Agenda Item 4 - UGB Rulemaking <br />December 3-4, 2015 - LCDC Meeting <br />Page 30 of 56 <br />to match existing state policy regarding the residential development capacity of such areas. The <br />UO research shows that some residential development has occurred in special flood hazard areas <br />(although much of this development occurred during times when such development was not <br />restricted), and most cities have zoning codes that allow some, often limited, development on <br />steep slopes greater than 25 percent. However, determining the precise amount of such <br />development would require development of subjective findings, which cannot be accommodated <br />in a simplified process based upon relative certainty and reduction of possibilities for litigation. <br />The department believes, also, that factors throughout the process that may introduce inaccuracy <br />into the inventory are balanced between those that would increase development capacity and <br />decrease it, and thus should be tolerated in the proposed simplified process (see discussion under <br />OAR 660-038-0060(5) regarding development on partially vacant lands). <br />Section (3) directs a city to reduce the amount of residential buildable lands in its inventory to <br />account for the documented constraints. <br />The draft of this rule presented at the September LCDC meeting included a section allowing <br />cities the option of considering constraints on residential development that result from private <br />legal encumbrances or restrictions that do not allow development at densities allowed by city <br />codes. Such restrictions are difficult to quantify for several reasons: they may not be readily <br />known without extensive deed research; they are enforced through judicial action, not city <br />action; and they may be determined to be unenforceable by courts as contrary to public policy or <br />due to past non-enforcement. Because of these difficulties, such deed restrictions cannot be <br />considered in a way that does not involve findings and potential legal challenge - thus, the <br />department does not recommend its inclusion in the proposed simplified UGB process. <br />Language included in the first public draft (September 10) is recommended by the City of Bend <br />and Deschutes County. It is not included in the third public draft, but still may be considered an <br />alternative Option, and should the commission choose to include it, it would be as follows: <br />Option: The city may identify lands encumbered with easements or recorded deed restrictions <br />that restrict additional residential development. The property or area of land encumbered with <br />such easements or recorded deed restrictions shall not be counted in this category if any <br />development that violates the easement or deed restriction exists on the property or area of land <br />subject to such restrictions. The city may reduce the residential development capacity on lands <br />encumbered to the level of development allowed by the easement or recorded deed restriction. A <br />city's decision to reduce residential development capacity based upon this section must be <br />supported by substantial evidence in the whole record. A city is not required to identify lands <br />encumbered with easements or recorded deed restrictions under this section even ifpresented <br />with evidence that such restrictions exist on residential buildable land within the city's UGB. <br />