CITY OF TANGENT



CITY OF TANGENT

STAFF REPORT

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APPLICANT AND OWNER: Wendy Knofler

PROPOSAL: Tentative Land Partition Approval to divide a 21.17 acre parcel into a 19.17 acre parcel and a 2.0 acre parcel to facilitate a new dwelling

ADDRESS: None Assigned

TAX MAP #: T12S, R04W, Sec. 12, TL 801

COMPREHENSIVE

PLAN DESIGNATION: Agricultural

ZONING: Exclusive Farm Use (EFU)

APPLICABLE CRITERIA: Tangent Land Development Code (LDC) Section 2.328

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REQUESTED ACTION AND BACKGROUND: The applicant seeks approval of a Tentative Partition Plan (Exhibit 1) to divide the above referenced subject property into two parcels, including one 2 acre parcel intended for single-family residential development. The property is located in the City of Tangent's Exclusive Farm Use (EFU) Zone, which normally carries a minimum lot size of 40 acres. The subject property is 21.17 acres in area, as a result of a land partition that was apparently erroneously approved by the City of Tangent and recorded with the Linn County Surveyor in 2014 (Linn County Surveyor's Partition Plat 2014-51). As may be viewed on the Vicinity Map, Attachment B, this is Parcel 2 of that land partition, which segregated the subject tract (tax lot 801) from the parent parcel, tax lot 800, to the east.

The current request to divide just 2 acres from tax lot 801 derives from a special land use approval obtained by prior owners of the property, for two new dwellings and one new parcel, among two contiguous properties. In August, 2010, the Department of Land Conservation and Development (DLCD) approved a "Measure 49 Supplemental Review of Measure 37 Claim, Final Order and Home Site Authorization", State Election Numbers H129824 and H133173, affecting the former, 40 plus acre tax lot 800, and the adjacent farm dwelling property to the north, owned by Annabelle and Monte Forster, tax lot 1100 of T.12S, R 04W, Section 1. This order is Attachment D to this report.

This action provided relief for the Forsters and then owner of tax lot 800, Terry Cochrane, from certain land use restrictions normally applicable in the EFU Zone, based upon their having owned the affected properties since before the time when land use regulations restricted the number of dwellings and parcel sizes allowed in the EFU Zone. The State of Oregon and Linn County adopted land use planning and zoning in 1973, while the acquisition date for the properties subject to the Measure 49 Order was January 14, 1947.

Upon a showing that certain criteria were met, including but not limited to being located outside of an urban growth boundary; demonstrating the applicants have owned the properties in question since prior to the adoption of the applicable restrictions on EFU parcel sizes and dwelling numbers; and establishing that current regulations in place prohibit the number of lots or dwellings being proposed,

the applicants were approved for relief from the normal restriction of one dwelling per individual 40 acre EFU parcel.

The order, as it will be referred to henceforth, is Attachment D to this report, and permits up to two new dwellings, in addition to the one that was existing at the time on the Forsters' property, tax lot 1100, to be established among the affected properties, with the segregation of one 2 acre parcel from one of the existing lots to accommodate one of the new dwellings. Both new dwellings are required to be "clustered", or located in generally the same area of the affected contiguous properties, in order to minimize impacts upon and maximize the utility of the remaining farm tract.

The subject property is considered to be "high-value farm land", and as such, the maximum allowable lot size under the order is 2 acres; if it were not classified as "high value farmland", the maximum allowable parcel size would be 5 acres.

Oregon Revised Statutes (ORS) 215.710 defines high value farmland:

"(1) For purposes of ORS 215.705 (Dwellings in farm or forest zone), high-value farmland is land in a tract composed predominantly of soils that, at the time the siting of a dwelling is approved for the tract, are:

(a) Irrigated and classified prime, unique, Class I or Class II; or

(b) Not irrigated and classified prime, unique, Class I or Class II."

This proposal would partition 2 acres from tax lot 801 to facilitate construction of a new dwelling, consistent with the DLCD order. No further land division of lot 801, or of any other portion of the contiguous properties affected by the order, is permissible. One additional dwelling may be established on the adjacent tax lot 800, provided that is located in an area that can reasonably be considered to be "clustered" with the dwelling proposed for the new 2 acre parcel.

The location and configuration of the two acre home site are severely dictated by environmental constraints, including flood plain and wetlands, viewable at Attachments F and G, respectively. Additionally, requirements of Linn County Environmental Health's site approval for a septic system further drive the new parcel's exact proposed location and unique configuration. Page 2 of the applicant's Tentative Plan, Exhibit 1 to this report, illustrates the required location for initial and replacement septic disposal areas (drainfields), along with a required "dewatering tile" at the northwest edge of the proposed parcel.

The city would typically require this new parcel to abut the common property line with tax lot 800 to the east, in order to fully accommodate the clustering effect for any third and final dwelling which may be placed on that parcel in the future, consistent with the order; however, the location of Lake Creek and it's associated jurisdictional wetlands and flood zones preclude doing so, while still accommodating requirements for sanitary sewer and observing the 2 acre maximum parcel size. The applicant's proposal appears to be a very reasonable attempt to meet all of the identified objectives of the order, Linn County Environmental Health, and State of Oregon and local protections for flood plains and wetlands.

The subject property is surrounded on all sides by City of Tangent Exclusive Farm Use (EFU) zoning, and farming and residential land uses related to that. It fronts on a portion of North Lake Creek Drive which was the primary right of way prior to a road realignment in about 1998, and is now a dead end road serving two existing dwellings.

DECISION CRITERIA, FACTS AND FINDINGS: Section 2.328 of the Tangent Land Use Development Code (LDC) provides the criteria to be considered in approving or denying a Tentative Partition Plan:

SECTION 2.328 DECISION CRITERIA, TENTATIVE PARTITION PLAN:

"(1) That the proposed land division, development or use does not conflict with the City's

Comprehensive Plan or Statewide Planning Goals."

The City's adopted Comprehensive Plan is the implementing tool for Oregon's Statewide Planning Goals, and the LDC is the City's implementation tool for the Comprehensive Plan. A demonstration of compliance with the standards and requirements of the LDC necessarily indicates conformance with the Comprehensive Plan. The plan map designates the subject property as Agricultural, and LDC Section 4.141, Exclusive Farm Use District (EFU), implements the goals and objectives of the plan with respect to that map designation. As discussed in subsequent areas of this staff report, the application demonstrates conformance with the standards and requirements for land divisions in the City of Tangent's EFU Zone, except for the 40 acre minimum lot size standard of LDC 4.141(4)(a). An exception to this standard is authorized by the Measure 49 Order (Attachment D), henceforth, the order, which was discussed in the preceding section of this report, and which permits a 2 acre partition and authorizes two new home sites on the affected properties. These findings of fact hereby incorporate the discussions of the preceding section of this report, "REQUESTED ACTION AND BACKGROUND".

The current non-conforming status of tax lot 801 relative to the 40 acre minimum lot size standard of the EFU Zone (it is currently 21.17 acres in area) does not negate nor impinge upon the applicant's right to create one 2 acre parcel and establish a home site upon it, consistent with the order (please see Attachment D for more details).

The previous Tangent City Planner approved the 2014 land partition despite it's inconsistency with the order and EFU Zoning regulations of the City of Tangent, and it does not seem to be reasonably feasible to require a reversal of that apparently errant land division at this juncture. Staff has consulted with the city's field representative from the Oregon Department of Land Conservation and Development (DLCD) for direction in accepting and processing the current request for a Tentative Partition Plan.

A deed covenant would be required as a condition of approval of this land partition, and a draft is proposed by the applicant at Attachment C, to clearly stipulate that, following this partition and construction of one dwelling upon the new 2 acre parcel, no further division or residential development is permitted on the subject property, tax lot 801. The wording of the current draft at Attachment C would be required as a condition of approval to be amended, consistent with recommendations of the city attorney, and the document required to be recorded with Linn County Deeds and Records within 30 days of the decision.

A condition of approval would also require the applicant to record against the new 2 acre parcel a "Waiver of Remonstrance" relative to accepted farming practices, ensuring that occupants of the new dwelling will not bring legal suit against operators of adjacent farms in the EFU Zone for impacts associated with normal farming practices.

With implementation of the minimum recommended conditions of approval contained in this report, the proposal presents no conflict with the Statewide Planning Goals or the city's Comprehensive Plan.

"(2) That the proposed land division complies with the standards of the land use zone and does not conflict with city codes and ordinances that are applicable to the land division."

As discussed above, the application is consistent with the standards of the EFU Zone as supplemented by the order. Construction of the home site, driveway access and sanitary sewer facilities are subject to respective approvals by Linn County and the City of Tangent to ensure consistency with state building codes, Tangent Public Works Design Standards (TPWDS), and environmental health requirements. Conditions of approval have been recommended to this effect.

The application materials as submitted are consistent with the requirements of LDC Sections 2.321, Submission Requirements for a Tentative Plan, through 2.327, Supplemental Information to be submitted with a Tentative Plan.

The subject property contains jurisdictional wetlands as mapped on the City of Tangent's Local Wetlands Inventory (LWI). LDC Section 2.333 states:

"(8) Lands that are wholly or partially within areas identified as wetlands or riparian areas on the Tangent Local Wetland and Riparian Area Inventory shall be professionally delineated for review and permit by the Oregon Division of State Lands (DSL). This is not required to be depicted on the plat."

Based upon prior experience with the Oregon Division of State Lands (DSL), and mainly because the proposed home site development avoids mapped wetlands according to the LWI entirely, staff does not recommend requiring an on-site wetlands delineation in association with this land partition, despite the above criterion. There appears to be ample evidence that the proposal will not affect wetlands. Flood plain may be impacted by the proposed installation of sanitary sewer improvements, particularly the dewatering tile required by Linn County Environmental Health, and would require city approval of a flood plain development permit.

"SECTION 3.300 NOTIFICATION

... (9) Wetland Notice. The City shall provide the Oregon Division of State Lands, the Applicant and Owner with notice of applications for developments located within areas identified as "Wetlands" on the Tangent Wetlands and Riparian Areas Inventory. No physical alteration shall occur within defined wetland areas until a notice or permit is received from the Division. If the Division fails to respond within thirty days of notice, City approval may be granted with written notice to the applicant and owner that their proposal may require state or federal permits."

Notice of this application was provided to DSL consistent with the above section, and a condition of approval reinforces that no impacts may occur to wetlands without prior approval from DSL.

Linn County tax records indicate that the Forsters' and Terry Cochrane sold the former 40+ acre tax lot 800 to Christopher and Victoria Meyers on 12/18/2014. The order stipulates that the sale of any portion of the contiguous properties affected by the order initiates the ticking of a ten year clock, after which time frame the home sites and new parcel authorized by the order would become void if not constructed and platted, as applicable. As such, to maintain consistency with the order, the two new authorized dwellings authorized by the order must be constructed, and the new parcel created and recorded, prior to 12/18/2024, or within about four and half years from today's date.

The application poses no conflict with any applicable city codes and ordinances.

"(3) That the proposed land division complies with the standards and requirements of ORS

Chapter 92 and the recording requirements of the Linn County Surveyor."

The City's Land Division Ordinance and Linn County Surveyor's procedures ensure compliance with requirements of ORS Chapter 92.

A condition of approval has been drafted to ensure that the final plat is submitted for approval by the City of Tangent and recorded pursuant to the Linn County Surveyor's office procedures. The application materials confirm that the applicant has the authority to comply with the applicable state statutes and county surveying requirements.

"(4) That the proposed development or use does not have an adverse impact on pedestrian, bicycle and vehicular safety and complies with the Tangent Transportation System Plan (TTSP) and the Tangent Public Works Design Standards (TPWDS)."

The subject property and proposed residential parcel front on a portion of North Lake Creek Drive (NLCD) that was once the primary travel lane; it's bears a 90 degree turn, and was re-configured with a smoother "S" curve, located south of the former route, in approximately 1998. This stretch of road consists of a north/south leg connecting to the primary roadway of NLCD, and an east/west leg which terminates in a dead end near the east property line of the subject property, tax lot 801 (please see Attachment B and Exhibit 1). It currently serves as public access to two existing home sites located south of the subject tract. The new driveway would be required by a condition of approval to conform with standards of the TWPDS.

This stretch of North Lake Creek Drive, which was once the primary roadway, remains a public road which is owned by Linn County, and the condition of the street surface appears to be fair at this time. By virtue of being located within the city limits, this public right of way may be subject to a future improvement project to provide some combination of urban upgrades, possibly including surface improvements, storm water drainage, and sidewalks and/or bicycle facilities, if any such public amenities are identified by the city as a priority in the future. The same is true for the main branch of North Lake Creek Drive, to which the applicant's road section connects from the north, where no sidewalks or bike ways are present except for a narrow on-street bike way in the shoulder of the road. To help ensure that residential development of the subject property would not have an adverse impact upon pedestrian, bicycle or vehicular safety, consistent with this criterion, a condition of approval has been drafted to require the applicant to sign and record with Linn County a Waiver of Remonstrance relative to potential future street improvements on North Lake Creek Drive.

No future rights of way are indicated on the Tangent Transportation System Plan (TTSP) as abutting or traversing the subject property, and no conflict with the TSP appears imminent. With adoption of staff's recommended minimum conditions of approval, the TTSP and TPWDS are not conflicted by the proposed partition.

"(5) That water, wastewater disposal and utilities are available and have the capacity to serve the

proposed development or use in compliance with the Tangent Public Works Design Standards

(TPWDS)."

Attachment A includes a statement from the applicant that adequate water is available to serve the partition, and the applicant's well log which indicates that the well produces 30 gallons per minute is also on file at the city. Exhibit 1 indicates the location of the existing well. The applicant has also provided evidence of approval by the Linn County Environmental Health Department for an on-site septic system, consistent with what is depicted on Page 2 of the applicant's Tentative Plan, Exhibit 1. As was discussed above, requirements of the Linn County Environmental Health Department are a primary driving factor in the location and configuration of the proposed new 2 acre parcel and home site which would be facilitated by this Tentative Partition Plan.

Remaining utilities normally associated with single family residential development , such as electricity and internet service, are available to serve the new parcel and prospective dwelling. It is unclear at the time of this writing whether natural gas is available to serve the proposed home site.

"(6) Proposed utilities and access do not preclude extension beyond the proposed land division to accommodate future growth. The City may require public improvements be extended to a property boundary to facilitate extensions to accommodate future urban development."

The proposed utilities and driveway do not present a conflict with this criterion, in that future growth of adjacent properties in the city limits can be accommodated upon approval of this request. No public improvements are required at this time; however, as discussed, a condition of approval would require the applicant to sign a Waiver of Remonstrance relative to future improvements in the North Lake Creek Drive (NLCD) right of way. In the future, transportation improvements to NLCD related to vehicular safety, storm water drainage, and bike/pedestrian access may be necessary.

The utility plan as depicted on Exhibit 1 would not conflict with this objective, or with that of serving abutting properties with standard urban level utilities in the event of the future development of neighboring properties to urban standards, which is frankly unlikely in the foreseeable future. No public utilities are currently located in the vicinity.

With implementation of the minimum recommended conditions of approval contained in this report, the proposal conforms with this decision criterion.

"(7) That the proposed development or use does not have an adverse impact on drainage-ways

serving adjacent properties and that required drainage facilities are provided that have the

capacity to support the proposed development or use."

The City Engineer has reviewed the Tentative Plan for impacts to drainage and concurred with the applicant' plan for connecting to existing ditches and Lake Creek on the property's periphery.

Please see Attachment E for the city engineer's comments, and Page 2 of the Tentative Plan at Exhibit 1. A condition of approval would require prior city / county approval of a grading and excavation plan for the home site development, as applicable.

" (8) The natural site features identified in Section 2.324 (7) have been given consideration for preservation and utilization in the development."

Development associated with this request avoids the mapped flood plain zones (Attachment F) and jurisdictional wetlands as identified by the Tangent Local Wetlands Inventory (LWI), Attachment G, except that the proposed dewatering tile associated with the approved septic system extends into the 100 year flood zone, and requires city approval of a flood plain development permit. A condition of approval would ensure this city review prior to construction or ground disturbance. As stated above, the proposed configuration of the new 2 acre parcel is almost entirely driven by environmental constraints, including flood plain, wetlands, and soil and topographic conditions related to septic system requirements of Linn County Environmental Health. The significant natural features of the subject property are not expected to be impacted by the proposal.

Grading and excavation plans will be subject to approval by the City Engineer and Linn County Building Department.

APPLICATION PROCESS: For the commission's better comprehension of local land partition procedures, staff excerpts below the LDC guidance in deciding upon a Tentative Partition Plan, as well as the procedures that would follow approval:

"SECTION 2.329 DECISION PROCESS

(1) Upon receipt of an Application, Tentative Plan, and Fee Deposit, the City shall furnish one copy of the Tentative Plan and supplementary material to the Fire District and other agencies known to be affected. Agencies notified shall be given 14 days to review the plan and submit written comments. Notification to the Division of State Lands for identified wetlands shall require 30 days for review in accordance with ORS 227.350, Subsection (4).

(2) A Partition requires a "Limited Land Use Review" in conformance with Section 3.400. A Subdivision requires a Quasi-judicial Public Hearing in conformance with Section 3.500. All Land Divisions require notification to owners of property within 100 feet of the subject property. The public may submit written comments prior to a review or hearing and may submit written or oral comments at a hearing.

(3) The deciding authority shall consider the Tentative Plan proposal and any public testimony accepted in accordance with subsection (2), above at the first regular meeting following the expiration of the 20 day period required for notification under Section 3.300 of this code."

"... (7) If the proposed Land Division complies with the decision criteria of Section 2.328, the deciding authority shall approve the Tentative Plan as submitted or as modified to achieve compliance.

(8) If the proposed land division requires modification to certain features in order to comply with Section 2.328, the deciding authority may approve the Tentative Plan with specified Conditions of Approval to achieve compliance with the intent of City land use standards and the decision criteria.

(9) If the proposed land division does not comply with the decision criteria even with conditions of approval, the deciding authority shall deny the request.

(10) Approval of the Tentative Plan shall indicate approval of the Final Plat if there is no change in the plan of the land division and if the applicant complies with the requirements of this Code and any conditions of approval specified by the deciding authority.

(11) The action of the deciding authority shall be noted on two copies of the Tentative Plan and any attached documents describing conditions. One copy shall be returned to the applicant and the other shall be retained by the City.

(12) A written record of the findings and action of the City shall be maintained by the City in a Record File of the Application as specified in Section 2.150. Notice of Decision shall be given the Applicant and other parties to the proceedings together with any conditions of approval for the proposed land division as specified in Section 3.700, Decision.

The above section of the LDC states that the commission's consideration of the application shall be in a limited land use public meeting, which typically involves no oral testimony unless the commission seeks some clarification from the applicant. In such case, oral rebuttal is permitted by any opponent.

Staff recommends that the application warrants a positive decision, with adoption of the minimum conditions of approval contained in this staff report, based upon the applicant's demonstration of compliance with the applicable decision criteria as evidenced in the record. The Tangent Rural Fire Protection District (TRFPD) has been provided with a copy of the proposal.

If the commission elects to approve the application, the following describes the applicant's process after that point:

"SECTION 2.330 SUBDIVISION OR PARTITION PLAT SECTION 2.331 SUBMISSION REQUIREMENTS

Within one year after approval of the Tentative Plan, the land divider shall begin construction of any required public improvements.

Following acceptance by the City of any public improvements the land divider shall cause the land division or any part thereof to be surveyed and a Plat prepared in conformance with the Tentative Plan as approved. If the land divider wishes to proceed with the land division public improvements after the expiration of the one-year period following the approval of the Tentative Plan, the land divider shall resubmit the Tentative Plan and make any revision necessary to comply with changed conditions.

The land divider shall submit the exact duplicate transparency and five prints of the completed Plat to the City for review and approval."

In the event of approval of this request, a condition of approval would require the final partition plat be approved by the City of Tangent and recorded with the Linn County Surveyor within 1 year of the effective date of the decision.

CONCLUSION AND RECOMMENDED CONDITIONS OF APPROVAL: With the adoption of the following minimum conditions of approval, the application appears capable of conforming to the decision criteria for Tentative Partition Plan approval. Accordingly, staff recommends that approval of this application be subject to the following minimum conditions of approval:

1. The applicant shall comply with all local, state and federal regulations and requirements applicable to this property and activities occurring or intended thereon, including but not limited to applicable regulations of the Oregon Division of State Lands and Department of Environmental Quality; Linn County Building Department; Linn County Environmental Health; Tangent Rural Fire Protection District; and the City of Tangent.

2. Within one year from the effective date of this decision, the applicant shall submit and record with the Linn County Surveyor's office a city approved final plat consistent with the approved Tentative Plan; requirements of ORS Chapter 92; Tangent Land Use Development Code (LDC) Section 2.330-2.340; and these adopted conditions of approval. Approval of the final plat shall be null and void if it is not recorded within 120 days of approval and signing by the City Administrator or their designee. Submittal of the final plat shall be in conformance with the number of required copies and format required under LDC Sections 2.321-2.327.

3. The subject property contains wetlands mapped on the Tangent Local Wetlands Inventory (LWI). No ground disturbance or other impacts to jurisdictional wetlands as mapped on the LWI are authorized by this decision, and no such activities may occur without the applicant obtaining prior approval from the Oregon Division of State Lands and City of Tangent.

4. Installation of the dewatering tile associated with the Linn County Environmental Health approved on-site septic system requires prior city approval of a flood plain development permit where it would encroach upon the 100 Year Flood Plain as mapped by the Federal Emergency Management Agency (FEMA). Applicant shall seek and obtain approval of this permit prior to any ground disturbance occurring.

5. Within 30 days of the effective date of this decision, the applicant shall record with Linn County Deeds and Records a deed covenant against the parent parcel and resulting 2 acre lot, subject to approval by the city attorney, stipulating that no further land division(s) and no additional residential development are authorized for the subject property by this decision, nor are permitted following this action, beyond the one new dwelling on the 2 acre parcel which is created by this partition.

6. Prior to development, the applicant shall obtain city approval of a grading and excavation plan depicting the soil displacement calculations of any cuts and fills, and information on the character of the affected soil(s). The applicant shall also comply with any requirements of the Linn County Building Department relative to fill and excavation.

7. Design and construction of the new driveway shall conform with the Tangent Public Works Design and Construction Standards.

8. Within 30 days of the effective date of this decision, the applicant shall sign and record with Linn County Deeds and Records a deed covenant against the new 2 acre parcel, accepting and agreeing not to remonstrate against accepted farming practices and normal impacts from adjacent and nearby farming activities.

9. Within 30 days of the effective date of this decision, the applicant shall sign and record with Linn County Deeds and Records a Waiver of Remonstrance regarding participation in potential future transportation improvements to North Lake Creek Drive.

10. Consistent with DLCD's Measure 49 Order, State Election Numbers H129825 and H133173, the new home site must be constructed prior December 18, 2024.

11. Non-compliance with any adopted condition of approval will result in the City declining to sign the final partition plat and revoking this Tentative Partition Plan approval.

MOTION IN FAVOR: I move to APPROVE the Tentative Partition Plan based upon findings of fact contained in the staff report and on the record that the proposal, with adopted conditions of approval, conforms with the decision criteria.

MOTION IN OPPOSITION: I move to DENY the application based upon findings of fact that the applicant did not submit sufficient evidence on the record that the proposal conforms with the decision criteria. Specifically, ______________________________________________________.

ATTACHMENTS: A) Applicant's Narrative

B) Vicinity Map

C) Proposed Deed Covenant

D) DLCD's Measure 49 Order

E) City Engineer's Review Memo

F) Flood Plain Map

G) Local Wetlands Inventory Map

EXHIBIT: 1) Tentative Partition Plan, 2 Pages

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