fill of material and/or vegetation is necessary. C. A site plan drawn to scale, accompanied by such drawings, sketches, photos, and descriptions as are necessary to describe and illustrate the proposed activity. The site plan shall, at a minimum, include: i. site;

Any proposed structures or impervious surfaces on the

ii. Location of property lines, easements, existing and proposed structures; iii. Identification of existing vegetation on the site, indicating areas of native and non-native plant species; 32 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


iv.

Any proposed modifications to existing vegetation;

v. A grading and drainage plan, showing existing and proposed site contours at two-foot intervals, or less; vi.

All applicable WOZ sub-zone boundaries;

vii.

Location of the ordinary high water mark;

viii. Location of designated wetlands on or abutting the site; boundaries of designated wetlands shall be delineated using methods accepted by the Oregon Division of State Lands;” FINDING: The applications and attached exhibits constitute the Owner’s “detailed written explanation of the proposal.” All information requested by this section has been provided by the Owner, in the form of the applications, exhibits, and the plan set. Only a small portion of the WOZ-imposed riparian area is affected by the proposal. The affected area is shown on the submitted plans as a small segment of the emergency access driveway/trail extending behind the proposed meeting facility, and a small portion of the terrace area behind the facility. Minor grading is needed in the illustrated driveway/trail and terrace areas to provide a uniform surface for emergency access and egress. No grading will occur that is not necessary to provide emergency access as required by public safety codes applicable to the facility. To prevent runoff, pervious materials will be used on the affected portion of the driveway/trail and terrace. Several public trail segments will also be constructed as part of the conditions of approval, part of a cooperative effort between the Owner and Bend Metropolitan Parks and Recreation District (BMPRD). The City is approving the trail locations, proposed construction and maintenance requirements and other specifications indicated on the plans submitted by the Owner and outlined in the Conditions of Approval. To the extent additional approvals are necessary to effectuate trail construction within the WOZ, the Owner will cooperate with the BMPRD in obtaining such approvals. The Owner’s design team established the minimal dimensional requirements for the meeting facility footprint after considering not only the WOZ, but also other natural features on the site that warrant protection. An important outcropping of rocks and large ponderosa pines currently exist in the northwest corner of the site, adjacent to the sixth tee of the River’s Edge Golf Course. The proposed access drive was designed to protect the outcropping while facilitating efficient access to the front door of the meeting facility, as recommended by the Owner’s engineering consultants. The Fire Department requires emergency vehicle access to within 150 feet of all exterior walls of the facility. The Owner has put these requirements to good use, by proposing that the emergency access double as pedestrian access and a terrace with views of the feature that will be most valuable to most visitors to the site—the Deschutes River. 6. WOZ Riparian Corridor Subzone Requirements. For the requested uses affected by the Riparian Corridor subzone, the applicable review criteria are found in BZO section 10-10.22A.1 6.1

Section 10-10.22A.1(1) of the Waterway Overlay Zone states: 33 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


“(1) Riparian Corridor Boundary. The width of the Riparian Corridor Sub-Zone adjacent to various waterway segments is specified in Tables 1 and 2 below. Boundary distances shall be measured from the ordinary high water mark, or from the upland edge of any designated wetlands, whichever is more landward. For purposes of riparian corridor boundary determination, steep slopes are considered to exist in an area having: •

60 percent or greater slope; and

a vertical rise of 20 feet or more; and

a continuous horizontal length of 50 ft. or more.

Table 1: West Side Riparian Corridor Boundary: Deschutes River *** From the Tumalo Irrigation intake (south boundary of Block 15, Awbrey Heights Subdivision) to the Mt. Washington Drive Bridge: 30/50 feet (FN3) *** FN3: Between the North Unit Dam and the Mt. Washington Dr. Bridge, where steep slopes are present within 50 ft. horizontally of OHW, the Riparian Corridor Boundary is 30 ft. from OHW. Where steep slopes are not present within 50 ft. horizontally of OHW, the Riparian Corridor Boundary is 50 ft. from OHW. *** From the Mt. Washington Drive Bridge to the South Boundary of Sawyer Park, 30 feet.” FINDING: The Riparian Corridor Boundary is labeled “Waterway Overlay Zone (WOZ) on the Owner’s plans. The location of the boundary was established in conformance with the requirements of this section and all applicable definitions. 6.2

Section 10-10.22A.1(2) states: “(2) Activities Subject to Review and Approval. Within the Riparian Corridor sub-zone, permanent alteration by grading, removal of native vegetation, excavation or fill of soils or rocks, or by placement of structures or impervious surfaces is prohibited, except as provided below in subsections (3), (5), (6) and (7). (3) Land Use Actions. The following may be approved within the Riparian Corridor by the Review Authority as a land use action: A. Streets, roads, bridges and driveways.

34 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


B. Hard surface pedestrian and bicycle paths, unpaved trails, and boardwalks. *** D. Water-related and water-dependent uses, including parks, interpretive areas, and viewpoints. * * *” FINDING: These sections allow the city to approve grading within the riparian corridor for driveways, hard surface pedestrian and bicycle paths, unpaved trails, and waterrelated and dependent uses including viewpoints. The Owner is requesting approval to allow the outer edge of a small section of its emergency access driveway/trail and terrace to encroach slightly into the riparian corridor in an area behind the proposed facility. An area labeled “terrace” in the rear of the building that is part of the emergency access driveway/trail and required by Fire Officials, also encroaches less than ten feet into the riparian corridor. Finally, a walkway is proposed at the southeast corner of the facility that will connect to a public access easement along the riverfront from Mt. Washington Drive to the base of the dam. The Owner has also included schematic drawings of pathways and trails that the Owner and BMPRD will cooperate to provide, allowing and encouraging appropriate access to riparian areas and views available at the site, and connecting the south Deschutes River Trail to Sawyer Park. Those plans include trail, boardwalk and public viewing areas within, or which will enter, the WOZ-designated riparian corridor, and be maintained as specified in the Conditions of Approval and an agreement between the Owner and the BMPRD. The proposed viewpoints will direct visitors to appropriate areas, furthering the City and Owner’s preservation and conservation goals. The proposed trails will provide access to the river corridor to augment significant trail easements that have already been provided by the Owner in conjunction with past development approvals. 6.3

Section 10-10.22A.1(4) states: “(4) Approval Criteria for Land Use Actions. The Review Authority may approve a land use permit for uses listed in subsection (3) above, based on findings that the following criteria are satisfied: A. All necessary state and federal permits have been obtained, or will be obtained by the Owner, as a condition of approval. B. The proposed development or activity is designed and constructed to minimize intrusion into the riparian corridor. This criterion shall not preclude placement of permitted uses in the riparian corridor at intervals and locations for purposes of providing reasonable public access to, and views of, the waterway. The following shall be specifically addressed in demonstrating conformance with this criterion: 35 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


i. Removal of riparian vegetation shall be limited to the minimum amount necessary to accommodate the proposed use; any vegetation removed in excess of this standard shall be nonnative species. The proposal shall specify replacement of that vegetation with riparian species that are native to the Bend area, and similar to existing plant species in the vicinity (excluding noxious weeds as identified by the Deschutes County Soil and Water Conservation District). ii. Any proposed construction shall be designed in such a manner as to minimize adverse impacts upon a designated wetland, native riparian vegetation, fish and wildlife habitat and water quality within this sub-zone. iii. Erosion within the riparian corridor shall be prevented during and after construction by the use of mulch, erosion blankets, debris fencing, or similar preventative practices. iv. Demonstrate that surface runoff from impervious areas will not flow unfiltered or untreated into the adjacent waterways. FINDING: The Owner will comply with conditions requiring that the Owner obtain all necessary state and federal permits and approvals prior to construction of any cityapproved uses. As required by B., above, the proposed development is designed and will be constructed to minimize intrusion into the riparian corridor. The only impact on the WOZ is a small portion of an emergency vehicle access drive and terrace that extends around the northeast corner of the meeting facility building and will double as a pedestrian way and terrace. In conformance with WOZ requirements, this accessway will not be covered with impervious materials, and will have minimal impact on the WOZ-regulated area, and minimal adverse impacts on any riparian areas on the site. At the same time, the proposed location of the buildings and improvements will allow preservation of a large outcropping of rocks on the northwest corner of the site, directly adjacent to the entrance driveway. No excess vegetation will be removed from the riparian corridor. Due to the minor nature of the intrusion, very little vegetation will be removed from those portions of the emergency access, terrace and walkway within the WOZ riparian corridor. These activities will have insignificant adverse impact on any designated wetland, native riparian vegetation, fish and wildlife habitat or water quality. The same is true of trail construction, which will conform to BMPRD trail development standards. As required, the Owner will manage all construction activities to prevent and control erosion within the riparian corridor during and after construction by the use of mulch, erosion blankets, debris/silt fencing and similar preventive practices. The Owner has also proposed a surface water collection and storage system, and has demonstrated the adequacy of the system to prevent parking area and driveway surface water from flowing unfiltered or untreated into the adjacent waterway. The plans are feasible, engineered, and conditions of approval ensure compliance. 36 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


6.4 The remainder of the recently adopted WOZ provisions concern restoration plans, exempt activities, exceptions, and river corridor areas of special interest. None of the omitted provisions contain approval standards applicable to the proposal. To the extent additional review or permits will be necessary to allow the Owner to enhance riparian areas on the east bank of the Deschutes River across from the site, the Owner and City are expected to address issues raised at that time in good faith. 7. Deschutes River Corridor Design Review Combining Zone Standards. For the requested uses in the Deschutes River Corridor (now a WOZ subzone), the applicable review criteria are found in BZO 10-10.22A.2. As a preliminary note, Corridor Design Review sections of the BZO describe the procedures to be followed by the “Bend Urban Area Planning Commission.” In the absence of development agreement review and approval, appeal of a Planning Commission Corridor Design Review decision would be to the City Council, which has retained full authority to remand or reverse the Commission, applying the same standards in BZO 10-10.22A that the Planning Commission applied. Under those circumstances, it would be necessary to interpret the code as “implicitly” referring to the City Council as well as the “Planning Commission.” On appeal, “City Council” is substituted for “Planning Commission,” and the City accepts that same interpretation when, pursuant to review of a development agreement, the Council provides Corridor Design Review in the first instance. (See section 16 of these findings for a complete discussion of Council jurisdiction.) 7.1 The development is subject to review under Combining Zone standards, because portions of the subject property are within the design review overlay, a portion of the proposed meeting facility, restaurant, hotel and condominium units will be located within 100 feet of the ordinary high water mark (OHWM) of the Deschutes River, and because none of the exemptions listed in BZO 10-10.22A(2) apply. All River Corridor Design Review standards that the City deems to be arguably applicable to the proposed development are addressed in the following findings. 7.2

BZO 10-10.22A.2(1) states: “(1) Purpose. It is the purpose of the Deschutes River Corridor Design Review Zone to ensure compliance with the objectives of this Ordinance and the goals and policies relating to the Deschutes River in the Bend Area General Plan. The purpose shall also be to: (a) Recognize and respect the unusual natural beauty and character of the Deschutes River. (b) Conserve and enhance the existing riparian zone along the Deschutes River. (c) Allow the community flexibility in reviewing development proposals within the Areas of Special Interest that are designated on the Bend Area General Plan. (d) Maintain the scenic quality of the canyon and rimrock areas of the Deschutes River. 37 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


(e) Conserve and enhance property values. (f) Preserve, protect and enhance water quality. (g) Encourage development, preservation and enhancement of reasonable public access to the river for recreational use and visual enjoyment.” FINDINGS: This is not an approval standard, but an explanation of why the City adopted the River Design Review Zone, and its aspirations for the zone. The application proposes a design that recognizes and respects the natural beauty and character of the Deschutes River and that conserves and enhances the existing riparian zone along the Deschutes River. In recognition of the importance of the Deschutes River to the Bend community, the Owner has consulted with experts on the natural resource values and habitat and migration patterns of wildlife on the subject property. Baseline values have been established, and mitigation conditions proposed, to ensure that riverine, riparian, wildlife and water quality values are protected to the greatest extent possible consistent with the existing BMPRD uses, and commercial and residential plan and zone designations of the property. A report submitted by the Owner, by Wildlife Biologist Gary A. Hostick of Ecological Services, Inc., provides baseline data and analysis of wildlife and plant life in and around the property. His report indicates that, because the proposal includes preservation of the best habitat values available at the site—the rimrock, riparian and open water areas— wildlife impacts would be moderate to low. The report explains that the impoundment, the river and related riparian and wetland areas serve as a wildlife corridor that should not be obstructed or destroyed. The meeting facility is positioned on the site so that the rimrock is protected, as well as the most important habitat on the site—the riparian areas. Future development on the property is subject to WOZ restrictions and is being conditioned by the City to protect and improve values identified in the Hostick Report, by restricting public access to wetlands and to the area immediately adjacent to the North Canal Dam’s west wall. In the North Riverfront Residential Area, all of the proposed uses will take place above the cliff/steep slopes that separate the area from the river and the WOZ. Additional public access along the river has been requested by the BMPRD and is being provided by the Owner as specified in the plans and outlined in the Conditions of Approval. The Owner also submitted a Wetland Delineation Report prepared by Dr. Richard B. Shepard, of Applied Ecosystem Services, Inc. The report includes a copy of an analysis that was provided to the Oregon Division of State Lands (DSL) as a request for a jurisdictional wetland determination. Review and approval of the formal submittal was approved by DSL on June 17, 2003. Dr. Shepard identifies and discusses features on the site that have been referred to as wetlands, with detailed information regarding location, quality and quantity. All three wetland features are within protected riparian areas, and will not be affected by the proposed meeting facility development or future development of the remainder of the site. No jurisdictional wetlands are located in the North Riverfront Residential Area. Purpose (1)(c) is not relevant to this application, because 38 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


there are no Bend Area General Plan “Areas of Special Interest” on the site or affected by the proposal. Both Mr. Hostick and Dr. Shepard, one analyzing wetland and riparian habitat, and the other examining wildlife and vegetative habitat, agree that limiting pedestrian traffic along the fisherman’s trail and the rimrock at the dam’s edge will aid in preserving riparian habitat including animal populations that are in clear evidence today. The Owner has demonstrated a willingness to take reasonable steps to manage and/or limit access to these sensitive areas to the extent necessary for protection and enhancement. With respect to purpose (1)(d), the scenic quality of the canyon and rimrock areas of the Deschutes River are maintained by the proposal. The largest proposed building, the meeting facility, has been placed in a natural depression, a location that allows preservation of major rimrock to the south of the facility, and significant rock outcroppings in the northwest corner of the site adjacent to the entrance drive. The design standards of the Design Review Zone and Waterway Overlay Zone ensure that development on the site will, to the greatest extent possible, promote and maintain the scenic qualities and features of the site. Construction of the proposed meeting facility will not destroy any rimrock on the site. The structure itself is also placed at the lowest elevation on the site. The elevation of the highest roof ridge, (3578.5 ft.) is lower than the highest elevation on the site (3580 ft.). All other proposed structures have been designed to provide views of the river and the dam and impoundment, and to present aesthetic facades when viewed from any location. Plans for the site also include a connected system of walkways, trails, and three major viewpoints that will provide guests and the public access to excellent views of the river while guiding visitors away from, and otherwise protecting, sensitive riparian resources. Purpose (1)(e) seeks to encourage conservation and enhancement of property values. All facilities and structures proposed for the site are located in a manner that is respectful of the environmental values of the Deschutes River. The conservative design and solid construction details combine the talents of Architect Neal Huston, Landscape Architect Tom Atkins and Civil Engineer Jim Dobrowski in a high quality development that will be an asset to the community, and will conserve and enhance property values, especially the value of the site and surrounding area properties as identified elsewhere in these findings. As promoted by purpose (1)(f), water quality will be protected by designing all drainage in accordance with City and/or Oregon Department of Environmental Quality standards. No parking lot runoff will be allowed to flow to the river. All such water from the North Riverfront Residential Area will be directed toward and contained in storm water detention basins and swales. The detention facility shown on the plans will accommodate storm water from the Hotel Completion/South Residential Area, as well as the City’s new Mt. Washington Street Bridge and approach ramps. Particular consideration has been given to the purpose stated in (1)(g) above. The Owner’s proposed use invites the community and visitors onto the non-condominium areas of the property for lodging, dining, and for public and private meetings. The Owner has previously dedicated land along the river, at the base of the dam, for use as a fisherman’s trail, as well as an easement for a trail to Sawyer Park, which has already 39 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


been constructed. Access to the public trail on the site along the Deschutes River will be improved and extended as part of this proposal. Access to the riparian area around the dam and along the impoundment will be managed and controlled in the interest of preserving and enhancing riparian and wetland values in those areas. Proposed methods of management and control include proposals for future designated viewpoints that will provide access to the best available views, while discouraging public access to more sensitive areas. Trail locations are shown on the plans submitted by the Owner, and details regarding trail construction and maintenance are included in the Conditions of Approval. In light of the competing goals of protecting natural resources and providing public access, the proposal will provide and preserve reasonable public access to the river for recreational use and visual enjoyment. 7.3

BZO 10-10.22A.2(3) states: “(3) Design Review Procedure. All new development, structures, additions, and exterior alterations to structures, including outside storage and off-street parking lots within the Deschutes River Corridor, are subject to a design review process. (a) Prior to filing a design review application, the applicant shall confer with the Planning Department concerning the requirements of formal application. (b) The design review application shall be filed on a form provided by the City Planning Department and shall be accompanied by drawings and information as specified by the Planning Department. Copies of the plan shall be submitted and such additional information as is deemed necessary for the Site Plan Committee or Bend Urban Area Planning Commission to adequately review the applications. (c) The Bend Urban Area Planning Commission shall approve, approve with conditions, or disapprove the design plan. The decision of the Bend Urban Area Planning Commission shall be final unless appealed in accordance with the City of Bend’s land use procedures.

FINDING: The Owner’s Operational Manager Wayne Purcell, Attorney Liz Dickson, Planning Consultant Deborah McMahon and other members of the Owner’s development team have met frequently with planning and engineering staff regarding the subject application, including numerous meetings between February and August, 2004. The subsection (a) requirement is therefore satisfied. Subsection (b) has been satisfied through submittal of the application required by this section. (Note: subsections (c) and (d) of this section are not addressed, because they describe the authority of the Planning Commission and the review process, but do not contain approval criteria.) 7.4

BZO 10-10.22A.2(5) states, in relevant part: “(5) Minimum Standards. Within the Deschutes River Corridor the following minimum standards shall apply. 40 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


(a) Building and Parking Setbacks. (A) 100 foot setback area. For the areas described below, the setback for all new buildings, parking lots and loading areas shall be minimum of 100 feet from the ordinary high water mark unless the Bend Urban Area Planning Commission approves a lesser setback. In no case shall the setback be less than 40 feet from the ordinary high water mark of the Deschutes River. *** (v) The west bank north of the Park District property known as “Flume Park” to the southern boundary of the Rimrock West Subdivision.” FINDING: The site includes property that is described in subsection (v), above. The Owner has requested approval of setbacks for the meeting facility and related improvements greater than 40 feet, but less than the 100 feet described in the quoted section. The plans show that a portion of the proposed building, emergency access driveway and pedestrian walkways associated with the meeting facility will be located within 100 feet of the OHWM. At its closest corner, the meeting facility will extend to within 73.6 feet of the OHWM, and the deck will extend to within 62.4 feet of the OHWM. The emergency access driveway will extend to within 40 feet of the OHWM, but will consist of pervious surfaces at that location. These pavers will allow passage of water through the surface without pooling, and will thus not restrict the natural drainage in the riparian area. This fire access also doubles as the trail connection, a public amenity that is allowed within both the WOZ and Combining Zone overlays. Portions of the restaurant, spa, hotel units and both South and North Riverfront condominiums are located greater than 40 feet, but less than 100 feet from the OHWM. 7.5 Applying the 100-foot setback described in BZO 10-10.22A(5): subsection (a)(A) of that section allows the City to approve a lesser setback, and specifies that “in no case shall the setback be less than 40 feet from the ordinary high water mark of the Deschutes River.” A setback of more than 40, but less than 100 feet is being approved through Ordinance No. NS-1951, establishing setbacks for setbacks for the restaurant, spa, hotel units and both South and North Riverfront condominiums as specified in the to-scale plans submitted by the Owner. The relevant standard states that the City may approve a setback of more than 40, but less than 100 feet: “After the applicant has demonstrated through design review that the project provides at least the following: 1. Protection of water quality, and fish and wildlife habitat; 2. The improvement or restoration of riverfront riparian areas by the creation of new riparian vegetation areas or by improvements to existing riverfront riparian areas through appropriate plantings, and; 41 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


3. The provision of open space along the riverfront.” FINDINGS: These findings, based on the plans, exhibits, conditions, and Development Agreement negotiated between the City and Owner, demonstrate that this standard is met, and that the City should approve setbacks that will allow the improvements to be sited and designed as indicated on the plans. “Protection of water quality, and fish and wildlife habitat” is assured to the greatest degree possible as discussed here and elsewhere in these findings. Water quality will be protected through site and facility design, proper grading, and utilization of appropriate erosion control management during construction. The design of all proposed structures utilizes natural contours on the site as part of an engineered storm water management system to collect and store runoff from impervious parking areas. The proposed system is also designed to accommodate storm water runoff from the city’s new bridge and roadway. All aspects of the storm water management system design are subject to either City or DEQ review and approval, and employ appropriate technology to ensure that runoff from impervious areas on and off site meets applicable pollution control and turbidity standards. The proposed storm water retention pond will be located northwest of the condominiums, and will appear as an aesthetic feature for the sixth tee of the golf course, while functioning as a critical component of the drainage and public street system. Additional water quality protection will be provided by Owner, because Owner has agreed to receive and manage considerable amounts of runoff from public arterial Mt. Washington Drive as it winds up the east face of Awbrey Butte. This road surface is approximately 60-70’ wide and is wholly impervious, allowing runoff to collect and channel as it travels downhill with gravity. Owner has agreed to allow the detention basin being constructed as a pond at the sixth tee to collect and hold these waters, preventing erosion and contaminants from entering adjacent lands and the River. Water quality and fish and wildlife habitat will also be protected through preservation of more than seven acres of the site (out of 22) in its natural state as open space on the Riverhouse Hotel/South Residential Area, and approximately one acre (out of three) in the North Residential Area. As a destination for visitors to Bend, and as a resort, conference and banquet facility, it is in the Owner’s best interest to maintain and improve the quality of the natural amenities that will remain on the site. Proper maintenance and enhancement efforts will gradually improve natural areas adjacent to the river, the dam, and impoundment. Appropriate walkways, trails and viewing areas will allow visitors to enjoy the river and its scenic vistas without damaging important natural areas on the site. Improved management of pathways will prevent erosion and allow recovery of potential wildlife habitat that is now at risk of vandalism and use as living quarters for transients. The increased shade from enhanced riparian vegetation will tend to lower water temperatures. Areas subject to disturbance as part of the development will be enhanced as shown on the plans. An additional, off-site area on the opposite bank under the control of Owner will be improved and restored by Owner as indicated on the plans and in the Conditions of Approval. The restored area will improve views of the river from facilities on site as well as from proposed new public overlooks. All of these actions will diminish 42 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


impacts to water quality while protecting and improving the best wildlife habitat and rimrock on the site. Approval Standard No. 1 is therefore met. In addition to the above, the Owner has agreed to transfer 13 acre-feet of water rights to the City out of the total water rights held by Owner, which the Owner currently uses to irrigate land in the area. Even without this transfer of water rights, the project provides significant protection of water quality, and fish and wildlife habitat in conformance with the standard. Under new Oregon Water Resources Department (“OWRD”) rules, the City must replace any water it takes from the Deschutes River basin, whether it takes surface water or ground water. The City plans to drill new wells to provide domestic water to the community, and will need to replace water taken with another source. The water being transferred by the Owner to the City may be used for this purpose, and will potentially augment streamflows to the benefit of fish, wildlife, and overall water quality. Although not necessary to meet Approval Standard No. 1, the transfer will likely diminish potential impacts to water quality and fish and wildlife habitat, by either directly increasing dedicated in-stream flows or by maintaining or improving existing flows in a manner that allows greater municipal use of water available in the basin. Approval Standard No. 2 requires that, when the 100-foot setback applies and the Owner is requesting a reduction of the setback to 40 or more feet, the Owner shall demonstrate through design review: “The improvement or restoration of riverfront riparian areas by the creation of new riparian vegetation areas, or by improvements to existing riverfront riparian areas through appropriate plantings.” As described here, and elsewhere in these findings, the Owner has conducted surveys to establish the quality, quantity and location of all riparian vegetation and wildlife habitat on the property. For purposes of the Waterway Overlay Zone, the “riparian corridor” extends 50 feet from the Ordinary High Water Mark in the area of the proposed meeting facility, 30 feet from the OHWM along the river at the base of the North Canal Dam, 50 feet in the area a short distance above the dam, 30 feet along the southern edge of the property, and 30 feet along the North Riverfront Residential Area. As described in Owner’s exhibits, not all of the areas included within the WOZ meet common definitions of the term “riparian.” 17 However, the Owner’s consultant has identified high value wildlife habitat along the west side of the river that also serves as a wildlife corridor. The proposal would protect all such areas except for a small section of the emergency vehicle drive/pedestrian pathway behind the meeting facility, which will be minimally graded and constructed using pervious materials, consistent with WOZ requirements. As explained, the remainder of the area designated by the city as riparian area will be maintained in its natural condition, and is not in need of significant improvement. All identified wetlands and regulated riparian areas will be protected. The record of Planning Commission review of the Owner’s project in 2003 indicates that the basis for denial was the plan’s lack of riparian enhancement. In recognition of that 17

See for example, the BZO definition: “Riparian area: The riparian area is a terrestrial zone where annual and intermittent water, a high water table and wet soils influence vegetation and microclimate,” and the new WOZ definition: “The area adjacent to the Deschutes River and Tumalo Creek where the types of vegetation are predominately influenced by their association with water.”

43 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


fact, the Owner is now proposing to design and implement off-site riparian restoration and enhancement on an adjoining parcel of land across the river from the site. The area of proposed restoration includes portions of the 30-foot Waterway Overlay Zone (WOZ) on Assessor’s Map 17-12-29A, Lots 101 and 699 as depicted in the Owner’s exhibits. The project will include: minor re-sculpting and aesthetic placement of existing boulders to provide a more random and natural look along the river bank without altering the river channel or stream hydrology; removal of abandoned steel bridge culverts and miscellaneous metals; the import and creation of soil pockets and enhancements to support new plant materials above the ordinary high water line; the addition of aspens, willows and native grasses; and the installation of temporary irrigation systems until new plant material is fully established. The Owner has met with Ryan Houston, Executive Director of Upper Deschutes Watershed Council (UDWC) on site to review preliminary concepts and ideas. UDWC agreed to assist with the restoration project, and later clarified its position. Whether or not UDWC participates in the project, the restoration envisioned will significantly improve the aesthetics of the area, will potentially improve shading and water temperature, and will improve the value of the area as wildlife habitat. The proposed plantings constitute the “improvement or restoration of riparian areas“ by the “creation of new riparian vegetation areas” in conformance with this section. Based on input from UDWC and others, the restoration work is not expected to trigger a requirement for Army Corp of Engineers participation or Division of State Lands (DSL) permits. Fill and removal is expected to be less than the 50 cubic foot threshold along the bank areas. The Owner will prepare necessary design concepts and submit for city approvals as required by the WOZ ordinance prior to commencement of restoration work, which is expected to occur substantially as indicated on the plans. Standard No. 2 is clearly met by the current plans. Standard No. 3 requires that, when the 100-foot setback applies and the Owner is requesting a reduction of the setback to 40 or more feet, the Owner shall demonstrate through design review: “The provision of open space along the riverfront.” “Open space” is defined by the zoning ordinance (10-10.4) as: “Any parcel or area of land or water set aside, designed or reserved for the public or private use or enjoyment or for the use and enjoyment of owners and occupants of land adjoining or neighboring such open space.” The Owner has met this requirement. In 1988, an easement was granted for public access to the entire west bank of the river from the North Canal Dam to Mt. Washington Drive, and an easement for a public trail to Sawyer Park was given as well. This requirement is further met by the current plans to improve access from the proposed meeting facility to the river, and to provide three viewing areas along the river for use by patrons and other visitors. Further discussion between the Owner and the BMPRD has resulted in additional easements for public access to the river corridor and the construction and maintenance of additional public trails. The plans also demonstrate that all remaining areas “along the riverfront,” including many areas well beyond the limits of the WOZ, will be “designed or reserved for the public or private use or enjoyment” of property owners, hotel patrons, and visitors of facilities to be developed on the site. 44 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


During the public hearing process, individual Council members and City staff visited the site. The site visit led the Council to request from the Owner an alternative boardwalk access easement from the Deschutes River Trail southwest of the site to connect roughly to the middle of the previously proposed boardwalk easement and continuing east. The purpose for the request, which the Owner has agreed to, is to provide improved protection to the “R3” wetland in the southwest corner of the site while potentially improving public access to the Deschutes River in the area. By viewing the site and in consideration of all of the testimony received, the Council concludes that it is technologically feasible to build a boardwalk in the area of the proposed trail easements and alternative alignment. The proposal is also feasible from a regulatory standpoint, which feasibility is improved due to the Owner’s accommodation of an alternative alignment that offers potentially greater protection to the R3 wetland. Comments received from ODFW and others regarding the protection of wildlife are well taken, and should serve as the basis for more detailed review of the City’s or BMPRD’s boardwalk plans through existing, required approval procedures that include opportunity for additional public comment and appeal. Most of either proposed boardwalk alignment would be located outside of the regulated riparian corridor. If constructed, a boardwalk will provide exceptional public access and views that go beyond “the provision of open space” by the Owner required by Standard 3, while enhancing the prospect that riparian and wetland values in the area will be preserved. Also as a result of site visits, the City indicated the desirability of the Owner dedicating an additional public access easement extending from the base of the dam north, in an area bounded by the Deschutes River and the base of steep cliffs to the west. The Owner has agreed, and a Condition of Approval requires this additional easement. This additional easement is also in excess of what is required by Standard No. 3. The site visit and other evidence in the record indicate that it is feasible to improve public access to the additional riverside access area proposed by the Owner at the base of the dam. See the Conditions of Approval following these findings. Standard No. 3 is met. For these reasons, the City is allowing development of the site as proposed by the Owner and as shown on the plans. The Owner has demonstrated that its thoughtfully engineered and designed project will protect water quality and fish and wildlife habitat, will improve and protect riverfront riparian areas regulated by the WOZ or otherwise existing, and will provide for significant open space along the river. 7.6

BZO 10-10.22A.2(5)(a)(B) states: “(B) Commercial Property. For all existing commercially zoned property within the Deschutes River Corridor in existence upon the adoption of this ordinance, the setback for all buildings, parking lots, and loading areas shall be 30 feet from the ordinary high water mark of the Deschutes River.”

FINDING: Findings addressing this standard are not necessary because the Council has approved the proposed setbacks under the more restrictive standard in BZO 1010.22A.2(5)(a)(A). 7.7

BZO 10-10.22A.2(5)(a)(C) states: 45 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


“(C) Other Areas. For the areas not described in (a) (A) or (B) above, all buildings, parking lots, and loading areas shall be 40 feet from the ordinary high water mark of the Deschutes River. In no case shall the setback be less than 40 feet from the ordinary high water mark of the Deschutes River.” FINDING: As stated, approval is granted under subsection (A), so this subsection does not apply. Even if this standard did apply, it is met because, as proposed, all buildings, parking lots and loading areas will be located more than 40 feet from the Ordinary High Water Mark of the Deschutes River. 7.8

BZO 10-10.22A.2(5)(b) states: “(5)(b) Features in Building Setback Area. Within the 30, 40 and 100 foot building setback area, required in (a) (A), (B) and (C) above, the Bend Urban Area Planning Commission may approve features to enhance or support public use. Such features may include sidewalks, trails, utility facilities, streets and bridges crossing the river, boardwalks, decks, plazas, outdoor café seating areas, utilities, lights, bike racks, trash and recycling receptacles, furniture, bank stabilization structures, fences, art work, stairs, bike and pedestrian bridges, boat launch facilities, and vendor carts as defined in Bend Code Section 7.516. The placement and uses shall be subject to the criteria in Section 6.”

FINDING: The Owner is seeking, as part of the proposal, approval of features to enhance or support public use, including trails and other pedestrian access, and decks that would be located within the 100 foot setback. The closest corner of the proposed meeting facility deck would be located 62.4 feet from the ordinary high water mark. Proposed trails would be constructed of natural materials to the greatest extent practical, and would provide access to the existing public easement along the river’s edge. Trails along the river will be constructed consistent with BMPRD trail development standards. Proposed trails will avoid all existing trees, will not require significant grading, and will encourage public use of an easily identifiable route to the river, further protecting more sensitive vegetation and habitat nearby. Newly proposed trail locations have been established following consultation with the BMPRD, to address public access concerns as well as the Owner’s need to promote the safety of its guests and the functionality of the project. 7.9

BZO 10-10.22A.2(5)(d) states: “(d) Building Heights. Maximum structure height shall be limited to 30 feet at the minimum setback line. The Bend Urban Area Planning Commission may allow increases in building heights up to the allowed height in the underlying zone the farther the building sets back from the river. The Bend Urban Area Planning Commission may limit building height the closer to the river a building is allowed. The building height shall be measured from 46 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


the lowest natural grade facing the river to the highest measurable point on or projecting from the roof of the structure. FINDING: To ensure conformance, the findings assume that the “minimum setback line” is 100 feet, and the Owner is requesting that the City approve increases in building heights to those heights proposed by Owner, which are all allowed conditionally in the underlying zones, as demonstrated elsewhere in these findings. In the Owner’s plans and elevation drawings, the height of proposed buildings located wholly or partially within 100 feet of the OHWM are measured as required by this section. The Owner has established compatibility of the proposed structures with surrounding uses, justifying CUP approval for the proposed building heights. To meet Deschutes River Design Review standards, the Owner is agreeing to provide significant additional public access, trail connectivity and riverfront mitigation. These facts, and compliance with subsection A.2(6) (below) also justify the approval of proposed building heights and setbacks that the City is allowed to grant under this Section. The City has found in the preceding Riverhouse land use applications that this section allows buildings to be constructed within the Deschutes River Corridor Design Review Combining Zone (DRCDRCZ) only up to the express outright permitted height limit of the underlying zone(s), in this case 30 feet. This position is based upon the limited authority granted the Planning Commission by the City’s Land Use Procedures Ordinance to authorize conditional use permits for additional height. Lacking authority to authorize conditional use permits, the Planning Commission is limited to the underlying height of the zone. Similarly, the Procedures Ordinance limits Staff and Hearings Officer’s ability to authorize buildings within the DRCDRCZ; that authority lies with the Planning Commission. This conflicting authority has established a “Catch 22” that does not allow lower review authorities to consider requests for additional height in the River Corridor. Pursuant to the Procedures Ordinance, the only review authority with jurisdiction over both DRCDRCZ and conditional use permits for height is the City Council. As outlined below in these findings, the City Council finds that additional height within the DRCDRCZ is warranted through findings of compliance with the Conditional Use criteria. 7.10 BZO 10-10.22A.2(6) establishes Design Review Criteria for development within the Deschutes River Corridor Design Review Combining Zone. Applying the 100-foot setback, the Owner’s plans and the following sections of these findings demonstrate compliance with all Combining Zone review criteria. BZO 10-10.22A(6) states: “(6) Site and Design Review Criteria. In addition to the minimum standards above, the Bend Urban Area Planning Commission shall review the development using the following design criteria: (a) Conservation of natural features. Major rock outcrops, stands of trees, riparian areas, or other prominent natural features are an 47 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


important part of the visual character and quality of the community. The Bend Urban Area Planning Commission shall review the applicant’s proposal for impacts on these resources and may limit the amount of removal, require additional screening, or moving or reducing in size the development addition or structure in order to preserve to the greatest extent possible, existing natural features.” FINDING: All proposed structures have been designed to preserve, to the greatest extent possible, existing natural features, including major rock outcrops, stands of trees, riparian areas and other prominent natural features. Some natural features must necessarily be impacted to accommodate development of the property, but the Owner has designed the project to fit the site in a manner that respects important riparian and rimrock areas and features, as well as existing vegetative cover. In both the Riverhouse Hotel Completion/South Riverfront Residential Area and the North Riverfront Residential Area, over 50 percent of the existing trees 6 inches or larger in diameter will be preserved. Grading necessary to develop the proposed structures, parking areas and access drives will be minimal, due to conscientious design incorporating existing slopes for parking and existing plateaus for building pads. Rim edges are clearly marked on the Owner’s plans. The rim will not be affected by any proposed construction except for the proposed public viewpoints and trail access. All proposed facilities, structures, drives and paths have been located in a manner allowing preservation of major rock outcroppings, to the extent possible given site and access constraints. All proposed construction will be located behind the rim, with the restaurant pad 20 feet from the rim and the hotel units 20 to 35 feet from the rim, the South residential units 39-57 feet from the rim and the North Riverfront units 20-40 feet from the rim. All proposed buildings will be located more than 50 feet from the OHWM. The building configuration and articulation will prevent the structures from presenting a flat visual barrier as viewed from the river. Pedestrian accommodations will be limited to viewpoints along the rim, to protect it from crumbling under use, to protect sensitive habitats above and below, and to protect the welfare of the public and guests who might otherwise slip down the very steep embankment or fall from its cliffs. As described elsewhere in these findings, by designing the site with well-connected pedestrian ways and trails leading to established viewpoints, guests and visitors will be encouraged to frequent areas on the site designed for their use, where they can easily view the river to the north and south, the pond, and diversion dam. Additional trails along the river, under the Mt. Washington Bridge and through existing Riverhouse Hotel property, will further enhance public access and enjoyment of the river. By focusing and managing visitor traffic, the more valuable habitat, riparian areas and open space can be protected and improved. All of these measures are designed to preserve and enhance the beauty of the site’s natural features and to allow viewing and use to the maximum extent possible, consistent with the conservation and preservation goals of this section. 7.11

The second design standard listed in BZO 10-10.22A.2(6) states: 48 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


“(b) Compatibility with existing area. The Bend Urban Area Planning Commission shall consider the relationship of the proposed development with the existing surroundings, in terms of building bulk, height, location, separation, shape, parking areas, lighting, fences, landscaping, open space, visual and physical corridors to the river and adjacent land use.” FINDING: The “existing surroundings” relevant to this section include the Deschutes River and related natural amenities; existing hotel facilities owned and operated by the Owner; and an existing golf course owned by the Owner. The only uses not developed, owned or operated by the Owner that could reasonably be considered part of the “existing area” are Division Street on the east side of the Deschutes River; a multi-story office building and eight homes located south of the subject property and across the impoundment created by the North Canal Dam; and three single family and nine duplexes developed as part of River’s Edge Village Phase 1 located across the sixth and seventh fairways from the proposed development. Division Street to the east of the Hotel Completion/South Residential Area is developed with commercial uses. South of the site, the narrowest width of the river is 180 feet. The nearest residential use is across the impoundment to the south. The hotel and residential units proposed for the southern tip of the property are compatible and consistent with the multi-story office building and residences located south of the impoundment, due to their design, color, texture, roofline, human scale, and spacing on the site. Trees are also being saved to screen the improvements from the view across the river. As to the North Residential area, three single-family and six duplexes developed as part of River’s Edge Village Phase III are located along the fifth fairway across Golf View Drive. Across the river are the existing Riverhouse Hotel and Shilo Inn facilities. The North Riverfront condominiums will be 70 feet from the nearest single-family residence and over 200 feet from the nearest duplexes. The residential units proposed for the North Riverfront Residential Area are compatible and consistent with the adjacent multi-story hotels and residences, because of their design and screening, similar to the design elements noted above. In addition to trees saved for screening, there will also be a natural screen provided by the topography, in the form of a rise behind the condominiums, adjacent to Golf View Drive. Considering the relationship of the proposed meeting facility, spa, pool, restaurant, hotel and residential units to the existing surroundings in terms of building bulk, height, location and separation, the proposed structures will be compatible with their surroundings. The meeting facility will be located at the lowest elevation of the property, and the greatest height of the proposed building will not be as high as the highest natural grades on the Hotel Completion site. The maximum elevation of the proposed meeting facility will be 3,578.5 feet above mean sea level (“msl”). The dam rises to 3,565 ft. msl, and the southern edge of the site, between the proposed meeting facility and the impoundment, rises to an elevation of 3,575-80 feet above mean sea level. Due to topography and vegetation, the meeting facility will not be visible from residences located across the Deschutes, south of the site. Views of the structure from all other directions will be of a conservatively designed, aesthetically pleasing structure, 49 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


incorporating a well articulated roof, natural stone and peeled pine log accents, nestled into a natural depression next to the new bridge. The remaining structures on the site will be more visible from neighboring uses. The homes across the river to the south of the subject property are approximately 300 feet from the proposed southern residential units. This separation greatly exceeds the current rear yard setback required by the code and helps to minimize the visual impact of the units when viewed from residential units across the river. The views from the restaurant, hotel and residential units are an intrinsic part of the value of those structures. The design of all of these structures is intended to be aesthetic when viewed from surrounding areas and homes and, like surrounding homes, to showcase the beauty of the river and other dramatic topographic features. The purpose of the entire facility is to encourage visitors to visit Bend more often and to stay longer. That goal is promoted by elements of the development that will showcase the natural and developed beauty of Bend, for visitors and residents. The meeting facility is designed in a distinctive style, characteristic of Central Oregon, and reminiscent of grand, regional lodge-style structures of the past. Architectural styles that are considered to be most representative of the Central Oregon region are those that use local building materials and exhibit forms and details reflecting the architectural heritage of the area. Camp Abbott, Great Hall, the Crater Lake Lodge, and historic agricultural buildings throughout Central Oregon are good examples of architect Neal Huston’s vision. Such structures make strong design statements but blend comfortably with the natural look of the high desert environment. All of the other proposed structures maintain this theme, but on a smaller scale, to compliment the meeting facility and natural features of the site. The effect is achieved using natural log, timber and stone design elements and textural wall and roof treatments. Exterior colors will be subtle earth tones. The meeting facility size and form are intended to diminish the impact of the new bridge on the site, and to be compatible with both the new bridge and the dam. Graceful roof pitches visually pull the meeting facility down to comfortably meet the site, but not to the extent that is out of character with the existing dam and new bridge. Roof gables, dormers, and deep, shadowed overhangs add character and break down the overall scale of all proposed buildings. Architectural features of all proposed structures, and the orientation of those structures, relate well to surrounding uses, in terms of building bulk, height, location and separation. Parking areas proposed in the development will also be compatible with the existing area. Parking areas will be located well away from the Deschutes River, in the interior of the site. Due to availability of existing Riverhouse parking facilities, new parking associated with the development will be minimized. This means less asphalt, improving compatibility. Parking areas have been intentionally limited to the number of spaces necessary to accommodate new proposed uses, and to efficiently utilize, through pedestrian connections and parking management, existing Riverhouse parking areas. At the southern end of the site, parking has been intentionally limited to the interior, surrounded by the restaurant, hotel and dwelling units. All lighting for the facility, access drives and parking areas, will direct light downward and be minimally reflective, creating minimal ambient glare. Proposed lighting fixtures also comply with the City’s 50 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


Lighting Ordinance, BZO 10-10.23B, as explained in section 11 of these findings. Fencing will be used primarily for screening of trash bins on the west side of the parking lot, across from the meeting facility and near the restaurant, and will itself be screened by landscaping. Split rail fencing will be used to control trail use as needed, to provide safety for people and animals. As demonstrated by the plans, proposed landscaping will be more than adequate to meet applicable standards, and will improve overall compatibility of the development with the existing area. Significant open space is being provided, in the form of preserved City-designated riparian areas and additional areas adjacent to such areas, and new trail easements and access. Open space to be retained on the site is enhanced by the design of view corridors, which can be identified by lining up breaks between hotel, condominium and accessory buildings with landscaping, as illustrated on the plans. This site design creates visual corridors to the river and the golf course. Walkways and future viewpoints provide physical corridors to the river, enhanced by well-planned landscaping to separate parking from pathways and structures. Solid expanses of wall or plantings are avoided throughout the design, to enhance aesthetically pleasing scale and aid in pedestrian orientation. The proposed buildings and accessory development relate well to the river and adjacent land uses in terms of visual and physical corridors. Considering the relationship of the proposed development to its surroundings in terms of all of the elements listed in this section, the standard is met. 7.12

The third design standard listed in BZO 10-10.22A.2(6) states: “(c) Colors and Materials. The Bend Urban Area Planning Commission shall consider colors and materials. The Bend Urban Area Planning Commission may require new structures and additions to existing structures to be finished in muted earth tones that blend with and reduce contrast with the surrounding vegetation and landscape of the building site or colors that are compatible with adjacent buildings.”

FINDINGS: The Owner has provided in Exhibit A-18 proposed Exterior Finish Selections for the City’s consideration. Proposed colors are of muted earth tones, intended to match the color of natural materials and vegetation existing on the site, and to blend with and reduce contrast between the proposed structures and their surroundings. Additional blending will be achieved through the use of (purchased) river rock, and peeled pine logs recycled from trees that must be removed from the site. 7.13

The fourth design standard listed in BZO 10-10.22A.2(6) states: “(d) No large areas, including roofs, shall be finished with 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.”

FINDING: A high-definition architectural fiberglass-reinforced asphalt “shake” style shingle roofing material is proposed for all structures. Non-reflective roofing material is proposed as shown in the Owner’s exhibits. The selected color is a “muted earth tone” 51 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


and will blend with the surrounding vegetation and landscape in conformance with this section. 7.14

BZO 10-10.22A.2(6)(e) states: “(e) The Bend Urban Area Planning Commission may establish increased setbacks, limitations of building heights, and limitations on the bulk and length of buildings, limitations on light, landscaping, fences, size and shape of windows facing the river, size and location of parking, and outdoor storage areas and any other improvement or use listed in 5 (a) and (b) above in order to carry out the purpose of this ordinance.”

FINDING: This subsection is not an approval standard. The City has authority to ensure that the proposed development meets all applicable standards and is in all respects aesthetic, functional, and an asset to the community. All limitations on site development necessary to carry out the purposes of the BZO and of Corridor Design Review are being imposed through Ordinance No. NS-1951 and the Conditions of Approval. 7.15

BZO 10-10.22A.2(6)(f) states: “(f)For projects proposing development within the setback area, the Bend Urban Area Planning Commission may consider the degree to which the project provides public access along the riverfront, and may require the dedication of public access on an individualized determination that the required access is reasonably related to the project, and that the required dedication is also roughly proportional to the impact of the proposed project.”

FINDING: The bulk of the proposed Hotel Completion area is located more than 100 feet from the ordinary high water mark of the Deschutes River. The total site area is ±22.51 acres. Of that acreage, 4.43 acres is located within 100’ of the OHWM, or just less than 20%. Actual improvements within the 100’ will cover 27,452 square feet. This will leave over 85% of the area within 100 feet of the river unimproved. The public currently has limited access to the site, using the fisherman’s trail. Owner is granting easements for a trail through the property to allow connection between the Deschutes River Trail to the south and Sawyer Park to the north and public access to four river viewpoints. This new access, combined with previously granted trails by Owner, allows completion of a recreational trail network for enjoyment of the area beyond that contemplated in adopted plans. The following findings are adopted to address the proposed uses, and to demonstrate that, applying a 100-foot setback, the code allows the City to approve the proposed location of all proposed structures and facilities, as specified in the Development Agreement between the City and Owner. Applying the 100-foot setback, the City “may consider” riverfront access and “may require” dedication of riverfront public access. As proposed, the deck of the proposed meeting facility extends, at its closest corner, to a distance 62.4 feet from the OHWM, and the closest corner of the building would be set back 73.6 feet. 52 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


The restaurant, spa, many of the hotel units and some of the condominium units also extend within 100 feet of the OHWM. In 1988, to satisfy a rezone condition, the Owner dedicated two easements for public access, to the Bend Metro Parks & Recreation District. The first easement is 15 feet wide, and allows public access from the southernmost boundary of the site, (the Deschutes riverfront) to a terminus located at Sawyer Park, almost 3/4 mile away. This existing trail is a key link of the Deschutes River Trail. The second easement is for a “foot path adjacent to the Deschutes River” from the North Canal Dam to Mt. Washington Drive which is used primarily by fishermen. As explained throughout these findings and as evidenced by the described dedications, the Development Agreement approves completion of a project that began in 1980. The City and Owner agree that the access required in 1980 and provided in 1988 is “reasonably related to the project” and “roughly proportional to the impact of the proposed project.” These easements provide significant public access to the riverfront. The Owner is also proposing with this application to dedicate an easement to allow BMPRD to construct a walkway to connect the previously dedicated riverfront access easement to the meeting facility and to other proposed pathways that connect to four additional viewpoints for use by patrons and visitors. Furthermore, the Owner has agreed to provide additional public access, at locations indicated on the plans and as specified in the Conditions of Approval. Considering previous and newly proposed exactions, the project provides a high degree of public access to the riverfront, in conformance with this section. 7.16

BZO 10-10.22A.2(6)(g) states: “(g) For projects incorporating a setback less than 100 feet the BUAPC may require enhanced site landscaping, minimum corridors between buildings, variations in building setbacks, size or bulk of facades and may impose any other conditions of approval reasonably required to meet the purposes of this ordinance.”

FINDING: The design of the proposed facilities incorporates a setback less than 100 feet at some locations. As explained elsewhere in these findings and as demonstrated by the plans, the Owner has agreed to install significant amounts and varieties of landscaping for all areas disturbed during development, and to retain significant areas of the site in its natural state, to be protected and enhanced gradually over time. All plans for improvements incorporate spaces between structures to minimize mass of scale. Near the meeting facility, there is approximately 120’ between the facility and the hotel units. View corridors have been provided through the development and buildings will be situated to help make them more aesthetically pleasing. These corridors between buildings add spaciousness, improve views, and incorporate landscaping and preservation of large tree specimens where available. Building setbacks are intentionally angled, varied, and placed to avoid significant rock outcrops. Neal Huston’s design of the buildings incorporates various techniques used to reduce the apparent mass of buildings 53 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


by using varied exterior texture and color treatments and articulations. Rooflines are sloped and scaled to 3:12 – 4.5:12 ratios to provide structural and aesthetic integrity. In addition, Owner has proposed and City accepts the following river mitigation measures (NOTE: Any differences between this list and the conditions of approval shall be resolved by reference to the conditions of approval and the easement documents of the Development Agreement): 1. The Owner shall submit a revised landscaping plan showing how the “fill area” supporting the fire access drive will be re-vegetated. The Owner shall include a list of the plant species to be utilized. City staff and Owner shall mutually agree and approve the design and species before release of any building permits for the meeting facility. Any vegetation requiring removal in the fill area supporting the fire access drive shall be replaced with similar native vegetation in accordance with WOZ guidelines. 2. The Owner shall not encourage additional direct access to the riparian area from the patio, and/or the fire access way on the east side of the building beyond easements granted to BMPRD. 3. The Owner shall submit a series of digital photos depicting the riparian zone along the river's edge of the subject property before the grading of the site. These photos shall serve as a gauge and monitoring of the riparian area before, during, and after construction. The Owner shall replace any plant materials within a reasonable time upon notice from City. 4. The Owner shall be prohibited from altering any riparian zone habitat unless specifically approved by the City of Bend in conformance with WOZ ordinance. As noted in the ordinance, “altering” excludes routine maintenance. 5. The Owner shall make reasonable efforts to save native shrubbery removed from the riparian area of the site necessitated by construction of the meeting facility. The saved shrubbery shall be re-planted into the landscaping proposed by the Owner, to the extent it is viable to be saved. 6. The Owner shall make reasonable efforts to incorporate portions of large diameter Ponderosa trees removed from the site into the architecture of the meeting facility (i.e. exterior deck supports, columns, exposed trim, etc.). 7. Trash receptacles shall be installed outside of the riparian areas. The design of the trash receptacles shall be approved by City staff before installation. 8. The Owner shall discourage the feeding of any mammals within the riparian zone by guests of the meeting facility. Small plaques or other subtle signage shall be placed on site. 9. The Owner shall submit detailed plans showing how the roof drainage will not affect the riparian area or enter the river. This shall be approved before release of the building permit for the meeting facility. 10. The meeting facility windows facing the river shall be non-reflective.

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11. The Owner shall agree to participate in a regular project management meeting held by the City during the course of construction for the meeting facility. The purpose of the meeting is to guide and monitor the construction of the meeting facility. As described elsewhere in these findings, the Owner has also agreed to provide significant off-site riparian enhancement on the riverbank facing the site. The City and Owner are cooperating to achieve the best possible design for the site and structures, and reasonable conditions are being imposed to ensure that the purposes of the Combining Zone and Bend Zoning Ordinance are met. 8. Floodplain Subzone Standards. For the requested uses potentially affected by the WOZ floodplain (FP) subzone, the applicable review criteria are found in Section 1010.22A.4. 8.1

Section 10-10.22A.4(1) states: (1) Purpose. It is the purpose of this zone to promote the public heath, safety, and general welfare, and to minimize public and private losses due to flood conditions in specific areas by provisions designed: (a) To protect human life and health; (b) To minimize expenditure of public money and costly flood control projects; (c) To minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public; (d) To minimize prolonged business interruptions; (e) To minimize damage to public facilities and utilities such as water and gas mains, electric telephone and sewer lines, streets and bridges located in areas of special flood hazard; (f) To help maintain a stable tax base by providing for the sound use and development of areas of special flood hazards so as to minimize future flood blight areas; (g) To ensure that potential buyers are notified that property is in an area of special flood hazard; and, (h) To ensure that those who occupy the areas of special flood hazard assume responsibility for their actions.�

FINDING: This is not an approval standard. This section is implemented by the regulations addressed below, which were adopted by the city to achieve the purposes of the Floodplain zone. 8.2

Section 10-10.22A.4(2) states: (2) Application of FP Zone. 55 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


(a) The FP Combining Zone shall apply to the areas identified on the Flood Insurance Rate Map (FIRM), as special flood hazard areas inundated by 100-year flood and floodway areas. The FIA Flood Insurance Study for Bend and the FIRM map are hereby zoned FP and EA zones shown on the FIRM map are hereby zoned FP. FINDING: The Hotel Completion and the North and South Residential Areas are located adjacent to the Deschutes River. The Owner’s engineer used Federal Emergency Management Act (FEMA) 100-year floodplain tables and a Flood Insurance Rate Map to establish the location of regulated flood plain and floodway areas on or affecting the site. Flood elevations are noted on many of the plan sheets, and indicate that FEMA-regulated areas roughly correspond with the ordinary high water mark, above and below the dam. The 100-year flood elevation at the northern end of the site is 3520; 3525 at the base of the dam, and 3561 in the impoundment area. The base elevation of the meeting facility is 3527 at the lower level, and the property rises to an elevation of 3575-3580 feet at the southern end of the property. Development in the North Riverfront Residential Area will take place on upland portions of the site, separated from the Deschutes River by cliffs and steep slopes. No development is proposed in areas subject to FP combining zone restrictions. None of the remaining FP standards are applicable to the proposal. 9. Site Plan Approval Standards. The proposal is subject to applicable site plan approval standards found in BZO section 10-10.23. 9.1

Section 10-10.23(1) states: “(1) Purpose. The purpose of Site Plan Approval is to ensure compliance with the objectives of this Ordinance and the Comprehensive Plan where development may cause a conflict between uses in the same or adjoining zones by creating unsightly, unhealthful or unsafe conditions and thereby adversely affect the public health, safety, and general welfare. The purpose shall also be to avoid creating undue burdens on public facilities and services. In considering a site plan the committee shall take into account the impact of the proposed development on nearby properties, on the capacity of the street system, on land values and development potential of the area, and on the appearance of the street and community.

FINDING: This section is not an approval standard, but expresses the purpose of site plan approval requirements, and is implemented by detailed, substantive site design requirements. The Owner’s proposed development is part of an integrated plan for the development of the east face of Awbrey Butte that began in 1979. “Riverhouse II” was conceived in November 1979 and presented to the Planning Commission in a site plan entitled “Riverhouse II Condos, Golf Course, Motel and Convention Center.” The plans submitted by Owner describe the proposed uses and include plans for completion. The North Riverfront Residential Area was purchased after 1980, but is surrounded by the River’s Edge Village PUD on three sides and is logically included in the PUD through 56 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


modifications requested in these proceedings. Consideration of the proposed development’s impacts on the capacity of the street system, on land values and development potential of the area, and on the appearance of the street and community has been taken and incorporated into the individual findings in this section. 9.2

Section 10-10.23(3) states: “(3) Site Plan Requirements. In all zones, except for a single-family unit on one lot, all new uses, buildings, outdoor storage or sales areas and parking lots or alterations thereof shall be subject to the provisions of this section. Site plan approval shall not be required where a proposed alteration of an existing building does not exceed 25% of the original structure unless the Planning Director finds the original structure or proposed alteration does not meet the requirements of this ordinance or other ordinances of the City of Bend. In the RM and RH zones, duplexes and triplexes may undergo a Type I review process if they meet minimum standards as set forth in Section (11).”

FINDING: Approval of the Owner’s site plan is required, because portions of the proposed development will be located in the Limited Commercial zone, and because condominium development is proposed for RS-zoned areas of the site. 9.3

Section 10-10.23(5) states: “(5)

Procedure.

(a) Prior to filing a site plan application, the Owner is encouraged to confer with the Planning Department concerning the requirements of formal application.” FINDING: The Owner’s Operational Manager and the Owner’s counsel have met with City Planning Staff as well as other City staff numerous times in preparation for submittal of development applications, from February to August, 2004. 9.4

Section 10-10.23(5)(b) and (c) state: “(b) The site plan application shall be filed on a form provided by the Planning Department and shall be accompanied by drawings containing information as specified by the Planning Department. A minimum of eight (8) copies of the site plan shall be submitted and such additional information as is deemed necessary for the Site Plan Committee to adequately review the applications. (c) The Site Plan Committee shall approve with conditions, or disapprove the site plan. In approving the plan, the committee shall find that all provisions of this ordinance are complied with and that all buildings and facilities, access points, parking and loading facilities, lighting, and walls or fences are so arranged that traffic congestion is avoided and pedestrian and vehicular safety and welfare are protected, and there will be minimal 57 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


adverse effect on surrounding property. The decision of the committee shall be final unless appealed in accordance with the City of Bend’s land use procedures.” FINDING: Appropriate forms accompanied the site design application filed in this matter, as well as Exhibits illustrating the concept, foundation, and detail of the proposed development, in sufficient duplicate to satisfy subsection (b). The city provided a special group of department heads to review and develop this agreement, serving as a Site Plan Committee for purposes of subsection (c). The negotiated agreement has been presented directly to the Council in substantial conformance with this section. 9.5

Section 10-10.23(8)(a) states: “(8) Site Plan Criteria. Approval of a site plan shall be based on the following criteria; (a) Safety and Privacy. Residential site plans shall be designed to provide a safe living environment, while offering appropriate opportunities for privacy and transitions from public to private spaces.”

FINDING: The proposed North and South Riverfront condominiums are residential uses. The North Riverfront Residential Area is located in an existing, developed residential area. Privacy is provided by a large common area to the west of the proposed dwellings. Public access will be provided along the eastern border of the site (the Deschutes River), but privacy in that area is also ensured by the cliffs and steep slopes that separate the river corridor trail from residential uses. The cliffs and steep slopes are potentially hazardous, but in an obvious manner characteristic of numerous locations in the area. The plans for the North Residential Area are expected to provide a safe living environment using common methods including notice to and exercise of caution by the residents and where necessary, signage and barriers, all subject to management by the homeowner’s association. All aspects of the proposed Hotel Completion and South Riverfront Residential Area development have been designed to safely accommodate residents and visitors. The proposed layout of buildings, trails and designated viewpoints will diminish the likelihood of accidental falls from cliffs and steep slopes located on the site. Safety issues related to site features will be handled through appropriate management and signage on the resort and condominium properties, respectively, by resort management and the homeowner’s association. Privacy for residents will be provided consistent with resort expectations, through proposed site design elements including the location of structures, parking, landscaping and trails. 9.6

Section 10-10.23(8)(b) states: “(b) Special Needs of Handicapped. When deemed appropriate the site plan shall provide for the special needs of handicapped persons, such as ramps for wheelchairs, drop curbs, and handicapped parking stalls.” 58 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


FINDING: All of the proposed facilities have been designed with appropriate grades that will allow full compliance with construction standards of the Americans With Disabilities Act (ADA) including ramps, an elevator, parking, and other accommodations required by law and practicality. 9.7

Section 10-10.23(8)(c) states: “(c) Preservation of Natural Landscape. The landscape and existing grade shall be preserved to the maximum practical degree, considering development constraints and suitability of the landscape or grade to serve the Owner’s functions. Preserved trees and shrubs shall be protected during construction.”

FINDING: No trees within the WOZ will be removed under this proposal, as discussed above. On the remainder of the Hotel Completion site, over 50 percent of presently existing trees with trunk diameters of 6 inches or more will be saved through careful planning on the property. Trees that must be removed to accommodate proposed uses will be considered for recycling as stripped logs featured in the building design. Trees that will be saved will be protected during construction using proven industry techniques as required by City regulations. Existing grade has been utilized in the design of all proposed structures and facilities. With regard to the meeting facility, the entrance elevation will roughly correspond to the elevation of the existing parking lot. During construction, erosion management techniques will be employed as necessary to prevent sediment runoff or increased stream turbidity, with particular care given to placing and securing approved erosion control barriers. The same techniques used to preserve existing grade for the meeting facility to the maximum practical degree will be employed for all other structures, as required by the City. No dramatic changes in grade are proposed. This standard is therefore met. 9.8

Section 10-10.23(8)(d) states: “(d) Pedestrian and Vehicular Circulation and Parking. The location and number of points of access to the site, the interior circulation patterns, designs of parking areas, and the separation between pedestrians and moving and parked vehicles shall be designed to promote safety and avoid congestion on adjacent streets.”

FINDING: Ingress, egress, and drop-off points within the site are designed for maximum visibility and maneuverability, as illustrated on the plans. Pedestrian pathways are separated from moving and parked vehicles, and separated further by curbed medians in appropriate locations, in conformance with this section. New parking areas have been designed in accordance with the city’s detailed standards to promote safety and functionality. The new hotel/convention facilities will be effectively tied to the existing facility in two ways: by a new pedestrian connection under the new Mt. Washington Bridge; and by conversion of the old Mt. Washington Bridge for pedestrian and service vehicle access. A covered footbridge is also currently located in the center of the existing resort complex, providing good pedestrian access between all of the hotel (and parking) 59 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


facilities north of Mt. Washington Drive. The site is designed to effectively promote safety and avoid congestion on adjacent streets. With regard to points of access, it should also be noted that the City required dedication of a second street right of way across the property as one of the 13 conditions stated in the 1980 approval. This right of way is illustrated on the plans as a 60-foot right of way perpendicular to the parking lot. The 1980 Master Plan concept appears to have been to provide an alternate route off of Awbrey Butte, before Mt. Washington Drive was extended to circle the Butte and intersect Newport, before Awbrey Drive was extended down to Portland Avenue, and before Twelfth Street was extended to join Ninth Street down the south face of the hill. The plans now show the location of the proposed new bridge, and dedication of new right of way is part of the Development Agreement. Under the terms of the Development Agreement, the City has agreed that this undeveloped right-of-way is no longer necessary as a component of the public transportation system, and will proceed to vacate the undeveloped right of way on its own motion. Conveyance of right-of-way by the Owner to the City to accommodate construction of the new Mt. Washington Bridge will occur as specified in the Development Agreement. 9.9

Section 10-10.23(8)(e) states: “(e) Buffering and Screening. Area, structures, and facilities for storage, machinery and equipment, services (main, refuse, utility wires, and the like), loading and parking, and similar accessory areas and structures shall be designed, located, buffered, or screened to minimize adverse impacts on the site and neighboring properties.”

FINDING: Most machinery, equipment, and storage areas will be located in the bottom level of the facility or inside other structures proposed for the site. All equipment requiring screening will be screened. The trash enclosure will be fenced and landscaped to minimize visual detection. All loading, parking and similar areas and structures are designed, located, buffered and/or screened to minimize adverse impacts on the site and neighboring properties in conformance with this standard. 9.10

Section 10-10.23(8)(f) states: “(f)Utilities. All utility installations above ground, if such are allowed, shall be located so as to minimize adverse impacts on the site and neighboring properties.”

FINDING: All utilities will be placed below ground, as illustrated by the Owner’s plans and as otherwise required, to minimize adverse impacts on the site and neighboring properties. 9.11

Section 10-10.23(8)(g) states: “(g) Public Facilities. The proposed use shall not be an undue burden on public facilities such as the street, sewer or water systems.”

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FINDING REGARDING ADEQUACY OF STREETS: The proposed Hotel Completion/South Riverfront Residential Area will be accessed via Mt. Washington Drive as a single, full-access point. The North Riverfront Residential area, consisting of 21 residential units, has primary access by way of the existing hotel driveway, and secondary and emergency access by way of Golf View Drive, to Mt. Washington Drive. Traffic analysis is provided for projected impacts for the duration of the seven-year Development Agreement, and includes analysis of a full PUD build-out. The meeting facility has only minor independent traffic impacts when considering its shared function. As noted above, the Owner’s traffic analysis supports consideration of the meeting facility as a dependent use of the existing hotel for purposes of predicting traffic impacts, and the study demonstrates that the proposed uses will not unduly burden public streets or transit facilities. The Kittelson Traffic Impact Study recommends that the following measures be undertaken to mitigate impacts of the full project, including the Restaurant/Spa, 102 hotel units, 101 condominiums and up to 388 additional residential single-family homesites: • Replace the Mount Washington Drive Bridge to include two eastbound lanes and one westbound lane. As part of this improvement, the eastbound leg of the Business 97 intersection will include a separate left-turn lane, through and right-turn lane, and sidewalk. Bicycle lanes will also be provided as part of the new bridge design. • To maximize traffic operations and safety, the proposed site access point should be constructed with a westbound left-turn pocket (with minimum storage length of 75feet) on Mount Washington Drive for vehicles entering the site from Mount Washington Drive at the completion of the new Mount Washington Drive Bridge project. • Pedestrian crossings between the existing hotel and proposed hotel expansion will be provided as part of the new Mount Washington Drive Bridge. The Owner will cooperate in the construction of a pedestrian crossing under the new Mount Washington Drive Bridge, located on the northeast corner of the proposed site, to direct and provide connectivity for pedestrians between the existing Riverhouse Hotel and the proposed expansion site, as well as continuing access along the river for the general public. • On-site shrubbery and landscaping should be trimmed and maintained to ensure adequate sight distance for vehicles entering and exiting the site at each of the access points on Mount Washington Drive. • Provide a minimum of 75 feet of throat distance at the proposed site access point to the hotel expansion to ensure adequate storage for vehicles exiting the proposed site. • The City and ODOT have expressed concern with the functioning of the Butler Market / Business 97 / Mt. Washington intersection. REI has agreed to provide land for an additional right hand turn lane southbound on Business 97 to address these concerns. The meeting facility, Restaurant, Spa, Condominiums and Hotel units will generate approximately 105 weekday p.m. trips (65 inbound and 40 outbound). The above recommendations will mitigate the traffic impacts caused by all uses, (including all uses currently subject to site design and 388 additional single-family dwellings to be 61 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


developed within the PUD) and when the mitigation measures are completed, the use will not be an undue burden on streets or other transportation facilities. FINDING REGARDING ADEQUACY OF SEWER: City Engineering Staff has completed design and construction of a new sewer pump station nearby that supplements and provides excess capacity for the east face of Awbrey Butte. The city has shifted loads from the present lift station (located in the Riverhouse Hotel parking lot) to the new facility constructed near Sawyer Park. The added capacity resolves previous load concerns, and provides sufficient capacity to accommodate additional needs, including all of the development proposed by Owner. The Owner provided land for the lift station located in its parking lot, has provided easements across the front and side of the Riverhouse Hotel property to accommodate that station, and has allowed the City to repair the existing lift station at considerable disadvantage to the Hotel, considering attendant complications associated with such operations. With construction of the new sewer facility, none of the proposed facilities will place an undue burden on public sewer facilities. FINDING REGARDING ADEQUACY OF DRAINAGE: Provision for control and management of surface water is a critical facet of responsible development of this site. Pavement runoff must be controlled prior to entering the river, to ensure that non-point source and point-source contaminants do not reach habitats. Impervious surfaces such as parking lots required engineered solutions, as provided in the Owner’s plans. The Owner’s plans are adequate to control runoff. Additionally, as part of the Development Agreement, the Owner has agreed to accept and manage runoff from the City’s new bridge and drainage from Mt. Washington Drive and related improvements on Owner’s property. FINDING REGARDING ADEQUACY OF WATER: The Mt. Washington Drive fire flow analysis indicates acceptable fire flow of 3,000 gallons per minute with acceptable static pressure of 75.37 psi and acceptable residual pressure of 66.00 psi available to the site. Water supply is adequate to support full build-out of all uses currently identified as part of the River’s Edge 2004 PUD. 9.12

Section 10-10.23(9)(a) states: “(9)

Required Minimum Standards.

(a) Minimum Landscaping Standards. All developments subject to site plan approval shall meet the following minimum standards for landscaping: 1. A minimum of 15 percent of the area of a project shall be landscaped for multifamily, commercial, and industrial developments subject to site plan approval and the following requirements: (A) The Owner shall submit a complete landscape plan showing all live plant materials and non-plant materials to be installed on the site in order to meet the landscape requirement. The landscape plan shall also include an analysis of how the site is 62 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


to be prepared for plant material installation with an emphasis on soil quality and available depth.” FINDING: Conceptual landscape plans have been provided for all of the proposed development. Full plant material lists are specified. The Owner plans to augment soils as necessary to provide necessary nutrients, humus, and drainage, as appropriate for each planting area. Because of the size of the areas affected, specific plant locations are not specified, but plant groups are identified by area. 9.13

Section 10-10.23(9)(a)1.(B) states: “(B) Irrigation. All plant materials, except existing native plants not damaged during construction, shall be irrigated by underground sprinkler systems set on a timer in order to obtain proper water duration and ease of maintenance.”

FINDING: Landscape Architect Tom Atkins has prepared a conceptual irrigation plan for Phase 1, which will be extended to all areas of the site as development commences in each area. The plans demonstrate compliance with this standard. 9.14

Section 10-10.23(9)(a)1.(C) states: “(C) Non-Plant Materials. The use of certain nonplant materials as part of the landscape plan is highly encouraged. These materials may include the following: Large landscape quality boulders, wood or concrete soil retaining devices, gravels, concrete garden amenities, approved mulch materials, stepping stones and water features. Borders for landscape beds abutting parking areas shall be extruded or poured-in-place concrete, retaining walls, sidewalks and/or other features acceptable to the review authority.”

FINDING: The Conceptual Landscape Plan referenced above specifies locations of boulders, pervious paver surfaces, and curbing. These detailed plans indicate how and where such non-plant materials will be used, in conformance with this provision. 9.15

Section 10-10.23(9)(a)1.(D) states: “(D) Plant Materials. Minimum Plant Material Sizes and Placement. Note: Annual type plants will not be counted as part of the landscaping requirement unless permanent architectural or other non-movable features are specifically created for these types of plants. Trees. A variety of tree species is encouraged as a way to provide visual interest and to protect against same species die out or disease. Acceptable tree species shall be those trees which are listed in the Ordinance, readily available from local nurseries, tolerant of Central Oregon climate, disease, resistant, and do not create unusual maintenance problems. All deciduous trees shall be

63 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


a minimum of 2” in diameter. Larger diameter trees are encouraged if soil conditions allow. There shall be one native Ponderosa species of Pine planted for every four deciduous trees required to be planted on the site. Pine trees may require larger planting beds due to their size at maturity. All coniferous trees, except Ponderosa, shall be a minimum of 6 feet in height. Ponderosa trees shall be a minimum of 3 feet in height. Larger Ponderosa trees are encouraged if readily available.” FINDING: The Owner’s plans identify trees to be used, and indicate Tom Atkins’ aggressive efforts to save as many native trees on the site as possible. Many of the ponderosa pines reach 70-90 feet in height. Ponderosa pine trees saved on site exceed the number that would have to be planted under this provision, and greatly exceed 3 feet in height. Many of the trees that have to be removed will remain on the site and be recycled as peeled logs used as accents in the building design. 9.16

Section 10-10.23(9)(a)1.(D) continues: “Shrubs. All shrubs shall be minimum of 3 gallons in size. Shrubs adjacent to parking areas with car overhang shall be planted at least 3 feet from the parking surface. Shrubs shall not be planted at least 3 feet from the parking surface. Shrubs shall not be placed closer to other materials than the plant spread at maturity. At least 40% of the shrubs in the landscape plan shall include evergreens. The use of a variety of shrubs types is encouraged.”

FINDING: Plant materials specified in the plans and exhibits demonstrate compliance with this requirement. 9.17

Section 10-10.23(9)(a)1.(D) continues: “Ground Covers. All ground covers shall be of sufficient size and quantity to provide for maximum coverage in five years based upon the species and growth pattern.”

FINDING: Ground covers are specified in sufficient sizes and quantities as noted on the Conceptual Landscape Plan cited above, in conformance with this requirement. 9.18

Section 10-10.23(9)(a)1.(D) continues: “Planting Beds. Planting beds shall be of sufficient width to accommodate the plants at maturity. The planting beds along the perimeter of a building shall incorporate a mix of trees, shrubs and ground covers to buffer the building and reduce the apparent mass of the building as viewed from the street. The plant materials within the planting shall not create hiding areas or other security concerns.”

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FINDING: Planting Beds range in width from 3 feet to 50 feet. Mixed plantings will be interspersed among native vegetation being saved, in the interest of erosion control and survivability. 9.19

Section 10-10.23(9)(a)2. states: “2. Street Trees. The species placement, spacing, and pruning of street trees shall be as follows, provided that the site plan committee can adjust the placement standard for special site conditions: (i) Street trees shall be located a minimum of five feet from the face of a curb. (ii) Street trees shall be located a minimum of five feet from the face of a curb. (iii) An approved tree grate or other surface treatment acceptable to the review authority shall be used for street trees planted in paved or concrete areas. (iv) As street trees grow they shall be pruned to provide a minimum clearance of eight feet above sidewalk and fourteen feet above streets, alleys, or roadway surfaces. (v) Existing trees may be used as street trees if they are not killed or damaged from any new development. Sidewalks of variable width and elevation may be utilized by the City. (vi) Existing street trees removed by development projects shall be replaced by the developer with those from the approved street tree list, which is maintained by the City. (vii) Street trees shall be those species suitable for the location in which they are placed. Approved tree specified include: Trees With Low Mature Tree Height (25 feet or less) For Use in Areas Under Power Lines Or In Small Planting Areas: Amur Maple/Acer ginnala Canada Red Cherry/Prunus Virginiana ‘Shubert’ Eastern Redbud/Cercis canadensis Flowering Crabapple/Malus ‘variety’ Hawthorn/Crataegus ‘variety’ Japanese Lilac Tree/Synringa reticulata Serviceberry/Amelanchier Medium Mature Tree Height (30 to 45 feet): American Hornbeam/Carpinus caroliniana Callery Pear/Pyrus calleryana 65 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


Hege Maple/Acer campestre Mountain Ash/Sorbus acuparia ‘variety’ Tall Mature Tree Height (50 feet or larger): Birch/Betula pendula ‘variety’ Green Ash/Fraxinus pennsylvanica Honey Locust/Gleditsia tricanthos ‘variety’ Littleleaf Linden/Tilia cordata Norway Maple/Acer plantanoides ‘variety’ Pin Oak/Quercus paluatris Red Maple/Acer rubrum ‘variety’ Red Oak/Quercus rubra Other Tree Species: The review authority may approve other tree species as necessary to achieve the purposes of this Ordinance.” FINDING: The Owner has requested that the City adjust the placement standard to conform to the submitted plans, showing the retention and interplanting of significant groves of existing trees. This approach is allowed under this section, and retention of natural vegetation that would have to otherwise be removed to plant required street trees is consistent with the purposes of the BZO, site plan approval requirements, and Deschutes River Corridor values. 9.20

Section 10-10.23(9)(a)3.(i) states: “3. Areas of commercial and industrial zones used for vehicle maneuvering, parking, loading, or storage, shall be landscaped and screened as follows: (i) Landscape coverage of the landscape area shall be fifty percent at the time of installation and ninety percent at five years.

FINDING: The Owner will meet this requirement at the time of installation and within five years, and is capable of meeting the criterion using standard horticultural methods. 9.21

Section 10-10.23(9)(a)3.(ii) states: “(ii) Parking lot landscaping shall consist of a minimum of seven percent of the total parking area plus a ratio of one tree per eight parking spaces to create a canopy effect.”

FINDING: The total commercial parking area is approximately 217,160 square feet. Landscaping in that area is 75,915, or 35%. 315 new commercial parking spaces are proposed for the Hotel Completion Area. Over 150 trees will either be preserved or added as shown in the Owner’s plans, which demonstrate compliance with this standard 66 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


as to hotel, meeting facility and restaurant parking areas. This ratio exceeds the amount required, satisfying this standard. 9.22

Section 10-10.23(9)(a)3.(iii)-(ix) states: “(iii) Landscape buffers between parking areas, parking pods and internal streets shall have a minimum width of five feet with no car overhang and ten feet with a car overhang. (iv) Landscape buffers between parking abutting a property line shall have a minimum width of ten feet. (v) Front or exterior yard landscaping may not be substituted for the interior landscaping required for interior parking stalls. (vi) There shall be a landscaped and/or screened buffer area a minimum distance of five feet between buildings adjacent to streets. (vii) There shall be a minimum width of ten feet for landscape buffers between buildings adjacent to streets. (viii) Landscape buffers shall consist of evergreen ground cover and shrubs mixed with a variety of flowering and deciduous plant species of trees and shrubs. (ix) Landscaping in a parking or loading area shall have a width of not less than five feet. Landscaping in a parking or loading area shall be located in defined landscaped areas which are uniformly distributed throughout the parking or loading area.”

FINDING: Parking configurations and buffers specified in the Owner’s landscape plans exceed these standards. 9.23

Section 10-10.23(9)(d) states: “(d) site.”

Drainage. Surface drainage shall be contained on

FINDING: Drainage is configured according to engineering specifications, in compliance with applicable requirements, and includes appropriate collection and storage of surface water runoff. A new storage facility will be constructed by the Owner capable of managing surface water from the development. All surface drainage will be contained on site, on property owned and controlled by the Owner and within the River’s Edge 2004 PUD. See also, PUD findings, below. 9.24

Section 10-10.23(9)(e) states: (e) Bicycle Parking. The development shall provide the number and type of bicycle parking facility as required in section 24(8) and 24(9) of this ordinance. The location and design of bicycle parking facilities shall be shown on the site plan. 67 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


FINDING: Ten covered bike spaces will be provided at the meeting facility, four covered bike spaces will be provided at the restaurant, and 18 spaces are located at the existing Riverhouse Hotel. The proposed bicycle parking will be suitable for the use, in conformance with BZO section 24(8), and will be configured as required by BZO section 24(9). 9.25

Section 10-10.23(9)(f) states: “(f) Internal Pedestrian Circulation. Internal pedestrian circulation shall be provided in new office parks and commercial developments through the clustering of buildings, construction of hard surface pedestrian walkway, and similar techniques. Walkways shall connect building entrances to one another and from building entrances to public street and existing or planned transit stops. On site walkways shall connect with walkways, sidewalks, bikeways, and other pedestrian or bicycle connection on adjacent properties planned or used for commercial, multifamily, institutional, or park use.”

FINDING: The pedestrian walkways for all proposed commercial development guide the public and guests between clusters of buildings, and are more than adequate to meet these standards. All walkways are connected and provide safe access within the site and to the public street. All necessary details regarding walkway, viewpoint, trail, sidewalk, and bikeway connections have been provided by the Owner. 9.26

Section 10-10.23(9)(g) states: “(g) Public Transit Orientation. New retail, office and institutional buildings on parcels within 600 feet of existing or planned transit routes shall provide preferential access to transit through the following measures: 1. Orienting building entrances to a transit facility; or 2. Locating buildings as close as possible to the transit route street.”

FINDING: The proposed uses are not retail, office or institutional, and are not within 600 feet of an existing or planned transit route. The meeting facility is nevertheless oriented to, and located as close as possible to Mt. Washington Drive. A pedestrian plaza, with benches and planters, will be located at the northwest corner of the facility, adjacent to Mt. Washington Drive and the main entrance to the Facility. Although the City has not formally designated transit route streets, the Dial-a-Ride system provides pre-scheduled pick-up and drop-off services. Those services can be conveniently provided for uses on the site via Mt. Washington Drive and the circular front access driveway to the meeting facility. 10. Design Review Standards. The applicable design review standards are found in BZO section 10-10.23A. 10.1

BZO 10-10.23A(1) states: 68 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


“(1) Purpose. The purpose of this ordinance is to provide design standards for commercial development within the Design Review Overlay Zone. These standards ensure that the public health, safety and general welfare are protected and the general interest of the public is served. The standards provide for originality, flexibility and innovation in site planning and development, including architecture, landscaping, transit, parking design, signs and enhancement of the special characteristics that make Bend a unique place to live. (2) Ordinance Provisions. Except as exempted by paragraph (3), the provisions of this ordinance shall apply to the following activities within the Design Review Overlay Zone as indicated on the City of Bend zoning ordinance map: (a) All new building construction. *** (c) All new parking lots. *** (e) All new signage.” FINDING: The purpose section is not an approval standard, but is met through staff, public, and hearing body review and approval. The proposed meeting, hotel, resort and residential facilities are designed in a manner intended to allow owners and visitors an opportunity to experience a natural setting and river views, characteristics that make Bend a unique year-round tourist destination. As for subsection (2), the following sections of these findings demonstrate compliance with all arguably relevant Design Review Overlay Zone provisions. 10.2

BZO 10-10.23A(5) states: “(5) Application Requirements. The Owner shall attend the City of Bend pre-application meeting prior to filing an application for Design Review with the City. After attending the preapplication meeting the applicant shall file an application for Design Review with the City. This application may be filed in conjunction with other permits when the property is subject to other land use action. Pertinent materials containing information as specified by the City shall accompany the application. The application form lists the required submittal information.”

FINDING: The Owner’s representatives attended a pre-application meeting prior to filing its design review application, and have submitted all necessary materials. 10.3

BZO 10-10.23A(6) states: “(6) Standards for Approval. The review authority shall use the standards in this section and the criteria for site plan review to ensure compliance with the purpose of Design Review. 69 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


*** (b) The standards of approval for buildings greater than 30,000 gross square feet and/or sites 6 acres or larger are as follows: *** (A) Natural Features. Buildings shall be sited to protect areas of special interest as defined in the Bend Area General Plan. Other natural features such as natural grade, trees, vegetation and rock outcroppings are encouraged to be incorporated into the overall site plan and may be calculated as part of the landscaping requirement if healthy and not damaged during construction.” FINDING: There are no “areas of special interest,” as defined in the City’s plan, located on the site. The Owner has incorporated the natural features listed in this section into the site design to the greatest extent possible, as shown on the plans and described throughout these findings. Natural features have been identified through careful study, inventoried, and will be preserved wherever possible on site. Construction will be managed to prevent destruction of any area identified for preservation. As stated, by shifting the proposed meeting facility slightly to the east, the Owner will be able to preserve most of the rock outcroppings and trees located in the northwest corner of the Hotel Completion Area. 10.4

BZO 10-10.23A(6)(b)(B) states: “(B) Building Location and Orientation. New buildings shall have at least one principal building entrance oriented toward the primary frontage property line and comply with the transit requirements of the State of Oregon Transportation Planning Rule.”

FINDING: The meeting facility is adjacent to Mt. Washington Drive (the “primary frontage”), which features the main entrance to the building within 76 feet of the likely location of the arterial after traffic modifications are completed. The principal entrance includes a plaza adjacent to Mt. Washington Drive. The doors face west, but the lobby and plaza are oriented toward Mt. Washington Drive by being located immediately adjacent to the street, and facing the facility’s main pedestrian plaza and a connection under the new Mt. Washington Drive bridge. Compliance with the transit requirements of the Transportation Planning Rule is demonstrated through the traffic study as described in these findings. 10.5

BZO 10-10.23A(6)(b)(C) states: “(C)

Pedestrian Walkways.

(1) Walkways From the Sidewalk To Building Entrances. A continuous pedestrian walkway shall be provided from the primary frontage sidewalk for pedestrians to access building entrances. This internal walkway shall incorporate a mix of landscaping, benches, drop-off bays and bicycle facilities for at 70 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


least 50% of the length of the walkway. This walkway is necessary for persons who will access the site by walking, biking or transit. Walkways shall be connected to adjacent sites wherever practicable.” FINDING: The primary frontage sidewalk for pedestrians to access all newly proposed commercial structures is shown on the plans and provides a direct and logical connection between all of the facilities. Continuous walkways provide access throughout the site, and incorporate covered bike parking, benches, and landscaping as required by this section. 10.6

BZO 10-10.23A(6)(b)(C)(2) states: “(2)

Walkways from Parking Areas To Building Entrances.

Internal pedestrian walkways shall be developed for persons who need access to the building(s) from the parking pods. The walkways shall be located within the pods and shall be designed to provide access from the pods to the entrances of the building(s). The walkways shall be designed to separate people from moving vehicles as much as possible. These walkways shall have a minimum width of 5 feet with no car overhang or other obstruction. The walkways must also be designed for disabled access according to the Uniform Building Code. This may require the walkways to be widened or modified. The walkways shall be distinguished from the parking and driving areas by use of any of the following materials: special pavers, bricks, raised elevation or scored concrete. Other materials may be used if they are appropriate to the overall design of the site and building and acceptable to the review authority.” FINDING: Separate pedestrian walkways are featured throughout the site, designed for aesthetic appeal and ease of use, and in conformance with this section. 10.7

BZO 10-10.23A(6)(b)(D) states: “(D) Mechanical Equipment and Service Areas. Mechanical equipment and service areas shall be screened with visual barriers from adjacent properties, public roadways, parks, or other public areas. The architectural design of the building shall incorporate design features, which screen, contain and conceal all heating, ventilation, air conditioning units, trash enclosures, dumpsters, loading docks and service yards.”

FINDING: All mechanical equipment and service areas are located in the bottom floor of the meeting facility or are otherwise screened, such as in screened roof wells. All service areas will be properly screened, as indicated on the plans. 10.8

BZO 10-10.23A(6)(b)(E) states: “(E)

Building Design. 71 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


(1) Exterior Building Design. Buildings with exterior walls greater than 50 feet in horizontal length shall be constructed using a combination of architectural features and a variety of building materials and landscaping near the walls. Walls that can be viewed from public streets shall be designed using architectural features and landscaping (abutting the building) for at least 50% of the wall length. Other walls shall incorporate architectural features and landscaping for at least 30% of the wall length.” FINDING: Exterior treatments planned for the meeting facility and other structures include board and batten, lap siding, river rock, peeled logs from the site, and other natural materials. The north elevation of the meeting facility will be viewed from Mt. Washington Drive through stands of existing and newly planted landscape and trees, as will the eastern façade of the Hotel Completion site. The plans provide a full panorama of the proposed buildings depicted in scale to the rimrock, the dam, and the trees. East, west and south elevations of structures on the site may be viewed from public streets as well. Architectural features have been incorporated into all walls, as demonstrated on the architectural drawings and elevations, and all walls will be partially screened by existing and new trees, in compliance with this section. 10.9

BZO 10-10.23A(6)(b)(E)(1) continues: “Architectural Features. Architectural features include, but are not limited to the following: recesses, projections, wall insets, arcades, window display areas, awnings, balconies, window projections, landscape structures or other features that complement the design intent of the structure and are acceptable to the review authority.”

FINDING: Elevation designs of the meeting facility, cited above, depict a recessed entry, projecting gables, broad expanses of windows, transom windows, a deck that suspends over a plaza with benches and plantings. Native trees, some of which are 70-90 feet tall, will be preserved and featured in the landscape along with high desert vegetation, to the greatest extent possible. Natural log, timber and stone design elements and textural wall and roof treatments have been incorporated into all structures, with earth tone exterior colors, to blend well with surrounding high-desert environmental features, including surrounding and on-site topographic features. Low, graceful roof pitches pull the building forms down to comfortably meet the site and reduce apparent building mass. Roof gables, dormers, and deep, shadowed overhangs add character and break down the overall scale of the building. The other structures on site will contain similar design elements, to compliment each other. All of the proposed structures blend comfortably with the natural look of the high desert environment that they are intended to showcase, and are acceptable. 10.10 BZO 10-10.23A(6)(b)(E)(1) continues: “A portion of the on-site landscaping shall abut the walls so that the vegetation combined with the architectural features significantly reduce the visual impact of the building mass as 72 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


viewed from the street. Additional landscaping requirements are in Section 10-10.23 (9) of this Ordinance.” FINDING: Over 50 percent of the existing trees have been retained to prevent erosion, preserve habitat, and maintain the natural feel of the site. Many of the on-site trees are located on the perimeter of the site, and in these locations serve as visual screens, reducing the apparent size of the meeting facility and other structures. Although most of the proposed new vegetation will not abut the walls of the facility, proposed and existing vegetation on the site combined with numerous architectural features will significantly reduce the visual impact of the building mass as viewed from the street. 10.11 BZO 10-10.23A(6)(b)(E)(2) states: “(2) Building Materials. The predominant building materials shall be materials that are characteristic of Central Oregon such as brick, wood, native stone and tinted/textured concrete masonry units and/or glass products. Other materials such as smooth-faced concrete block, undecorated tilt-up concrete panels, or pre-fabricated steel panels should only be used as accents and not dominate the building exterior of the structure. Metal roofs may be allowed if compatible with the overall architectural design of the building.” FINDING: Exterior finishes and material selections are depicted in the Owner’s exhibits, and illustrate use of wood materials in medium brown tones complimented by river rock and harmonious trim. Roofs will be composed of high definition architectural fiberglassreinforced asphalt “shake” style shingles. The selected color is a “muted earth tone” of weathered wood. These predominant building materials meet the requirements of this section. 10.12 BZO 10-10.23A(6)(b)(E)(3) states: “(3) Roof Design. Roofs shall be designed to reduce the apparent exterior mass of a building, add visual interest and be appropriate to the architectural style of the building. Variations within one architectural style are highly encouraged. Visible rooflines and roofs that project over the exterior wall of a building enough to cast a shadow on the ground are highly encouraged. Architectural methods shall be used to conceal flat rooftops. Overhanging eaves, sloped roofs and multiple roof elements are highly encouraged. Mansard style roofs are discouraged.” FINDING: All proposed structures feature sloped roofs with gables, dormers, overhanging eaves, and valleys. The proposed roof designs add visual interest and greatly enhance the aesthetics of the structures, in conformance with this section. The proposed roof designs also reduce the apparent exterior mass of the buildings. The meeting facility fits the site by approximating the height of nearby features. As an example, the height of the highest roof ridge will be at an approximate elevation of 3578, approximating the height of the rimrock outcropping just south of the building (35553560), the rock outcropping at the sixth tee (3560), the Division Street off-ramp (355073 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


3565), the east abutment of the dam (3570) and the proposed new Mt. Washington Drive Bridge (3539-3542). 10.13 BZO 10-10.23A(6)(b)(E)(4) states: “(4) Customer Entrance. Each building shall have at least one clearly defined, highly visible customer entrance using a combination of the following architectural features: canopies, porticos, arcades, arches, wing walls, and permanent above grade integral planters.” FINDING: Each commercial building has a customer entrance incorporating a variety of architectural features. These features direct customers to the primary access point and include covered porches, permanent planters and other techniques as shown on the plans. 10.14 BZO 10-10.23A(6)(b)(E)(5) states: (5) Community Amenities. Each building shall contribute to the establishment or enhancement of the community and public spaces by providing at least two community amenities such as a patio/seating area, water feature, art work or sculpture, clock tower, pedestrian plaza with park benches or other features acceptable to the review authority. These shall abut the primary entrance to the building. FINDING: The meeting facility will feature a raised planter area with extensive plantings of a permanent nature. This plaza-type area will provide public space for convening prior to and after enjoying the meeting facility itself. A sculpture of some type will serve as the centerpiece to this area. Large windows providing convention attendees with a unique view of the resource will frame Bend’s best water feature, the Deschutes River. Behind the meeting facility, a public walkway will give residents and guests access to natural stretches of the river relatively unknown in other parts of Bend. Informal seating will be provided as wildlife and riparian considerations allow. The hotel units will be designed in the same architectural style as the meeting facility, and will feature beautiful views that may be enjoyed by the guests of this community. The restaurant will be built around the unique view of the dam waterfall, framing this feature with both windows and deck seating. The trails will augment Bend’s already rich outdoor experiences, by providing a new route along the river from downtown to Sawyer Park. Viewpoints will guide pedestrians to special vistas, further enhancing this outdoor experience. 10.15 BZO 10-10.23A(6)(b)(F) states: (F) Building and Sign Colors. Exterior colors shall be of low reflectance, subtle, neutral or earth tone colors. The use of high intensity colors such as black, neon, metallic or florescent colors for the façade and/or roof of the building are prohibited except as approved for building trim. The City of Bend color guide provides 74 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


samples of approved and prohibited colors. The use of trademark colors will require approval.” FINDING: All colors depicted in the Owner’s exhibits are shades common to natural environments in Central Oregon, featuring medium browns and stone veneers. All textures are matte or rustic, to reduce shine and reflections. 10.16 BZO 10-10.23A(6)(b)(G) states: “(G) Lighting and Flag Poles. The lighting shall be shielded and directed down onto the site and not shine or glare onto adjacent property or streets. Light poles, light fixtures and flagpoles shall not exceed 25 feet in height.” FINDING: Lighting examples were provided by the Owner, and indicate shielded and down-directed, low glare fixtures. No poles exceeding 25 feet in height are proposed. 10.17 BZO 10-10.23A(6)(b)(H) states: “(H) Signage. A comprehensive signage plan shall be required pursuant to the City of Bend Sign Code except that pole signs are prohibited. Ground mounted signs shall not exceed 15 feet in height and 8 feet in width. Wider signs may be allowed provided that the total sign area does not exceed 120 square feet. All sign bases shall be constructed of materials compatible with the architecture of the building(s) located on the premises. White, ivory and yellow backgrounds or internally illuminated signs shall not exceed 20% of the total sign area including reader boards.” FINDING: Tentative monument sign locations are noted on the Landscape plans. Specific sign designs shall be submitted for approval at a later time, in conformance with this section and conditions of approval. 10.18 BZO 10-10.23A(8) states: “(8) Exceptions. The review authority is authorized to grant exceptions from the setbacks, height, landscaping, parking and lot coverage standards if it can be determined that: (a) The exception is the minimum needed to achieve the purpose and objectives of this Ordinance; (b) The exception does not adversely impact an adjacent building or property or create any unsafe pedestrian or vehicular situation; and (c) The exception is necessary to create a more aesthetic or pleasing vista along the streets within the Design Review Overlay zone.” FINDINGS: In approving Ordinance No. NS-1951 and the Development Agreement with Owner, the City is acknowledging that the uses and design proposed comply fully with all Bend comprehensive plan and zoning code requirements. Findings to further 75 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


support the approval include findings in support of conditional use permits, and a variance to reduce parking fields on the subject property. Subsection (8) quoted above grants to City decision makers the authority to “grant exceptions” from setbacks, height, landscaping, parking and lot coverage standards. This section, and similar language in BZO Chapter 30, provide an independent basis for the review authority to approve plans that vary from any of the above listed requirements. Given the scope and complexity of the proposal, the desires of both parties to the Development Agreement, and ambiguities in the applicable code sections, the City is granting exceptions under this section from standards governing applicable setbacks, height, landscaping, parking, and lot coverage that a review authority might otherwise conclude are required by the City’s code and not otherwise justified. The Council has thoroughly reviewed the proposal (the plans, Development Agreement, applications, conditions of approval and supporting documents), and believes that the proposed development achieves the purposes and objectives of the City’s zoning ordinance and comprehensive plan; that the proposal will not adversely impact adjacent buildings or property or create any unsafe pedestrian or vehicular situation, and that the architecture, location, setback and height of all proposed structures will result in aesthetic and pleasing vistas along all streets from which the development may be viewed. All exceptions necessary to approve the project at the location and in the form proposed are granted, and to the extent any findings or evidence supporting conditional use permits or a variance requested by the Owner should fail, the setbacks, height, landscaping, parking and lot coverage outlined in the proposal are approved as exceptions, under subsection (8) of the design standards, and/or the PUD standards in BZO Section 30 (addressed elsewhere in these findings). DEVELOPMENT AGREEMENT COMPONENTS JUSTIFYING EXCEPTIONS: The City has approached development of the subject property through the Development Agreement process because the City has determined that it is in the best interest of the Bend community to have a convention center, and if it can be funded by private dollars, the benefit to the community is even greater. This location is particularly beneficial to the City because it utilizes existing infrastructure and the site has already been approved by the City Council for this use. Furthermore, neither the City nor the Owner want to see the site developed with uses allowed outright in the CL zone. Those uses include new automobile sales and other uses characteristic of retail strip development. The Development Agreement also supplies the City with the needed right-of-way for a new bridge in a strategic location to improve east-west connectivity in a key location for current and planned development on the north side of Bend, both east and west. The design of the new bridge is expected to be much improved over the old one, elevating the bridge by approximately 8 to 10 feet and leveling the approach to the signal as recommended by City staff. Timing of the new bridge construction is also essential, because of the City’s need to take the Newport bridge offline in 2005 for repairs, a bridge that also carries traffic east-west and serves residents on Awbrey Butte, particularly in times of emergency such as conflagration. The Owner has also granted the City the privilege to locate staging areas for the construction of the new bridge on Owner’s land adjacent to the site. This arrangement 76 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


allows the City to save the added cost of acquiring temporary staging areas at a more distant location, which would increase the cost of constructing the new bridge. The City also benefits by enhancement of the river with transfer of 13 acre-feet of water rights. The rights could be transferred by the City directly to in-stream uses, or could be used to offset groundwater appropriations elsewhere in the basin. Either way, the City benefits directly by receipt of the water rights. The river will also benefit from new riparian plantings, viewpoints, flora and fauna protections, and continuous monitoring. Trails connecting the downtown core with Sawyer Park along the river will improve the public trail system in a unique way otherwise unobtainable by the Bend community. This trail will include a covered section that will pass under the new Mt. Washington bridge and the old Mt. Washington bridge will be available for pedestrian access as well. The City currently enjoys the benefits of a public sewer uplift station in the Owner’s parking lot adjacent to their restaurant, without benefit of the legal right to locate there or access to maintain the equipment. Owner, as part of this agreement, has agreed to grant the City an easement to locate and maintain the facility. Owner has also agreed to allow the City’s Mt. Washington Drive to drain, in part, on Owner’s property, into the pond being constructed by Owner near the 6th tee. But for this concession by Owner, the City would have to construct costly drainage facilities that will be rendered obsolete by the future EPA Phase II storm water rules. The City and the Owner have entered into this agreement, in part, to resolve pending litigation, and in doing so, reach agreement to use the site in a mutually beneficial way. This agreement also resolves what has been claimed by the City as a previous ambiguity about the Owner’s right to develop in accordance with 1980 quasi-judicial decisions made under land use laws of the time, and replaces that question with the certainty that this agreement is effective for only 7 years, as written, in accordance with current land use statutes. This means that after that time, additional approvals will require fresh analysis of impacts and potential new mitigation measures proportional to those impacts. The presence of the Deschutes River, the existing Riverhouse Hotel and Resort complex, the nature of the proposed uses and development, and the development history of the area all support City consideration and approval of the project as a whole. The proposal has been subject to review and scrutiny by the public, the neighbors, the Planning Commission and the City Council, through established quasi-judicial procedures. In approving the proposal the City is granting all conditional use permits, variances and exceptions necessary to support the decision and to allow the development as proposed. To the extent any of the proposed setbacks, from the road, property lines, lot lines, dedicated rights-of-way or ordinary high water mark of the Deschutes River are not adequately justified under these findings or supported by substantial evidence in the record as a whole, the exception allowed is the minimum needed to achieve the purpose and objectives of this Ordinance, especially the objective in BZO Section (2): “to encourage the most appropriate use of lands; to conserve and preserve natural resources, to conserve and stabilize the value of 77 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


property; to provide adequate open spaces for light and air and prevention of fires; * * * to lessen congestion of streets; to facilitate adequate provisions for community utilities such as transportation, water, sewerage, schools, parks and other public requirements; and to promote the public health, safety and general welfare.” The Owner has demonstrated a commitment to provide quality, full-service meeting facilities in a resort setting, with a mix of uses that will ensure the viability of the project and protect important topographic and natural elements of the site. The proposed facility will provide additional revenues to the City, will provide meeting facilities needed by the community, and will showcase for visitors the Deschutes River and the City of Bend. As explained elsewhere in these findings, the height of the meeting facility, restaurant, hotel units, and the condominium units exceed 30 feet from natural grade. Viewing the site and building designs as a whole, and in relation to the topography and location of the site, the City finds that height exceptions granted by this approval are the minimum necessary to achieve the same purposes and objectives identified above. As explained elsewhere in these findings, various interpretations of the zoning code’s parking restrictions result in differing conclusions about the amount of parking needed on the site. To the extent the City’s interpretation of its code contained elsewhere in these findings, or the City’s grant of a variance to parking requirements cannot be sustained on appeal, the City grants an exception to code required parking under subsection (8) cited above. The public health, safety and general welfare are promoted by the plans and conditions of approval, which will prevent the site from being overparked, while ensuring through conditions of approval that parking is appropriately managed, and that additional parking may be required if necessary to address a shortage identified once construction is complete. Given the Owner’s ownership of most of the surrounding lands and new pedestrian connections that become possible due the construction of a new Mt. Washington Drive Bridge, any variance granted is the minimum necessary, and it is feasible for the Owner to ensure that all parking necessary for the development will be provided. None of the exceptions granted—to setbacks, height, or parking, will adversely impact an adjacent building or property or create any unsafe pedestrian or vehicular situation. All of the adjacent property, other than the Deschutes River, Mt. Washington Drive, and the impoundment to the south of the site, is owned by Owner. The record as a whole, the plans and conditions of approval demonstrate that the proposal includes excellent pedestrian connections, including a connection under the new Mt. Washington Bridge to the existing Bridge, which will be available for pedestrian traffic. Because Owner has access to additional parking in special event situations, parking can effectively be managed over an area much larger than the Hotel Completion site, reducing the amount of pavement required close to the river, and helping to preserve the natural amenities of the Hotel Expansion site. Finally, all approvals that could be characterized as exceptions are necessary to create a more aesthetic or pleasing vista along the streets within the Design Review Overlay zone. 78 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


The setbacks, height, landscaping, parking and lot coverage proposed and negotiated between the City and the Owner are all part of a complex development proposal that will, in the opinion of the approval authority, create a more aesthetic and pleasing vista from wherever it is viewed, because exceptions to code requirements were granted. All exceptions expressly granted, or implied through the City’s acceptance of the plans submitted, improve the aesthetics and functionality of the facility and site and are necessary to create more aesthetic and pleasing vistas along all streets. 11. Outdoor Lighting Standards. New outdoor lighting standards for new fixtures are located in BZO section 10-10.23B. 11.1

BZO Section 10-10.23B(1) states: “Intent. It is the intent of this Ordinance to allow citizens, businesses, and public agencies in Bend to illuminate residential, commercial, industrial, public areas, roadways and walkways with lighting fixtures appropriate to the need while using such illumination in a way that preserves urban vistas and is directed onto and is confined to the property from which it is generated.”

FINDING: This is not an approval standard. The ordinance is implemented through the more specific provisions that follow. A demonstration of compliance with the more specific provisions of the ordinance is also a demonstration that the proposal complies with the intent of the ordinance. 11.2

BZO Section 10-10.23B(2) states: “Outdoor Lighting Fixtures Subject to this Ordinance. Light fixtures subject to the standards in Section (3) of this ordinance are outdoor artificial illuminating devices, outdoor fixtures, lamps and other similar devices, permanently installed or portable, used for flood lighting, general illumination or advertisement. Such devices shall include, but are not limited to, lights for: (a) Buildings and structures; (b) Recreational areas; (c) Parking lot and maneuvering areas; (d) Landscape areas; (e) Streets and street signs; (f) Product display area; (g) Building overhangs and open canopies; (h) Holiday celebrations; (i) Construction Lights;”

FINDING: The proposal includes lighting for buildings, structures, landscape areas, parking lots and maneuvering areas, and is subject to the Section (3) standards. 79 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


11.3

BZO Section 10-10.23B(3) states: “Standards for installation and operation of outdoor lighting. Except as exempt by Section (4) of this ordinance, new outdoor lighting fixtures installed after February 18, 2004 shall be subject to the standards below. No provision of this ordinance is intended to preempt the City of Bend Sign Code or applicable state codes. (a) All outdoor lighting fixtures subject to this Ordinance shall be designed as a full cut-off fixture or have a shielding method to direct light emissions down onto the site and not shine direct illumination or glare onto adjacent properties. (b) All lighting for roadways, roadway signs, intersections, and pedestrian ways shall be designed or have an opaque shielding method to direct light emissions downward and below the horizontal plane of the fixture in the permanently installed position. (c) The use of laser source light or any similar high intensity light for outdoor advertising or entertainment is prohibited. (d) The operation of searchlights for advertising or promotional purposes is prohibited. (e) Outdoor lights at designated Historic Sites or within Historic Neighborhoods that are consistent with the architectural style or era of the building or property shall be consistent with the provisions of this ordinance. (f) Businesses and institutions with outdoor lighting, such as parking lot lights, building lights, landscaping lights and other similar exterior lighting features, are encouraged to extinguish such lights at the end of the working day, except lights necessary for personal and building safety. (g) All outdoor lighting used for public or private sports stadiums, sports areas, recreational facilities, outdoor performance areas and other similar outdoor facilities shall be extinguished within an hour after conclusion of the final event of the day, except as exempted herein. (h) Externally affixed neon lighting is prohibited except in the following manner: As a trim element that surrounds windows, doors, or building edges; when located on building facades that face street frontages or internal driveways within commercial shopping complexes; such lighting shall not be located more than 15 feet from finished grade and shall not be used to define a building roof-line; and, such lighting shall not include flashing, intermittent or rotating lights. Notwithstanding the provisions of 80 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


this section, all neon lighting associated with signs shall be in accordance with the provisions of the City of Bend Sign Code.” The ordinance also contains the following definitions: “(6) Definitions. The following definitions apply to terms in this ordinance. (a) End of business hours or End of business. “End of business hours or end of business’ means (a) the end of normal or posted business hours when a business or institution is no longer open to serve customers or clients, and (b) the end of a shift or normal work hours when the majority of employees are gone from the business or institution. (b) Full Cut-off. “Full Cut-off” means a light fixture designed and constructed so that light is directed down and no light is projected above the horizontal plane. * * * (c) Glare. “Glare” means stray, unshielded light striking the eye that may result in (a) nuisance or annoyance such as light shining into a window; (b) discomfort causing squinting of the eyes; (c) disabling vision by reducing the ability of the eyes to see into shadows; or (d) reduction of visual performance. (d) High intensity discharge lighting. “High intensity discharge lam lighting” means high-pressure sodium, mercury vapor, metal halide, low-pressure sodium, induction, sulfur, xenon, and other similar lamps. (e) Installed. “Installed,” means initial installation of outdoor lighting fixtures, poles, electrical wiring, and related mounting equipment following the effective date of this ordinance. Projects with approved construction plans prior to effective date of this ordinance are excluded from compliance with the ordinance in the initial installation only. (f) Low Wattage lights. “Low Wattage Lights” means 12-volt direct current lights or individual lamps less than 0.25 watts each strung together within a translucent or transparent plastic cover. (g) Replacement. “Replacement” means the installation of a new lighting fixture in place of an existing fixture, and/or the installation of a new lighting housing or head to an existing pole, bracket or wall, tree, or other structure. Replacement does not mean the changing of light bulbs or lamps in a fixture for the same or lower wattage bulbs. (h) Safety / Security. “Safety” means (a) sufficient lighting at building entrances, exits, walkways and parking areas to allow 81 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


customers and employees to see any physical barriers and to be seen at all times as they access to vehicles and sidewalks, and (b) the use of full cut-off light fixtures above doors, at fire service stanchions, loading areas, and similar building access points. (i) Shielding. “Shielding” means an externally applied device such as a shroud or hood of metal, wood, opaque plastic or opaque painted glass so that light emitted by the fixture is directed downward below the horizontal plane onto the site and does not shine direct illumination or glare onto adjacent or nearby property. (j) Unshielded. “Unshielded means light fixtures lacking any means to restrict the emitted light to below the horizontal plane or to shine or glare onto adjacent or nearby property. (k) Up-lighting. “Up lighting” means a shielded light fixture usually installed on the ground or permanently mounted to an architectural element, tree, or other structure that has the light from the fixture directed in a contained distribution pattern above the horizontal plane to illuminate an adjacent or nearby building element, shrub, tree or other landscaping.” Exemptions from lighting code requirements are found in BZO 10-10.23B(4), which states, in relevant part: “(4) Exemptions. The following light fixtures or uses are exempt from complying with the outdoor lighting standards of this ordinance. These exemptions shall not prevent the city from adoption of later ordinances that may address the retrofitting or removal of outdoor lighting fixtures. (a) All outdoor light fixtures lawfully installed and operating prior to the effective date of this ordinance, and not prohibited by this ordinances. This exemption shall not apply if an existing light fixture is replaced. The addition of supplementary shielding and/or re-aiming of existing fixtures that shine direct illumination or visible glare beyond the property line where the fixture is installed are encouraged to help improve safety and quality of life in Bend. (b) Residential decorative lighting and low wattage lighting used for yards and driveways that do not shine glare, emit direct illumination, or case a shadow onto adjacent property. (c) Commercial and industrial low wattage lighting used to highlight driveways and landscaping, or applied to a building providing they are properly aimed and shielded to not shine visible glare into the public right of way or onto adjacent or nearby properties. 82 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


(d) Up-lighting intended to highlight part of a building or landscaping provided that the light distribution from the fixture is effectively contained by an overhanging architectural element or landscaping element and do not shine beyond the intended target including into the night sky. Such containment elements may include but are not limited to awnings, dense shrubs or year-round dense evergreen tree canopies which will contain or limit illumination of the sky. * * *� FINDING: The plans and lighting cut sheets demonstrate that all proposed outdoor lighting fixtures subject to the ordinance will either be designed as a full cut-off fixture or have shielding to direct light emissions onto the site and will in either case not shine direct illumination or glare onto adjacent properties. Lighting examples have been provided by the Owner and indicate shielded and down-directed, low glare fixtures. No poles exceeding 25 feet in height are proposed. All proposed lighting concepts, selected fixtures and placement subject to the requirements of the lighting ordinance conform to those requirements. 12. Off-Street Motor Vehicle Parking and Loading Standards. Parking standards applicable to the proposed use are located in BZO Section 10-10.24. 12.1

BZO Section 10-10.24(1) and (2) state, in relevant part: “(1) Compliance. No building or other permit shall be issued until plans and evidence are presented to show how the offstreet parking and loading requirements are to be fulfilled and that property is and will be available for exclusive use as off-street parking and loading space. 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 ordinance. (2) 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: *** (b) Restaurants, office buildings, hotels, hotels, hospitals and institutions, schools and colleges, public buildings, recreation or entertainment facilities and any similar use which has a gross floor area of 30,000 square feet or more shall provide off-street truck loading or unloading berths in accordance with the following table: 83 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


Square Feet of Floor Area Required

Number of Berths

Less than 30,000

0

30,000 - 100,000

1

100,000 and over

2

(c) A loading berth shall contain space 10 feet wide, 35 feet long and have a height clearance of 14 feet. Where the vehicles generally used for loading and unloading exceed these dimensions, the required length of these berths shall be increased.” FINDING: Loading berths for the resort facilities are provided at the southwest corner of the meeting facility and at the northern edge of the maintenance building attached to the restaurant, in compliance with number and size guidelines specified in this section. The specific feature is described on the plans as “Loading Berth.” 12.2

BZO Section 10-10.24(2)(d) states: “(d) If loading space has been provided in connection with an existing use or is added to an existing use, the loading space shall not be eliminated if elimination would result in less space than is required to adequately handle the needs of the particular use.”

FINDING: Because loading space will be provided in connection with the new use and will be adequate to handle the needs of the use, this section is not applicable. The Owner is not proposing to eliminate existing or proposed loading space. 12.3

BZO Section 10-10.24(2)(e) states: “(e) Off-street parking areas used to fulfill the requirements of this Ordinance shall not be used for loading and unloading operations except during periods of the day when not required to take care of parking needs.”

FINDING: A separate loading berth will be provided for the meeting facility and for the hotel/restaurant. Off street parking areas will not be used for loading or unloading operations when those areas are needed for use by patrons of the Hotel. 12.4

BZO Section 10-10.24(3) and (4) state, in relevant part: “(3) Off-Street Parking. Off-street parking spaces shall be provided and maintained as set forth in this section for all uses in all zones. 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 existing on the effective date of this ordinance is changed. (4) Number of Spaces Required. provided as follows:

Off-street parking shall be

84 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


(a) Residential “One, two and three family dwellings: 2 spaces per dwelling unit” Multi-family dwelling containing four or more dwelling units: 2 Bedroom Unit: 1.5 space per unit 3 Bedroom Unit: 2.25 space per unit *** Quad or Quint dwelling: 4.5 spaces per quad and 5.5 spaces per quint” *** (b) Commercial Residential Hotel:

1 space per guest room plus 1 space per 2 employees ***

(d) Places of Public Assembly *** Other auditorium or meeting room: 1 space per 4 seats or 8 feet of bench length. If no fixed seats or benches, 1 space per 60 square feet of floor area” FINDINGS: Plans for the North Riverfront Residential Area include 21 condominium units, shown on K1 as three separate building footprints. All of the units are expected to have three bedrooms (21 x 2.25 = 47.25), and there is adequate room on site for the minimum 48 parking spaces required by code, and logical, safe access available through the Riverhouse Hotel access drive. If the configuration of bedrooms changes, it is also feasible for the Owner to provide additional parking to meet code requirements. For the South Riverfront Residential Area, 80 condominium units are proposed; 53 threebedroom units, and 27 two-bedroom units. 160 parking spaces are required, and 161 spaces will be provided, meeting the standard. The separate parking needs of proposed residential uses have been calculated in accordance with the code: no conditional use permit, variance or exception is necessary to justify the number of residential spaces that will be provided for uses in the North and South Riverfront Residential areas. In both instances, parking will be located away from the river, and concealed from river view by dwelling units. Condominium parking will be dedicated to residential use through appropriate signage and additional management as necessary to ensure its availability for unit owners. For hotel/resort parking the code is ambiguous, and subject to interpretation. There is no land use category for a “meeting/banquet” facility and there are several code categories that could arguably be applied, in a variety of ways. Available interpretations, with nothing more, alternatively justify the Owner’s plans, or require over- or under-parking the site. Given the specific mix of uses proposed and with no intent to set a precedent for other proposals, the “meeting facility” or “convention center” as it has been called is best 85 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


characterized as a “meeting/banquet” facility, as discussed in the Kittelson parking study. As noted by Kittelson, the facility is expected to accommodate “meetings and/or banquet events in which participants would typically be situated in small groups at tables similar to restaurant seating.” In this case the City considers the meeting facility to be in the nature of a meeting/banquet facility, with predominantly “restaurant” attributes. The combined parking requirements of the meeting/banquet facility, restaurant, hotel and auxiliary resort uses is therefore 435 spaces. Shared/joint parking is also available, as explained in section 12.5 of these findings. As the Kittelson report establishes, considering the specific mix of uses proposed, the existing facilities, availability of shared/joint use facilities and parking management, the number of spaces provided by the plans will be adequate for all proposed uses. The Owner’s goal, which the City shares, is to provide optimum functionality by determining how much parking will actually be needed and avoiding over- or underparking the site. When addressing mixed uses that share parking the zoning ordinance appears to require that parking from all uses be first added together, and establishing the required parking level by subtracting spaces that can effectively be shared. In this way, a developer is not required to build multiple parking spaces for the same patron. If this basic formula is followed, the proposal meets the code and no further approvals, permits, variances or exceptions are required. With an abundance of caution, the Owner has established a basis for the City to approve the parking levels and configuration indicated on the plans in three alternative ways: 1) through appropriate interpretations of its code; 2) through the issuance of an administrative and a non-administrative variance; and 3) by exercising discretion granted under the City’s Design and PUD standards, and granting an exception to code parking requirements. These alternative approaches provide additional support and justification for approval. The code does not adequately contemplate the mix of uses proposed or the expansion of existing hotel and resort facilities. The parking studies establish that the appropriate level of parking will be provided for the meeting facility, restaurant, hotel and auxiliary uses. The conditions require additional transportation demand management, insuring conformance to parking code standards. 12.5

BZO Section 10-10.24(5) states: “(5)

General Provisions - Off-Street Parking.

(a) 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 the requirements of the several uses computed separately. (b) 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 in point of time. If the uses, structures or parcels are under separate ownership, the right to joint use of the parking space must be 86 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


evidenced by a deed, lease, contract or other appropriately written documents to establish the joint use.” FINDING: The Owner has been operating a hotel, with restaurants, meeting and banquet facilities on the site for many years and has personal experience and observations regarding the degree to which parking is currently shared on the site. Adequate parking serves the needs of both the City and the business. To further this aim, owner has coordinated off-site parking spaces with other business owners. See also letters from nearby business owners willing to share spaces on an as needed cooperative basis, yielding an additional 2,489 available spaces if needed. The Owner’s position that joint use dramatically reduces the parking requirements of a mixed-use hotel is supported by Kittelson & Associates. The Kittelson analysis begins with the reference manual, Parking Generation, 2nd Edition, published by the Institute of Transportation Engineers (ITE, Reference 1). In the manual, the Riverhouse Hotel is classified under Land Use category 311: “Convention Hotel,” defined by the manual as follows: “A convention hotel is a place of lodging providing sleeping accommodations, restaurants, lounges, and meeting and banquet rooms capable of handling conventions. These hotels often have retail and service shops with the facility.” The manual provides parking rates for a “convention hotel” based on the number of guest rooms. Based on ITE studies of convention hotels, the manual recommends that spaces be provided for a peak hotel occupancy rate of 85%. In the case of the Riverhouse Hotel, the 322 existing and proposed rooms would require 274 spaces at this rate. Kittelson believes the ITE-predicted parking requirements are too low for this site, because it assumes that only hotel patrons will use the site. Because the facility is in the heart of Bend and Bend needs places for locals to meet as well on occasion, Kittelson has determined that some additional parking should be developed to be conservative. At the same time, simply adding the parking requirements of each separate use without consideration of joint use results in levels that are far too high, causing the site to be significantly over-parked. In this case, considering the ITE manual and the code, the appropriate level of parking is roughly between 300 and 900 spaces. The Owner is providing 780 spaces, in a configuration of structures, spaces and access that appears reasonable according to expert analysis. Both the Owner and Kittelson believe that the proposed level of parking is justifiable. If too many parking spaces are built, terrain that could otherwise have been used for landscaping, trails, or additional structures would be paved unnecessarily. Unnecessary paved surfaces increase urban blight and the impermeability of paved surfaces requires more intense storm water control than unpaved surfaces, especially so close to the river. Over-parking impacts are hard to mitigate, and should be avoided. Under parking is less of a danger. If, in the future, unforeseen needs arise, it is feasible to implement management strategies to control parking at the site. The most obvious management strategies involve proper scheduling of meetings to non-peak travel times such as evening; using the Hotel reservation system to convey information to patrons 87 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


regarding parking and parking management; and coordinating shuttle services with nearby hotels, motels, and other nearby facilities with large parking fields, such as the Bend River Mall (management has indicated they are willing to share facilities on an as needed basis). Use of these techniques will optimize the use of the site and facilitate the efficiency of large events, without paving large expanses for minimum demand. In addition to these techniques, Kittelson has presented a list of “Transportation Demand Management� techniques that will assist the Owner in effectively managing the parking needs of the Hotel complex. These techniques can be employed for the occasional, very large local meeting (like the Chamber dinner) and on a more regular basis if the Owner or the City identifies parking problems at the facility in the future. The Kittelson & Associates technical memoranda included a parking needs assessment and transportation demand management analysis. The reports establish that joint use of parking facilities is justified in this instance. Since the existing and proposed Riverhouse facilities are being developed as a single complex of hotel and resort uses, all parking available for hotel use should be considered as a resource for other on-site uses. The Kittelson report includes the following summary of facility parking requirements and availability, which is accepted by the City as substantially correct along with the remainder of the Kittelson analysis: TABLE 1 BASELINE RIVERHOUSE HOTEL NET MINIMUM PARKING REQUIREMENTS BEND COMMUNITY DEVELOPMENT CODE, SECTION 24 Existing Land Use

Spaces

Size

Spaces

Size

Spaces

5,700 ft2

48

28,057 ft2

234

33,757 ft2

282

15,950 ft2.

133

10,300 ft2

86

26,250 ft2

219

4,790 ft2

16

--

--

4,790 ft2

16

220 rooms

220

102 rooms

102

322

322

40 employees*

20

26 employees*

13

66 employees*

33

Office

Hotel

Total

Size

Meeting Hall Restaurant

Proposed Expansion

Baseline Parking Requirements

437

435

872

Parking Reduction from Joint Use

54

23

77

Joint Use Minimum Requirement

383

412

795

TDM Reduction (10%)

38

41

79

Net Parking Requirement

345

371

716

Parking Provided

465

315

780

Surplus/(Deficit)

120

(56)

64

*Employees will shift locations throughout the day depending on locations of events, guest service needs, and other activities.

As indicated in subsection (b), the parking requirements of two or more uses may be satisfied by the same parking to the extent the Owner can demonstrate that the use of parking spaces does not overlap. In this case, subsection (b) requires that the owner 88 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


demonstrate that hotel patrons, parked in spaces reserved for their use, will not simultaneously require parking spaces for their use of the meeting facility, spa or restaurant, because they will not need to move their vehicles to reach those locations. In this instance, it is appropriate under subsection (b) to acknowledge that a substantial number of meeting and restaurant facility patrons will be guests of the hotel and will park their cars in spaces available for hotel use. The use by those patrons of existing and proposed meeting facility and restaurant space does not overlap with their use of hotel spaces, because those patrons can only park their vehicles in one space at a time. Building vast parking fields to accommodate the occasional large local event (like the Chamber dinner) is not warranted. Such events are too infrequent to justify construction of a parking field that will otherwise not be needed for the Resort. The larger events involving local residents usually occur in the evening when office staff, maintenance workers, maids, and most front desk clerks have ended their work day. Parking management techniques are available to accommodate (and reduce) parking needs for large local events. It is also reasonable to expect that, for the largest regular events at the facility, many attendees will stay at the hotel. Assuming a peak time, on a busy night of the week with all guests in the hotel not being part of a group and assuming a high occupancy rate, there will still be a surplus of parking as shown in the table above, and as supported by the KIA analysis. The Owner has demonstrated that the various elements of the resort—meeting facility, hotel rooms, food service, spa and pool—do not function separately but in tandem, as part of a land use category identified by the Institute of Transportation Engineers as a “convention hotel.” The Owner’s approach has been to ensure to the greatest degree possible that parking will be adequate to accommodate patrons of the Hotel complex, including the convention facilities, without over-paving the site. Through an analysis of joint use of parking facilities at the site, the owner has established that it is providing more than 400 spaces for facility users who are not guests at the hotel. The Owner owns all of the spaces. The new pedestrian connection proposed between the Hotel Completion Area and both sides of the existing Riverhouse Hotel and Resort complex, under the new Mt. Washington Bridge, greatly facilitates joint use. Other than those with mobility disabilities, no Riverhouse patrons parked at the existing Riverhouse facilities will need to cross a lane of traffic to attend an event at the meeting facility or to eat at the new restaurant. The additional 315 new spaces proposed, combined with the existing 465 spaces, will be more than adequate to accommodate the mix of uses proposed for the site. Kittelson & Associates supports this conclusion, and the Council finds this reasoning persuasive. A condition of approval requires parking management in circumstances of peak use, including as necessary, appropriate scheduling; temporary signage; utilization of existing nearby lots; parking enforcement; and valet or assisted parking. Parking will be subject to monitoring and independent review three years after completion of the development if warranted. If necessary at that time, the Owner will provide additional parking on land near the subject property utilizing pedestrian connections that are part of the proposed development and/or provide additional parking management acceptable to the City. 89 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


12.6

BZO Section 10-10.24(5)(c) states: (c) Location of Parking Facilities. Off-street parking spaces for dwellings shall be located on the same lot with the dwellings. All other off-street parking shall be located on the lot with the use; or if not located on the same lot, shall first be approved as a Conditional Use. The Owner must prove that the parking located on another parcel is functionally located and that there is safe vehicular and pedestrian access to and from the use.

FINDING: As required, off-street condominium parking will be provided in condominium common areas as shown on a recorded plat. Property north and south of Mt. Washington Drive is in common ownership, but is separated by a dedicated right-ofway. Because this section suggests that parking “not located on the same lot” requires a conditional use permit (“CUP”), the Owner has justified, and the City has granted, issuance of a CUP, as indicated elsewhere in these findings. As indicated with regard to the CUP, the Owner has demonstrated that the parking located north of Mt. Washington Drive is functionally located, and that there is safe vehicular and pedestrian access to and from all existing and proposed uses. The main pedestrian connection between existing and proposed resort uses will be under the new Mt. Washington Bridge, with a direct connection to the old Mt. Washington Bridge, available for pedestrian use. There is currently safe vehicular access to all existing facilities, and the vehicular access to the subject property has been designed in accordance with all local requirements as safe vehicular access. To the extent a conditional use permit or exception is necessary to allow the parking configuration and shared parking proposed by the Owner, such permit or exception is justified by these findings and granted by Ordinance No. NS-1951. 12.7

BZO Section 10-10.24(5)(d) states: “(d) 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.”

FINDING: No accommodation for storage of vehicles is planned, and all proposed parking will be available as required by this section. 12.8

BZO Section 10-10.24(5)(f) states: “(f)Handicapped Parking. The number, location, and design of handicapped parking spaces shall be as required by the building code. Buildings and uses in existence on April 30, 1993 that are retroactively required to provide handicapped parking facilities may place the handicapped spaces in the front yard setback area if it is not possible to locate the parking elsewhere on the site.”

FINDING: Handicapped parking will be provided in excess of required building code standards, with plans reflecting six spaces directly in front of the meeting facility. Two 90 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


handicapped spaces are provided for the restaurant and spa, and two additional spaces will be located at the new hotel units. The Riverhouse will have a total of 322 rooms with the completion of the hotel units, with a total of 12 handicapped spaces serving those rooms, in compliance with ADA requirements. 12.9

BZO Section 10-10.24(5)(h) states: “(h) Maximum parking. The maximum number of parking spaces for a commercial development with a gross floor area of 30,000 square feet or greater, or a site with more than 6 acres shall not exceed 150% of the required parking.”

FINDING: Parking planned for the proposed development will not exceed the required number of spaces. 12.10 BZO Section 10-10.24(5)(i) states: (i) Reduction in required parking. The total number of required motor vehicle parking spaces for an industrial, commercial, and office use may be reduced by 5% for each of the activities listed below provided by the owners or operators, up to a maximum 10% reduction in the total number of motor vehicle spaces. • participate in an area wide carpool/vanpool ride-matching program for employees; • designating at least 10% of the employee motor vehicle parking spaces as carpool/vanpool parking and placing such spaces closer to the building than other employee parking; • providing showers and lockers for employees who commute by bicycle; • providing twice as many covered, secured bicycle parking racks or facilities as required by this ordinance; • providing a transit facility that is approved by the local transit authority and related amenities. Related amenities include, but are not limited to, a public plaza, pedestrian sitting areas, and additional landscaping. FINDING: This section allows a maximum 10% reduction in parking spaces required. Riverhouse Hotel employees currently use public transportation (Dial-a-Ride, the only public transportation available in Bend) to commute to work and would also serve the hotel, meeting, spa and restaurant facilities proposed for the subject property. Showers and storage lockers are available to employees who commute by bicycle to the existing Riverhouse, and some do take advantage of these amenities. Pedestrian seating areas are available in a plaza located adjacent to the main entrance, and are designed to accommodate pick up and drop off services provided by Dial-a-Ride. These factors combine to qualify the Owner for a 10% parking reduction credit. The Owner has also justified, to the extent necessary to safeguard the City’s decision on appeal, a conditional 91 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


use permit, variance, and exceptions for additional reductions to avoid the destructive effects of large parking fields on the subject property and proposed uses. 12.11 BZO Section 10-10.24(6) states: “(6) 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: (a) An off-street parking area for more than five vehicles shall be effectively screened by a sight-obscuring fence, hedge or planting, on each side which adjoins a residential use or property situated in a Residential Zone or the premises of any school or like institution.” FINDING: Parking at the meeting facility will be screened with trees, shrubs and other landscaping as indicated on the plans, in accordance with this requirement. 12.12 BZO Section 10-10.24(6)(b) states: “(b) Any lighting used to illuminate the off-street parking areas shall be so arranged that it will not project light rays directly upon any adjoining property in an ‘R’ Zone.” FINDING: As discussed under section 11 of these findings, all proposed lighting is designed to meet City standards. Because residentially zoned property is adjacent to and part of the property, lighting fixtures have been oriented to ensure that light is not directed onto nearby property. Residentially zoned property also borders the other side of the pond, and any light which projects onto the pond’s surface could be objectionable to these neighbors. For this reason, Owner’s architect Neal Huston has taken special care to specify fixtures that direct light rays downward, and not upon the pond. Parking lot lighting at the south end of the Hotel Completion/South Residential site will be shielded and downward-projecting and will also be naturally shielded by the hotel and condominium units located around the lot perimeter. The trail desired by BMPRD will be located close the impoundment’s edge at the southern end of the site, and it is not expected to be illuminated. 12.13 BZO Section 10-10.24(6)(c) states: “(c) Except for single-family, duplex and triplex dwellings, groups of more than two parking spaces shall be located and served by a driveway so that their use will require no backing movements or other maneuvering within a street or right-of-way other than an alley if a carport or garage is provided for each unit.” FINDING: All parking on the site is designed in compliance with this standard. No carports or garages are planned for the residential uses on either the North Riverfront or South Riverfront Residential areas. 12.14 BZO Section 10-10.24(6)(d) states: 92 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


“(d) Areas used for standing and maneuvering of vehicles shall be paved surfaces maintained adequately for all weather use and so drained as to contain any flow of water on the site.” FINDING: Vehicle use areas are designed in compliance with this standard, and with drainage configured according to engineering specifications. See also, findings for approval of a modification to the Owners existing PUD with regard to drainage. To the extent this section might be interpreted to prevent the Owner from containing storm water on the Owner’s neighboring golf course, an exception to the standard is justified, as part of PUD modification approval. It is also acknowledged by the City that Owner is constructing the storm water detention pond near the 6th tee, and this location will assist the City in its management of storm water generated by Mt. Washington Drive. 12.15 BZO Section 10-10.24(6)(e) states: “(e) Except for parking to serve residential uses, parking and loading areas adjacent to or within residential zones or adjacent to residential uses shall be designed to minimize disturbance of residents.” FINDING: Parking and loading areas for all proposed uses are designed to minimize disturbance of residents. Parking areas for the meeting facility will be located in the center of the site, and at the existing hotel complex. Condominium parking areas will be designated with appropriate signage, and may be secured in the future if necessary to protect the interests of condominium association members. Proposed curbed median areas make such reconfiguration simple to execute as needed if disturbances become an issue. 12.16 BZO Section 10-10.24(6)(f) states: “(f)Access aisles shall be of sufficient width for all vehicular turning and maneuvering.” FINDING: Access aisles are designed to measure 24 feet in width. All vehicular areas are designed in compliance with this standard. 12.17 BZO Section 10-10.24(6)(g) states: “(g) 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.” FINDING: All vehicular areas are designed in compliance with this standard. 93 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


12.18 BZO Section 10-10.24(6)(h) states: “(h) Service drives shall have a minimum vision clearance area formed by the intersection of the driveway center line, the street right-of-way line and a straight line joining said lines through points 30 feet from their intersection.” FINDING: All vehicular areas are designed in compliance with this standard. 12.19 BZO Section 10-10.24(6)(i) states: “(i) Parking spaces along the outer boundaries of a parking area shall be contained by a curb or bumper rail so placed to prevent a motor vehicle from extending over an adjacent property line, pedestrian walkway, bikeway, or a street right of way.” FINDING: All parking areas are contained by curbs, and will otherwise conform to this standard. 12.20 BZO Section 10-10.24(6)(j) states: “(j) Parking Pods. Developments that provide more than 75 parking spaces shall: (A) Develop the parking area into pods of no more than 50 spaces each. (B) Develop physical breaks between the pods by providing one or more of the following: (1) Landscaping beds of not less than 5 feet with no car overhang and 10 feet in width with a car overhang; (2) Siting of building pads, landscaped pedestrian walkways, interior streets or other site features acceptable to the review authority.” FINDING: All parking pods are configured in compliance with this section, as demonstrated by the plans. 12.21 BZO Section 10-10.24(7) states: “(7) Off-Street Parking Lot Design. All off-street parking lots shall be designed in accordance with City standards for stalls and aisles as set forth in the following drawings and table: A

B

C

D

E

F

9’-0”

9.0

12.0

22.0

30.0

9'-6"

9.5

12.0

22.0

31.0

12.0

22.0

32.0

10’-0” 10.0

94 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


45°

60°

70°

90°

9’-0” 19.8

13.0

12.7

52.5

9’-6” 20.1

13.0

13.4

53.3

10’-0” 20.5

13.0

14.1

54.0

9’-0” 21.0

18.0

10.4

60.0

9’-6” 21.2

18.0

11.0

60.4

10’-0” 21.5

18.0

11.9

61.0

9’-0” 21.0

19.0

9.6

61.0

9’-6” 21.2

18.5

10.1

60.9

10’-0” 21.2

18.0

10.6

60.4

9’-0

20.0

24.0

9.0

64.0

9’-6” 20.0

24.0

9.5

64.0

10’-0” 20.0

24.0

10.0

64.0

A = Parking Angle B = Stall Width C = 20’ Stall D = Aisle Width - one way* E = Curb Length per Car F = Bay Width * 24’ minimum for two-way traffic (a) For one row of stalls use “C” + “D” as minimum bay width. FINDING: All parking space configurations comply with this standard. 12.22 BZO Section 10-10.24(7)(b) states: “(b) 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.” FINDING: No public alleys have been proposed, so this standard is inapplicable. 12.23 BZO Section 10-10.24(8) states: “(8)

Required Bicycle Parking. 95 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


(a) On-site bicycle parking shall be provided as listed below. Fractional spaces shall be rounded to the next highest number. Bicycle parking for multiple uses or large commercial developments may be provided in one or more locations. *** Restaurants, cafes and taverns: 1 covered space for every 10 employees plus 1 space for every 20 motor vehicle spaces” FINDING: None of the described categories fit the meeting facility or hotel. Covered parking for 10 bicycles will be provided at the meeting facility, representing two spaces for the estimated 20 employees of a maximum shift at the new facility, with eight covered spaces for patrons. An additional 10 covered spaces will be provided at the spa/restaurant. 12.24 BZO Section 10-10.24(9) states: “(9) Bicycle Parking Location and Design; Other Required Conditions (a) Each required bicycle parking space shall be on asphaltic concrete, Portland cement, or similar hard surface material and each space shall be at least 2 feet wide by 6 feet long with a minimum vertical clearance of 7 feet. An access aisle width of at least 5 feet wide shall be provided and maintained beside or between each row of bicycle parking.” FINDING: Covered bicycle parking for 20 bicycles is provided in the subject application, and the locations are configured in compliance with the standard. 12.25 BZO Section 10-10.24(9)(b) states: “(b) Bicycle parking facilities shall offer security in the form of either a lockable enclosure in which the bicycle can be stored or a stationary rack upon which the bicycle can be locked. Bicycle rack design must accommodate both U shaped locks and cables and include, but are not limited to, such shapes as an inverted “U” design or a “ribbon.” Racks shall be securely anchored to a walkway, parking lot, and building, or other approved structure.” FINDING: The Owner agrees to comply with this standard. 12.26 BZO Section 10-10.24(9)(c) states: “(c) Where required, covered bicycle parking may be provided underneath an awning, eve, or other structural overhang; inside the main building or an accessory parking structure; or other facility as determined by the Site Plan Review Committee that protects the bicycle from direct exposure to the elements.” FINDING: Bicycle parking for the meeting facility will be located under the front entrance overhang on the northwest side of the building. The spa and restaurant bike 96 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


parking will be located on the southwest side of the restaurant under an extended overhang. 12.27 BZO Section 10-10.24(9)(d) states: “(d) Except as noted below, all required bicycle parking shall be located on site within 50 feet of well-used entrances and not farther than the closest motor vehicle parking space. Bicycle parking for multiple uses such as a commercial center or college may be clustered in one or more locations that are convenient for bicyclists but must meet all requirements for bicycle parking.” FINDING: The plans demonstrate that this standard is met. 12.28 BZO Section 10-10.24(9)(e) states: “(e) Lighting shall be provided in a bicycle parking area so that all facilities are thoroughly illuminated and visible from adjacent sidewalks or motor vehicle parking lots. Bicycle parking shall be at least as well lit as motor vehicle parking.” FINDING: Lighting will be provided at both bicycle parking areas in conformance with this standard. The plans indicate that covered bicycle parking will be located under the meeting facility eaves with lighted walls as indicated on the lighting cut sheets. 12.29 BZO Section 10-10.24(9)(f) states: “(f) For new commercial developments and public buildings in which 25 or more persons will be employed the building plans shall indicate facilities that provide changing room(s) and shower(s) that are available to employees who bicycle to work. Such facilities may be incorporated into restrooms, exercise rooms, or similar facilities in the building.” FINDING: The owner anticipates that 20 new employees per shift is the maximum number of employees estimated for the new facility. The entire resort complex is expected to have no more than 66 employees in a peak shift. The Riverhouse Hotel has existing showers and changing rooms near the lobby of the hotel, and the existing kitchen/banquet facility has lockers as well. Staffing for the existing hotel complex and the new meeting facility will be shared, and all employees will have access to existing shower and locker facilities. The existing Riverhouse Hotel has 8 covered bicycle parking spaces. 13. Conditional Use Permit Standards. CUP standards are located in BZO Section 10-10.29. Exercising an abundance of caution, the Owner has provided information and argument justifying findings and issuance of conditional use approval for: additional roof height in CL and RS zones; new residential dwelling units in the CL zone; a PUD and construction of condominiums as part of that PUD, in portions of the site zoned Urban Standard Residential; and off-site parking. 13.1 CUP Findings: Additional Roof Height in the Limited Commercial (CL) Zone. The city encourages sloped roofs as part of its design review standards. The 97 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


Owner is proposing to construct buildings that all have sloped roofs, with gables and other attractive features. To accommodate this building enhancement, the Owner is requesting a conditional use permit to exceed the height limit of the underlying zone. None of the proposed building heights will exceed thirty feet when measured to the bottom of the fascia of the primary roof eave. The meeting facility will reach a height of approximately 27.5 feet to the primary eave line of the roof and approximately 52.5 feet from the lowest natural grade to highest ridge, with an average height from finished grade of 44.5 feet, finished grade being the appropriate measurement for areas outside of the Design Review Corridor. The proposed height is commensurate with the height of surrounding lands, the North Canal Dam, and the proposed new Mt. Washington Drive Bridge. The proposed new hotel units and condominiums will have an approximate maximum height of 30 feet when measured from natural grade to the eave line of the roof and will reach a maximum height of approximately 37 feet to the top ridge. The restaurant will measure approximately 36.5 feet from natural grade to the top ridge, with an average height of approximately 30.75 feet from finished grade to the top ridge. The height to the primary eave is 22.5 feet from natural grade. BZO 10-10.15(3)(p) and (4) require conditional use approval for a building over 30 feet in height. The City is also approving the proposed building heights as design and PUD “exceptions,” as described elsewhere in these findings. To the extent that the proposed building heights cannot otherwise be allowed without a CUP, the following findings justify a CUP to allow the proposed height of the meeting facility, restaurant, hotel units and the condominiums located partially or wholly within the CL zone. 13.1.1 BZO Section 10-10.29(1) and (2) state: “(1) Purpose. In certain zones, conditional uses may be permitted subject to the granting of a Conditional Use Permit. Because of their unusual characteristics, or the special characteristics of the area in which they are to be located, conditional uses require special consideration so that they may be properly located with respect to the objectives of this ordinance and their effect on surrounding properties. (2) Approval Authority. The Approval Authority shall have the authority to approve, approve with conditions, or disapprove Conditional Use Permit subject to the provisions of this section.” FINDING: These introductory sections are not approval standards. Subsection (1) is an explanation of why conditional use permits are required for certain uses. The Owner is applying for a conditional use permit because BZO 10-10.15(3)(p) purports to require conditional use approval for a request for “[a] building over 30 feet in height” in the Limited Commercial zone. BZO 10-10.15(4) states: “(4) Height Regulations. No building or structure shall be thereafter erected, enlarged or structurally altered to exceed a height of 30 feet without a Conditional Use Permit.” Although building height is not technically a “use” at all, but a design characteristic, the City has an opportunity, through conditional use review, to ensure that the height of the meeting facility and other structures will not negatively impact surrounding properties and uses. 98 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


13.1.2 BZO Section 10-10.29(3) states: “(3) General Conditional Use Permit Criteria. A Conditional Use Permit may be granted only upon findings by the Approval Authority that the proposal meets all of the criteria in this section, as well as all other applicable criteria contained in this ordinance. The general criteria are: (a) That the location, size, design and operating characteristics of the proposed use are such that it will have a minimal adverse impact on the property value, livability and permissible development of the surrounding area. Consideration shall be given to compatibility in terms of scale, coverage, and density, to the alteration of traffic patterns and the capacity of surrounding streets, and to any other relevant impact of the proposed use.” FINDINGS: In this case, the “proposed use” is development of buildings taller than 30 feet in the Limited Commercial zone. The buildings and uses are allowed outright or conditionally in the zone. The Owner’s request is for permission to install roofs to the heights shown on the plans and described in section 13.1 of these findings. The Owner is seeking this approval because the buildings as proposed are aesthetically pleasing from all perspectives. Owner’s architect, Neal Huston, counseled strongly for sloped roofs, after examining the site from the viewpoint of homes above the site on Awbrey Butte, travelers driving over the Mt. Washington Bridge and Division Street and the Parkway, and residents living across the pond. The meeting facility also functions better with sloped roofs because large groups of people generate heat, and an indoor vaulted design provides natural disposition of warm air away from groups at floor level, in an energy-efficient manner. All of the proposed structures measure 30 feet or less when measured from grade to the bottom of the fascia of the primary roof eave. In theory, the Owner would be entitled to build these structures without a CUP if the roofs were flat. However, the City’s Roof Design Standard, BZO 10-10.23A(6)(b)(E)(3) “highly encourages” the kind of roofs proposed. Sloped roofs, with multiple roof elements designed to reduce the apparent exterior mass of the buildings, add visual interest and are appropriate to the architectural style of the buildings. The meeting facility’s main roof has been held to roof pitch of 3:12 and the motel and condominium units have a roof pitch of 4:12 and 4.5:12. These minimal roof pitches minimize the roof height while providing a pleasing sloped-roof appearance. Structurally, sloped roofs are preferred for commercial structures and residences alike in areas that must manage significant winter snow and ice loads. Architecturally, sloping roofs lessen the appearance of mass and visually tie the buildings to the site. A variety of roof elements, including dormers and gables, break the fascia and interrupt the roof plane, adding interest and breaking down the apparent scale of a large building. Roofs also need to be sloped in order to achieve more appealing aesthetics and sympathetic architectural response to the site, as well as to accommodate the variety of building functions intended for the meeting facility, related resort structures and residential structures. 99 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


The proposed condominiums, meeting facility, restaurant and new hotel units are on the west bank of the Deschutes River, just south of Mt. Washington Drive. This location was first identified by the property owner in 1980 as the future site of hotel, resort and convention facilities. The site is located just south of, and within easy walking distance of, the Owner’s existing hotel facilities north of Mt. Washington Drive. Owner has also developed an office building (now in use as a multi-tenant commercial office) east of the Deschutes River and south of Mt. Washington Drive. To the immediate west is the public golf course developed and owned by the Owner. Across the sixth fairway to the west there are three single-family homes and 9 duplexes. In this case, the “surrounding area” includes the Deschutes River and related natural amenities; existing hotel facilities owned and operated by the Owner; an existing golf course owned by the Owner; existing residences along the sixth and seventh fairways; and vacant land to the south of the proposed meeting facility that is owned by the Owner for the purpose of being developed in the future as outlined in these findings. The only uses not owned or operated by the Owner that could reasonably be considered part of the “surrounding area” are Division Street on the east side of the Deschutes River; existing residences along the sixth and seventh fairways; and a multi-story office building and eight homes located directly south of the subject property, across the Deschutes River and behind the impoundment created by the North Canal Dam. At its narrowest location, the impoundment is 180 feet wide. The closest home south of the site is approximately 1500 feet from the proposed meeting facility. The meeting facility will not be visible from any of the residences south of the site, due to the topography of the site (higher elevation at the south end). The closest home west of the site is approximately 300 feet from the proposed facility. The size of the proposed meeting facility will be 55,371 square feet, of which 28,057 square feet can be used as meeting space. The facility must be large enough to accommodate groups of 500-750 persons in order to function in tandem with the existing lodging complex north of the facility, and the proposed lodging units and restaurant to be constructed south of the facility. The design goal was to create a structure that will compliment and enhance Owner’s existing and proposed facilities in a way that will augment the value of the existing asset and eventually yield an investment return. Communities and meeting planners recognize the unique value of well-located meeting facility, and this one will be a community asset. As explained above, the use of the Central Oregon design style allows a lodge appearance, which fits expectations of the community, while allowing sufficient interior space to accommodate the intended use. With regard to operating characteristics, the proposed facility has been designed to operate as an integral part of all of the surrounding development, which is being constructed in phases by the Owner over a period of decades, including the hotel, restaurants, golf course, dwellings and other resort amenities. The design goals of the meeting facility are reflected in all of the proposed structures. Although the above-described characteristics of the proposed facilities are relevant to CUP standard (a), the “use” proposed is the construction of buildings that exceed 30 feet in height, for “uses” that are otherwise allowed in the zone. The Owner has provided architectural drawings, elevations and perspectives. These drawings demonstrate that the 100 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


buildings have been thoughtfully designed to be compatible with existing and allowed surrounding uses, and to function in tandem with other nearby facilities owned and proposed by the Owner. The proposed roofs are an integral part of the design of the structures, and are architectural features that greatly enhance the aesthetics of the structures, especially considering that the only alternative roof for buildings of the proposed sizes, within the 30-foot limitation, is an essentially flat roof. By proposing a well-articulated roofline, with gables, dormers and moderate slope, the Owner has prevented the adverse impact on the property value, livability and permissible development of the surrounding area that would otherwise have occurred if the Owner had proposed flat “allowed outright” roofs that did not rise above 30 feet. When considered in terms of scale, coverage, and density, the same conclusion of compatibility is reached. The proposed roofs, which will exceed 30 feet at their highest ridge, function well architecturally—they improve the appearance of the buildings. Operationally, the proposed meeting facility roof improves the utility of the facility as meeting space and facilitates an interior layout that includes six meeting rooms that can merge into one large room. The sloped roofs will also create a more appealing visual appearance from the homes further up Awbrey Butte as well as motorists coming down Awbrey Butte on Mt. Washington Drive. CUP standard (a) also requires that the hearing body give consideration to “the alteration of traffic patterns and the capacity of surrounding streets” attributable to the “proposed use.” In this case, the CUP is issued to allow an increase in the height of structures containing uses that are allowed in the zone. Neither granting nor denying CUP approval would alter traffic patterns or the capacity of surrounding streets—those impacts inure to the underlying hotel/resort uses that are allowed on the site without CUP approval, and subject to other standards fully addressed elsewhere in these findings. Granting the CUP in this instance will have no impact on traffic patterns or the capacity of surrounding streets. Finally, BZO 10-10.29(3)(a) requires that the hearing body consider “any other relevant impact of the proposed use.” To the extent the standard requires that decision makers judge the aesthetics of the proposed rooflines; the plans and the conformance of those plans to all applicable City of Bend design standards support a finding that the buildings are well designed, which is a positive impact. The maximum elevation of the proposed meeting facility will be approximately 3578.5 ft. The North Canal Dam rises to 3565 ft, and the southern edge of the site, between the proposed meeting facility and houses to the south, rises to an elevation of 3575-80 feet above mean sea level. The City’s proposed Mt. Washington Drive Bridge will be placed at an elevation of 3539-3542 feet. There are also two major rock outcroppings near the facility that both rise to an elevation near 3560. Due to topography and vegetation, the proposed meeting facility will not be visible from residences located across the Deschutes, south of the site. The hotel units will be more visible, but are aesthetically designed, and will not negatively impact surrounding uses due to quality of design and construction. The proposed structures will not cast a shadow on, or otherwise negatively affect any of Owner’s other existing or proposed uses or structures, or other surrounding uses. The same is true for the proposed condominiums in both the North and South Riverfront Residential Areas. The North 101 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


Residential Area is surrounded on two sides (east and south) by existing commercial/hotel uses of similar heights, on a grade that is below Golf View Drive. The South Residential Area is adjacent, mostly to the golf course, but also to the impoundment formed by the North Canal Dam. The proposed condominiums are consistent with the character of nearby residential uses. The Owner has established that the proposed structures, including the proposed rooflines, enhance the aesthetics and functionality of the Riverhouse resort complex, proposed residential areas, and surrounding uses. The proposal to exceed the 30-foot height limitation meets CUP standard (a). The design of the buildings, at the heights proposed, and with a significant separation distance between proposed structures and adjacent residential properties, will not only have a “minimal adverse impact on the property value, livability and permissible development of the surrounding area,” but will affect those values in a positive way. The capital investment in facilities that enhance existing resort facilities and residential uses that the proposal represents, will improve the value of the site, will not diminish property values and is most likely to improve the value of all neighboring properties. 13.1.3 BZO Section 10-10.29(3)(b) requires a finding by the City: “(b) That the site planning of the proposed use will, as far as reasonably possible, provide an aesthetically pleasing and functional environment to the highest degree consistent with the nature of the use and the given setting.” FINDING: Again, the “proposed use” is development of buildings taller than 30 feet in the Limited Commercial zone. Other than the proposed heights, the buildings and most of the uses are allowed outright in the zone and at the proposed locations, and the uses have been anticipated to occupy the site by both the City and the Owner since 1980. The nature of the setting for uses in the CL zone is a 22.51-acre parcel on the Deschutes River. Drawings of other uses proposed on the site have been provided, showing an intent to complete development of the site for hotel and resort purposes, consistent with the zoning of the site. The plans have been reviewed by the City for compliance with site and design standards, toward a goal of ensuring, to the greatest extent reasonably possible, that uses developed on the site will be aesthetically pleasing and will function well. As mentioned, one such standard for design approval, BZO 10-10.23(6)(E)(2), states: “(2) Roof Design. Roofs should be designed to reduce the apparent exterior mass of a building, add visual interest and be appropriate to the architectural style of the building. * * * Visible rooflines and roofs that project over the exterior wall of a building enough to cast a shadow on the ground are highly encouraged. * * * Overhanging eaves, sloped roofs and multiple roof elements are highly encouraged. * * *” Proof that the proposed roofs will meet this standard, improve the look of the buildings and increase their compatibility with nearby natural amenities, including the Deschutes River, is provided by the plans, and descriptions in this narrative. For these reasons, and 102 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


the reasons described in response to CUP standard (a), above, the Owner has demonstrated that the proposed roofline in excess of the 30-foot, CL zone height limit, promotes both the aesthetics and the functionality of the structure, to the highest degree possible, consistent with the nature of the use and the setting. 13.1.4 BZO Section 10-10.29(3)(c) requires a finding: “(c) If the use is permitted outright in another zone, that there is substantial reason for locating the use in an area where it is only conditionally allowed, as opposed to an area where it is permitted outright.� FINDING: This standard has repeatedly been deemed, by City planning staff and hearings officers, as not applicable to height CUPs. (See, for example, Hearings Officer Decision PZ 01-150) As explained above, the contemplated uses of the property and of the proposed building are allowed, outright or conditionally, in the zone. The proposed height of the meeting facility, hotel units and condominiums require CUP approval because they will exceed the 30-foot CL zone limitation. The hotel uses are also allowed in the Highway Commercial zone, but with the same 30-foot height limitation in the absence of a CUP. Hotel uses are also permitted in General Commercial zones but not to exceed 45 feet. As noted in previous decisions, requests to exceed the height limit of any zone in the City is processed as a conditional use or variance. Although the proposed buildings would not require a conditional use permit to be constructed in the General Commercial zone, (BZO 10-10.17(3)(b)), or in the Central Business Zone (BZO 1010.18(3)(d) and (4)), there is substantial reason for not locating the proposed structures in either the General Commercial or Central Business Zones. There is no General Commercial or Central Business zone near the existing Riverhouse Hotel. A golf course is a desired amenity to a meeting facility, increasing its potential for use. There is no golf course in or adjacent to other potential locations. The Riverhouse facility is adjacent to, and centered around, resort and recreational uses. The proposed meeting facility and hotel units are the expansion of an existing resort facility, previously approved. These expansion units rely upon the lobby, parking, and recreational features of the existing Riverhouse Hotel and Resort. The proposed facilities could not function as part of the existing Riverhouse complex if they were to be developed at a different location, in some other zone. The economic viability of the project depends on the close proximity and connection to the existing Riverhouse complex. To the extent this standard applies, the necessity of placing the facilities in close proximity to the existing Riverhouse Hotel units and meeting rooms is a substantial reason for placing the structures at the proposed location, even though the proposed height of the roofs requires conditional use approval. The functionality of the facilities depends on the ability of hotel guests at the existing and new Riverhouse units and neighboring hotels and motels, to walk to the meeting facility and other resort facilities. Condominiums are also located in this zone to benefit from the proximity to the new facilities, particularly the spa, pool, and gym facilities. They may also enjoy the restaurant. If the condominiums were located in another zone, they would not enjoy this benefit. 103 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


To the extent this standard applies to a height CUP, it is met in this instance. 13.1.5 BZO Section 10-10.29(3)(c) requires a finding: “(d) That the proposed use will be consistent with the purposes of this ordinance, the Comprehensive Plan, Statewide Goals, and any other statutes, ordinances or policies that may be applicable.” FINDING: As explained elsewhere in these findings, the proposed hotel and resort uses of the site and of the proposed structures are not only allowed uses in the CL zone, they are the reasons the designation and zoning on the Property were changed from RS to CL, and have therefore, through establishment and acknowledgement, been deemed consistent with the purposes of the zoning ordinance, the comprehensive plan, and statewide goals. There are no other applicable statutes, ordinances or policies relevant to CUP standard (d) that have not been addressed in these findings. Allowing the Owner to install the kind of roofs promoted by the City’s design code, even if they are located in the CL zone and are taller than 30 feet, is consistent with all other applicable standards. 13.1.6 BZO Section 10-10.29(4) states: “(4) Application. A property owner or his authorized agent may initiate a request for a conditional use by filing an application with the City Planning Director. The application shall be accompanied by a site plan, drawn to scale, showing the dimensions and arrangement of the proposed development. The Approval Authority may request other drawings or material essential to an understanding of the proposed use and its relationship to the surrounding properties.” FINDING: Director.

All submittals required by this section have been provided to the Planning

13.2 CUP Findings: Additional Roof Height in the Urban Standard Residential (RS) Zone. Some of the condominium uses proposed for the site will be located in the RS zone, including all of the North Riverfront Residential Area condominiums. The height of the units is expected to be a maximum of 30 feet to the primary eave of the roof, and 37 feet to the top of the roof ridge as measured from natural grade facing the river within the 100’ corridor. To the extent that the proposed height of the condominium units cannot otherwise be allowed without a CUP, the following findings justify a CUP to allow the proposed height of the condominiums. 13.2.1 As previously indicated, BZO Section 10-10.29(1) and (2) state: “(1) Purpose. In certain zones, conditional uses may be permitted subject to the granting of a Conditional Use Permit. Because of their unusual characteristics, or the special characteristics of the area in which they are to be located, conditional uses require special consideration so that they may be properly located with respect to the objectives of this ordinance and their effect on surrounding properties. 104 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


(2) Approval Authority. The Approval Authority shall have the authority to approve, approve with conditions, or disapprove Conditional Use Permit subject to the provisions of this section.” FINDING: These introductory sections are not approval standards. Subsection (1) is an explanation of why conditional use permits are required for certain uses. In this instance, the Owner is applying for a conditional use permit because BZO 10-10.10(3)(u) purports to require conditional use approval for a request for “[a] building or structure over 30 feet in height” in the Urban Standard Residential zone. BZO 10-10.10(4) states: “(4) Height Regulations. No building or structure shall be hereafter erected, enlarged or structurally altered to exceed 30 feet in height without a conditional use permit.” Although building height is not technically a “use” at all, but a design characteristic, the City has an opportunity, through conditional use review, to ensure that the height of the proposed condominiums will not negatively impact surrounding properties and uses. 13.2.2 BZO Section 10-10.29(3) states: “(3) General Conditional Use Permit Criteria. A Conditional Use Permit may be granted only upon findings by the Approval Authority that the proposal meets all of the criteria in this section, as well as all other applicable criteria contained in this ordinance. The general criteria are: (a) That the location, size, design and operating characteristics of the proposed use are such that it will have a minimal adverse impact on the property value, livability and permissible development of the surrounding area. Consideration shall be given to compatibility in terms of scale, coverage, and density, to the alteration of traffic patterns and the capacity of surrounding streets, and to any other relevant impact of the proposed use.” FINDINGS: In this case, the “proposed use” is development of condominiums taller than 30 feet in the RS zone. The buildings are allowed conditionally in the zone and, at their proposed locations, the proposed height of the buildings is not otherwise regulated under Design Review overlay standards. Residential uses are allowed outright in the zone. The Owner’s request is for permission to develop three-story residential condominiums with sloped roofs, with each roof approximately 37 feet tall at its highest ridge and an average height of 28.5 feet from finished grade to the primary eave. The Owner is seeking this approval because the buildings as proposed are aesthetically pleasing, and function better as dwellings, with three stories and the proposed rooflines. The City’s Roof Design Standard, BZO 10-10.23A(6)(b)(E)(3) “highly encourages” the kind of roof proposed for the condominiums: sloped roofs with multiple roof elements, designed to reduce the apparent exterior mass of the buildings, add visual interest, and be appropriate to the architectural style of the buildings. The location of the proposed South Riverfront Area residential condominiums is on the western edge of the Hotel/resort site, adjacent to the sixth and seventh fairways of the River’s Edge Golf Course, and on the southern edge of the site, adjacent to the impoundment created by the North Canal dam. Across the Sixth and seventh fairways to 105 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


the west there are three single-family homes and nine duplexes, and one additional home under construction. Across the impoundment are eight single-family residences and a multi-story commercial office building. With regard to the South Riverfront Area, the “surrounding area” includes the Deschutes River and related natural amenities; existing hotel facilities owned and operated by the Owner; an existing golf course owned by the Owner; existing residences along the sixth and seventh fairways; and vacant land to the south of the proposed meeting facility that is owned by the Owner for the purpose of being developed in the future as outlined in these findings. The only uses not owned or operated by the Owner that could reasonably be considered part of the “surrounding area” are Division Street on the east side of the Deschutes River; existing residences along the sixth and seventh fairways; and a motel and eight homes located directly south of the subject property, across the Deschutes River and behind the impoundment created by the North Canal Dam. At its narrowest location, the impoundment is 180 feet wide. The closest home south of the site is approximately 300 feet from the nearest proposed condominiums. The southernmost condominiums will be visible from residences south of the site. The North Riverfront Residential Area is directly north of, and adjacent to, the existing west bank units of the Riverhouse Hotel. Hotel uses are also located directly across the Deschutes. Residences are located to the west and southwest, across Golf View Drive, and residential lots are also located directly to the north. The proposed condominium units will be located on the eastern boundary of the site, separated from most residential uses in the area by pine trees and the condominium common areas. The size of most of the proposed condominiums is approximately 1,500 to 2,400 square feet per unit, in buildings that are up to 6,750 square feet of building footprint. The condominiums must be large enough to function well as residences and vacation homes. The design goal was to create structures that will compliment and enhance Owner’s existing and proposed facilities and the surrounding areas. As explained above, the use of the Central Oregon style allows a lodge appearance, which fits expectations of the community, while allowing sufficient interior space to accommodate families and their guests. With regard to operating characteristics, the proposed condominiums are designed to be compatible with surrounding developments, which have been constructed in phases by the Owner over a period of decades, including dwellings, the hotel, restaurants, golf course and other resort amenities. Although the above-described characteristics of the condominiums are relevant to CUP standard (a), the “use” proposed is the construction of buildings that exceeds 30 feet in height, for a residential “use” that is allowed in the zone. The Owner has provided architectural drawings, elevations and perspectives. These drawings demonstrate that the proposed condominiums have been thoughtfully designed to be compatible with existing and allowed surrounding uses, and to function in tandem with other nearby facilities owned and proposed by the Owner. The proposed rooflines are an integral part of the design of the structures, and are architectural features that greatly enhance the aesthetics of the structures, especially considering that the only alternative roof for buildings of the size proposed, within the 30-foot limitation, is an essentially flat roof. By proposing a well-articulated roofline, with gables, dormers and moderate slope, the Owner has 106 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


prevented the adverse impact on the property value of surrounding residences and other uses, livability and permissible development of the surrounding area that would otherwise have occurred if the Owner had proposed a flat “allowed outright” roof that did not rise above 30 feet, or smaller, less valuable residential units. When considered in terms of scale, coverage, and density, the same conclusion of compatibility is reached. The proposed roofs, which will exceed 30 feet at their highest ridge, function well architecturally—the proposed roofline and height improve the appearance of the buildings. Operationally, the proposed roofs improve the utility of the structures for residential and vacation uses, and facilitate interior layouts that include enough space to lodge families and visitors for residential and vacation uses. The sloped roofs will also provide a more appealing look for neighbors living at higher elevations above the meeting facility on Awbrey Butte looking down on the site, and also for motorists traveling down Mt. Washington Drive, on Division Street, or on the elevated Parkway. CUP standard (a) also requires that the hearing body give consideration to “the alteration of traffic patterns and the capacity of surrounding streets” attributable to the “proposed use.” In this case, the CUP is requested to allow an increase in the height of structures containing residential uses that are allowed in the zone, in a manner that is allowed conditionally in the zone. Neither granting nor denying CUP approval would alter traffic patterns or the capacity of surrounding streets—those impacts inure to the underlying uses, which are subject to other standards fully addressed elsewhere in these findings. Granting the CUP in this instance will have no impact on traffic patterns or the capacity of surrounding streets beyond the impact of the proposed residential uses themselves, addressed and resolved elsewhere in these findings. Finally, BZO 10-10.29(3)(a) requires that the hearing body consider “any other relevant impact of the proposed use.” To the extent the standard requires that decision makers judge the aesthetics of the proposed rooflines; the plans and the conformance of those plans to all applicable City of Bend design standards support a finding that the proposed condominiums are well designed, which is a positive, aesthetic impact. The proposed structures will not cast a shadow on, or otherwise negatively affect any of Owner’s other existing or proposed uses or structures, or any structures or uses owned or occupied by others. The Owner has established that the proposed structures, including the proposed rooflines, enhance the aesthetics and functionality of the Riverhouse complex and surrounding uses. No other potentially relevant impacts have been identified. The proposal to exceed the 30-foot height limitation for condominium construction in the RS zone meets CUP standard (a). The design of the buildings, at the heights proposed, will not only have a “minimal adverse impact on the property value, livability and permissible development of the surrounding area,” but will affect those values in a positive way. The capital investment in facilities that enhance existing resort facilities that the proposal represents, will improve the value of the site and of neighboring properties. 13.2.3 BZO Section 10-10.29(3)(b) requires a finding by the City: 107 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


“(b) That the site planning of the proposed use will, as far as reasonably possible, provide an aesthetically pleasing and functional environment to the highest degree consistent with the nature of the use and the given setting.” FINDING: Again, the “proposed use” is development of buildings taller than 30 feet in the RS zone. The nature of the South Residential Area “setting” is the impoundment on the Deschutes River created by the North Canal Dam, the River’s Edge Golf Course, and proposed Riverhouse Resort facilities. The setting of the North Residential Area is also on the Deschutes River, in a partially developed residential area that is bordered by hotel and resort uses to the east and south. Drawings of structures proposed in both areas have been provided, showing an intent to complete development of CL portions of the area for hotel, resort and residential condominium purposes. The development near and adjacent to resort and recreation uses, of condominiums that can be used for residential and vacation purposes, is consistent with the nature of the use and the setting. The plans have been reviewed by the City for compliance with site and design standards, toward a goal of ensuring, to the greatest extent reasonably possible, that uses developed on the site will be aesthetically pleasing and will function well. As mentioned, one such standard for design approval, BZO 10-10.23(6)(E)(2), states: “(2) Roof Design. Roofs should be designed to reduce the apparent exterior mass of a building, add visual interest and be appropriate to the architectural style of the building. * * * Visible rooflines and roofs that project over the exterior wall of a building enough to cast a shadow on the ground are highly encouraged. * * * Overhanging eaves, sloped roofs and multiple roof elements are highly encouraged. * * *” Proof that the proposed roofs will meet this standard, improve the look of the proposed buildings and increase their compatibility with nearby natural amenities, including the Deschutes River, as well as other proposed and existing uses, is provided by the plans, and descriptions in this narrative. For these reasons, and the reasons described in response to CUP standard (a), above, the Owner has demonstrated that the proposed rooflines in excess of the 30-foot, RS zone height limit, promote both the aesthetics and the functionality of the proposed structures, to the highest degree possible, consistent with the nature of the use and the setting. 13.2.4 BZO Section 10-10.29(3)(c) requires a finding: “(c) If the use is permitted outright in another zone, that there is substantial reason for locating the use in an area where it is only conditionally allowed, as opposed to an area where it is permitted outright.” FINDING: As explained above, the contemplated uses of the property and of the proposed buildings are allowed in the zone, and do not require conditional use approval. Residential development in excess of 30 feet is limited in all of the City’s residential zones except the Urban High Density Residential Zone. The proposed buildings, at a maximum height of 37 feet, would not require a conditional use permit to be constructed 108 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


in the Urban High Density Residential Zone (BZO 10-10.12(3)(l) and (4)). As stated, standard (c) has previously been deemed by the planning staff and hearings officers to not be applicable to height CUPs. There is also substantial reason for not locating the structures in the Urban High Density Residential Zone. The proposal is to complete the development of the subject property with mixed resort-oriented uses that have been contemplated for the site since 1980, including, in close proximity, condominiums that can be used as residences and for vacation purposes. The proposed condominiums are placed on the site to take best advantage of the surrounding resort amenities, including the existing River’s Edge Golf Course. It is possible that the proposed facilities would not be economically viable if they were to be developed in some other zone, not in conjunction with the existing resort facilities. To the extent this standard applies, the necessity of placing the units in close proximity to existing resort amenities is a substantial reason for placing the structures at the proposed locations, even though the proposed height of the rooflines requires conditional use approval. The desirability of the units depends on the views from the units of the Deschutes River, golf course and Awbrey Butte. The proposed height of the buildings substantially promotes the functionality and desirability of the proposed residential units. This standard is met. 13.2.5 BZO Section 10-10.29(3)(c) requires a finding: “(d) That the proposed use will be consistent with the purposes of this ordinance, the Comprehensive Plan, Statewide Goals, and any other statutes, ordinances or policies that may be applicable.” FINDING: As explained elsewhere in these findings, the proposed residential uses of the site are allowed uses in the RS zone and have therefore, through establishment and acknowledgement, been deemed consistent with the purposes of the zoning ordinance, the comprehensive plan, and statewide goals. There are no other applicable statutes, ordinances or policies relevant to CUP standard (d) that have not been addressed in these findings. Allowing the Owner to develop a maximum of three story residential units and install the kind of roof promoted by the City’s design code, even if the units are located in the RS zone and are taller than 30 feet, is consistent with all other applicable standards, statutes, ordinances, plans, policies and goals. 13.2.6 BZO Section 10-10.29(4) states: “(4) Application. A property owner or his authorized agent may initiate a request for a conditional use by filing an application with the City Planning Director. The application shall be accompanied by a site plan, drawn to scale, showing the dimensions and arrangement of the proposed development. The Approval Authority may request other drawings or material essential to an understanding of the proposed use and its relationship to the surrounding properties.” FINDING: Director.

All submittals required by this section have been provided to the Planning

109 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


13.3 CUP Findings: New Residential Dwelling Units in the Limited Commercial Zone. Some of the condominium uses proposed for the site will be located in the CL zone. BZO Section 10-10.15(3)(a) requires conditional use approval for “[n]ew residential dwelling units, excluding mobile home parks, that are not a part of an approved commercial use.” The condominiums proposed for the site are “residential dwelling units.” Some of the units proposed are located entirely in the CL zone, and others extend into the CL zone from the RS zone. To the extent the proposed residential dwellings cannot otherwise be allowed in the CL zone without a CUP, the following findings justify a CUP to allow the proposed new residential units in the CL zone. 13.3.1 BZO Section 10-10.29(1) and (2) state: “(1) Purpose. In certain zones, conditional uses may be permitted subject to the granting of a Conditional Use Permit. Because of their unusual characteristics, or the special characteristics of the area in which they are to be located, conditional uses require special consideration so that they may be properly located with respect to the objectives of this ordinance and their effect on surrounding properties. (2) Approval Authority. The Approval Authority shall have the authority to approve, approve with conditions, or disapprove Conditional Use Permit subject to the provisions of this section.” FINDING: These introductory sections are not approval standards. Subsection (1) is an explanation of why conditional use permits are required for certain uses. The Owner is applying for a conditional use permit because BZO 10-10.15(3)(a) requires conditional use approval for a request for new dwelling units in the Limited Commercial zone. The City has the authority to approve, or approve with conditions, the new dwelling units proposed for the subject property. 13.3.2 BZO Section 10-10.29(3) states: “(3) General Conditional Use Permit Criteria. A Conditional Use Permit may be granted only upon findings by the Approval Authority that the proposal meets all of the criteria in this section, as well as all other applicable criteria contained in this ordinance. The general criteria are: (a) That the location, size, design and operating characteristics of the proposed use are such that it will have a minimal adverse impact on the property value, livability and permissible development of the surrounding area. Consideration shall be given to compatibility in terms of scale, coverage, and density, to the alteration of traffic patterns and the capacity of surrounding streets, and to any other relevant impact of the proposed use.” FINDINGS: In this case, the Owner has provided detailed plans indicating the location, size, design and operating characteristics of the proposed condominium units. The 110 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


surrounding uses have been described repeatedly in these findings. The City concludes that allowing residential units of the density and design proposed for the subject property, as part of a PUD and with designated open spaces and other aesthetic site and design amenities as described in these findings, will have a positive impact on the property value, livability and permissible development of the surrounding area. The character of the proposed mix of uses is both residential and recreational. The proposed scale, coverage and density have undergone extensive review and are compatible with surrounding uses and development. Detailed traffic studies support the City’s conclusion that traffic patterns will not be negatively altered by allowing condominium development in the identified portion of the CL zone on the subject property, as part of resort and PUD development. As indicated elsewhere in these findings, surrounding streets have the capacity to accommodate all uses proposed for the site, including the proposed condominiums. There are no other identified negative impacts from condominium development as proposed in the CL zone that the City deems relevant in this instance. 13.3.3 BZO Section 10-10.29(3)(b) requires a finding by the City: “(b) That the site planning of the proposed use will, as far as reasonably possible, provide an aesthetically pleasing and functional environment to the highest degree consistent with the nature of the use and the given setting.” FINDING: As indicated by the plans, the site of the South Riverfront Residential Area includes landscaped and natural vegetated areas adjacent to the impoundment behind the North Canal Dam. Most of the condominiums in this area are located along the sixth and seventh fairways of River’s Edge Golf Course. The units will be situated to avoid views of flat, unbroken expanses of walls, and to incorporate space and light corridors between buildings. The plans for all units have been reviewed by the City for compliance with site and design standards, toward a goal of ensuring, to the greatest extent reasonably possible, that uses developed in both areas will be aesthetically pleasing and will function well. For these reasons, and the reasons described in response to CUP standard (a), above, the Owner has demonstrated that the proposed development of condominium units in CL-zoned areas of the South Riverfront Residential Areas promotes the aesthetics and the functionality of the area, to the highest degree possible, consistent with the nature of the use and the setting. 13.3.4 BZO Section 10-10.29(3)(c) requires a finding: “(c) If the use is permitted outright in another zone, that there is substantial reason for locating the use in an area where it is only conditionally allowed, as opposed to an area where it is permitted outright.” FINDING: Condominium use is permitted outright in the Urban Medium Density Residential Zone, the Urban Medium-10 Residential Zone and the Urban High Density Residential Zone. There is substantial reason for locating condominiums in the proposed area, as opposed to the three listed zones. Condominiums located in the listed zones are predominantly for year-round residential use. The proposed development is a mix of uses with a unified goal of providing functional and aesthetic resort, recreation and 111 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


meeting facilities for visitors and area residents seeking resort accommodations. While it is anticipated that many of the proposed condominiums will be owned by year-round residents, many will also likely be owned by visitors to Bend or the region that need periodic or seasonal accommodations for business and/or leisure activities. By providing more than one convenient and economical way for visitors to stay in a resort setting in the City of Bend, year-round, seasonally, and overnight, the functionality of the entire development, and its ability to draw more visitors for longer periods of time, is enhanced. This reason is substantial, in conformance with standard (c). 13.3.5 BZO Section 10-10.29(3)(c) requires a finding: “(d) That the proposed use will be consistent with the purposes of this ordinance, the Comprehensive Plan, Statewide Goals, and any other statutes, ordinances or policies that may be applicable.” FINDING: Condominiums are residential units, which are allowed conditionally in the CL zone. There is no comprehensive plan policy, statewide goal, statute, ordinance or policy that prohibits the development of residential uses of the kind proposed, as part of a planned unit development that includes both residentially and commercially zoned land. The proposed condominiums are reasonably related to other uses proposed for the subject property, and serve as an effective transition use, between the more commercial uses of the property, and the impoundment formed by the North Canal Dam and sixth and seventh fairways of River’s Edge Golf Course. There are no other applicable statutes, ordinances or policies relevant to CUP standard (d) that have not been addressed in these findings. 13.3.6 BZO Section 10-10.29(4) states: “(4) Application. A property owner or his authorized agent may initiate a request for a conditional use by filing an application with the City Planning Director. The application shall be accompanied by a site plan, drawn to scale, showing the dimensions and arrangement of the proposed development. The Approval Authority may request other drawings or material essential to an understanding of the proposed use and its relationship to the surrounding properties.” FINDING: Director.

All submittals required by this section have been provided to the Planning

13.4 CUP Findings: Planned Unit Development and Condominiums in the Urban Standard Residential (RS) Zone. Some of the condominium uses proposed for the site will be located entirely, or partially, in the RS zone. BZO section 10-10.10(3)(i) purports to require conditional use approval for “Planned Unit Developments subject to provisions of Section 30” and (t) requires conditional use approval for “condominiums.” The justification for both of these approvals is similar. To the extent the proposed condominiums and PUD cannot otherwise be allowed in the RS zone without a CUP, the following findings justify a CUP to allow the proposed condominiums and PUD in the RS zoned portions of the subject property. 112 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


13.4.1 BZO Section 10-10.29(1) and (2) state: “(1) Purpose. In certain zones, conditional uses may be permitted subject to the granting of a Conditional Use Permit. Because of their unusual characteristics, or the special characteristics of the area in which they are to be located, conditional uses require special consideration so that they may be properly located with respect to the objectives of this ordinance and their effect on surrounding properties. (2) Approval Authority. The Approval Authority shall have the authority to approve, approve with conditions, or disapprove Conditional Use Permit subject to the provisions of this section.” FINDING: As indicated elsewhere in these findings, these introductory sections are not approval standards. Subsection (1) is an explanation of why conditional use permits are required for certain uses. The Owner is applying for a conditional use permit because BZO section 10-10.10(3)(i) appears to require, in the RS zone, conditional use approval for planned unit developments and subsection (t) to require conditional use approval for condominiums. The City has the authority to approve, or approve with conditions, PUD uses and condominiums proposed for areas of the subject property zoned RS. 13.4.2 BZO Section 10-10.29(3) states: “(3) General Conditional Use Permit Criteria. A Conditional Use Permit may be granted only upon findings by the Approval Authority that the proposal meets all of the criteria in this section, as well as all other applicable criteria contained in this ordinance. The general criteria are: (a) That the location, size, design and operating characteristics of the proposed use are such that it will have a minimal adverse impact on the property value, livability and permissible development of the surrounding area. Consideration shall be given to compatibility in terms of scale, coverage, and density, to the alteration of traffic patterns and the capacity of surrounding streets, and to any other relevant impact of the proposed use.” FINDINGS: In this case, the “proposed use” is development of 80 condominium units in the South Riverfront Residential area, some of which will be located partially or totally within the western portion of the site zoned Urban Standard Residential, adjacent to the sixth and seventh fairways of River’s Edge Golf Course. Additionally, 21 condominium units are proposed for the North Riverfront Residential Area. The “surrounding area” of both North and South Residential Areas has been described in significant detail elsewhere in these findings. The location, size, design and operating characteristics of the proposed uses are indicated on the plans and described elsewhere in these findings. The RS zone is a residential zone, appropriate for residential uses. A PUD is not properly a “proposed use,” but a planning tool, the purpose of which is, in part, “to allow and to make possible greater variety and diversification in the relationships between 113 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


buildings and open spaces in planned building groups.” In this case, allowing condominiums, as part of a PUD master plan, to occupy RS-zoned portions of the subject property, will have a positive impact on the property value, livability and permissible development of the surrounding area. The scale, coverage and densities proposed are compatible with other development in the surrounding area, especially considering the open spaces provided by the North Canal Dam impoundment, the River’s Edge Golf Course, and other open areas adjacent to and near the proposed uses. The South Area condominiums will serve as a buffer between parking areas and commercial uses to the east, and most of the residential uses to the south and east, which are all separated from the proposed uses by open spaces. The North area uses provide a transition between transient lodging uses and mostly year-round residential uses in the area. The Owner has also submitted sufficient proof that allowing condominium/PUD uses within the RSzoned portions of the site will not significantly alter traffic patterns or the capacity of surrounding streets, in conformance with this standard. The City has not identified “any other relevant impact” of the proposed condominiums or PUD development within the RS zone that could result in a City conclusion that the proposed development is not compatible with surrounding uses. 13.4.3 BZO Section 10-10.29(3)(b) requires a finding by the City: “(b) That the site planning of the proposed use will, as far as reasonably possible, provide an aesthetically pleasing and functional environment to the highest degree consistent with the nature of the use and the given setting.” FINDING: In this case, site planning under a PUD has enhanced the functionality and aesthetics of the entire development, including those portions within the RS zone. As noted, the South Area condominiums will abut large areas of open space, including the North Canal Dam impoundment and the River’s Edge Golf Course. All of the condominiums incorporate both landscaped and naturally vegetated common areas. The building design and architecture incorporate the same high desert themes of the meeting facility and other proposed resort structures. All of these factors support a conclusion that the proposed condominiums and PUD uses in the RS zone will be aesthetically pleasing and functional to the highest degree consistent with the nature of the use and its setting. The plans have been reviewed by the City for compliance with site and design standards, toward a goal of ensuring, to the greatest extent reasonably possible, that uses developed on the site will be aesthetically pleasing and will function well. 13.4.4 BZO Section 10-10.29(3)(c) requires a finding: “(c) If the use is permitted outright in another zone, that there is substantial reason for locating the use in an area where it is only conditionally allowed, as opposed to an area where it is permitted outright.” FINDING: Condominiums are permitted outright in three of the City’s residential zones, including the Urban Medium Density Residential Zone, the Urban Medium-10 Residential Zone and the Urban High Density Residential Zone. Planned Unit Development is not allowed outright in any of the City’s residential zones, but is allowed 114 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


outright in all of the City’s commercial and industrial zones. The Owner has provided substantial reason for allowing the development of condominiums, through a planned unit development, in the proposed area, rather than another zone where either of those uses is allowed outright. In this case, the remainder of the South Riverfront Residential Area was zoned Limited Commercial for the stated purpose of allowing completion of resort hotel accommodations as an expansion of the Riverhouse Hotel. Planned Unit Development is allowed outright in the CL zone, and the Owner has submitted a master plan for the site that meets all code requirements as indicated elsewhere in these findings. To more appropriately plan for the entire site as envisioned by BZO section 30, the master plan should logically include the entire parcel of Owner’s land abutting the River’s Edge Golf Course. The goal of providing coordinated review and development of the entire site is a substantial reason for allowing the condominiums to be developed partially within the RS zone, as part of a planned unit development. With regard to both North and South Areas, condominiums are a residential use that is otherwise appropriate in the RS zone through the conditional use process. The proposed condominiums are well designed to provide a transition from commercial, transient lodging and parking uses, to the North Canal impoundment, River’s Edge Golf Course, and related wholly residential uses. There is also substantial reason for allowing, in this instance, a PUD to include areas of the site zoned RS. The fact that PUD planning mechanisms are allowed outright in the City’s commercial and industrial zones but only conditionally in the City’s residential zones, does not prohibit use of such a tool where appropriate to achieve the best possible development for a split-zoned site. The proposed development is a mix of uses with a unified goal of providing functional and aesthetic resort, recreation and meeting facilities for visitors and area residents seeking resort accommodations. In this case, the end result, which would not be possible without a PUD, is an additional substantial reason for allowing the proposed condominiums as part of a PUD. This standard is met. 13.4.5 BZO Section 10-10.29(3)(c) requires a finding: “(d) That the proposed use will be consistent with the purposes of this ordinance, the Comprehensive Plan, Statewide Goals, and any other statutes, ordinances or policies that may be applicable.” FINDING: Condominiums are residential units, and the RS zone is a residential zone. There is no comprehensive plan policy, statewide goal, statute, ordinance or policy that prohibits the development of residential uses of the kind proposed, on residentially zoned property, as part of a planned unit development that includes both residentially and commercially zoned land. The proposed condominiums are reasonably related to other uses proposed for the subject property, and serve as an effective transition use, between the more commercial uses of the property, other residential uses in the surrounding area, and in the case of the South Area, the impoundment formed by the North Canal Dam and sixth and seventh fairways of River’s Edge Golf Course. There are no other applicable statutes, ordinances or policies relevant to CUP standard (d) that have not been addressed in these findings. 115 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


13.4.6 BZO Section 10-10.29(4) states: “(4) Application. A property owner or his authorized agent may initiate a request for a conditional use by filing an application with the City Planning Director. The application shall be accompanied by a site plan, drawn to scale, showing the dimensions and arrangement of the proposed development. The Approval Authority may request other drawings or material essential to an understanding of the proposed use and its relationship to the surrounding properties.” FINDING: Director.

All submittals required by this section have been provided to the Planning

13.5 CUP Findings: Off-Site Parking. The proposal is to expand the Owner’s existing Riverhouse Hotel and Resort complex onto Owner’s property south of Mt. Washington Drive. The goal is to incorporate and retain natural amenities and features of the subject property to the greatest extent possible while allowing completion of the Riverhouse resort. As explained elsewhere in these findings, substantial parking is available at the existing Riverhouse, both on the northeast and northwest sides of the river, across Mt. Washington Drive. A new pedestrian connection will be developed under the new Mt. Washington Bridge, connecting to the old Mt. Washington Bridge, which will be retained as a service vehicle and pedestrian bridge. In this way, all Riverhouse facilities will be connected by a network of pathways, trails, footbridges, and other pedestrian connections. These connections make the various parking areas usable and convenient for guests and the traveling public. Subsection (5) of BZO section 10-10.24, “Off-Street Motor Vehicle Parking and Loading” allows joint use of parking facilities, but then states: “Off-street parking spaces for dwellings shall be located on the same lot with the dwellings. All other off-street parking shall be located on the lot with the use; or if not located on the same lot, shall first be approved as a Conditional Use. The applicant must prove that the parking located on another parcel is functionally located and that there is safe vehicular and pedestrian access to and from the use.” To the extent the proposed sharing of parking facilities between existing and proposed Riverhouse resort facilities is not otherwise allowed without a CUP, the following findings justify a CUP to allow the proposed parking arrangements. Shared parking will only occur for commercial uses. All residential uses have separate, dedicated parking areas. 13.5.1 BZO Section 10-10.29(1) and (2) state: “(1) Purpose. In certain zones, conditional uses may be permitted subject to the granting of a Conditional Use Permit. Because of their unusual characteristics, or the special characteristics of the area in which they are to be located, 116 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


conditional uses require special consideration so that they may be properly located with respect to the objectives of this ordinance and their effect on surrounding properties. (2) Approval Authority. The Approval Authority shall have the authority to approve, approve with conditions, or disapprove Conditional Use Permit subject to the provisions of this section.” FINDING: As previously noted, these introductory sections are not approval standards. Subsection (1) is an explanation of why conditional use permits are required for certain uses. The Owner is applying for a conditional use permit because BZO 10-10.24(5)(c) appears to require conditional use approval for a request to utilize parking on a separate lot. The zoning code defines “Lot” as: “A parcel of land used or capable of being used under the regulations of this ordinance, lawfully created as such in accordance with the subdivision laws or ordinances in effect at the time of its creation.” The Owner’s properties north and south of Mt. Washington Drive are separate lots as separated by Mt. Washington Drive and the river. All are owned by River’s Edge Investments, LLC. The City has the authority to approve, or approve with conditions, the Owner’s request to locate some of the parking for the proposed resort development on Owner’s property located north of Mt. Washington Drive on both sides of the Deschutes River. 13.5.2 BZO Section 10-10.29(3) states: “(3) General Conditional Use Permit Criteria. A Conditional Use Permit may be granted only upon findings by the Approval Authority that the proposal meets all of the criteria in this section, as well as all other applicable criteria contained in this ordinance. The general criteria are: (a) That the location, size, design and operating characteristics of the proposed use are such that it will have a minimal adverse impact on the property value, livability and permissible development of the surrounding area. Consideration shall be given to compatibility in terms of scale, coverage, and density, to the alteration of traffic patterns and the capacity of surrounding streets, and to any other relevant impact of the proposed use.” FINDINGS: In this case, the “proposed use” is the shared use of parking facilities that Owner has already constructed north of Mt. Washington Drive as part of the existing Riverhouse resort complex. The Development Agreement envisions the expansion and completion of the resort on land south of Mt. Washington Drive. As explained elsewhere in these findings, substantial parking is available at the existing Riverhouse, both on the northeast and northwest sides of the river, across Mt. Washington Drive. A new pedestrian connection will be developed under the new Mt. Washington Bridge, and the old bridge will be retained for service vehicle and pedestrian use. The location, size, design and operating characteristics of the proposed use has been described in detail in portions of these findings addressing zoning code off-street parking requirements. By allowing the Owner to use parking facilities that already exist, the need for new parking fields is diminished, having a positive impact on the environment, 117 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


property value, livability and permissible development of the surrounding area. In terms of scale, coverage and density, allowing shared parking on other lots will in this instance diminish the scale and coverage of parking lots on the subject property, to the benefit of the river, the property itself and surrounding lands. Limiting the parking fields on the subject property makes those fields easier to conceal from surrounding uses, and allows more of the site to be devoted to its highest and best use consistent with site zoning and river setbacks. By utilizing existing lots, traffic on the subject property is diminished or controlled, and existing facilities are more efficiently utilized. The capacity of surrounding streets is conserved by allowing shared parking, because some visitors who might otherwise have entered the site from Mt. Washington Drive can park east of the Deschutes River and walk to meeting facilities on the subject property. The City has not identified “any other relevant impact” of the Owner’s proposal to utilize parking areas north of Mt. Washington Drive to satisfy a portion of the parking needs of proposed resort development on the subject property. 13.5.3 BZO Section 10-10.29(3)(b) requires a finding by the City: “(b) That the site planning of the proposed use will, as far as reasonably possible, provide an aesthetically pleasing and functional environment to the highest degree consistent with the nature of the use and the given setting.” FINDING: The purpose of allowing the shared use of existing parking lots to satisfy a portion of the parking needs of the proposed development is to promote environmental values, aesthetics, and functionality of the mix of resort uses proposed. The Owner’s plans are based on studies and analysis of uses and needs, and demonstrate that the amount of parking and location of parking fields will be adequate to accommodate all proposed uses of the site. The feasibility of the proposal is demonstrated by the plans and studies submitted by the Owner, and is ensured through the imposition of appropriate parking management conditions. A transportation management plan will be established consistent with Kittelson’s transportation demand management report, for management of large-scale events, as required by a condition of approval. The Owner has demonstrated that the proposal to share existing parking facilities promotes both the aesthetics and the functionality of the proposed development to the highest degree possible, consistent with the nature of the use and the setting. 13.5.4 BZO Section 10-10.29(3)(c) requires a finding: “(c) If the use is permitted outright in another zone, that there is substantial reason for locating the use in an area where it is only conditionally allowed, as opposed to an area where it is permitted outright.” FINDING: The “use” is the sharing of parking facilities on another lot. BZO 1010.24 applies to off-street parking in all zones, and ostensibly requires conditional use approval whenever an applicant proposes to meet off-street parking requirements by using parking facilities located on a separate “lot,” in any zone. This section does not, therefore, apply to the request for shared parking on another lot. There is, nevertheless, 118 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


substantial reason for allowing the shared parking arrangement proposed by the Owner, as explained elsewhere in these findings. 13.5.5 BZO Section 10-10.29(3)(c) requires a finding: “(d) That the proposed use will be consistent with the purposes of this ordinance, the Comprehensive Plan, Statewide Goals, and any other statutes, ordinances or policies that may be applicable.” FINDING: There is no comprehensive plan policy, statewide goal, statute, ordinance or policy that prohibits the sharing of parking areas in an effort to avoid over-parking the development. To the contrary, many jurisdictions statewide now recognize the loss of valuable resources, increased contaminated runoff, visual blight and general environmental harm associated with large-scale parking fields. The trend is to seek creative ways to limit parking to levels necessary to accommodate proposed uses without over-parking. The Owner’s proposed off-street parking is functionally located, and there is safe vehicular and pedestrian access to and from the site, as demonstrated by the Owner’s plans and studies and discussed elsewhere in these findings. There are no other applicable statutes, ordinances or policies relevant to CUP standard (d) that have not been addressed in these findings. 13.5.6 BZO Section 10-10.29(4) states: “(4) Application. A property owner or his authorized agent may initiate a request for a conditional use by filing an application with the City Planning Director. The application shall be accompanied by a site plan, drawn to scale, showing the dimensions and arrangement of the proposed development. The Approval Authority may request other drawings or material essential to an understanding of the proposed use and its relationship to the surrounding properties.” FINDING: Director. 14.

All submittals required by this section have been provided to the Planning Compliance With Variance Requirements, BZO Section 10-10.31

14.1 The Owner has justified a conditional use permit for shared parking, and design and PUD “exceptions” for parking elsewhere in these findings. To be cautious, and to further support approval, the Owner has also requested a variance from parking regulations that might otherwise result in development of parking on the site to a level that is not justified considering the nature of the proposed uses. The City has reviewed the Owner’s plans and studies as they relate to parking, and has considered all testimony and evidence regarding the parking needs of the development and code requirements. The parking requirements of the zoning code do not clearly address the mix of uses proposed by the Owner or the expansion of existing uses. To diminish controversy and clarify the City’s intent in the event of an appeal, the following findings justify either an administrative or a ‘regular’ variance from the ostensible parking requirements of the 119 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


City’s zoning code to allow parking at the levels and in the configuration proposed by the Owner and specified in the approved plans. 14.2

Justification for ‘Regular’ Parking Variance. 14.2.1 BZO Section 10-10.31(1) states: “(1) Authorization to Grant or Deny Variances. Except as provided for in Subsection (3), the Approval Authority may authorize variances from the standards of this ordinance where it can be shown that, owing to special and unusual circumstances related to a specific piece of property, the literal interpretation of this ordinance would cause an undue or unnecessary hardship; except that no variance shall be granted to allow the use of the property for purposes not authorized within the pertinent zone, or to alter any procedural requirements of this ordinance. In granting a variance, the Approval Authority may attach conditions found necessary to protect the best interest of the surrounding property or neighborhood and to otherwise achieve the purposes of this ordinance.”

FINDINGS: The Owner is granted approval to construct a meeting facility to serve its existing hotel, and to construct an additional restaurant, additional hotel units, spa facilities, and residential/condominium units. The parking that serves these uses is distributed throughout the site. Pedestrian facilities connecting the various uses link the activities to make walking from one to the others a preferred option. This unique circumstance is due to the grouping of complimentary uses in one development. The pattern of use creates “special and unusual circumstances” which require consideration. The proximity of the river and the unusual presence of wildlife habitat within the urban growth boundary also compel special consideration of the site. To require more parking than is necessary, due to unclear code requirements, would result in “an undue and unnecessary hardship” imposed on the river, the riparian borders, and the wildlife that lives there. The economic realities of developing the site also require that the highest and best use of the property be for restaurant, residential, hotel, meeting facility, and related uses. This variance allows that allocation of highest and best use. The history of this site also poses “special and unusual circumstances” that arise out of prior City actions dating back to 1980. The development envisioned for the Property, including all development shown on the Riverhouse II preliminary site plan, was presented to the city in 1980. The property was rezoned to Limited Commercial in recognition of the Owner’s plans. In the years to follow, the Owner built a bridge, roads, intersections and other improvements required by the City as preconditions of approval to allow the convention building and other improvements on the 23 acre site to be built. Meanwhile, the City planned and provided for growth occurring during this same time period. In this case, “special and unusual circumstances” justify final approval of applications to allow the Owner to complete a project started in 1980. 120 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


The specific property is adjacent to the Deschutes River, and is subject to setbacks adopted by the city to protect the river and related natural amenities. These restrictions mean that less space is available for development than would be available if the site were not located on the river. The property is also located adjacent to existing hotel facilities, and the use proposed for the site is dependent on the existing facilities and will be part of those facilities. All of these circumstances combine to create an unnecessary hardship if relief from parking requirements is not granted. Part of the hardship would be having to designate additional land on the site for parking, land that could then not be devoted to higher and better uses that include preservation as open space. The Owner has consulted with community members, traffic engineers, city staff, and ODOT staff, to determine the appropriate level of parking for the proposed facility. All have agreed that, while some independent parking is required at the meeting facility to appropriately accommodate large (especially local) events, vast new parking fields are not required. Good existing and proposed pedestrian connections and parking management required under conditions of approval will ensure that the proposed level of parking is adequate. For these reasons, the hardship of literal compliance with the parking standards is unnecessary—the amount of parking proposed will adequately serve the use. A variance is justified to minimize parking fields and maximize the areas of the site that can be preserved as natural amenities. 14.2.2 BZO Section 10-10.31(2) states: “(2) Criteria. No variance shall be granted pursuant to the provisions of Subsection (1) unless the applicant can establish: (a) That special conditions exist which are peculiar to the land, structure or building involved and which are not applicable to other lands, buildings, or structures in the same zone.” FINDING: The special conditions present in this request are explained above. These special conditions include the fact that the proposal is to expand existing resort/hotel and parking facilities adjacent to the site; the long-established plans for continued development of the hotel complex planned many years ago; and natural amenities on the site that deserve protection. These conditions are peculiar to the existing Riverhouse Hotel, which currently has a need to expand its meeting facilities to serve its patrons and the community, and wishes to add additional meeting facilities, hotel units, restaurant and other resort amenities to its existing complex. The Riverhouse currently has 220 hotel rooms and plans to add an additional 102 rooms with this expansion. Adjacent to The Riverhouse Hotel is the Shilo Inn with 151 rooms and the Hampton Inn with 99 rooms is across the street. This location is thus an excellent site for a meeting facility, with a total of 572 lodging rooms within easy walking or shuttle distance of the proposed facility. Quality lodging located close to meeting facilities is essential for their success. No other area in central Oregon has such a concentration of quality lodging rooms. These conditions justify treating the proposed meeting facility differently from stand-alone meeting facilities or auditoriums, which are not dependent on an existing facility and require vastly more “stand-alone” parking. The Owner’s traffic engineer has explained these special conditions in a letter included in the record. 121 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


14.2.3 BZO Section 10-10.31(2)(b) requires an applicant to establish: “(b) That strict interpretation of the provisions of this ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same zone under the terms of this ordinance.” FINDING: In this case, strict interpretation of the City’s parking standards would deprive the Owner of rights commonly enjoyed by other properties in the same zone under the terms of the ordinance. Other properties are more clearly described by the parking use categories, and are subject to rational parking standards that actually reflect the parking needs of the listed facilities. The proposed meeting facility is dependent upon, and part of, an existing hotel. In these circumstances, strict ordinance interpretation might prevent the Owner from utilizing the subject property for its highest and best uses, which include resort uses and open space. Instead, the Owner would be required to develop and maintain additional paved parking lots, with their additional runoff, diminishing the aesthetic appeal of the project and the utility of the site and project. To the extent any of the city’s interpretations of its parking code require more parking than proposed, such an interpretation would deprive the Owner of rights commonly enjoyed by other properties in the same zone, i.e., the right to develop a use with an appropriate, well-justified level of parking. Based on the Owner’s and City’s best information, parking areas beyond those proposed by the Owner would be empty most of the time. The City rejects all interpretations of the parking or variance provisions of the code that would ostensibly require more parking than is provided for by the development plans and Development Agreement. 14.2.4 BZO Section 10-10.31(2)(c) requires an applicant to establish: “(c) That the special conditions and circumstances do not result from the actions of the applicant and such conditions and circumstances do not merely constitute pecuniary hardship or inconvenience.” FINDING: The “special circumstances” referenced in these findings do not result from the actions of the Owner, but from a parking ordinance that does not accurately address the parking needs of a meeting facility and other hotel/resort facilities being developed as part of an existing hotel and resort. Such conditions do not merely constitute pecuniary hardship or inconvenience. Parking lots prevent percolation of surface water, increase surface water runoff velocity and increase visual blight. The Owner could pave larger areas of the site, but such action would be wasteful and environmentally destructive, and would create negative visual impacts for surrounding areas. “Special circumstances” are also present in that the City wants a convention facility large enough to be a community asset and is requiring construction of the facility prior to construction of any other uses. A privately funded convention facility is at least somewhat unique, and as discussed elsewhere in these findings, convention facilities all have somewhat unique characteristics with regard to parking and traffic. 14.2.5 BZO Section 10-10.31(2)(d) requires an applicant to establish: 122 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


“(d) That granting the variance will be in harmony with the objectives of this ordinance, and not injurious to the neighborhood or otherwise detrimental to the public welfare.” FINDING: The Owner is proposing to construct the amount of parking required for the proposed facility, based on engineering analysis and the Owner’s experience with the existing facility. Granting the variance will be in harmony with the objectives of this ordinance, and will promote the livability of the neighborhood and general public welfare. The purposes of this ordinance include: to “encourage the most appropriate use of lands; to conserve and preserve natural resources, to stabilize the value of property” and “to facilitate adequate provisions for community utilities.” The proposed site configuration, including parking areas, reflects the City’s and Owner’s desire to reduce the development density along the river, allowing deeper setbacks and preservation of more trees along the river’s edge to screen the development, allowing for view corridors, preservation of natural vegetation and wildlife corridors, and areas with more developed landscaping where appropriate. Reduced parking on the site will diminish the total paved area and will allow for the retention of natural areas as corridors for animal migration to and from the river as depicted in the Plan. Natural features such as major rock outcroppings and rimrocks, as well as the general topography of the site, can also be preserved. Such amenities take up space and reduce the acreage available for parking. By requiring no more than the amount of parking justified by the Owner’s traffic and parking analyses, the City promotes the purposes of the zoning ordinance, and ensures that parking facilities on the site are appropriate in terms of aesthetics and functionality. This approach best promotes the objectives of this ordinance. 14.3

Justification for Administrative Parking Variance. 14.3.1 BZO Section 10-10.31(3) states: “(3) Authorization to Grant or Deny Variances to On-Site Requirements. The Planning Director or, if the variance is reviewed in conjunction with site plan review, the Site Plan Committee may authorize a variance from the standards of this ordinance relating to on site requirements (e.g. yards, parking, etc.) Provided, however, that no variance under this section shall be greater than 25% of the requirements from which the variance is sought.”

FINDING: Under certain interpretations of the parking requirements of the code (outlined above) an administrative variance to the parking requirements of the code is necessary to allow the level of parking proposed by the Owner. These findings are made to safeguard the approval. No variance is requested from the parking requirements for the condominiums. The following findings justify a variance to the code parking requirements of 25% or less for the mix of hotel, meeting, restaurant and other resort uses proposed for the site. 14.3.2 BZO Section 10-10.31(4)(a) applies only to yard variances. The owner is not requesting a yard variance. 14.3.3 BZO Section 10-10.31(4) Subsection (b) states: 123 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


“(b) For variances to other on site requirements of 25% or less the applicant shall show that approval of the variance will be consistent with the overall objectives of the Comprehensive Plan and this ordinance where applicable and that the variance will have a minimal adverse impact on the livability, value or development of abutting properties and the surrounding area.” FINDING: The request is for approval of plans that include a reduction of 25% or less in the amount of parking required for the proposed hotel, meeting facility, restaurant, and other resort uses of the subject property. As indicated numerous times in findings supporting a ‘regular’ variance and elsewhere in these findings, the proposal to provide only the amount of parking reasonably necessary to support the proposed mix of uses is consistent with the overall objectives of the comprehensive plan and this ordinance. Reducing the size of the parking fields required on the subject property reduces visual blight and allows parking areas to be more easily concealed from surrounding uses in the center of the site. The impact of a decision to diminish areas of the site devoted to parking is positive. The livability and value of abutting properties and surrounding areas will be improved in contrast to a development proposal that included more on-site parking spaces. This standard is met. 15.

Compliance with Planned Unit Development Requirements, BZO Section 10-10.30

15.1

BZO Section 10-10.30(1) states: “Planned Unit Development Approval. The purpose of Planned Unit Development Approval is to allow and to make possible greater variety and diversification in the relationships between buildings and open spaces in planned building groups, while insuring compliance with the purposes and objectives of the various zoning regulations and the intent and purpose of this ordinance. (1) Approval Authority Required. Where use is made of the Planned Unit Development process as provided in this section, no building or other permit shall be issued for such development or part thereof until the Planned Unit Development has been approved as a Type II development.”

FINDING: In this case, the Owner has, since 1980, successfully completed ten phases of the River’s Edge Village PUD, including development of 259 residential lots, consisting of a mix of single-family and zero lot line homes, and an 18-hole public use golf course and pro shop. To date, the Owner has constructed miles of streets, water and sewer lines, and trails through an area encompassing more than 300 acres on the eastern flank of Awbrey Butte. The Riverhouse Hotel and Resort expanded across the Deschutes, with the construction of 98 additional hotel rooms. The Owner also constructed a pedestrian bridge to connect resort facilities on both sides of the river and constructed Mt. Washington Drive Bridge, which continues to be available for public use. 124 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


Completion of commercial uses envisioned in the original, conceptual Master Plan for the convention and resort facility site (Riverhouse II) has proved difficult in part due to the variety of uses proposed, and in part due to the setting. To succeed in completing the Riverhouse Resort, in conjunction with the Owner’s recreational and residential development on Awbrey Butte, zoning tools must be employed that allow “greater variety and diversification in the relationships between buildings and open spaces in planned building groups.” The quoted section states that in the context of PUD approval, promoting the “intent and purpose” of the zoning ordinance is more important than strict conformity to potentially conflicting site, design and zone standards imposed on individual uses. Treating the proposed development as a planned unit, part of the Owner’s existing and ongoing planned development, is appropriate in this instance. The intent of the PUD approval granted by Ordinance No. NS-1951 is to allow the Owner to carry out the Development Agreement and plans submitted by the Owner, and to complete the 2004 Master Plan as noted in the Agreement and Conditions of Approval. The River’s Edge 2004 PUD is consistent with the purpose of PUD approval, and has been approved following public hearings before the City Council. 15.2

BZO Section 10-10.30(2) states: “(2) Application. The owner or authorized agent may file an application for Planned Unit Development Approval. The application shall be accompanied by a filing fee in an amount established by the City Council.”

FINDING: The Owner and its authorized agents have filed the necessary application for PUD development and paid all required fees. 15.3

BZO Section 10-10.30(3) states: “(3) Minimum Size for Planned Unit Developments. No application shall be made for an area of less than 5 acres in any “R” Zone, or for an area of less than 4 acres in any other zone.”

FINDING: The application is for a PUD consisting of hundreds of acres, as reflected in the Owner’s plans as the “River’s Edge 2004 PUD.” The portion of the River’s Edge 2004 PUD that is zoned for residential uses is greater than five acres, meeting this requirement. This standard is met. 15.4

BZO Section 10-10.30(4) states: Limitation on Application. No application shall be “(4) accepted for a use which will require a change of zone unless accompanied by an application for a zoning amendment as set forth in Section 33.”

FINDING: A change of zone would only be required if uses proposed in either the RS or CL zone are not allowed, outright or conditionally, in the respective zones. In this case all of the uses proposed for the CL portions of the site are allowed outright or conditionally in the CL zone, and all uses proposed for the RS zone are allowed outright or conditionally in that zone. The application has been accepted and these findings 125 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


support issuance of all requested approvals, the Development Agreement, plans and conditions, as specified in these findings. 15.5

BZO Section 10-10.30(5) states: “(5) Plan Required. All applications shall be accompanied by a general development plan drawn to scale showing the use or uses, dimensions and locations of proposed structures and of areas to be reserved for vehicular and pedestrian circulation, parking, public uses, landscaping and other open spaces, and drawings and sketches demonstrating the design and character of the proposed uses and the physical relationship of the uses. Such other pertinent information shall be included as may be considered necessary by the Approval Authority to make a determination that the contemplated arrangement or use makes it necessary and desirable to apply regulations and requirements differing from those ordinarily applicable under this ordinance and the Subdivision Ordinance.”

FINDING: The plans submitted with Owner’s applications included all of the information required by this section. The City has reviewed all plans, studies and justifications provided by the Owner, and all staff and public testimony and evidence, and has determined that the contemplated uses and arrangement of uses make it necessary and desirable to apply regulations and requirements in the manner specified in these findings, Development Agreement, and Conditions of Approval. In most instances, the regulations and requirements applied in these findings do not “differ from those ordinarily applicable.” In other instances, reasonable interpretations, exceptions allowed by the zoning code, conditional use and variance approvals are granted through this approval. Whether viewed as exceptions to ordinarily applicable standards or issuance of additional permits or approvals that the City has the discretion to grant, the Owner has justified all approvals granted through Ordinance No. NS-1951 and the Development Agreement. 15.6

BZO Section 10-10.30(6)(a) states: Standards for Approval. In granting approval for “(6) Planned Unit Developments the Approval Authority shall be guided by the following: (a) The applicant has, through investigation, planning and programming, demonstrated the soundness of his proposal and his ability to carry out the project as proposed, and that the construction shall begin within six months of the conclusion of any necessary action by the City, or within such longer period of time as may be established by the Hearing Body.”

FINDING: As stated, the Owner has demonstrated over the course of more than 24 years the ability to operate a hotel and resort complex on and adjacent to the subject property and to successfully develop ten PUD phases over that period of time. The investigation, planning and programming carried out by the Owner has been evident for 126 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


many years and is reflected in the current applications, plans, and the Development Agreement. The Owner has also demonstrated its ability to carry out the project as proposed and to begin construction of the meeting facility no later than 2 years after the conclusion of all appeals. 15.7

BZO Section 10-10.30(6)(b) states: “(b) The proposal conforms with the general plans of the City in terms of location and general development standards.”

FINDING: The proposal not only conforms with the “general plans of the City in terms of location and general development standards,” it conforms with the vast majority of the City’s more specific site and design development standards. These findings demonstrate that, to the extent exceptions have been granted to more specific standards, those exceptions are within the discretion of the City to grant, and are also justified under the conditional use or variance provisions of the code. 15.8

BZO Section 10-10.30(6)(c) states: “(c) The project will accrue benefits to the City and the general public in terms of need, convenience, service and appearance sufficient to justify any necessary exceptions to the regulations of the Zoning and Subdivision Ordinance.”

FINDING: The project will accrue significant benefits to the City and general public. In particular, the City needs meeting facilities that can accommodate seminars, weddings, conferences and all manner of gathering, large and small. Many facilities for small gatherings currently exist in the City, but larger groups seeking full service meeting facilities must go elsewhere. Most communities require public funding to provide venues to host these groups. Salem is currently building a convention center with over 30 million dollars of taxpayer funds. Newport is building a convention center as well, at public expense. By expanding the Riverhouse Hotel, resort and meeting facilities, larger meetings can occur in the City, increasing motel tax revenues and potentially increasing the number of visitors to the City of Bend and the duration of their visits. It is estimated that, at maturity, the project will generate over $390,000 in new room tax revenue each year. Timing of visits is also a benefit. Groups considering Bend as a meeting site generally prefer to meet in the Central Oregon “shoulder,” or off seasons of spring or fall. Bringing groups to Bend during this time will generate business for the Riverhouse and other hotels and businesses, filling in tourism slump periods. Statistics show that less than 25% of tourist dollars are spent on lodging, with the remaining 75% spent on dining, shopping, and recreation. Such business increases will also help stabilize employment rolls in “off peak” seasons, and make Central Oregon a more attractive employment market overall for new and qualified workers. This tourism activity will enhance Central Oregon’s economy without a significant outlay of public dollars to attract such business. The State of Oregon Dean Runyan Report evidences job growth associated with convention facility expansion. In 127 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


Central Oregon this means that an estimated 300 new jobs will be created as a direct result of the addition of the meeting facility to Central Oregon. The meeting facilities will also provide a convenient location for local residents to meet within the city of Bend. This location, showcasing the Deschutes River, will focus attention on the beauty and attributes of the region, and will attract people from other regions who desire to meet in Central Oregon. The auxiliary uses proposed as part of the development enhance the utility of the development for tourism, leisure activities, and residential housing in a resort setting. All explicit or perceived exceptions to the zoning and subdivision ordinance contained in the City’s approval are justified in this instance, to allow development of the site to proceed as envisioned in the plans, Development Agreement, and conditions of approval. 15.9

BZO Section 10-10.30(6)(d) states: “(d) The project will satisfactorily take care of the traffic it generates by means of adequate off-street parking, access points and additional street right-of-way and improvements and any other traffic facilities required.”

FINDING: As part of an application submitted in 2003, the Owner commissioned a Transportation Impact Analysis from Kittelson & Associates demonstrating that the resort expansion project would satisfactorily take care of the traffic it generates by means of adequate off-street parking, access points, and other required traffic facilities. That study has been updated, and coordinated with ODOT and the City of Bend’s engineering and traffic studies for the new Mt. Washington Drive Bridge and the intersection of Mt. Washington Drive, Business 97, and Butler Market Road. Parking has been addressed through the traffic study and update; additional Kittelson parking and transportation demand management studies; compliance with the parking standards of the zoning code; a variance, and conditions of approval. All additional street right-of-way, improvements and traffic facilities required to accommodate the use have either already been provided by the Owner or are outlined in the Development Agreement or conditions of approval, to be provided by the City or Owner. 15.10 BZO Section 10-10.30(6)(e) states: “(e) The project will be compatible with adjacent developments and will not adversely affect the character of the area.” FINDING: The Owner of the subject property owns almost all of the adjacent developments. The character of the area has largely been established by the Planned Unit Development and hotel development carried out by the Owner over the course of decades. The proposed development has been designed specifically to be compatible with and to enhance the character of the area, and does so. The development will feature sloped roofs and will use materials and soft, natural color tones consistent with the surrounding area. The southern and western areas of the site closest to non-PUD residential uses (the eight houses on the other side of the North Canal Dam impoundment, and the North Riverfront Residential Area) will be developed with 128 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


residential uses, with the exception of the southeast corner of the site. Across the impoundment from that area there are single-family dwellings, an office building, and Division Street. As indicated elsewhere in these findings, the character of the area includes residential, hotel/resort and related recreational uses. The project, including all proposed River’s Edge 2004 PUD residential and hotel/resort uses, is compatible with adjacent developments and will not adversely affect the character of the area. 15.11 BZO Section 10-10.30(6)(f) states: “(f)The project will satisfactorily take care of sewer and water needs consistent with City policy and plans.” FINDING: In developing the River’s Edge Village PUD, the Owner has been assisting the City for many years in providing adequate water and sewer facilities in the Awbrey Butte area. With each additional subdivision phase, the City reviews water and sewer capacities, and has determined that necessary capacity will exist for the remaining phases. This determination, made by Public Works, acknowledges Owner’s extensive mitigation contributions, including siting of an uplift station at the foot of Awbrey Butte in the Riverhouse parking lot. Owner has also constructed water lines throughout the PUD development areas. As part of the Development Agreement, the Owner is conveying to the City a subsurface easement for additional sewer facilities, and providing access to allow maintenance of those facilities. The Owner has also demonstrated the feasibility of providing water to the site consistent with the City’s plans and policies. Surface water runoff will also be managed in a satisfactory manner for both the subject property and for the new Mt. Washington Drive Bridge and bridge approaches. The Development Agreement provides that water from the subject property and Mt. Washington Drive will be collected in a new storage facility near the existing facility on the sixth fairway, in a manner that will prevent potentially contaminated runoff from directly entering the Deschutes River. To the extent additional facilities are necessary to serve future Awbrey Butte development that are not addressed in the Development Agreement, it is feasible to provide for such needs in the context of future approvals. 15.12 BZO Section 10-10.30(6)(g) states: “(g) A Planned Unit Development shall not be approved in any ‘R’ Zone if the housing density of the proposed development will result in an intensity of land use greater than permitted by the Comprehensive Plan.” FINDING: The Owner is proposing to provide lots and develop up to 388 additional homes, and 101 condominium units, mostly in the RS zone. The General Plan states that the density in this zone may range between 2.0 and 7.3 units per acre. The existing and proposed units will result in a density of less than five dwellings per acre, consistent with the Plan. The General Plan is implemented by the zoning ordinance and does not contain approval standards relevant to modification of the River’s Edge PUD or to any of the requested approvals. Although some of the policies use the term “shall,” the policies are either 129 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


directed at the City, not applicants, or are guidance and aspirations that serve as the basis for code development. Since the zoning ordinance implements the Comprehensive Plan, conformance with the zoning ordinance demonstrates consistency with the policies of the Comprehensive Plan. BZO 10-10.10 implements the Comprehensive Plan by applying the Urban Standard Residential Zone to the site. The RS zone allows condominiums as a conditional use, and does not establish a maximum density for condominiums. For these reasons, the Owner is not required by law to demonstrate compliance with the provisions of the comprehensive plan per se, inasmuch as the plan does not establish mandatory approval criteria for Planned Unit Developments. It should also be noted in this regard that the plan itself states that: “(the) policies in the General Plan are statements of public policy, and are used to evaluate any proposed changes to the General Plan. These statements of policy shall be interpreted to recognize that the actual implementation of the policies will be accomplished by land use regulations such as the City’s Zoning Ordinance, subdivision ordinance and the like.” (Page 4 of the 1998 General Plan). Therefore, the Bend Area General Plan goals and policies are met when the implementing land use ordinance provisions are satisfied. By complying with all applicable land use ordinance provisions, the Owner demonstrates compliance with the comprehensive plan. 15.13 BZO Section 10-10.30(7)(a) states: “(7) Standards and Requirements. Approval of a request for a Planned Unit Development is dependent upon the submission of an acceptable plan and satisfactory assurance that it will be carried out. The following minimum standards and requirements shall apply: (a) A dwelling use permitted in any zone may be permitted in a PUD.” FINDING: The Owner has submitted an acceptable plan for the proposed modifications to the Master Plan of River’s Edge Village PUD, has satisfied all applicable PUD standards, and has provided satisfactory assurance that the plan will be carried out. The Owner has a long history of carrying out its previous development plans, which adds significant credibility to the assurances provided. The City interprets (7)(a) as asserting that the City has the discretion as part of PUD approval to approve any type of dwelling use that is permitted in any City zone. Singlefamily dwellings are permitted outright in the RS zone, and “new residential dwelling units” are permitted conditionally in the CL zone. Condominiums are permitted conditionally in the RS zone. The City finds that the types of dwellings proposed by the Owner are permitted in the proposed PUD. 15.14 BZO Section 10-10.30(7)(b) states:

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“(b) A mobile home may be permitted in a PUD. However, mobile home parks shall not be allowed in any commercial or industrial zone.” FINDING: proposal.

No mobile homes or mobile home parks are included as part of the

15.15 BZO Section 10-10.30(7)(c) states: “(c) Developments which either provide for or contemplate private streets and ways and common areas which will be or are proposed to be maintained by the owners of units or lots within a development must organize and maintain an owner’s association. The owner’s association shall consist of all the owners of units or lots within the development and membership in the association must be required of all owners; adopt and record bylaws as provided by ORS 91.555; adopt bylaws that contain provisions required by ORS 91.560; and have the power to create a lien upon the unit or lot for services, labor or material lawfully chargeable as common expenses as provided in ORS 91.580. The association’s power to create such a lien shall exist whether or not the property is submitted to the Oregon Unit Ownership Law (ORS 91.505 – 91.675).” FINDING: The statutes referenced in this section have been renumbered, and the Oregon Unit Ownership Law is now known as the “Oregon Condominium Act.” ORS 94.555 is now ORS 100.410; ORS 91.560 is now ORS 100.415; ORS 91.580 is now ORS 100.450; and ORS 91.505-91.675 is now ORS 100.005-100.625. In conformance with law, the Owner agrees to separate the condominium units and common areas from the remaining uses within the PUD and to otherwise comply fully with all applicable requirements of the Oregon Condominium Act with regard to condominium uses and private streets developed on the subject property, including the cited (renumbered) sections. Two separate homeowner associations will be established in conformance with the Act, which have been tentatively named North Riverfront Homeowner’s Association, and South Riverfront Homeowner’s Association. 15.16 BZO Section 10-10.30(7)(d) states: “(d) If the property is not submitted to the Unit Ownership Law the association shall also create by contract the right to claim a lien upon any unit or lot for services, labor or material chargeable as common expenses. This lien may be created by covenants between the association and the property owners and shall supplement the lien created by (c) above, be approved by the City and require all owners of units or lots within the development to consent to and pay the reasonable value of services, labor or material expended by the City for common expenses where such City expenditures are made because the owners or the owner’s 131 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


association does not provide the necessary services, labor or material for common expenses.” FINDING: As stated above, the Owner will follow the Oregon Condominium Act when establishing the proposed condominiums, and will turn the condominium common areas over to their respective homeowner’s associations established in accordance with the Act. This section is therefore not applicable. 15.17 BZO Section 10-10.30(7)(e) states: “(e) Streets and roads in PUD designated developments shall be public roads and ways developed to City standards or be private roads of a minimum 14 feet wide paved surface for oneway traffic; minimum 20 feet wide paved surface for two-way traffic; parallel parking as permitted shall require minimum additional 8 feet of width for each side of parking; if pedestrian walkways or bikeways are included in the road an additional 5 feet of pavement width on each side of the roadway shall be provided and striped to separate such use from motor vehicle traffic and parking. In addition to these requirements the hearings body may specify other requirements including but not limited to increased or decreased pavement width.” FINDING: No new streets or roads are contemplated as part of the Hotel Completion, North and South Residential Area developments. To the extent future development shown on the River’s Edge 2004 Master Plan requires development or improvement of streets, the Owner has demonstrated the feasibility of meeting the requirements of this section for street improvements. Access to the Hotel Completion Area and South Riverfront Residential Area will be by a driveway that accommodates all proposed uses and connects to parking aisles and stalls and is designed in conformance with BZO 1010.24, governing off-street parking. Access to the North Riverfront Residential Area is by the existing driveway through the Riverhouse Hotel parking lot and will enter Mt. Washington across from the meeting facility driveway entrance. 15.18 BZO Section 10-10.30(7)(f) states: “(f)Pedestrian walkways and bikeways shall be provided for adequate internal pedestrian and bicycle traffic and shall connect to any adjacent existing or planned sidewalks, bikeways, access corridors, or public trails. Off-street pedestrian walkways and bikeways shall be at least 10 feet in width to accommodate two way traffic and shall be constructed with Portland cement or asphaltic concrete to City standards except as varied by the provisions of this section or by the Approval Authority.” FINDING: The River’s Edge 2004 PUD includes detailed internal pedestrian and bicycle pathways, with logical connections to existing and planned sidewalks and public trails. The plans show existing and proposed bicycle and pedestrian pathways for River’s Edge, with direct and logical connections to Sawyer Park, the existing Deschutes River Trail, and the proposed new trail at the eastern boundary of the PUD, along the Deschutes 132 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


River. The plans also show trail connections through the southeastern, commercial areas of the resort, with direct access to the Sawyer Park and south Deschutes River trail for resort patrons and condominium residents. All walkways and bikeways are to be constructed as agreed with BMPRD, and will conform fully with BMPRD specifications and as required by the City. Construction and maintenance of these improvements will be in accordance with these agreements as well. 15.19 BZO Section 10-10.30(7)(g) states: “(g) All utility facilities shall be installed underground and in accordance with City standards.” FINDING: As a condition of approval, the Owner agrees to install all utility facilities underground in accordance with City standards. 15.20 BZO Section 10-10.30(7)(h) states: “(h) The design of all PUD projects shall provide direct access for all units and lots to open space areas and facilities. Open space areas and facilities include such things as landscaped areas, natural areas, golf courses, and other recreational facilities, but do not include streets, sidewalks, bikeways, access corridors, or trails.” FINDING: The Owner’s plans and aerial photographs demonstrate that this standard is met. All portions of the PUD provide direct access to the Golf Course and other open space areas along the river. All proposed condominiums will be surrounded by, and have access to the common areas of the condominium homeowner’s association, which includes natural and landscaped open space areas. All “Future Butte Residential” areas are shown on the plans as having direct, bike/pedestrian access, with connections to Sawyer Park and the Deschutes River Trail. BMPRD is also developing a trail to Sawyer Park from the end of 17th Green Place on the northern edge of the PUD. There will also be a connection to the River Trail on the south end, near Scenic Heights Drive. These provisions more than meet the open space requirement. 15.21 BZO Section 10-10.30(7)(i) states: “(i)A statement relative to the solar access to be provided by the Planned Unit Development.” FINDING: The 23 acre parcel is oriented to the south and the east to maximize passive solar exposures. Active solar opportunities will be explored by the owner as a means to reduce energy consumption and improve efficiency within the development. For example, renditions of the meeting facility incorporate expanses of glass to the east and provide sufficient rooftop plane area for solar collectors, if these are determined to be advantageous in the refined design phase. Continued residential development within the PUD will comply with the solar access requirements of the BZO. 15.22 BZO Section 10-10.30(7)(j) states: “(j)Notwithstanding Section 30(4) or the requirements of the underlying zone, a facility providing services in support of 133 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


approved residential or commercial uses within a Planned Unit Development may be permitted in either commercial or residential zones within the same Planned Unit Development. Services in support of residential or commercial uses include such services as housekeeping, landscape maintenance, security, meeting rooms, clubhouses, swimming pools, tennis courts, catered food service facilities, parking offices, and related facilities for staff, administrators, owners associations, and owners and their guests. Provisions shall be made to buffer these uses from incompatible uses or adjoining properties.” FINDING: To the extent this section applies, all uses listed are buffered from incompatible uses and adjoining properties. The condominium units planned for the Riverfront Residential areas may be supported by maintenance facilities in the new Restaurant building, as well as landscape maintenance, security, and recreational use of the spa and pool. The maintenance office is planned to be connected to the future restaurant, screened by new and existing trees, and utilizing a shielded service drive for vehicles. Upper Butte Residential areas contain only trails, and these do not require buffering. 15.23 BZO Section 10-10.30(8) states: “(8) Approval Authority Action. In taking action, the Approval Authority may approve, approve with conditions, or deny an application as submitted. Any Planned Unit Development as authorized shall be subject to all conditions imposed and shall be excepted from other provisions of this ordinance only to the extent specified in said authorization.” FINDING: In conformance with this section, the City is approving the application with conditions of approval. As discussed in these findings, the City has only excepted the proposed development from otherwise applicable standards only to the extent necessary, and as circumscribed by the plans, Development Agreement, and Conditions of Approval. 16. Land Use Review and Procedures. At hearings to consider the proposed Development Agreement, objections were made to the jurisdiction of the City Council to adopt the agreement. These supplemental findings explain why the City Council has authority to consider and adopt the agreement, and why the procedure followed by the City to establish the agreement was correct. The Bend City Council has authority to adopt Ordinance No. NS-1951 establishing a Development Agreement. 16.1 Summary. The City’s authority is derived from the Oregon Constitution, the City Charter, and Oregon statutes. The Charter indicates that all “powers” of the city are vested in the Council, and those powers continue “unless a specific grant of power clearly indicates to the contrary.” “Power” is synonymous with “authority” and “jurisdiction.” The Council cannot forfeit or delegate its authority or jurisdiction without doing so, not only expressly, but “clearly.” 134 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


16.1.1 ORS Chapter 94 (ORS 94.504-528) contains a separate, additional legislative grant of authority to the Bend City Council to establish, by ordinance, a Development Agreement. Under ORS 94.504(2), “A development agreement shall specify: * * * (b) permitted uses of the property.” The City’s adoption of a development agreement is essentially a legislative act, because it is a contract with a private party or corporation in which each side agrees to do or provide for the other, valuable consideration. The Owner agrees to exactions and conditions, and the City agrees to coordinate infrastructure construction and to issue development permits. 16.1.2 ORS 94.504-528 also makes clear that LUBA has jurisdiction over appeals of Development Agreements. Oregon law does not permit the City to specify the permitted uses of property without exercising more “judicial” functions including the exercise of sound discretion, and consideration of whether the proposal can meet applicable standards. 18 On appeal, LUBA would consider whether the Council has jurisdiction to establish a development agreement and whether the City erred procedurally in a way that prejudiced the substantial rights of a party to the proceedings. 16.1.3 Substantial rights include the right to fully-noticed public hearings with time for preparation, and an opportunity for submittal of written or oral comments. Those safeguards also include the right to rebuttal and the requirement that a decision be accompanied by findings demonstrating compliance with all applicable standards. For this reason, even though the essence of a Development Agreement is legislative, more demanding quasi-judicial procedures have been followed to safeguard the participation of the public in the decisional process and to satisfy state land use laws. 16.1.4 The City Council has delegated significant responsibility to appointed officers and to its Planning Commission to hear, in the first instance, purely quasi-judicial or legislative land use applications. The Council has not “expressly” much less “clearly” delegated any authority to officers or commissions to hear and review development agreements, which are contractual, essentially legislative or “ministerial” acts of the City Council. The city has not clearly expressed its intention to relinquish or limit its power to consider a development agreement, which by necessity includes approval of constituent permits for use of the property. The City Council has authority to review the proposed development agreement and all if its components in the first

18

See, for example, ORS 197.763. In 1000 Friends of Oregon v. Wasco County Court, 304 Or 76, 82, 742 P2d 39, 42 (1987), the Court explained: “The prefix ‘quasi,’ we recently said in another context, ‘means that a thing is treated as if it were something it resembles but is not.’ State ex rel. Eckles v. Woolley, 302 Or. 37, 45, 726 P.2d 918 (1986). The quasijudicial decisions of local general-purpose governing bodies resemble, or should resemble, adjudications in important respects that bear on the procedural fairness and substantive correctness of the decision, but in other respects these bodies remain more ‘quasi’ than judicial. Their members are politically elected to positions that do not separate legislative from executive and judicial power on the state or federal model; characteristically they combine lawmaking with administration that is sometimes executive and sometimes adjudicative. The combination leaves little room to demand that an elected board member who actively pursues a particular view of the community’s interest in his policymaking role must maintain an appearance of having no such view when the decision is to be made by an adjudicatory procedure.”

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instance, without prior review and/or appeal from lesser hearing bodies or officials appointed by the City. 16.2 Introduction. The following analysis is intended to demonstrate that the City’s choice of process in consideration of the Development Agreement with the Owner is reasonable and otherwise in compliance with law. 16.2.1 City staff and Owner have negotiated an agreement to facilitate construction of a new Mt. Washington Bridge and completion of the Riverhouse Resort, including a convention facility. The proposed agreement details exactions that River’s Edge is agreeing to provide and, in exchange, grants land use approvals. To ensure compliance with all substantive requirements of law, detailed findings have been prepared, based on equally detailed plans and studies, addressing all standards applicable to the permits granted through the Development Agreement and ordinance approving the Agreement. 16.2.2 ORS Chapter 94 requires that the City Council review and approve a Development Agreement by ordinance, following a public hearing. The Council has not established additional procedures for consideration of a Development Agreement, but has adopted a Land Use Review and Procedures Ordinance that, under normal circumstances, requires that applications for land use approvals be reviewed first by the Planning Commission and a hearings officer. In 2003, River’s Edge made such applications, for development substantially similar to the proposal now before the Council. A total of four hearings were held, two before the planning commission, and two before a hearings officer. The applications were denied. A lawsuit was filed. The City determined that in order to close the Newport Bridge, it must first replace the Mt. Washington Drive Bridge. To the mutual benefit of both parties and the community as a whole, a Development Agreement was negotiated, exchanging cooperation and exactions for development approvals at the location of the Mt. Washington Street Bridge. 16.2.3 Development Agreements are not mentioned in the City’s Land Use Review and Procedures Ordinance. Under one interpretation of the Procedures Ordinance, it prohibits the City Council from ever hearing a land use action, or of making a quasi-judicial land use decision at all, except on appeal, even if those approvals are being granted through a development agreement. The Development Agreement has been negotiated between the parties for at least nine months. Under this interpretation, the planning director’s only choice would have been to refer the application for a Development Agreement to the Planning Commission and a Hearings Officer—the Planning Commission for River Corridor Design Review, and a Hearings Officer to review, and approve or deny, the Development Agreement, and all requested discretionary approvals. This, even though the essence of the agreement is more “bargain” than “grant of approval.” 16.2.4 The City chose the following course: City staff was authorized to negotiate an agreement and present the agreement directly to the Council. The City Council held public hearings on October 6, 2004, and November 3, 2004. The record remained open until the November 17, 2004 Council meeting. At that time additional testimony was received at the request of staff and the Council, and the record remained 136 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


open through November 24, 2004. Quasi-judicial procedures and safeguards were employed, including notice; opportunity to prepare for the hearings; opportunity to testify orally and in writing; and opportunity for rebuttal. These findings in support of Ordinance No. NS-1951 are based on substantial evidence in the record as a whole and accompanied by detailed conditions ensuring conformance with law. Under ORS Chapter 94, appellate review of the ordinance establishing the Development Agreement is by the Land Use Board of Appeals. To the extent the City has made a mistake in the procedures it has followed in establishing the Development Agreement, the following excerpt from LUBA’s “scope of review” is relevant: “(9) In addition to the review under subsections (1) to (8) of this section, the board shall reverse or remand the land use decision under review if the board finds: (a) The local government or special district: (A) Exceeded its jurisdiction; (B) Failed to follow the procedures applicable to the matter before it in a manner that prejudiced the substantial rights of the petitioner; * * *” 16.2.5

As the following analyc -0.rmrns trte s,the City has moti eceeded iTj0.0009 Tc 0.085

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“The Legislative Assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon * * *.” (emphasis added) In Oregon, the authority to act as a municipal corporation and to exercise jurisdiction over people and things flows from the State. The State’s authority is said to be “plenary,” which means “complete in every respect.” 20 Through its Constitution and statutes, the State grants authority to the City to exercise jurisdiction. Under current Oregon judicial doctrine, the City has broad express and implied authority to take whatever steps it deems appropriate to carry out its designated functions. 21 The City’s authority is limited only to the extent the City is expressly or impliedly preempted from acting by statute, or by the state or federal constitutions. 16.3.2 The authority of the City Council is described in the City of Bend Charter of 1995. Chapter II of the Charter, “Powers,” consists of sections 4. through 6., as follows: “Section 4. Powers of the City. The city has all powers that the constitutions, statutes, and common law of the United States and of 20

Webster’s Third New International Dictionary (1993, unabridged ed.) at 1739. The general power and authority of a government to make and enforce laws has long been referred to as the “police power.” The “police power” has been described as “the power to make all laws which in contemplation of the Constitution promote the public welfare.” Christian v. LaForge, 194 Or 450, 242 P.2d 797, 801 (1952), quoting State v. Redmon, 134 Wis. 89, 105, 114 N.W. 137, 14 L.R.A., N.S., 229, 126 Am.St.Rep. 1003, 15 Ann.Cas. 408. “The police power embraces the whole sum of inherent sovereign power which the state possesses, and, within constitutional limitations, may exercise for the promotion of the order, safety, health, morals, and general welfare of society * * *” Id. Use of the term “police power” has diminished in recent years and is being supplanted by the view that the state has plenary, “complete” legislative and administrative authority that is limited only as specified in the state or federal constitutions. Burt v. Blumenauer, 299 Or 55, 696 P.2d 168, 171 (1985). City of Hillsboro v. Purcell, 306 Or 547, 761 P.2d 510, 512 (1988). Eckles v. State of Oregon, 306 Or 380, 760 P.2d 846, 858 (1988). See also, Linde, “Without Due Process,” 49 Or.L.Rev. 125, 147 (1970): “‘Police power’ terminology * * * ought to be completely abandoned, shunned in opinions, proscribed from briefs, and blue-penciled whenever it creeps into sight.” 21 The modern view of the extent of implied local government authority is set forth in Burt v. Blumenauer: “In recent times, the judicial demand for explicit expressions of authority and recognition of only attendant authorities ‘necessarily implied’ by those expressed has given way to an interpretation that local governments have broad powers subject only to constitutional or preemptive statutory prohibitions.” 696 P.2d at 172. The early view of municipal authority, known as “Dillon’s rule,” was that: “a municipal corporation possesses and can exercise the following powers and no others: first, those granted in express words; second, those necessarily or fairly implied in or incident to the power expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation— not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied.” 1 Dillon, Municipal Corporations, § 237, at 448-50 (5th ed. 1911), (Fn. omitted, emphasis in original.); cited in Burt v. Blumenauer, supra, at 171. See also Pioneer Real Estate Company v. City of Portland, 119 Or. 1, 247 P. 319 (1926); Colby v. City of Seaside, 80 Or 73, 156 P. 569 (1916), Naylor v. McColloch, 54 or. 305, 103 P. 68 (1909).

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the State of Oregon now or hereafter expressly or impliedly grant or allow the city, as fully as thought this charter specifically enumerated each of those powers. Section 5. Construction of Powers. In this charter, no specification of a power is exclusive or restricts authority that the city would have if the power were not specified. The charter shall be liberally construed, so that the city may exercise fully all its powers possible under this charter and under United States and Oregon law. All powers are continuing unless a specific grant of power clearly indicates the contrary. Section 6. Distribution of Powers. Except as this charter prescribes otherwise, and as the Oregon Constitution reserves municipal legislative power to the voters of the city, all powers of the city are vested in the council. As the governing body of the city, the council is the successor to the City Commission of the City of Bend (which was established by Chapter II, Section 2.1 of the Amended Charter of the City of Bend adopted November 8, 1960).” These sections establish that all “powers” of the City are vested in the Council; the charter must be construed liberally to protect the Council’s power; and “powers” of the Council are to continue, unless a specific grant of power by the Council (presumably to an officer or commission) “clearly indicates the contrary.” 22 16.4

Specific Statutory Grant of Authority.

16.4.1 ORS 94.504, titled by the Legislative Counsel’s Office of the State of Oregon “Development agreements; requirements; contents” states, in subsection (1): “(1) A city or county may enter into a development agreement as provided in ORS 94.04 to 94.528 with any person having a legal or equitable interest in real property for the development of that property.” This statute grants authority to every city and county in Oregon to establish a development agreement with an owner of property located within the geographical jurisdiction of the city or county. As noted, under ORS 94.504(2), “A development agreement shall specify: * * * (b) permitted uses of the property.” 16.4.2 ORS 94.508, entitled by the Legislative Counsel’s Office “Approval by governing body; findings; adoption” states: “(1) A development agreement shall not be approved by the governing body of a city or county unless the governing body finds

22

According to Webster’s Third New International Dictionary (1993 Unabridged ed., p. 1779) synonyms for “power” include “CONTROL, AUTHORITY, JURISDICTION, COMMAND, DOMINION, SWAY:”

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that the agreement is consistent with local regulations then in place for the city or county. (2) The governing body of a city or county shall approve a development agreement or amend a development agreement by adoption of an ordinance declaring approval or setting forth the amendments to the agreement. Notwithstanding ORS 197.015(10)(b), the approval or amendment of a development agreement is a land use decision under ORS chapter 197.” 16.4.2.1 Subsection (1) limits the City’s authority to establish a development agreement, by requiring that the governing body find that “the agreement is consistent with local regulations then in place for the city.” This section requires that the agreement—including agreed upon exactions and approvals—be consistent with the City’s planning, zoning, site design, building and other applicable standards. To demonstrate code compliance and establish a basis for City approval, the Owner submitted detailed plans and studies, and 140 pages of proposed findings demonstrating that land uses allowed under the terms of the agreement are consistent with all applicable local standards and policies. The record, including all testimony, studies and plans and the original draft findings received by the City, support these findings and demonstrate that the City has the discretionary authority to approve all aspects of the proposal, as negotiated by City staff and agreed to by the Owner. 16.4.2.2 Subsection (2) states that the governing body of the city shall approve a development agreement by “ordinance declaring approval.” The statutory grant of authority to establish a development agreement is to the governing body of the city, which in Bend is the City Council. The second line of subsection (2) establishes that the agreement is subject to appeal to the Land Use Board of Appeals as a land use decision. 16.4.3 ORS 94.513, titled by the Legislative Counsel’s office “Procedures on Consideration and Approval,” consists of the following two subsections: “(1) A city or county may, by ordinance, establish procedures and requirements for the consideration of development agreements upon application by, or on behalf of, the owner of property on which development is sought or another person having a legal or equitable interest in that property. “(2) Approval of a development agreement requires compliance with local regulations and the approval of the city or county governing body after notice and hearing. * * *” [followed by notice requirements] 16.4.3.1 Under subsection (1) of this section, the City is granted the authority to “establish procedures and requirements for the consideration of development agreements.” The City has not established procedures for consideration of a development agreement. No City ordinance expressly describes procedures that the City

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must follow to negotiate, execute, and implement a development agreement, and the City is not required to have such procedures in place prior to establishing such an agreement. 16.4.3.2 Subsection (2) contains two requirements: First, approval requires compliance with local regulations. Second, subsection (2) requires approval by the City Council after notice and hearing. The only entity statutorily granted the authority to establish a development agreement is the governing body of the City. 16.4.3.3 As stated, the Owner has prepared, and City staff has reviewed, materials demonstrating compliance with all standards governing discretionary City review of the proposal. Considering all testimony and evidence received and as corroborated at least in part by site visits by individual Council members, the proposal complies with local regulations. 16.4.3.4 Because the City has not established procedures that expressly apply to the consideration of an ORS Chapter 94 Development Agreement by the City Council, the procedural requirements of the statute apply directly. The statute does not require review of a Development Agreement by any City advisory board or hearing official prior to review by the City Council, but grants direct and sole authority to the City to establish such an agreement after notice and hearing, and after establishing that the proposal complies with all applicable development standards. 16.5

Exercise of Council Authority.

16.5.1 In this case, the question is whether the City Council has authority to establish a development agreement without prior review by lesser tribunals or officers established or appointed by the City. The City has a Planning Commission and employs hearings officers to review land use decisions. In the absence of a development agreement, the procedures for consideration of “land use actions” is established in the zoning code and by the City of Bend’s Land Use Review and Procedures Ordinance (No. NS-1775). Opponents of the agreement appear to argue that the City Council has forfeited its authority to act as a land use hearing body in the first instance, ever. In practice, in the absence of a proposed development agreement, if a hearing is held, it is held before either the Planning Commission or a hearings officer appointed for that purpose, with appeal to the City Council, which the Council is not obligated to accept. 16.5.2 In this instance, the Owner presented its initial application in 2003. Plans for all proposed resort uses were presented to the Planning Commission in widely publicized hearings held on July 28, 2003 and August 11, 2003. At that time, the Owner only requested approval of the meeting/banquet facility, but many aspects of the 2003 proposal are either identical or similar to the proposal outlined in the Development Agreement. The Planning Commission found that the Owner met all of the standards for the proposed meeting/banquet facility setbacks except one. The Commission stated: “It is a mandatory approval criterion for a setback exception that the applicant improve or restore riverfront riparian areas. While the applicant is proposing no development in the riparian areas themselves, the applicant has not specifically proposed any improvement or restoration of the site’s riparian areas, which 141 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


according to the applicant’s experts require no improvement or restoration. *** The Planning Commission finds that without improvement or restoration of the site’s riverfront riparian areas, this criterion cannot be met.” The application for Corridor Design approval was denied by the Planning Commission on the basis of this finding. 16.5.3 Meanwhile, hearings were held before the Hearings Officer on July 8 and July 23, 2003, on aspects of the proposal other than River Corridor Design Review, and the record was closed on August 13, 2003. In her decision, Karen Green indicated that the applicant had demonstrated compliance with many, but not all of the standards applicable to the proposed meeting/banquet facility proposal. She also determined that the applicant had demonstrated compliance with conditional use permit standards regarding the height of the facility. The Hearings Officer’s decision concluded that the Planning Commission’s denial of the proposed setbacks precluded her from approving the development applications. She also ‘interpreted the code’ and concluded that meeting facilities of the “size and character” of the proposed facilities “are not permitted in the CL zone.” This issue and the other concerns raised by the decision regarding parking, transportation facilities, pedestrian movement and dedicated rights-ofway have been addressed in much greater detail in the application for a Development Agreement. 16.5.4 In 1998, when the City rezoned a portion of the site for commercial uses, the Council found that the zone: “is consistent with the zoning of the Riverhouse Resort, motel, and the applicant’s plan to develop meeting rooms, resort recreation facilities and accessory resort uses.” Since then, the Owner has twice attempted to gain approval for completion of the Riverhouse resort and convention facility and has twice failed. The Owner has filed suit against the City related to actions taken by the City regarding the site dating to 1980. The City has now determined that an agreement with River’s Edge will greatly facilitate construction of a new Mt. Washington Drive Bridge adjacent to the development site. Construction of the Mt. Washington Drive Bridge as expeditiously as possible is necessary to allow closure and reconstruction of the Newport Bridge. Adequate bridge access in Bend is essential for everyday community use and for possible catastrophic emergency use, especially in the event of a potentially widespread conflagration. For these reasons, the Council directed its staff to negotiate with River’s Edge the terms of a development agreement to be submitted to the Council for its review. The purpose of the Agreement is to establish the terms under which development can occur on the resort site and to update the River’s Edge Planned Unit Development in order to meet all current, substantive land use requirements. In a Development Agreement, land use approvals are part of a bargain

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between the City and a property owner that also includes pledges by the developer of exactions. To effectuate the bargain, required land use approvals must be granted. 23 16.5.5 As discussed above, ORS 94.504(1) grants authority to the City to enter into a development agreement. ORS 94.513 allows, but does not require, the City to establish procedures and requirements for consideration of development agreements, but the City has not adopted specific procedures. The statute also requires “compliance with local regulations,” and “the approval of the city * * * governing body after notice and hearing.” (ORS 94.513(2)) The City Council is the governing body of the City of Bend and is entering into the Development Agreement by ordinance. All ancillary approvals necessary to effectuate the Agreement are being adopted by ordinance of the Council. ORS Chapter 94 grants authority to the Bend City Council to enter into a development agreement, but does not grant such authority to any city advisory group. The City has not established any procedures for review of proposed development agreements by the Planning Commission or other City advisory group prior to consideration by the Council. The City has not delegated any authority or jurisdiction for review of proposed development agreements to any sub-entity, and has retained that jurisdiction solely to itself. The procedures followed for consideration of the agreement, including all identified exactions and land use approvals, is the procedure established in ORS chapter 94, and including notice and more than one public hearing before the only entity granted authority to enter into the proposed development agreement—the City Council of the City of Bend. 16.6

Additional Code Interpretations.

16.6.1 As noted, Oregon land use statutes and caselaw establish the responsibility and authority of the Council to interpret the City’s code and zoning ordinances in the first instance. Through their attorneys, opponents in hearings before the Council have indicated that the City Council does not have the authority to consider the proposed Development Agreement. Considered in its best light, the argument of the opponents is that the land use approvals that are part of the quid pro quo of the Development Agreement can only be considered by the Council on appeal, and under no circumstances by the Council as the Hearings Body. Under this reading of the City’s Procedures Ordinance, the City Council, in adopting that Ordinance, delegated all of its authority to consider any “land use action” to the planning director, the Planning Commission, and hearings officers appointed by the City. Under this approach, the Procedures Ordinance includes “local regulations” that arguably must be followed when establishing a development agreement, and foreclose Council review of a development agreement except on appeal from both the Planning Commission and a Hearings Officer. 16.6.2 In this instance, it would not seem to be in the best interest of the City Council to interpret its code as tying its hands from considering an integrated development agreement in a single, unified hearing process. The Council has not delegated authority to the planning director, Planning Commission or a Hearings Officer 23

ORS 94.504(3) contemplates that a development agreement may not grant all discretionary approvals required to complete a development by requiring that the agreement specify “all future discretionary approvals required” and the “conditions, terms, restrictions and requirements for those discretionary approvals.”

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to first hear and approve or deny land use approvals that are part of the quid pro quo of a development agreement. In the alternative, the Council did not intend for that delegation to affect or limit the jurisdiction of the Council to serve as the sole Hearings Body for all matters related to the consideration and execution of a development agreement as granted by ORS Chapter 94. 16.6.3 The City’s Land Use Review and Procedures Ordinance (Ordinance No. NS-1775) begins with an “Introduction and application” section stating: “This ordinance is enacted to provide a uniform procedure for the grant or denial and processing of applications, approvals and determinations by the City of Bend under the applicable City comprehensive plan, land use regulations, subdivision and partition ordinance, and other ordinances which by their terms incorporate by reference the procedures in this ordinance.” Consistent with its name, the “Procedures Ordinance” is intended to govern procedures, not convey power, authority or jurisdiction. If the Ordinance were intended to convey power, authority or jurisdiction, the Council would have used at least one of those words. As noted, the Bend Charter does not allow the Council to delegate or confer a “power” unless it does so “clearly.” 16.6.4 The Procedures Ordinance establishes what should, and does occur regularly as development applications are processed by the City. It does not require the Bend City Council to follow any particular process when establishing a development agreement. Development agreements of the type outlined in ORS Ch. 94 are not mentioned in the zoning code or Procedures Ordinance and the City has no procedures for consideration of such agreements. In the absence of procedures appropriate for establishment of the Development Agreement in this instance, the City Council is not required, by its Procedures Ordinance or any other City ordinance, to refer the Agreement itself, or any of its components, to any Council appointed officer or commission. The responsibility of the Council in this instance is to maintain the procedural integrity of the deliberative process to avoid prejudice to the substantial rights of any party. To that end, the ordinance establishing the Development Agreement has been adopted following quasi-judicial procedures, with notice, hearings, and while providing all parties an opportunity for meaningful participation. Nothing more is required by law or by any City ordinance, including the Procedures Ordinance. 16.6.5 As stated, the introduction to the Procedures Ordinance establishes that it is not a jurisdictional ordinance, but procedural. An ordinance that is not jurisdictional cannot be made to confer “power” by way of definitions in the ordinance. The definition section itself states that the definitions “apply to this ordinance,” and none of the definitions purport to convey jurisdiction, authority, or power. The definitions are nevertheless potentially relevant to a discussion of the appropriate procedures to follow in the adoption of an ordinance establishing a Development Agreement. At the very least, the Procedures Ordinance provides guidance to the Council regarding the most appropriate procedures to follow in this instance. 16.6.6

The procedures ordinance defines a “land use permit” to include: 144 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


“any approval of a proposed development of land under the standards in the City zoning ordinances or subdivision or partition ordinances involving the exercise of significant discretion in applying those standards. By way of illustration, ‘land use permit’ includes review of conditional use permits, partition, master plan, commercial design review, riverfront design review, site plan, site plan change of use, modification of approval, administrative determination, declaratory ruling, subdivision variance, subdivision, and variance.” (Section 1.G.) A “land use action:” “includes any consideration for approval of a quasi-judicial plan amendment or zone change, any consideration for approval of a land use permit, and any consideration of a request for a declaratory ruling (including resolution of any procedural questions raised in any of these actions).” (Section 1.F.) The Owner has submitted a “land use action” application for consideration of the Development Agreement, because it grants permission to develop land in accordance with its terms. Numerous ancillary land use applications were also submitted by the Owner, to ensure that proper consideration has been given to City planning and zoning standards. The Development Agreement was negotiated in consideration of all potentially applicable local requirements. In some cases, alternative findings have been made, and permit approvals issued by the City, to ensure that all potentially applicable standards have been fully addressed and supported by evidence in the record as a whole. 16.6.7 The Procedures Ordinance also defines “hearings body” to include “the Hearings Officer, Planning Commission, or City Council of the City of Bend.” (Section 1.E.) “Review authority” “includes the Planning Director, Planning Commission, Hearings Officer, or City Council of the City of Bend.” (Section 1.N.) It should be clear from these definitions that the Council did not intend to relinquish its authority, in all circumstances, over land use hearings. 16.6.8 Section 5 gives the Planning Director (the Development Services Director or the Director’s designee) broad latitude in determining the appropriate procedures to follow in consideration of land use applications. Section 5(2), “Process for land use action applications,” states: “A. Except for comprehensive plan amendments and zone changes and other instances where a hearing is required by state law or by other ordinance provision, the Planning Director may decide upon a land use action application administratively either with prior notice, as prescribed under Section 5(3) or without prior notice, as prescribed under Section 5(4) or may refer the application to the Hearings Body for hearing. The Planning Director shall take such action within 45 days of the date the 145 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


application is accepted or deemed accepted as complete. This time limit may be waived at the option of the applicant. B. The Planning Director’s choice between or among administrative or hearing procedures to apply to a particular application or determination shall not be an appealable decision.” This section gives the Planning Director the authority to administratively approve applications with or without a hearing and to arrange an initial hearing on the entire agreement before a hearings officer, the Planning Commission, or the City Council. In this instance, the Owner requested, and the Planning Director chose, to refer all applications and a draft Development Agreement to the City Council for initial hearing and consideration. This decision was made, in part, because the City has not established procedures for adopting a development agreement. The decision regarding appropriate procedures to follow was also due, in part, to the fact that the Planning Commission and a Hearings Officer have already held a total of four public hearings regarding major components of development now covered by the Development Agreement. The earlier proceedings identified the major controversies and objections to the project, and have allowed them to be addressed fully on a staff level and by the property owner. The Council has now held two public hearings on the entire project, including the Development Agreement; bridge alignment; site development plans; conditions negotiated by City staff with Owner; all applications submitted by the Owner; the draft findings for approval of the Development Agreement; and additional materials prepared by staff and hearing participants. The record was open for submittal of written testimony and evidence for more than two months. The Director’s choice of procedure is appropriate, and the Council’s action to approve the ordinance and agreement ratifies the Director’s decision. 16.6.9 The Development Agreement has been negotiated between City staff and the Owner and presented to the appropriate “review authority” for a “land use decision,” as required by state law and the Bend Procedures Ordinance. All ancillary approvals necessary to effectuate the agreement have been applied for and referred by staff to the City Council for decision, using procedures outlined in the Code. The Development Agreement and conditions of approval require continued close coordination and cooperation between the City and Owner to ensure efficient bridge construction, compatibility of all proposed structures, access to the River’s Edge site, improved pedestrian connections, proper drainage, adequate sewers and related infrastructure and riparian enhancement. 16.6.10 Sections 6(a) and 7 of the Procedures Ordinance establish procedures for initial hearings and appeals to the Planning Commission, hearings officer and City Council. Read in the light most favorable to the opponents, these sections would establish that under normal circumstances the Planning Commission is the initial hearing body for applications for development within 100 feet of the Ordinary High Water Mark (OHWM) of the Deschutes River, and that a hearings officer is the initial hearing body for all other land use actions. In this reading of the Ordinance, the City Council cannot consider such applications except on appeal from another hearing body, and is not obligated to handle any such appeals. 146 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


16.6.11 It should also be noted that BZO section 10-10.22A concerning Deschutes River Corridor Design Review, describes the procedures to be followed by the “Bend Urban Area Planning Commission.” As previously noted in section 7 of these findings, in the absence of development agreement review and approval, appeal of a Planning Commission Corridor Design Review decision would be to the City Council, which has retained full authority to remand or reverse the Commission, applying the same standards in BZO 10-10.22A that the Planning Commission applied. Under those circumstances, it would be necessary to interpret the code as “implicitly” referring to the City Council as well as the “Planning Commission.” On appeal, “City Council” is substituted for “Planning Commission,” and the City accepts that same interpretation when, pursuant to review of a development agreement, the Council provides Corridor Design Review in the first instance. The Corridor Design Review sections do not expressly or “clearly” state that the Council has forfeited its jurisdiction to consider application of corridor design review standards to elements of a Development Agreement. 16.6.12 As stated, an ordinance that does not on its face clearly convey jurisdiction, authority or power cannot do so implicitly through an outline of procedures that ordinarily apply. ORS Chapter 94 development agreements are not mentioned in the Procedures Ordinance or Zoning Ordinance. There is no basis for interpreting the City’s ordinances as prohibiting approval of a development agreement unless land use approvals that are part of the negotiated bargain are first acted upon by the planning director, Planning Commission or hearings officer and then appealed to the Council. Such a process would be untenable, would not conform to provisions in ORS chapter 94 granting full authority to the Council to “hear” and establish development agreements, and would not conform to provisions in ORS chapter 227 requiring cities to establish procedures for consolidated review of land use applications. 16.6.13 As additional support for this interpretation it should be noted that the establishment by a city of any contract or agreement with a private party is a legislative act. Basic questions posed by any agreement between a municipal corporation and a private individual or entity are essentially public policy (health, safety, welfare) considerations. Will the agreement work? Is the consideration fair, balanced, and a proper allocation of costs between the parties? While the City may delegate authority for initial review of legislative acts to inferior tribunals, the Council has not done so with regard to Development Agreements, through the Procedures Ordinance or any other ordinance of the City. Under the Charter, limitations on the authority or “jurisdiction” of the Council must be clearly expressed by law and cannot be implied. In this case the Development Agreement is a legislative enactment, and is being adopted by the Council under its general, Constitution- and Charter-delegated legislative authority and specific statutory authority granted by ORS Chapter 94. Enactment of the Ordinance and execution of the Agreement are legislative acts established following procedures outlined in Chapter 94. In this instance, to ensure to the maximum extent possible that the substantial rights of parties to the proceedings are protected, notice and rules for the conduct of quasi-judicial land use hearings have also been followed. No party to the proceedings has made an adequate showing that his or her substantial rights have been prejudiced by the procedures followed by the City. To the contrary, all parties are being 147 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


provided or have been provided adequate notice, an opportunity to review the applications and plans, and an opportunity to present all of their arguments and evidence in fair and open hearings conducted before the City Council. 16.7

Prejudice to Substantial Rights

16.7.1 Numerous land use cases address procedural errors, not from the standpoint of jurisdiction, but in terms of whether the errors caused prejudice to the substantial rights of a petitioner. Those cases generally hold that adequate notice, an opportunity to prepare and submit objections and comments, and when required by law, the opportunity for a “fair and full hearing,” are “substantial rights.” 16.7.2 The Council notes the objections and comments received from parties to the proceeding regarding procedural errors. To the extent those objections and comments are clear enough to address, the Council has taken appropriate steps to cure. For example, in consideration of opponents’ claim that they had inadequate time to prepare for the hearing, the hearing was continued and additional oral testimony was received. In response to a claim that inadequate time had been allowed to review additional comments made by the Owner, additional time was provided. In response to allegations that relevant state agencies had not been given adequate notice, the Owner provided notice to such agencies. The most relevant state agency, ODFW, participated in the proceedings, testified orally, and submitted written testimony to the record in response to questions from the opponents. The record supports a determination that the substantial rights of all parties was preserved through procedures employed by the City. The Council does not find credible any claims of prejudice to substantial rights made by any party due to the procedures followed by the City. 16.8 Conclusion Regarding Council Authority. Oregon courts echo the statements in the Bend Charter indicating that governing body jurisdiction over land use matters cannot be relinquished except by express, ‘clear’ delegation. The presence of a statute purporting to grant authority to a local governing body to exercise jurisdiction militates against a determination that the governing body does not have such jurisdiction, or has delegated parts or all of its jurisdiction to lesser tribunals or officials. Local governments are afforded deference when interpreting their own enactments. In establishing the Council’s intent, the text and context of an ordinance are important. In establishing whether the Council intended to delegate authority over all, or any part of a development agreement, the “context” of the ordinance includes consideration of the City’s Charter. The terms of the Procedures Ordinance establish that it is not jurisdictional and was intended to establish procedures, not to convey “power” to appointed officers and the planning commission. Likewise, the City Council has not expressly or ‘clearly’ delegated or forfeited jurisdiction through any provision in its zoning ordinance. Once the jurisdiction of the Council to make a decision has been established, a petitioner wishing to contest the procedures used must establish that those procedures caused prejudice to his or her substantial rights. No party to the proceedings has established to the satisfaction of the City Council that any of his or her substantial rights were prejudiced by the procedures employed in this instance to consider the proposed Development Agreement. 148 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


16.9 Correction of Clerical Error. With regard to the correction of the clerical error, Section 8, Subsection (9) of the Procedures Ordinance states: “(9) Correction of clerical errors. Upon its own motion or the motion of a party, the City Council may, subject to any applicable public notice and hearing requirements, enact an ordinance correcting clerical or typographical errors in plan amendment or zone change ordinances and any maps appended thereto implementing decisions of the Review Authority. Such changes shall be entered only if the council is able to make a finding that the decision of the Review Authority, including appendices, is not accurately reflected in the implementing ordinances.” FINDING: Ordinance NS-1701 was adopted in 1998, amending the zoning map to designate an area from Urban Standard Residential (RS) to Limited Commercial (CL). Section 2 of the Ordinance contains a metes and bounds legal description of an area that plots out differently than the map attached to the Council’s rezone ordinance. Specifically, the legal description recorded leaves the notch around the dam as RS, as shown on the Owner’s plans. This includes the western abutment of the North Canal Dam and is mostly under the impoundment behind the dam. The findings in support of Ordinance NS-1701 indicate that the Council intended to rezone the entire parcel, but erroneously adopted the wrong legal description. The description contained a “scrivener,” “clerical” or typographical error, that the City is now correcting by the proposed Ordinance, supported by these findings. Owner’s exhibits include an analysis by professional land surveyor David Williams that shows the omitted notch shaded in dark gray, along with a legal description of the notch area to be corrected by Council Ordinance. All Code notice and hearing requirements for adoption of an ordinance to amend the Zoning Map to correct a clerical error have been satisfied in this instance. 17. Refinement Plan for Certain Portions of the PUD, excluding the South Riverfront Residential and Hotel Expansion areas. The City acknowledges that a development plan for a designated geographic area that provides more detail on future street and utility locations, and may include additional standards for uses, has been requested by the Owner and is authorized by the City Council to proceed as requested by separate process consistent with the Development Agreement regarding the Areas for Remaining Development in the subject PUD. Specifically, these areas include all lands in the River’s Edge 2004 PUD, except for the 22.5+/- acres described herein as Hotel Expansion and South Riverfront Residential. 17.1

Bend’s General Plan describes the Refinement Plan Policies as follows: Refinement Plans **** 7. The city may prepare land use refinement plans for neighborhoods or other discrete geographic areas.

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8. The area to be included in a refinement plan study shall be approved by the City Council, and the boundary of a study area shall be shown on the zoning map until the study is complete. 9. A refinement plan, including detailed maps, policies, and plan text, when adopted by the city, shall become part of the General Plan. 10. Refinement plans shall, at a minimum, provide plans for the development of sanitary sewer, water, and transportation systems and criteria by which to evaluate proposed amendments to an adopted refinement plan. 11. Refinement plans may evaluate the need for, and designate the location of, schools and park facilities, public and private open space, future neighborhood commercial or convenience commercial uses, residential, and mixed use areas. 12. Refinement plans may include site and building design regulations and alternative street standards. FINDING: The General Plan outlines the policies to be fulfilled by the Refinement Plan process, and this language governs where there is no supporting Zoning Ordinance provision. The language is intentionally broad-based, and intended to provide the flexibility to be utilized in this application process. The River’s Edge 2004 PUD includes various parcels of land that could be developed with future mixed uses. The interrelationship of the mixed uses is key to the success of the River’s Edge development and the aesthetics of the adjacent neighborhoods. The City encourages mixed use planning and refinement plans as a way to evaluate design concepts that incorporate those interrelationships between uses. As such, City acknowledges and approves the initiation of a Refinement Plan that, when complete, will become part of the Bend Zoning Ordinance and the General Plan. Sanitary sewer, water, and transportation facility findings made above shall be incorporated into this plan, documenting that these requirements have been completely met for all areas in the PUD, except the future mixed use areas, and these areas may require future transportation improvements only. This agreement also recognizes extensive dedications made by Owner for parks, trails, and open space, and these mitigations satisfy the requirements for the impacts that will be created by the future developments to be defined more particularly by this Refinement Plan process. These policies are satisfied, as far as necessary at this point, to begin initiation of the Refinement Plan process. 17.2

Bend LUPO sets out the procedures which govern this process: Section 6B. REFINEMENT PLAN REVIEW PROCEDURES (1) Refinement Plan Development and Approval Process. (2) Refinement Plan Content. 150 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


(3) Land Use Review. (4) Amendments and Adjustments to the Refinement Plan. (1) Refinement Plan Development and Approval Process. (a) Initiation. The process to establish a refinement plan shall be initiated by the City Council. The Planning Commission or interested property owners may submit requests to the City Council to initiate the refinement plan process. If owners request initiation of a refinement plan process, the City Council may require an application fee to cover the cost of creating the plan. FINDING: The City Council approves the initiation of the River’s Edge 2004 PUD Refinement Plan for the purpose of planning future mixed-use and commercial areas. The Owner has agreed to supply the necessary land use experts and support materials to assist the City Planning Director in finalizing the Refinement Plan. These experts, supplied at Owner’s cost, shall satisfy any requirement for processing fees. The Refinement Plan Process shall begin after ratification of this Development Agreement, and finalization after conclusion of the appeal process. (2) Refinement Plan Content. At a minimum, a refinement plan shall include the following text and diagrams: (a) Plan Objectives. A narrative shall set forth the goals and objectives of the plan. (b) Site and Context. A map of the site and context shall identify the project area. (c) Land Use Diagram. The land use diagram shall indicate the distribution and location of planned land uses, including open space and parks, within the area covered by the refinement plan. (d) Density. If residential uses are proposed, a narrative shall describe planned residential densities. (e) Facilities Diagram. The facilities diagram shall depict the general location and extent of major components of sanitary sewer, water, and other essential facilities proposed to be located within the area covered by the refinement plan and needed to support the land uses described in the plan. (f) Circulation/Transportation Diagram. The circulation diagram shall indicate the proposed street pattern for the refinement plan area, including pedestrian pathways and bikeways. Design standards and street cross sections shall be included, if different than normal City standards. 151 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


(g) Design and Development Standards. If standards differ from normal City standards, design and development standards shall be included in the plan. FINDING: Owner’s previously described commitment shall include fulfillment of the above requirements. 18. Additional Findings to Address Testimony Received. 18.1 During the hearing process opponents, including a group of neighbors represented by legal counsel, raised a number of concerns and objections. Many of the concerns raised by those in opposition to the project had previously been addressed by the Owner and were discussed in the original draft findings submitted to the City on September 13, 2004. Many additional concerns have been addressed by changes to the text of the draft conditions submitted with the application, by the Conditions of Approval (see following section) or by amendments to the now-approved Development Agreement. The most relevant issues raised during the hearing process are discussed in this section. 18.2 Jurisdiction. Section 16 of these findings has been substantially amended to explain the authority of the Council to adopt Ordinance No. NS-1951, The Council concludes that it has jurisdiction to consider and adopt a development agreement by virtue of its Charter and state statutes authorizing development agreements. As additional, or reiterated explanation: the City needs to manage its bridge capacity in a manner that will protect to the greatest extent possible the health, safety and well-being of all citizens of, and visitors to, the City. The Newport Bridge must be replaced. To maintain bridge capacity during the closure of the Newport Bridge, the new Mt. Washington Bridge must be constructed first. Major public construction projects like bridges are most efficiently managed when neighbors are cooperative, provide needed easements and right-of-way voluntarily, and lawsuits are avoided. Councilors cannot help but wear their legislative/administrative hats when determining how best to provide infrastructure improvements like bridges. The development agreement provisions of ORS Ch. 94 have in this case provided a mechanism for coordination of a major public works project with development of meeting facility and resort uses that have long been anticipated and discussed by the community. The overall character of the Development Agreement is therefore legislative, as is supported by the nature of the transaction and by the text and context of the statute. At the same time, the development agreement process does not allow the Owner to avoid the City’s land use planning and zoning standards, especially the Bend Zoning Ordinance. To that end, the Owner has submitted extensive and convincing evidence, in the form of proposed findings and supporting studies and testimony, demonstrating compliance with all applicable standards for the approvals granted. In its quasi-judicial capacity the Council has considered and weighed all testimony and evidence submitted in this matter, to determine whether the requested approvals are consistent with City standards, and concludes that all applicable standards have been met and all approvals have been justified by substantial evidence in the record as a whole. See Section 16 of these findings for additional findings regarding the authority of the Council to adopt Ordinance No. NS-1951. 152 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


18.3 Prejudice to Substantial Rights. At several times during this process opponents stated that the procedures followed by the City in considering the Development Agreement prejudiced their substantial rights. As discussed in section 16 of these findings, the Council has provided all parties an opportunity to participate, and adequate time to review and rebut materials submitted to the record. A hearing was held on October 6, 2004, and an additional hearing was held on November 3, 2004. At the first reading of the proposed ordinance on November 17, 2004, additional testimony was received by request of the Council and staff, and the record remained open until November 24, 2004, for additional written rebuttal by all parties. Second reading and adoption of Ordinance No. 1951 occurred on December 1, 2004. The City finds that the review procedures followed in this instance conform with all City code requirements and state law. Based upon the information, evidence, testimony, studies, plans and other supporting materials discussed or properly referenced in these findings or the record as a whole, the Council has adopted Ordinance No. NS-1951, approving the Development Agreement and issuing all specified ancillary approvals necessary to effectuate the Agreement. No party has adequately supported any claim to prejudice to their substantial rights in this matter. 18.4 Traffic Assumptions. The Owner’s transportation and traffic consultant, Kittelson and Associates, provided a detailed transportation impact analysis. City staff concurred with Kittelson’s recommendations, as did ODOT. Agreement of this sort is difficult to achieve and occurred in this case over a period of months and with great effort on all sides. The opponents asserted that the traffic study was flawed in numerous respects, and the Owner and Kittelson responded. The City has weighed all testimony and evidence regarding this issue and has concluded that the Owner has carried its burden necessary to justify approval. See section 9.11 of these findings for a discussion of transportation impacts and compliance with applicable standards. Kittelson also provided an in-depth analysis of parking impacts as discussed in sections 12.4 and 12.5, demonstrating compliance with City parking requirements. Conditions of Approval require parking management and additional transportation management. All City standards for transportation and parking impacts and analysis have been met and all necessary mitigation has been or will be provided. 18.5 Trail Feasibility and Impacts. The Owner has agreed through the Development Agreement and Conditions of Approval to provide significant public easements for trails and conservation. The BMPRD first proposed a boardwalk at the southern end of the site, on the man-made impoundment at that location. Such a walkway could be placed outside of the WOZ riparian area and limit impacts to riparian resources and identified wetlands in the area. The boardwalk will also maintain separation of the public from residential uses planned for the southern end of the site and dwellings across the impoundment. Trails are discussed at length in Sections 5.2, 6.2, 7.2, 7.5 and elsewhere in these findings. The hearing process and site visits by Councilors has resulted in an agreement by the Owner to provide significant additional easements and to improve the feasibility that a boardwalk can eventually be built. The Council finds that even if a boardwalk is not eventually built, the other public access and exactions agreed to by the Owner are sufficient to ensure compliance with all applicable standards and to justify the approvals granted. 153 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


During the hearing process, the Council received additional testimony regarding the wildlife trail corridor around the west dam abutment. The area is very steep, and contains, at places, sheer concrete obstructions. Otter, beaver and other wildlife have developed a trail around the dam, a trail that could potentially be impacted by an overlook and public trail that could eventually be built in a public easement area initially proposed by the Owner. After considering the testimony of all parties and viewing the site, the Council has concluded that it is feasible for the Owner to improve wildlife passage through the area. A Condition of Approval ensures the improvement of this aspect of wildlife habitat. Additional approvals will be necessary prior to any trail construction in any WOZ area, including the wildlife portage area adjacent to the dam. The character of all trails located within the WOZ is public, and it is the responsibility of the City and BMPRD to establish public access in easement areas provided by the Owner that are within WOZ riparian areas. It is anticipated that the City and/or BMPRD will complete trails within the WOZ after consulting with their own staffs, interested state agencies and the public. The additional review process will promote the City’s goal of protecting wildlife resources in the area while also promoting the sometimes conflicting goal of providing reasonable public access to the river for recreational use and visual enjoyment. 18.6 Water Rights. The opponents have questioned the value of water rights pledged by the Owner. The City has concluded that the water rights are of value and likely to improve Deschutes River instream flows. Even without the water rights pledged by the Owner, the owner has provided sufficient mitigation and exactions to meet all applicable standards and to justify the approvals granted. The Owner has purposefully agreed to grant the water rights to the City with no conditions attached, to allow the City the greatest latitude to address public needs and welfare. The water rights are discussed in Section 7.5 and elsewhere in these findings and Conditions of Approval. 18.7 Uses allowed. In response to concerns raised through the hearing process, the definition of “2004 Master Plan Amendments” in the Development Agreement was revised to more accurately reflect the approvals granted. The “Development Allowed” section of the findings (approximately page 9) was revised to be consistent with the Development Agreement, as was Section 2 of the Conditions of Approval. The Findings support and justify all approvals granted, with opportunity for additional public input for approvals necessary under the BZO, following procedures specified in the Land Use Review and Procedures Ordinance.

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Conditions of Approval:

1.

Nature of These Conditions.

a. These conditions are binding on the Owner, and shall inure to the benefit of, and are binding upon, all successors in interest to the Owner. b. Ordinance No. NS-1951 was adopted by City Council subject to the below Conditions of Approval. c.

To the greatest extent reasonably possible, these conditions shall be interpreted in a manner consistent with the Development Agreement adopted through Ordinance NS-1951.

2.

Allowed Uses.

a. The approval of the Development Agreement and associated land use decisions is based on the submitted plans and the improvements to the site and public facilities as depicted thereon. Development is allowed only as proposed in the application, as approved through the Development Agreement, and as otherwise limited in these Conditions. Where specific improvements have been proposed and approved as submitted, the construction of those improvements will not be listed as a specific condition of approval. Any substantial alteration of the approved plans, other than those that may be required to comply with conditions of this approval, will require a new application. b. Approval is granted through Ordinance NS 1951, the Development Agreement and these Conditions of Approval to include: A. Modification of prior PUD approvals and establishment of the River’s Edge 2004 PUD and Master Plan; B.

Site, design, WOZ and all other land use approvals necessary for completion of all elements of the Owner’s plans described in these Conditions and on the plans as “Phase 1.”

C.

Building footprints, setbacks and heights as indicated on the submitted plans and described in these Conditions.

c. Prior to construction of uses other than of Phase 1, the Owner shall meet with Planning Department to determine what additional land use 155 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


applications or permits, if any, are necessary to complete site and/or design review, consistent with the existing, approved plans, the Development Agreement, and these Conditions. For the term of the Development Agreement, BZO standards applicable to the development are those in effect at the time of adoption of Ordinance NS 1951, unless the change in regulation will facilitate completion of the development. Notwithstanding the above protection from amendments to BZO standards, Rivers Edge shall be subject to and pay the fees and system development charges in effect when building and land use permit applications are filed. 3. Insubstantial Alterations to Footprint Size and Location. To the extent practicable, building footprint sizes and locations shall be as shown on the plans. Variations to footprint sizes and locations may be allowed by the Planning Director, so long as no building is placed closer than 50 feet from the Ordinary High Water Mark (OHWM) of the Deschutes River and so long as there is no net increase in the square footage of building footprints or portions of footprints within 100 feet of the OHWM. This condition shall be administered by planning and development staff in conformance with the goal of providing flexibility and possibly improving the Owner’s ability to preserve natural rock and landscape features identified during post-approval planning and development phases. 4. Meeting Facility Construction. Owner shall not be entitled to apply for building permits for the condominium units or the hotel rooms or any of the other development in the South Riverfront area (22.5 +/- acre parcel) unless and until the Owner has obtained a Certificate of Occupancy for the meeting facility as described in the Development Agreement and Exhibits thereto. 5. Agency Permits. Prior to construction of any element of the proposal, the owner shall obtain any and all state and/or federal permits necessary for construction. The Owner shall at all times remain in compliance with these conditions and with applicable state and federal agency permits and shall retain copies of these conditions and agency permits at the Owner’s office. 6. Project Management Meetings. The Owner shall participate in regular project management meetings held by the City during the course of construction for the meeting facility. The purpose of the meetings is to guide and monitor the construction of the meeting facility. 7. Transportation Improvements. To ensure adequate safety and operations on the surrounding transportation system, the Owner shall: a. As part of site development, at the Mount Washington Drive/Third Street intersection, right-of-way for future southbound right-turn lane shall be dedicated to the City of Bend or ODOT, as appropriate.

156 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


b. Pedestrian crossings between the existing hotel and proposed hotel expansion shall be provided by Owner via the existing bridge and a new pedestrian underpass that will be part of the construction of the new Mount Washington Drive Bridge. c. Owner shall trim and maintain on-site shrubbery and landscaping as necessary to ensure adequate sight distance for vehicles entering and exiting the hotel expansion at each of the access points on Mount Washington Drive. d. Owner shall provide a minimum of 75 feet of throat distance at the proposed site access point to the hotel expansion to ensure adequate storage for vehicles exiting the site. 8.

Parking Management.

a. The Owner shall provide parking management in circumstances of peak use, including as necessary, appropriate scheduling; temporary signage; utilization of existing nearby lots; utilization of shuttle services; parking enforcement; and valet or assisted parking. b. Parking, including parking during large events, will be subject to monitoring and independent review three years after completion of the meeting facility, upon notification by the Planning Director that such review is warranted. 9.

Additional Transportation Demand Management.

a. Prior to operation of the meeting facility, the Owner shall submit a final Transportation Management Plan, based on the Draft Transportation Management Plan dated September 10, 2004, from Julia Kuhn of Kittelson & Associates, Inc, and incorporating, substantially, the elements outlined in that draft. b. As necessary to accommodate large events, the Owner shall work with event coordinators to encourage participants to share rides to events through such means as newsletters, emails, special articles, and flyer/posters to event coordinators and the public. For all events, but especially with regard to events attracting “in town” or “in area” guests, Owner will coordinate with the City to develop appropriate material to increase the public’s awareness of carpooling and shuttle service opportunities. For large events attended largely by “out of town” or “out of area” guests, Owner shall make reasonable efforts to ensure that notice is provided to prospective attendees of any available shuttle services to nearby hotels, and of other parking management arranged for such events. 157 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


c. The Owner shall continue to provide showers and lockers for employees to encourage bicycling and walking to work. 10. Height Regulations. The City has approved building heights that exceed 30 feet, as measured from natural or finished grade, for the meeting facility, hotel, restaurant and condominium units. Height measurements are from natural grade for structures or portions of structures within 100 feet of the OHWM and from finished grade for structures or portions of structures elsewhere on the site. Development as shown on the plans is allowed to a height not to exceed 30 feet from the applicable grade to the bottom of the primary roof eave fascia and at a primary roof pitch of no greater than 4.5:12. Variations to heights shown on the plans shall not be considered significant, and shall not require additional applications or approvals, so long as eave heights and roof pitches conform to the limitations of this condition. All other development authorized or contemplated herein shall conform to the height regulations specified by the City Code at the time that the approval is sought. 11.

Trail Development.

a. Owner shall establish and abide by easement agreements between Owner and the Bend Metropolitan Parks and Recreation District (BMPRD) or City that facilitate and direct trail construction and maintenance. Prior to issuance by the City of a building permit for the meeting facility and each subsequent phase of development, the Owner shall submit a final plan for trail alignment in conformance with the easements granted to BMPRD. b. To the extent additional approvals are necessary to effectuate trail construction within the WOZ, the Owner shall cooperate with the BMPRD and/or the City in obtaining such approvals. c. Owner shall deliver into escrow no later than February 28, 2005, executed easement documents suitable for recording providing an alternative to the boardwalk alignment shown on the plans. The approximate location of this alternate alignment is depicted on Exhibit A-1 through A-3 of these Findings and Conditions. Upon Final Approval (as defined in the Development Agreement and not qualified) the executed easement documents held by Amerititle shall be recorded. The alternative alignment would begin at the Deschutes River Trail west of the site. From there, at a width of 20 feet, the alternative easement will continue east around the north side of the River’s Edge pump house and to the west of the tee box of hole No. 8 of the River's Edge Golf Course, then continue south to intersect roughly perpendicular to the original boardwalk alignment in the area of the eastern edge of the R3 wetland shown on the Owner’s plans. The alternative alignment is in addition to trail easements granted by Owner to

158 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


BMPRD through the Development Agreement as depicted on PED 1, PED 2 and Exhibit A-16.

d. Owner shall deliver into escrow no later than February 28, 2005, executed easement documents suitable for recording for additional public access to the site as described in this section. Upon Final Approval (as defined in the Development Agreement and not qualified) the executed easement documents held by Amerititle shall be recorded. The easement to be conveyed is in addition to the “fisherman’s easement” previously dedicated by Owner to BMPRD, (Book 349, Page 1866, Deschutes County Deed Records). The additional easement shall be for public access in the area roughly described as follows: North of the North Unit Diversion Dam, west of the existing “fisherman’s easement” along the Deschutes River, east of the bottom toe of the rimrock cliff, and south of “Segment 3” of the BMPRD trail easement adjacent to the conference center as depicted on Exhibit PED 2. The easement shall permit the City to construct and maintain public pathways upon and through the easement area and shall be assignable by the City to BMPRD at the City’s discretion.

e. All trail easements dedicated to the City shall reference and be subject to the same rules, regulations and standards that are part of easements granted by Owner to BMPRD through the Development Agreement. The trail easements will allow for the future construction of a continuous river trail alignment between Sawyer Park and the 1st Street Rapids trailhead along the west bank of the Deschutes River. The final trail alignment (within easement areas dedicated through these Conditions and the Development Agreement), along with construction specifications and wildlife/riparian habitat mitigation measures as required by the City’s Waterway Overlay Zone, will be the subject of future land use applications. f.. The easements described in this Condition No. 11 shall be assignable at the discretion of the City of Bend between the City of Bend and Bend Metro Parks and Recreation District. g. Following consultation with a wildlife biologist and ODFW, Owner shall improve for wildlife passage the area depicted on Owner’s Exhibit P1 submitted on November 10, 2004 around the abutment of the North Canal Dam.

12.

Riparian Enhancement/Mitigation.

a. The Owner shall submit a revised landscaping plan showing how the “fill area” supporting the fire access drive will be re-vegetated. The Owner shall include a list of the plant species to be utilized. City staff and 159 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


Owner shall mutually agree and approve the design and species before release of any building permits for the meeting facility. Any vegetation requiring removal in the fill area supporting the fire access drive shall be replaced with similar native vegetation in accordance with Waterway Overlay Zone (WOZ) guidelines. b. The Owner shall not encourage additional direct access to the riparian area from the patio, and/or the fire access way on the east side of the building beyond easements granted to the Bend Metropolitan Parks and Recreation District (BMPRD). c. The Owner shall submit a series of digital photos depicting the riparian zone along the river’s edge of the subject property before the grading of the site. These photos shall serve as a gauge for monitoring of the riparian area before, during, and after construction. The Owner shall replace any plant materials within a reasonable time upon notice from City. d. The Owner is prohibited from altering any riparian zone habitat unless specifically approved by the City in conformance with the City’s WOZ ordinance. As noted in the ordinance, “altering” excludes routine maintenance. e. The Owner shall make reasonable efforts to save native shrubbery removed from the WOZ area of the site necessitated by construction of the meeting facility. The saved shrubbery shall be re-planted into the landscaping proposed by the applicant, to the extent it is viable to be saved. f. The Owner shall make reasonable efforts to incorporate portions of large diameter Ponderosa trees removed from the site into the architecture of the meeting facility (i.e. exterior deck supports, columns, exposed trim, etc.). g. Trash receptacles shall be installed outside of the riparian areas. The design of the trash receptacles shall be approved by City staff before installation. h. The Owner shall discourage the feeding of any mammals within the riparian zone by guests of the meeting facility. Small plaques or other subtle signage shall be placed on site. i. The Owner shall submit detailed plans demonstrating how roof drainage will not affect the riparian area or enter the river. The plans shall be approved before release of the building permit for the meeting facility. j.

The meeting facility windows facing the river shall be non-

reflective. 160 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


k. The Owner shall conduct riparian enhancement activities in previously developed open areas under the control of the Owner on the eastern side of the river directly across from the subject property. The enhancement area shall include portions of the 30-foot Waterway Overlay Zone on Assessor’s Map 17-12-29A, Lots 101 and 699, as depicted on Exhibit A-23. Enhancement shall include: minor re-sculpting and aesthetic placement of existing boulders to provide a more random and natural look along the river bank (without altering the river channel or stream hydrology); removal of abandoned steel bridge culverts and miscellaneous metals; the import and creation of soil pockets and enhancements to support new plant materials above the ordinary high water mark (OHWM); the additions of aspens, willows and native grasses; and the installation of temporary irrigation systems until new plant material is fully established. The Owner shall contact the Upper Deschutes Watershed Council and seek its input when planning for and implementing enhancement activities on the east bank. Plantings shall be monitored by the Owner and any dead or diseased plants removed and replaced for a period of two years. Plant monitoring shall include digital photos of the planted area submitted by the Owner for Planning Director review and assessment one and two years from Final Approval. If required by the City, the Owner will prepare necessary design concepts and/or other required information to the City prior to commencement of restoration activities. l. The Owner shall manage all construction activities to prevent and control erosion within or to the riparian corridor during and after construction. Surface water collection and storage systems necessary to prevent parking area and driveway surface water from flowing unfiltered and/or untreated into the riparian area or river shall be constructed prior to or commensurate with construction of parking and driveway surfaces. 13.

Condominium Development.

a. In developing the proposed condominiums the Owner shall comply with all applicable requirements of ORS Chapter 100, including the requirement to separate the condominium units and common areas from the remaining uses within the PUD. b. Prior to construction, the Owner shall apply for and obtain a lot line adjustment or partition establishing a single lot containing all condominium uses anticipated for the South Riverfront Residential Area and, if necessary, for the North Riverfront Residential Area. Footprint sizes and locations of the North and South Riverfront Residential Areas shall be substantially as shown on the submitted plans.

161 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


c. Prior to development of the North and South Riverfront Residential Areas, the Owner shall obtain site plan approval for proposed elements of development not otherwise noted on existing plans. d. Off-street condominium parking shall be provided in condominium common areas as shown on a recorded plat. 14.

Planned Unit Development.

a. Planned Unit Development is allowed as shown on the amended master plan drawings submitted with the application. Owner shall obtain tentative subdivision plan approval for any new lots as depicted in the plans. An application for tentative subdivision plan approval shall be in conformance with the maximum number of lots/densities approved herein. b. All utility line relocations that may be necessary shall be extended via underground lines. c. Future development within the River’s Edge 2004 PUD shall be in conformance with the approved Master Plan for the community, including all amendments thereto. d. The Owner shall be responsible for the off-site transportation impact mitigation measures required of the Owner in the Development Agreement executed by the Owner and City. 15.

Additional Requirements Prior to Issuance of a Building Permit.

a. The Owner shall apply for and meet the requirements for a building permit for all proposed structures; contact the City of Bend Building Division; and pay applicable system development charges (minus available or existing credits) and sign sewer and water service agreements with the Development Services Division. b. The Owner shall sign a City Development Agreement prior to obtaining a building permit. c. The Owner shall submit engineered plans for fire sprinkler line connection to city mains to the City Engineering Division for review and approval prior to issuance of building permits for any individual structure. The water system shall meet Fire Code and domestic needs. All water and sewer plans that are part of a site plan, or are being constructed outside of a public way, shall include any and all site features of the development, existing or proposed, that may affect the City facilities.

162 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


d. The Owner shall provide detail plans of the proposed trash enclosure. The on-site trash and recycling area shall be screened on all sides by a sight obscuring fence or wall that is a minimum of 5 feet in height and which is of a compatible design to the development proposed on the site. Parking in front of refuse enclosure area shall be prohibited or restricted to allow disposal company access to the refuse enclosure area. e. The Owner shall consistently with the Development Agreement promptly deliver to Amerititle, to be held in escrow according to the terms of the Development Agreement, the appropriate water rights transfer documents for filing with the Oregon Department of Water Resources for a transfer of water rights identified as Water Right Certificate No. 75760 to the City of Bend.

16. Additional Requirements With Development of the Hotel Completion/South Riverfront Residential Area. a. The parking lot and on-site driveways shall be designed and constructed to City standards, including striping and surfacing with A.C. paving. Parking areas and driveways shall be sloped toward the catch basins as indicated in the site plan. All drainage systems shall be kept operable at all times. All disabled parking and access requirements of the Uniform Building Code shall be incorporated into this project and approved by the City Building Division during the building plan check process. Owner shall provide proof of DEQ approval for any drywells used for surface water retention. b. The Owner shall provide sewer and water in accordance with City standards and policies and the terms of the Development Agreement. The Owner shall install a water meter, with an approved backflow prevention device, on components of the project as required by the City. All City maintained facilities shall have full width exclusive utility easements at 20 feet each for water and sewer outside of any right-of-way areas and all sewer and water service lines to the property not being utilized shall be cut at the main and abandoned. c. Exterior lights shall be hooded and directed down onto the site and not shine or glare onto adjacent property or streets in accordance with City’s Outdoor Lighting standards found in Section 10-10.23D of the City Code. d. Development of the site shall comply with the City Fire Department requirements for the location and required number of fire hydrants, fire flows, address signs, fire extinguishers, building construction and Key Box locks. Fire Department Connections shall be in accordance with NFPA Standard 13, 2-7 street side of buildings, outside of collapse zones, and located so that they will not be affected by the exposing fire. 163 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


e. The Owner shall apply for and receive approval for a sign permit prior to placing any signs on the subject property. 17.

Additional Requirements Prior to Final Occupancy.

a. The parking lot paving, landscaping and irrigation system associated with any constructed building shall be installed prior to occupancy of the building. b. Prior to and following final occupancy, the landscaped areas of the site shall be continually maintained including watering, weeding, pruning, and replacement of dead materials. 18.

Duration of Approvals.

The duration of the land use approvals shall be as specified in the Development Agreement. Adopted by Bend City Council __________________________ Mayor Date:________________ Attest:___________________ City Recorder

164 FINDINGS AND CONDITIONS ORDINANCE NO. NS-1951


Rivers Edge