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HomeMy WebLinkAbout2021-06-18 Application Materials Zone Change/Plan Amendment - Swisher Page 1 of 30 BEFORE THE PLANNING DIVISION OF DESCHUTES COUNTY, OREGON APPLICANT: Dave Swisher 250 NW Franklin Avenue, Suite 401 Bend, OR 97703 Phone: 541-788-8971 E-mail: dave@daveswisher.com APPLICANT’S ATTORNEY: Liz Fancher 2465 NW Sacagawea Lane Bend, Oregon 97703 Phone: 541-385-3067 E-mail: liz@lizfancher.com PROPERTY OWNER: Don Swisher Trust Dave Swisher, Successor Trustee Carolyn J. Swisher Trust Dave Swisher, Successor Trustee MacCloskey Revocable Trust Craig and Jane I. MacCloskey. Trustees (co-owner of Tax Lot 600 only) SUBJECT PROPERTY: Tax Lot 100, Assessor’s Map 17-13-18C (“Tax Lot 100”) Tax Lot 600, Assessor’s Map 17-13-18 (“Tax Lot 600”) REQUEST: An application to change the designation of the subject property from Agriculture to Rural Residential Exception Area (RREA) and to change the zoning of the subject property from Exclusive Farm Use – Tumalo/Redmond/ Bend subzone (EFU-TRB) to Multiple Use Agricultural (MUA-10) as the subject property does not qualify as “Agricultural Land” pursuant to State Law and administrative rules. BURDEN OF PROOF STATEMENT AND APPLICATION I. APPLICABLE STANDARDS AND CRITERIA: The Applicant has identified the following laws it believes Deschutes County will apply to its review of this application: Zone Change/Plan Amendment - Swisher Page 2 of 30 Title 18 of the Deschutes County Code, County Zoning. Chapter 18.16, Exclusive Farm Use (EFU) Zone Chapter 18.32, Multiple Use Agricultural Zone Chapter 18.136, Amendments Title 23 of the Deschutes County Code, Deschutes County Comprehensive Plan Chapter 2, Resource Management Chapter 3, Rural Growth Appendix C – Transportation System Plan Oregon Administrative Rules, Chapter 660 Division 33, Agricultural Land Division 12, Transportation Planning Division 15, Statewide Planning Goals and Guidelines Oregon Revised Statutes ORS 215.211 As approval of this application requires an amendment of the Deschutes County comprehensive plan, the applicable standards and criteria may change while the application is pending before Deschutes County. If the relevant approval criteria are altered, the applicant asks that the County advise it of the change in the law and provide it with any opportunity to address the new law. II. PROPOSED FINDINGS OF FACT: A. Location: Tax Lot 100 has an address of 63350 Abbey Road, Bend, OR 97701. Tax Lot 600 does not have an assigned address. It is located due north of Tax Lot 100. B. Zoning and Plan Designation: The subject properties are zoned EFU-TRB and have a comprehensive plan map designation of Agriculture. The AS, Airport Safety Overlay Zone and the DR, Destination Resort Overlay Zone also apply to both properties. C. Property Size: Each tax lot is 40 acres in size. D. Lot of Record: Deschutes County determined in 247-20-000395-LR and -000396-LR that each tax lot is a legal lot of record. A copy of each lot of record decision is included as Exhibits A and B of this burden of proof. E. Application: Zone change from EFU-TRB to MUA-10 and a plan map amendment from Agriculture to Rural Residential Exceptions Area. Evidence provided with this application demonstrates that the subject property does not qualify as “agricultural land” under state law or administrative rule. As a result, an exception to Statewide Planning Goal 3, Agricultural Land is not required. F. Site Description: The subject property is vacant and is not irrigated. It has no known history of farm use. The vegetation is comprised of juniper trees, sagebrush, rabbit brush Zone Change/Plan Amendment - Swisher Page 3 of 30 and bunch grasses. According to COID, the settler of this property entered into a contract with the predecessor of the district to purchase 25 acres of water for each of the two tax lots. See, Exhibit C. The contract was, however, never fulfilled and no water rights were adjudicated to these properties. An old COID ditch crosses Tax Lot 100. There are no COID facilities on Tax Lot 600. The subject property is .25 miles north of Butler Market Road and adjoins Abbey Road, a local access road. The following aerial photograph shows the approximate locations of the subject property and the general character of the property and surrounding area. The applicant obtained a professional soils assessment for the two properties. The assessment was made by Andy Gallagher, CPSSc/SC 03114. Mr. Gallagher determined that 88% of Tax Lot 100 is comprised of LCC 7 and 8 soils and 82% of Tax Lot 600 is comprised of LCC 7 and 8 soils. The remainder of each property is comprised of soils that are rated LCC 6 when not irrigated. A copy of Mr. Gallagher’s soils assessment is included as part of Exhibit D of this burden of proof. Mr. Gallagher also provided a Zone Change/Plan Amendment - Swisher Page 4 of 30 professional estimate of the amount of dryland forage each tax lot might produce. He found that Tax Lot 100 would produce approximately 494 pounds per acre per year and that Tax Lot 600 would produce approximately 440 pounds per acre per year. G. Area Land Uses: The subject property is located in Northeast Bend near the Bend Airport. Its south boundary adjoins a large tract of land zoned MUA-10 that is developed with rural residences. EFU-TRB and MUA-10 zone are intermixed in the greater area around the subject property. East: The Bend Airport is one half mile east of the subject property. It is developed with commercial and industrial uses related to aviation and as an airport. Tax Lot 100 is separated from the airport by Powell Butte Highway and small parcels zoned EFU-TRB. The 40-acre square that adjoins Tax Lot 100 (outlined in green) has been divided into four small parcels (8.48, 10.0, 12.21 and 8.0 acres). All are developed with dwellings. No agricultural uses are occurring on these properties. This block of nonfarm properties (they are not receiving farm tax deferral) precludes the subject property from being farmed with the small farm parcels to the east. The City of Bend sewage treatment property adjoins east boundary of Tax Lot 600. This area of the City property is vacant, dry, open land. It is zoned EFU-AL but is not currently employed in farm use. Zone Change/Plan Amendment - Swisher Page 5 of 30 North: The City of Bend’s sewage treatment plant tract is north of Tax Lots 100 and 600. A part of that property is shown in the aerial photograph above. The developed part of City’s treatment plant is at least .6 miles north. The land between the plant and the subject property is vacant, open land. The predominant soil mapping units on these properties are 58C and 59C soils that are comprised, overwhelmingly, of Class 7 and 8 soils. These soils, like those on the Swisher property, produce a very limited amount of forage. South: The land south and southeast of Tax Lot 600 is zoned MUA-10 and is developed with single family homes. There are four ten-acre home lots due south of Tax Lot 600. There are 16 lots in Classic Estates Subdivision, a subdivision that adjoins the southeast corner of Tax Lot 600 (Parker Lane and Peterman Lane). Lots in this subdivision range in size from 2.12 to 2.59 acres. A large amount of land south of Classic Estates and south of Butler Market Road is also zoned MUA-10. West: Four EFU-TRB zoned properties adjoin the west boundary of Tax Lots 100 and 600. These lots range in size from 16.35 to 19.58 acres. The northernmost parcel lacks irrigation water rights. Two of the others have a small amount of irrigation water. Only one of these parcels is mostly irrigated. The J-Bar-J therapeutic boarding school, The Academy at Sisters, adjoins the southernmost of these farm properties. The boarding school is located on land zoned MUA-10. None of these properties appear to be engaged Zone Change/Plan Amendment - Swisher Page 6 of 30 in commercial farm use. The use of these properties is addressed again later in this document. H. Utility Services: The subject property is in the service area for Central Electric Cooperative, Inc. CEC is willing to serve the subject property with electricity as shown by the attached Exhibit E. Avion Water is willing to serve the properties with public water services. See, Exhibits F and G. I. Public Services: Tax Lots 100 and 600 are located in the Deschutes County Rural Fire Protection District No. 2. DCRFPD No. 2 provides fire protection and ambulance services to the property through a contract with the City of Bend Fire Department. Fire Station 304 is located about three miles from the subject property at 2500 NE Neff Road, Zone Change/Plan Amendment - Swisher Page 7 of 30 Bend, Oregon. The property is easily accessed from this location via the arterial roadways of Hamby Road and Butler Market Road. The subject property is a short distance north of Butler Market Road on Abbey Road. The Deschutes County Sheriff provides police and public safety services. The Bend Airport is a short distance to the east. The property is included in the Bend-LaPine School District. The Pine Nursery and Big Sky Park will serve the park needs of new residents of the property. J. Relevant Land Use History: In 1979, Deschutes County adopted its first comprehensive plan and zoning ordinance that implemented the Statewide Land Use Planning Goals. The County’s comprehensive plan map was, however, developed without the benefit of reliable, detailed soils mapping information. The map was prepared prior to the USDA/NRCS’s publication of the “Soil Survey of Upper Deschutes River Area, Oregon.” This soil survey is more comprehensive than prior soils mapping efforts but continues to provide general soils information – not an assessment of soils on each parcel in the study area. This land application use application includes a more detailed and accurate Order 1 soils survey that is a part of Exhibit D. It provides Deschutes County with the information required to find that the subject property does not qualify as “agricultural land” as defined by Statewide Goal 3, Agricultural Land. Consistent with the requirements of ORS 215.211, this survey has been approved for use by Deschutes County by the Department of Land Conservation and Development (“DLCD”) as shown by Exhibit D. This approval was sent directly to Deschutes County Planning by DLCD on June 17, 2021. When the County first implemented Statewide Goals, it applied resource zoning using a broad brush. All rural lands were assumed to be resource land. Then-existing developed lands not suited for resource use were granted exceptions to the Goals that protect resource lands. The County allowed landowners a brief period of time after adoption of PL-15 (1979) to petition the County to remove nonresource properties from resource zone protections but made no effort to determine whether lands might be nonresource lands that do not merit the imposition of stringent land use regulations that protect rural resources – typical farm and forest resources. Beginning around 2007, Deschutes County has rezoned properties from EFU to MUA-10 zoning and has applied a Rural Residential Exceptions Plan designation to lands found to be nonresource land. The County’s comprehensive plan was also amended to authorize this type of change. This type of an amendment has been approved when soils are shown to be “nonagricultural” soils and not otherwise suited for farm use. Some of the ordinances and decisions that have approved this type of zone change and plan amendment include: • Ordinance No. 2013-009 for File PA-11-, ZC-11-2, State of Oregon DSL, Exhibit H. The Board’s findings in this decision conclude that the current comprehensive plan allows the county to approve applications to change the plan designation of nonagricultural land from Agricultural to RREA. The Board’s findings also conclude that a goal exception is not required to allow the county to approve an RREA plan designation for nonagricultural land because Goal 3 does not require protection of Zone Change/Plan Amendment - Swisher Page 8 of 30 nonagricultural land and that an RREA designation is appropriate for nonagricultural land. • Ordinance No. 2017-007 for File 247-16-000317-ZC/318-PA, Porter Kelly Burns Landholdings, LLC, Exhibit I. Based on an Order 1 soils assessment, the County found that the approximately 35-acre KPB Landholdings, LLC property was not agricultural land. • Ordinance No. 2007-025, PA-07-1/ZC-07-1, Pagel, Exhibit J. • Ordinance No. 2011-014, PA-08-1/ZC-08-1, The Daniels Group, Exhibit K. • Ordinance No. 2019-006, 247-18-000485-PA/247-18-000486-ZC, Eastside Bend, LLC, Exhibit L. • Central Oregon Landwatch v. Deschutes County (Aceti), LUBA No. 2016-012, August 10, 2016, Exhibit M. LUBA’s decision is relevant to this application for the following reasons: 1. LUBA found that it was appropriate for Deschutes County to rely on a site-specific soils survey prepared by soils scientist Roger Borine to find that a majority of the property is comprised of Class VII and VIII soils rather than on information provided by the NRCS Soil Survey. LUBA noted that the NRCS maps are intended for use at a higher landscape level rather than on a property-by-property basis. 2. LUBA affirmed the County’s determination that property that had been irrigated and used to grow hay in 1996 and earlier years was not agricultural land based on the Borine Order 1 soils survey that showed that the poor soils on the property are Class VII and VIII soils when irrigated, as well as when not irrigated. The Swisher property has no history of irrigation, a fact confirmed by Central Oregon Irrigation District, Exhibit C. 3. LUBA accepted the following evidence provided by the applicant, to establish that the Aceti property is not “other than Class I-VI Lands taking into consideration farming practices”: “It is not an accepted farm practice in Central Oregon to irrigate and cultivated poor quality Class VII and VIII soils – particularly where, as here those soils are adjacent to rural industrial uses, urban density residential neighborhoods that complain about dust and chemicals and to high traffic counts on the surrounding roads and highways. Irrigating rock is not productive.” In Aceti, the County also found that commercial agricultural uses in the vicinity were limited. Zone Change/Plan Amendment - Swisher Page 9 of 30 The Swisher property, like the Aceti property, is located in close proximity to dense residential development, the Bend Airport and two major arterial roads (Butler Market Road and Powell Butte Highway). Adjoining EFU-zoned lands are vacant or engaged in hobby farming only. Farming in the area is not “commercial” agriculture. As with the Aceti property “irrigating rocks [on the Swisher property] is not productive.” III. DISCUSSION OF RELEVANT APPROVAL CRITERIA AND APPLICABLE LAW Deschutes County Code A. Chapter 18.136, Amendments. 1. Section 18.136.010. Amendments DCC Title 18 may be amended as set forth in DCC 18.136. The procedures for text or legislative map changes shall be as set forth in DCC 22.12. A request by a property owner for a quasi-judicial map amendment shall be accomplished by filing an application on forms provided by the Planning Department and shall be subject to applicable procedures of DCC Title 22. RESPONSE: The applicant is the owner of the subject property and is requesting approval of a quasi-judicial map amendment. The applicant has filed the required Planning Department application forms with this application. The application will be reviewed utilizing the applicable procedures contained in Title 22 of the Deschutes County Code. 2. Section 18.136.020. Rezoning Standards The applicant for a quasi-judicial rezoning must establish that the public interest is best served by rezoning the property. Factors to be demonstrated by the applicant are: A. That the change conforms with the Comprehensive Plan, and the change is consistent with the plan's introductory statement and goals. RESPONSE: The Plan’s introductory statement explains that land use must comply with the statewide planning system and sets out the legal framework set by State law. It summarizes the Statewide Planning Goals. It also explains the process the County used to adopt the current comprehensive plan. This application is consistent with this introductory statement because the requested change has been shown to be consistent with State law and County plan provisions and zoning code that implement the Statewide Planning Goals. The following provisions of Deschutes County’s amended comprehensive plan set out goals or text that may be relevant to the County’s review of this application. Other provisions of the plan do not apply. Zone Change/Plan Amendment - Swisher Page 10 of 30 Chapter 2, Resource Management 1. Section 2.2, Agricultural Lands Policies Goal 1, Preserve and maintain agricultural lands and the agricultural industry. RESPONSE: The applicant’s soils study, Exhibit D, and the findings in this burden of proof demonstrate that the subject property is not agricultural land. This goal, therefore, does not apply. The vast majority of the subject property is comprised of Class 7 and 8 nonagricultural soils and the property has no known history of agricultural use. As noted in the Eastside Bend decision, Exhibit L, “these [Class 7 and 8] soils [according to soils scientist and soils classifier Roger Borine] have severe limitations for farm use as well as poor soil fertility, shallow and very shallow soils, surface stoniness, low available water capacity, and limited availability of livestock forage.” According to Agricultural Handbook No. 210 published by the Soil Conservation Service of the USDA, soils in Class 7 “have very severe limitations that make them unsuited to cultivation and that restrict their use largely to grazing, woodland, or wildlife.” Class VIII soils “have limitations that preclude their use for commercial plant production and restrict their use to recreation, wildlife, or water supply or to esthetic purposes.” Policy 2.2.2 Exclusive Farm Use sub-zones shall remain as described in the 1992 Farm Study and shown in the table below, unless adequate legal findings for amending the sub-zones are adopted or an individual parcel is rezoned as allowed by Policy 2.2.3. RESPONSE: The applicant is not asking to amend the subzone that applies to the subject property. The applicant is seeking a change under Policy 2.2.3 and has provided adequate findings to support rezoning the subject property MUA-10. Policy 2.2.3 Allow comprehensive plan and zoning map amendments for individual EFU parcels as allowed by State Statute, Oregon Administrative Rules and this Comprehensive Plan. RESPONSE: The applicant is seeking a comprehensive plan amendment from Agriculture to RREA and a zone change from EFU-TRB and UAR-10 to MUA-10 for non-resource land. This is the same change approved by Deschutes County in PA-11-1/ZC-11-2 on land owned by the State of Oregon (DSL). In findings attached as Exhibit H, Deschutes County determined that State law as interpreted in Wetherell v. Douglas County, 52 Or LUBA 677 (2006) allows this type of amendment. LUBA said, in Wetherell at pp. 678-679: “As we explained in DLCD v. Klamath County, 16 Or LUBA 817, 820 (1988), there are two ways a county can justify a decision to allow nonresource use of land previously designated and zoned for farm use or forest uses. One is to take an exception to Goal 3 (Agricultural Lands) and Goal 4 (Forest Lands). The other is to adopt findings which demonstrate the land does not qualify either as forest lands or agricultural lands under the statewide planning goals. When a county pursues the latter option, it must demonstrate that despite the prior resource plan and zoning designation, neither Goal 3 Zone Change/Plan Amendment - Swisher Page 11 of 30 or Goal 4 applies to the property. Caine v. Tillamook County, 25 Or LUBA 209, 218 (1993); DLCD v. Josephine County, 18 Or LUBA 798, 802 (1990).” LUBA’s decision in Wetherell was appealed to the Oregon Court of Appeals and the Oregon Supreme Court but neither court disturbed LUBA’s ruling on this point. In fact, the Oregon Supreme Court used this case as an opportunity to change the test for determining whether land is agricultural land to make it less stringent. Wetherell v. Douglas County, 342 Or 666, 160 P3d 614 (2007). In that case, the Supreme Court stated that: “Under Goal 3, land must be preserved as agricultural land if it is suitable for “farm use” as defined in ORS 215.203(2)(a), which means, in part, “the current employment of land for the primary purpose of obtaining a profit in money” through specific farming-related endeavors.” Wetherell, 343 Or at 677. The Wetherell court held that when deciding whether land is agricultural land “a local government may not be precluded from considering the costs or expenses of engaging in those activities.” Wetherell, 342 Or at 680. In this case, the applicant has shown that the subject property is primarily composed of Class VII and VIII nonagricultural soils when irrigated and when not irrigated making farm-related endeavors unprofitable. The property is not currently employed in any type of farm use and has no known history of that use. Accordingly, this application complies with Policy 2.2.3. Policy 2.2.4 Develop comprehensive policy criteria and code to provide clarity on when and how EFU parcels can be converted to other designations. RESPONSE: This plan policy provides direction to Deschutes County to develop new policies to provide clarity when EFU parcels can be converted to other designations. The Board of Commissioners so held in File 247-16-000317-ZC/318-PA, Porter Kelly Burns Landholdings, LLC, Exhibit J. The County has, however, made it clear in land use decisions that EFU land may be converted to a Rural Residential Exceptions Area designation when shown that the land does not meet the definition of “Agricultural Land” provided by Statewide Land Use Planning Goal 3. In the DSL findings, Deschutes County found that this policy does not impose a moratorium on requests for applications of the type filed by property owners. See Exhibit H. The Board of Commissioners also noted that it had approved the conversion of EFU land to an RREA plan designation and MUA-10 zoning in the Pagel decision, Exhibit J and that nothing in this plan policy prohibits that action. The County’s interpretation of Policy 2.2.3 above, also spells out when and how EFU parcels can be converted to other designations. The facts presented by this case merit conversion of the subject property to a new plan designation under the County’s interpretation of Policy 2.2.3. Zone Change/Plan Amendment - Swisher Page 12 of 30 Policy 2.2.13 Identify and retain accurately designated agricultural lands. RESPONSE: This plan policy makes it clear that it is county policy to identify and retain agricultural lands that are accurately designated. The subject property was not accurately designated “agricultural land” as shown by the soils report, Exhibit D, and this burden of proof. It does not meet the definition of “Agricultural Land” provided by Statewide Goal 3. 2. Section 2.5 Water Resources Policies Policy 2.5.24 Ensure water impacts are reviewed and, if necessary, addressed for significant land uses or developments. RESPONSE: The applicant is not proposing development or proposing a significant land use at this time. The change of zoning should have little or no impact on water resources. Irrigation is essential for commercial farm use in Central Oregon. Irrigating poor farm ground consumes a large amount of the area’s precious water resources without the resulting economic benefits of profitable agricultural production. Homes consume less water than would be needed for farm field irrigation on the subject property. In its DSL findings, Exhibit L, Deschutes County found that impacts of any proposed future development of the DSL property on water resources would be reviewed by Deschutes County in future development applications. That finding was sufficient to demonstrate compliance with this plan policy. Together with the findings above and the later review by Deschutes County, this policy is satisfied. Future development on the subject property will be able to be served by Avion Water System when developed as shown by Exhibit F and G. 3. Section 2.7, Open Spaces, Scenic Views and Sites Goal 1, Coordinate with property owners to ensure protection of significant open spaces and scenic view and sites. Policy 2.7.3 Support efforts to identify and protect significant open spaces and visually important areas including those that provide a visual separation between communities such as the open spaces of Bend and Redmond or lands that are visually prominent. Policy 2.7.5 Encourage new development to be sensitive to scenic views and sites. RESPONSE: These policies are fulfilled by the County’s Goal 5 program. The County protects scenic views and sites along rivers and roadways by imposing Landscape Management Zoning overlay zones. The County has not, however, imposed the LM overlay zone on the subject property. Furthermore, no new development is proposed. These provisions of the plan, therefore, are not impacted by approval of the proposed zone change and plan amendment. Zone Change/Plan Amendment - Swisher Page 13 of 30 Chapter 3, Rural Growth 1. Section 3.2, Rural Development Growth Potential As of 2010, the strong population growth of the last decade in Deschutes County was thought to have leveled off due to the economic recession. Besides flatter growth patterns, changes to State regulations opened up additional opportunities for new rural development. The following list identifies general categories for creating new residential lots, all of which are subject to specific State regulations. • 2009 legislation permits a new analysis of agricultural designated lands • Exceptions can be granted from the Statewide Planning Goals • Some farm lands with poor soils that are adjacent to rural residential uses can be rezoned as rural residential RESPONSE: This part of the comprehensive plan is not a relevant approval criterion for a plan amendment and zone change application. Instead, it is the County’s assessment of the amount of population growth might occur on rural residential lands in the future based on its understanding of the types of changes allowed by law. Comprehensive Plan Policy 2.2.3 specifically authorizes rezoning and comprehensive plan map amendments for any property zoned EFU and is the code section that defines the scope of allowed zone changes. This section makes it clear, however, that EFU-zoned land with poor soils adjacent to rural residential development is expected to be rezoned for rural residential development during the planning period. The subject property has extremely poor soils that do not qualify as agricultural land that must be protected by Goal 3. The subject property also adjoins a sizeable area of property zoned MUA-10 that is bisected by Butler Market Road. This area is developed with single-family homes. The MUA-10 zone is a rural residential zone. It will provide for an orderly and efficient transition from rural to urban land use as intended by the purpose of the MUA-10 zone. As a result, rezoning the subject property MUA-10 is consistent with Section 3.2. 2. Section 3.3, Rural Housing Rural Residential Exception Areas In Deschutes County most rural lands are designated for farms, forests or other resources and protected as described in the Resource Management chapter of this Plan. The majority of the land not recognized as resource lands or Unincorporated Community is designated Rural Residential Exception Area. The County had to follow a process under Statewide Goal 2 to explain why these lands did not warrant farm or forest zoning. The major determinant was that many of these lands were platted for residential use before Statewide Planning was adopted. Zone Change/Plan Amendment - Swisher Page 14 of 30 In 1979 the County assessed that there were over 17,000 undeveloped Rural Residential Exception Area parcels, enough to meet anticipated demand for new rural housing. As of 2010 any new Rural Residential Exception Areas need to be justified through taking exceptions to farm, forest, public facilities and services and urbanization regulations, and follow guidelines set out in the OAR. RESPONSE: The quoted language is a part of the background text of the County’s comprehensive plan. It is not a plan policy or directive and it is not an approval standard for this application. This fact was confirmed by former Deschutes County Senior Planner Terri Hansen Payne, AICP during the County’s review of the DSL rezoning and plan amendment application. See Exhibit I. County zone change and plan amendment use decisions adopted by the Board of Commissioners have so found. Even if this plan language were found to be relevant to the County’s review of this application, it does not bar application of the RREA plan designation to non-resource land. This application does not require that an exception be taken to apply the RREA designation to non-resource land. Instead, as stated by the Board’s findings in Exhibit H, the language “appears to be directed at a fundamentally different situation than the one presented in this application.” The text is written to require that exceptions be taken for resource lands that require an exception; not to require goal exceptions for non-resource lands that do not require such exceptions. As LUBA and the Oregon Supreme Court recognized in the Wetherell decision, there are two ways a county can justify a decision to allow non-resource use of land previously designated and zoned for farm or forest uses. The first is to take an exception to Goal 3 and Goal 4 and the other is to adopt findings that demonstrate the land does not qualify either as forest lands or agricultural lands under the statewide planning goals. Here, the applicant is pursuing the latter approach. The quoted plan text addressed the former. If the quoted plan text were read to require an exception to Goal 3 or 4 where the underlying property does not qualify as either Goal 3 or Goal 4 resource land, such a reading would be in conflict with the rule set forth in Wetherell and Policy 2.2.3 of the Comprehensive Plan. The Deschutes County Board of Commissioners has interpreted its RREA plan designation to be the proper “catchall” designation for non-resource land in its approval of the Daniels Group plan amendment and zone change by adopting the following finding by Hearings Officer Ken Helm: “I find that Deschutes County has interpreted the RREA plan designation as the property “catchall” designation for non-resource land.” As a result, the RREA plan designation is the appropriate plan designation for the subject property 3. Section 3.7, Transportation Appendix C – Transportation System Plan ARTERIAL AND COLLECTOR ROAD PLAN Zone Change/Plan Amendment - Swisher Page 15 of 30 Goal 4 4. Establish a transportation system, supportive of a geographically distributed and diversified economic base, while also providing a safe, efficient network for residential mobility and tourism. Policies 4.4 Deschutes County shall consider roadway function, classification and capacity as criteria for plan map amendments and zone changes. This shall assure that proposed land uses do not exceed the planned capacity of the transportation system. RESPONSE: This policy applies to the County and advises it to consider the roadway function, classification and capacity as criteria for plan map amendments and zone changes. The County will comply with this direction by determining compliance with the Transportation System Planning Rule which is discussed later in this burden of proof. B. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone classification. RESPONSE: The approval of this application is consistent with the purpose of the MUA-10 zoning district which stated in DCC 18.32.010 as follows: “The purposes of the Multiple Use Agricultural Zone are to preserve the rural character of various areas of the County while permitting development consistent with that character and with the capacity of the natural resources of the area; to preserve and maintain agricultural lands not suited to full-time commercial farming for diversified or part-time agricultural uses; to conserve forest lands for forest uses; to conserve open spaces and protect natural and scenic resources; to maintain and improve the quality of the air, water and land resources of the County; to establish standards and procedures for the use of those lands designated unsuitable for intense development by the Comprehensive Plan, and to provide for an orderly and efficient transition from rural to urban land use.” The subject property is not suited to full-time commercial farming and has no history of farm use. The MUA-10 zone will preserve nonagricultural soils for future part-time or diversified agricultural use. The low-density of development allowed by the MUA-10 zone will conserve open spaces and protect natural and scenic resources. This low level of development will also help maintain and improve the quality of the air, water and land resources of the county by encouraging the future owners of the property to return irrigation water to area waterways or to more productive farm ground elsewhere in the county rather than to waste it on unproductive lands. The subject property adjoins lands zoned MUA-10. They and the subject property provide a proper transition zone from EFU rural zoning to urban land uses in the City of Bend UGB. Zone Change/Plan Amendment - Swisher Page 16 of 30 C. That changing the zoning will presently serve the public health, safety and welfare considering the following factors: 1. The availability and efficiency of providing necessary public services and facilities. RESPONSE: Necessary public facilities and services are available to serve the subject property. Will-serve letters from Central Oregon Electric Cooperative and Avion Water Company, Inc., Exhibits E, F and G of this application show that electric power and water services are available to serve the property. The subject property is located a short distance to the north of Butler Market Road, an arterial street. It is also approximately one-half mile west of the Powell Butte Highway. The impact of rezoning the subject property will be extremely minor. With its current zoning, it is theoretically possible to divide each 40-acre parcel into two nonfarm dwelling parcels. This would allow a total of four dwellings to be built on the subject property. If MUA-10 zoning is applied, the approval of a standard subdivision would allow the creation of eight residential lots. If cluster development approval is allowed as a conditional use, the maximum number of houses allowed would be ten (one per 7.5 acres) – an increase of six houses over the number allowed in the EFU zone. An increase of six houses is a de minimus impact. The existing road network is available to serve the use. This has been confirmed by the transportation system impact review conducted by Transight Engineering, Exhibit N of this application. The property receives police services from the Deschutes County Sheriff. The southern half of the property is in a rural fire protection district and the nearest fire station is about three miles away. The applicant is pursuing annexation of the northern parcel to the rural fire protection district and believes, based on conversations with District representative, that inclusion in the district will be obtained. Access to the subject property by fire trucks is provided by arterial streets with the exception of a small stretch of Abbey Road that will be required to be improved as a condition of a future land division of the subject property. It is efficient to provide necessary services to the property because the property is already served by these service providers and adjacent to and large tracts of land zoned MUA-10 that have been extensively developed with rural residences on small lots and parcels. 2. The impacts on surrounding land use will be consistent with the specific goals and policies contained within the Comprehensive Plan. RESPONSE: The MUA-10 zoning is consistent with the specific goals and policies in the comprehensive plan discussed above. The MUA-10 zoning is the same as the zoning of many other properties in the area of the subject property and is consistent with that zoning. The only adjoining lands in farm use – and marginally, noncommercial farm use at that – are those west of the subject property. The proposed zone change and plan amendment will impose new impacts on this EFU-zoned farm land because these lands are separated from the subject property by Abbey Road, each parcel is under twenty acres in size and is developed with a single-family residence. Furthermore, these farm parcels are close proximity to the J-Bar-J Zone Change/Plan Amendment - Swisher Page 17 of 30 therapeutic boarding school, The Academy at Sisters. Farm uses in the greater area, also, are occurring on properties that have been developed with residences and/or are in close proximity to lands zoned MUA-10 that are developed with residences. D. That there has been a change in circumstances since the property was last zoned, or a mistake was made in the zoning of the property in question. RESPONSE: There has been a change in circumstances since the subject property was last zoned and a mistake in designating the subject property EFU/Agriculture when soils did not merit a designation and protection as “Agricultural Land.” This zone was applied to the property in 1979 and 1980 when Deschutes County adopted zones, a zoning ordinance and comprehensive plan that complied with the Statewide Goals. In 1979 and 1980, undeveloped rural lands that contained poor soils but undeveloped were zoned EFU without regard to the specific soil characteristics of the property. Land owners were required to apply for a zone change to move their unproductive EFU properties out of the EFU zone. The County’s zoning code allowed these owners a one-year window to complete the task. This approach recognized that some rural properties were mistakenly classified EFU because their soils and other conditions did not merit inclusion of the property in the EFU zone. Some of the other property owners of lands east of Bend received approval to rezone their properties from EFU to MUA-10 because their properties contained poor soils and were improperly included in the EFU zone. The soils on the subject property are similarly poor and also merit MUA-10 zoning to correct the “broad brush” mapping done in 1979 and 1980. Since 1979/1980, there is a change of circumstances related to this issue. The County’s comprehensive plan has been amended to specifically allow individual property owners to have improperly classified land reclassified. Additionally, circumstances have changed since the property was zoned EFU. The City of Bend has been developed to the east toward the subject property. The Bend Airport has grown significantly in this time period and now provides many aviation-related jobs. The property is located within easy commuting distance to Saint Charles Medical. It has grown significantly and its need for workers has increased. The area now includes The Academy at Sisters, a 20 student and 20 employee therapeutic boarding school for girls. Since the property was zoned, it has become evident that farm uses are not viable on the property or on other area properties. The economics of farming have worsened over the decades making it difficult for most Deschutes County property owners to make money farming good ground and impossible to earn a profit from attempting to farm Class 7 and 8 farm soils. In 2017, according to Table 4 of the 2017 US Census of Agriculture, Exhibit O, only 16.03% of farm operators achieved a net profit from farming (238 of 1484 farm operations). In 2012, the percentage was 16.45% (211 of 1283 farm operations). In 2007, according to the 2012 US Census of Agriculture, that figure was 17% (239 of 1405 farm operations). Exhibit P. The vast majority of farms in Deschutes County have soils that are superior to those found on the subject property. As farming on those soils is typically not profitable, it is reasonable to conclude that no reasonable farmer would purchase the subject property for the purpose of attempting to earn a profit in money from agricultural use of the land. Zone Change/Plan Amendment - Swisher Page 18 of 30 C. STATE LAW 1. Statewide Goal 3 State law requires the County to determine if the subject property has resource values that merit protection under State law. In 1979, Deschutes County applied an agricultural plan designation to the property based on limited and general information about the nature of the soils found in the area of the property. The question before the County, at this time, is whether the subject property meets the definition of Agricultural land. If not, does not merit protection under Goal 3. Goal 3 provides that it is a Statewide Goal “[t]o preserve and maintain agricultural lands.” The Goal states that “Agricultural lands shall be preserved and maintained for farm use, consistent with existing and future needs for agricultural products, forest and open space and with the state’s agricultural land use policy expressed in ORS 215.243 and 215.700.” Farm use is an activity undertaken for the purpose of making a profit in money. Goal 3 defines agricultural land. That definition is restated in OAR 660-033-0020 which is addressed below. 2. OAR 660, Division 33, Agricultural Land OAR 660-033-0020 For purposes of this division, the definitions in ORS 197.015, the Statewide Planning Goals, and OAR Chapter 660 shall apply. In addition, the following definitions shall apply: (1)(a) "Agricultural Land" as defined in Goal 3 includes: (A) Lands classified by the U.S. Natural Resources Conservation Service (NRCS) as predominantly Class I-IV soils in Western Oregon and I-VI soils in Eastern Oregon; RESPONSE: State law allows the County to rely on the more detailed and accurate information provided by the Exhibit D study. That study shows that approximately 85% of the subject property is comprised of Class VII and VIII (88% of Tax Lot 100 and 82% of Tax Lot 600). As a result, the land is not predominantly comprised of Class I-VI soils. (B) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a), taking into consideration soil fertility; suitability for grazing; climatic conditions; existing and future availability of water for farm irrigation purposes; existing land use patterns; technological and energy inputs required; and accepted farming practices; and Zone Change/Plan Amendment - Swisher Page 19 of 30 RESPONSE: This part of the definition of “Agricultural Land” requires the County to consider whether the Class VII and VIII soils found on the subject property are suitable for farm use despite their Class VII and VIII classification. The Oregon Supreme Court has determined that the term “farm use” as used in this rule and Goal 3 means the current employment of land for the primary purpose of obtaining a profit in money through specific farming-related endeavors. The costs of engaging in farm use are relevant to determining whether farm activities are profitable and this is a factor in determining whether land is agricultural land. Wetherell v. Douglas County, 342 Or 666, 160 P3d 614 (2007). The primary agricultural use conducted on properties that lack irrigation water rights and have poor soils is grazing cattle. The extremely poor soils found on the property, however, make it a poor candidate for dryland grazing. The dry climate, the proximity to two major roadways (Butler Market Road and the Powell Butte Highway and area development prevent grazing from being a viable or potentially profitable use of the property. The soils, also, are so poor that they would not support the production of crops even if irrigation water rights could be obtained for that purpose. The soils simply do not hold enough water to sustain and support crop growth. Given the high cost of irrigating and maintaining the property as pasture or cropland (high labor costs, labor-intensive, high cost of irrigation equipment and electricity, high cost of fertilizer, etc.), dry land grazing is the accepted farm use of poor soils in Deschutes County. This use can be conducted until the native vegetation is removed by grazing (see the discussion of the suitability of the property for grazing, below). When assessing the potential income from dry land grazing, Deschutes County uses a formula and assumptions developed by the OSU Extension Service. This formula is used by the County to decide whether EFU-zoned land is generally unsuitable for farm use. It assumes that one acre will produce 900 pounds of forage per year. The subject property will, however, due to its extremely poor soils, only produce at little more than one half that amount of forage in a normal year – 440 pounds per acre for Tax Lot 600 and 494 pounds per acre for Tax Lot 100. • One AUM is the equivalent to the forage required for a 1000 lb. cow and calf to graze for 30 days (900 pounds of forage). • On good quality forage, an animal unit will gain 2 pounds per day. • Two animal units will eat as much in one month as one animal unit will eat in two months. • Forage production on dry land is not continuous. Once the forage is consumed, it typically will not grow back until the following spring. • An average market price for beef is $1.20 per pound. Based upon these assumptions, the value of beef production on the entire subject property can be calculated using the following formula: 30 days x 2#/day/acre = 60.0 lbs. Beef/acre (1 acre per AUM) 60.0 lbs. Beef/acre x 80 acres x $1.15/lb. = $5,520 per year for good rangeland Zone Change/Plan Amendment - Swisher Page 20 of 30 Adjust expected income based on forage on subject property: 440 + 494 / 2 = 467 pounds of forage per acre per year 467 pounds/900 pounds of forage per acre per year assumed in OSU formula = 51.89% 51.89% of $5,520 annual income for good range land = $2,708.66 annual income for subject property Thus, the total gross beef production potential for the subject property would be approximately $2,708.66 annually. This figure represents gross income and does not take into account real property taxes, fencing costs, land preparation, purchase costs of livestock, veterinary costs, or any other costs of production which would exceed income. Property taxes, alone, were $4,341.64 for the two tax lots in 2020. A review of the seven considerations listed in the administrative rule, below, show why the poor soils found on the subject property are not suitable for farm use that can be expected to be profitable: Soil Fertility: Class 7 and 8 soils are not fertile soils. They are not suited for the production of farm crops. This fact has been recognized in numerous County land use cases, including the zone change and plan amendment applications being filed with this land use application. Farm use on these soils is limited to rangeland grazing at a level that does not qualify as “farm use.” No person would expect to make a profit by grazing livestock on the subject property. Suitability for Grazing: The climate is cold and dry. The growing season is very short. According to the OSU Extension Service the growing season is only 80 to 90 days long. Exhibit Q. The average annual precipitation is only 11.36 inches. This means that the amount of forage available for dry land grazing is low. This also means that a farmer has a short period of amount of time to irrigate pastures. This makes it difficult for a farmer to raise sufficient income to offset the high costs of establishing, maintaining and operating an irrigation system. Existing and Future Availability of Water for Farm Irrigation Purposes: No new irrigation water rights are expected to be available to the Central Oregon Irrigation District (COID) in the foreseeable future. In order to obtain water rights, the applicant would need to convince another COID customer to remove water rights from their property and sell them to the applicant and obtain State and COID approval to apply the water rights to the subject property. In such a transaction, water rights would be taken off productive farm ground and applied to the nonagricultural soils found on the subject property. Such a transaction runs counter to the purpose of Goal 3 to maintain productive Agricultural Land in farm use. Most of the soils on the property are Class VII and VIII soils. The subject property does not have irrigation water rights. The property is located within the boundary of the Central Oregon Irrigation District. Given the poor quality of these soils, however, it is highly unlikely that Central Oregon Irrigation District would approve a transfer of water rights to this property. In addition, no person intending to make a profit in farming would go to the expense of purchasing Zone Change/Plan Amendment - Swisher Page 21 of 30 water rights, mapping the water rights and establishing an irrigation system to irrigate the poor soils found on the subject property. Existing Land Use Patterns: The applicant’s analysis of existing land use patterns provided earlier in this burden of proof shows that the subject property is located in an area of small lots and marginal farm land that is primarily devoted to residential and hobby farm uses. Areas of MUA-10 zoning are interspersed with EFU-TRB zoning. The subject property adjoins MUA-10 properties on the south and lots developed at a density of one lot per 10 acres on its eastern boundary. The properties to on its west boundary are small parcels less than 20 acres in size. The only large EFU-TRB property adjoining the subject property (north and east of TL 600) is owned by the City of Bend and used as the City’s sewage treatment plant. It is not in farm use. Technological and Energy Inputs Required: Given its poor soils, this parcel would require technology and energy inputs over and above accepted farming practices. Excessive fertilization and soil amendments; very frequent irrigation, and marginal climatic conditions restrict cropping alternatives. Pumping irrigation water requires energy inputs. The application of lime and fertilizer typically requires the use of farm machinery that consumes energy. The irrigation of the property requires the installation and operation of irrigation systems. All of these factors are why Class 7 and 8 soils are not considered suitable for use as cropland. Accepted Farming Practices: As determined by the County in the Aceti case, farming lands comprised of soils that are predominately Class VII and VIII is not an accepted farm practice in Central Oregon. Dryland grazing, the farm use that can be conducted on the poorest soils in the County, typically occur on Class VI non-irrigated soils that have a higher soils class if irrigated. Crops are typically grown on soils in soil class III and IV. (C) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands. RESPONSE: The subject property is not land necessary to permit farm practices to be undertaken on adjacent or nearby lands. The following facts are shown by the applicant’s discussion of surrounding development in Section E of this application, above and by the additional information provided below. West: Properties to the west of the subject property, with one exception, are separated from the subject property by Abbey Road. The road makes it infeasible to use the subject property for farm use in conjunction with these properties. Additionally, the subject property is not necessary to permit farm practices to be undertaken on adjacent or nearby lands to the west. Farm practices have been occurring on these properties for decades without any need to use the juniper covered subject property to conduct farm practices. Zone Change/Plan Amendment - Swisher Page 22 of 30 ADJOINING PROPERTIES TO THE WEST (SOUTH TO NORTH) Tax Map, Lot and Size Use Potential Farm Practices Need Subject Property? 17-13-18CD 300 16.35 acres Small irrigated farm field (about 2.5 acres); single-family dwelling Irrigation Grazing Growing/harvesting crops Fertilizing field Baling hay Herbicide use No, field is west of house on TL 300 so farm use must accommodate houses to the west; access to property occurs before reaching subject property on Abbey Road. 17-13-18CD 200 17.90 acres Irrigated field (about 10 acres); no farm tax deferral; single-family dwelling. Equipment and vehicles stored on property. Irrigation Grazing Growing/harvesting crops Fertilizing field Baling hay Herbicide use No, not needed to allow property to be irrigated or used as pasture or to grow or harvest hay. West part of this property is not irrigated or in farm use. It is juniper covered in the south and the likely location of a former RC race track. 17-13-18-00 701 19.16 acres No apparent farm use; single-family dwelling. None No 17-13-18-00 700 19.58 acres Small garden near one of two residences on TL 700; much of property is irrigated ground amongst junipers suitable for grazing Irrigation Grazing Growing/harvesting crops Fertilizing field Baling hay Herbicide use No, western part of TL 700 is a juniper-filled area with native vegetation not in farm use that buffers farm practices from future development of subject property. FARM PROPERTIES TO WEST, SOUTH AND SOUTHWEST AND NORTHWEST OF ADJOINING PROPERTIES Tax Map, Lot and Size Farm Use Potential Farm Practices Need Subject Property? 17-13-18C 400 19.32 acres Wilderness Horse Adventures (trail riding business not a farm use); dwelling. Grazing Dry lot feeding Fertilizing field Herbicide use Irrigation No, TL 400 about 660’ west of subject property. Horses used for trail riding out of area. Adjoins nonfarm dwelling. Zone Change/Plan Amendment - Swisher Page 23 of 30 17-13-18C 500 19.32 acres Nonfarm dwelling, irrigated pasture for grazing. Grazing Fertilizing field Herbicide use Irrigation No, self-contained hobby farm use. 17-12-13D 200 & 300, 6.6 acres and 15.01 acres Small pasture and horses. A part of property is MUA-10 and developed with a private boarding school. Grazing Fertilizing field Herbicide use Irrigation No, about 1200’ away from subject property. Also, the horse use is incidental to boarding school use and is not conducted to earn a profit in money. 17-12-13D 100 22.64 ac Irrigated pasture with interspersed juniper trees. Dwelling and vacation cabin on property. Grazing Fertilizing field Herbicide use Irrigation No, about 1320’ west of subject property and separated by other farm properties. 17-12-13A 100 39.26 acres Irrigated pasture; patchy growth of grass. Approved for Measure 49 dwelling. Grazing Fertilizing field Herbicide use Irrigation No, too remote (1320’) and separated by other farm properties. 17-12-13A 200 Nonfarm parcel; Measure 49 dwelling approval. None No. 17-12-13A 300 Irrigated pasture; patchy growth of grass. Single-family dwelling and two machine sheds. Grazing Fertilizing field Herbicide use Irrigation No, too remote (about 1500’) and separated by other farm properties. North: All of the land north of the subject property is owned by the City of Bend and is operated as a sewer treatment plant. Farm practices are not occurring on this property. East: The City of Bend’s sewer treatment plan adjoins the eastern boundary of Tax Lot 600. No farm practices are occurring on this property. Two tax lots adjoin the eastern boundary of Tax Lot 100. One is 8 acres in size. The other is 12.21 acres in size. Both tax lots are developed with residences. Neither receive special assessment for farm use. East of them are two other small parcels that are not in farm deferral. One is 8.48 acres and the other is 10 acres. All four parcel are developed with dwellings. As the properties are not recognized by the Tax Assessor as being in farm use, the activities occurring on the properties are not farm practices. Even if they are viewed as such, the agricultural uses are limited to the irrigation of small areas of land and horse facilities and one of the parcels is not irrigated. The practices associated with these uses are similar to those of pastures and horse operations outlined in the charts above. The agricultural practices related to this “hobby farming” do not require the subject property to remain in its current vacant state to allow them to conduct agricultural practices. Zone Change/Plan Amendment - Swisher Page 24 of 30 South: All of the land south of the subject property is zoned MUA-10 and is not engaged in farm use. (b) Land in capability classes other than I-IV/I-VI that is adjacent to or intermingled with lands in capability classes I-IV/I-VI within a farm unit, shall be inventoried as agricultural lands even though this land may not be cropped or grazed; RESPONSE: The subject property is not and has not been a part of a farm unit. It has not been farmed. As a result, this rule does not apply to the County’s review of this application. Even if the subject property is considered to be a “farm unit” despite the fact it has never been farmed, Goal 3 applies a predominant soil test to determine is a property is “agricultural land.” The predominant soils classification of the subject property is Class VII and VIII which provides no basis to inventory the property as agricultural land unless the land is shown to be, in fact, productive farmland. All parts of the subject property were studied by the applicant’s soils analysis, Exhibit D. The analysis shows that the predominant soil type found on the property is Class VII and VIII, nonagricultural land. Some Class VI soils are intermingled with the nonagricultural soil not vice versa. As a result, this rule does not require the Class VII and VIII soils to be classified agricultural land. (c) "Agricultural Land" does not include land within acknowledged urban growth boundaries or land within acknowledged exception areas for Goal 3 or 4. RESPONSE: The subject property is not located in a UGB or exception area. OAR 660-033-0030 Identifying Agricultural Land (1) All land defined as "agricultural land" in OAR 660-033-0020(1) shall be inventoried as agricultural land. (2) When a jurisdiction determines the predominant soil capability classification of a lot or parcel it need only look to the land within the lot or parcel being inventoried. However, whether land is "suitable for farm use" requires an inquiry into factors beyond the mere identification of scientific soil classifications. The factors are listed in the definition of agricultural land set forth at OAR 660-033-0020(1)(a)(B). This inquiry requires the consideration of conditions existing outside the lot or parcel being inventoried. Even if a lot or parcel is not predominantly Class I-IV soils or suitable for farm use, Goal 3 nonetheless defines as agricultural "lands in other classes which are necessary to permit farm practices to be undertaken on adjacent or nearby lands." A determination that a lot or parcel is not agricultural land Zone Change/Plan Amendment - Swisher Page 25 of 30 requires findings supported by substantial evidence that addresses each of the factors set forth in 660-033-0020(1). RESPONSE: The applicant has provided substantial evidence that addresses the factors set forth in OAR 660-033-0020(1), the definition of Agricultural Land, in this document. The applicant’s findings provided earlier in this burden of proof set out the uses of adjoining and nearby lands. The subject property is, in no way, necessary to permit farm practices to be undertaken on adjacent and nearby lands.” Lands to the west are divided from the subject property by the right-of-way for Abbey Road making it infeasible to farm the properties together. The adjoining farm activities are occurring on small properties that are both developed with single-family homes. The future residential development allowed by MUA-10 zoning will not introduce a new use to the area that will impact farm practices. The more distant EFU properties to the west adjoin MUA-10 zoned lands that are fully developed – primarily with residences – and in no way rely on the subject property remaining in EFU zoning in order to conduct farm practices on their properties. Land to the north is owned by the City of Bend and is not in farm use and the applicant’s property is not necessary to permit farm practices to be undertaken on this property which would likely be limited to livestock grazing given the soil type and lack of irrigation water rights for this large property. This property also adjoins the east boundary of Tax Lot 600. The properties to the east are zoned EFU but are all divided into very small parcels that average 10 acres gross. They are developed with houses similar to those found in the MUA-10 zoning district and do not receive special assessment for farm use indicating they are not employed in farm use. The subject property is not needed by these land owners to conduct farm practices on their properties. The property south of the subject property is zoned MUA and is not engaged in farm use. Land on the subject property is not necessary to permit farm practices to be undertaken on these adjacent and nearby lands. (3) Goal 3 attaches no significance to the ownership of a lot or parcel when determining whether it is agricultural land. Nearby or adjacent land, regardless of ownership, shall be examined to the extent that a lot or parcel is either "suitable for farm use" or "necessary to permit farm practices to be undertaken on adjacent or nearby lands" outside the lot or parcel. RESPONSE: The evidence that shows that the subject property is not suitable for farm use and is not necessary to permit farm practices to be undertaken on adjacent or nearby lands has assigned no significance to the ownership of adjoining properties. The City of Bend property to the north and east of the subject is very similar to the subject property and its predominant soil types are Class 58C and 59C. Both of these soil types are predominantly Class VII and VIII soils that do not support farm use – agricultural uses intended Zone Change/Plan Amendment - Swisher Page 26 of 30 to secure a profit in money. This property is not necessary for others in the area to undertake farm practices. The EFU subdivision to the east is developed with single-family homes on lots averaging 10 acres in size gross. These parcels are committed to rural residential development. The land not so committed is too small to be utilized for agricultural uses intended to obtain a profit in money from the use. The land to the south is not agricultural land and is not in farm use. The land to the west is 80 acres in size and comprised of four twenty-acre parcels. There is an area of 36A soils on the southern two of these parcels that are high-value soils when irrigated. These soils are located almost entirely on one of these parcels at 63400 Silvis Road. It is the only property that is high-value farmland. The 36A soils are an irrigated farm field. The 36A soils do not extend onto the subject property and this parcel is separated from the subject property by Abbey Road which provides a buffer between uses that protects farm practices on this parcel. A small part of mapping unit 36A is found on the property to the south and it is also irrigated but the parcel is not high-value farmland by definition. This field is about 500 feet west of the south part of the subject property. (5)(a) More detailed data on soil capability than is contained in the USDA Natural Resources Conservation Service (NRCS) soil maps and soil surveys may be used to define agricultural land. However, the more detailed soils data shall be related to the NRCS land capability classification system. (b) If a person concludes that more detailed soils information than that contained in the Web Soil Survey operated by the NRCS as of January 2, 2012, would assist a county to make a better determination of whether land qualifies as agricultural land, the person must request that the department arrange for an assessment of the capability of the land by a professional soil classifier who is chosen by the person, using the process described in OAR 660-033-0045. RESPONSE: The Red Hill Soils report, Exhibit D, provides more detailed soils information than contained on the Web Soil Survey, the Internet soil survey of soils data and information produced by the National Cooperative Soil Survey. Those sources provide general soils data for large units of land. The Red Hill Soils report provides detailed and accurate information about a single property based on numerous soil samples taken from the subject property. The depth of these soils was also determined. The soil samples taken from the subject property were tested to determine soil type and water-carrying capacity of the soils. The results of this analysis were used to develop an accurate soils map of the subject property. The soils assessment is related to the NCRS land capability classification system that classified soils Class 1 through 8. An LCC rating is assigned to each soil type based on rules provided by the NRCS. Zone Change/Plan Amendment - Swisher Page 27 of 30 (c) This section and OAR 660-033-0045 apply to: (A) A change to the designation of land planned and zoned for exclusive farm use, forest use or mixed farm-forest use to a non-resource plan designation and zone on the basis that such land is not agricultural land; and RESPONSE: The applicant is seeking approval of a non-resource plan designation on the basis that the subject property is not agricultural land. (d) This section and OAR 660-033-0045 implement ORS 215.211, effective on October 1, 2011. After this date, only those soils assessments certified by the department under section (9) of this rule may be considered by local governments in land use proceedings described in subsection (c) of this section. However, a local government may consider soils assessments that have been completed and submitted prior to October 1, 2011. RESPONSE: The applicant’s soils assessment has been certified by DLCD as required by this rule as shown by Exhibit D. (e) This section and OAR 660-033-0045 authorize a person to obtain additional information for use in the determination of whether land qualifies as agricultural land, but do not otherwise affect the process by which a county determines whether land qualifies as agricultural land as defined by Goal 3 and OAR 660-033-0020. RESPONSE: The applicant has obtained DLCD’s certification of its soils analysis and has complied with the soils analysis requirements of OAR 660-033-0045 in order to obtain that certification. DLCD’s certification establishes compliance with OAR 660-033-0045. 3. OAR 660, Division 12, Transportation Rule OAR 660-012-0060 Plan and Land use Regulation Amendments (1) If an amendment to a functional plan, an acknowledged comprehensive plan, or a land use regulation (including a zoning map) would significantly affect an existing or planned transportation facility, then the local government must put in place measures as provided in section (2) of this rule, unless the amendment is allowed under section (3), (9) or (10) of this rule. A plan or land use regulation amendment significantly affects a transportation facility if it would: (a) Change the functional classification of an existing or planned transportation facility (exclusive of correction of map errors in an adopted plan); (b) Change standards implementing a functional classification system; or (c) Result in any of the effects listed in paragraphs (A) through (C) of this subsection based on projected conditions measured at the end of the planning period Zone Change/Plan Amendment - Swisher Page 28 of 30 identified in the adopted TSP. As part of evaluating projected conditions, the amount of traffic projected to be generated within the area of the amendment may be reduced if the amendment includes an enforceable, ongoing requirement that would demonstrably limit traffic generation, including, but not limited to, transportation demand management. This reduction may diminish or completely eliminate the significant effect of the amendment. (A) Types or levels of travel or access that are inconsistent with the functional classification of an existing or planned transportation facility; (B) Degrade the performance of an existing or planned transportation facility such that it would not meet the performance standards identified in the TSP or comprehensive plan; or (C) Degrade the performance of an existing or planned transportation facility that is otherwise projected to not meet the performance standards identified in the TSP or comprehensive plan. RESPONSE: The proposed rezoning and change in plan map designation will not significantly affect any existing or planned transportation facility. This fact is documented by a transportation system review conducted by Joe Bessman of Transight Engineering, LLC, Exhibit N of this application. 4. OAR 660, Division 15, Statewide Planning Goals and Guidelines RESPONSE: Goal 1, Citizen Involvement. Deschutes County will provide notice of the application to the public through mailed notice to affected property owners and by requiring the applicant to post a “proposed land use action sign” on the subject property. Notice of the public hearings held regarding this application will be placed in the Bend Bulletin. A minimum of two public hearings will be held to consider the application. Goal 2, Land Use Planning. Goals, policies and processes related to zone change applications are included in the Deschutes County Comprehensive Plan and Titles 18 and 23 of the Deschutes County Code. The outcome of the application will be based on findings of act and conclusions of law related to the applicable provisions of those laws as required by Goal 2. Goal 3, Agricultural Lands. The applicant has shown that the subject property is not agricultural land so Goal 3 does not apply. Goal 4, Forest Lands. The existing site and surrounding areas do not include any lands that are suited for forestry operations. Goal 4 says that forest lands “are those lands acknowledged as forest lands as of the date of adoption of this goal amendment.” The subject property does not include lands acknowledged as forest lands as of the date of adoption of Goal 4. Goal 4 also says that “[w]here **a plan amendment involving forest lands is proposed, forest land shall include Zone Change/Plan Amendment - Swisher Page 29 of 30 lands which are suitable for commercial forest uses including adjacent or nearby lands which are necessary to permit forest operations or practices and other forested lands that maintain soil, air, water and fish and wildlife resources.” This plan amendment does not involve any forest land. The subject property does not contain any merchantable timber and is not located in a forested part of Deschutes County. Goal 5, Natural Resources, Scenic and Historic Areas, and Open Spaces. The subject property does not contain any inventoried Goal 5 resources. Goal 6, Air, Water, and Land Resources Quality. The approval of this application will not cause a measurable impact on Goal 6 resources. Approval will make it more likely that the irrigation and pond water rights associated with the property will ultimately be returned to the Deschutes River or used to irrigate productive farm ground found elsewhere in Deschutes County. Goal 7, Areas Subject to Natural Disasters and Hazards. This goal is not applicable because the subject property is not located in an area that is recognized by the comprehensive plan as a known natural disaster or hazard area. Goal 8, Recreational Needs. This goal is not applicable because the property is not planned to meet the recreational needs of Deschutes County residents and does not directly impact areas that meet Goal 8 needs. Goal 9, Economy of the State. This goal does not apply to this application because the subject property is not designated as Goal 9 economic development land. In addition, the approval of this application will not adversely impact economic activities of the stat or area. Goal 10, Housing. The County’s comprehensive plan Goal 10 analysis anticipates that farm properties with poor soils, like the subject property, will be converted from EFU to MUA-10 or RR-10 zoning and that these lands will help meet the need for rural housing. Approval of this application, therefore, is consistent with Goal 10 as implemented by the acknowledged Deschutes County comprehensive plan. Goal 11, Public Facilities and Services. The approval of this application will have no adverse impact on the provision of public facilities and services to the subject site. Utility service providers have confirmed that they have the capacity to serve the maximum level of residential development allowed by the MUA-10 zoning district. Goal 12, Transportation. This application complies with the Transportation System Planning Rule, OAR 660-012-0060, the rule that implements Goal 12. Compliance with that rule also demonstrates compliance with Goal 12. Goal 13, Energy Conservation. The approval of this application does not impede energy conservation. The subject property is located in a part of the community that contains a large amount of rural residential development. Providing homes in this location as opposed to more Zone Change/Plan Amendment - Swisher Page 30 of 30 remote rural locations will conserve energy needed for residents to travel to work, shopping and other essential services. Goal 14, Urbanization. This goal is not applicable because the applicant’s proposal does not involve property within an urban growth boundary and does not involve the urbanization of rural land. The MUA-10 zone is an acknowledged rural residential zoning district that limits the intensity and density of developments to rural levels. The compliance of this zone with Goal 14 was recently acknowledged when the County amended its comprehensive plan. The plan recognizes the fact that the MUA-10 and RR zones are the zones that will be applied to lands designated Rural Residential Exception Areas. Goal 15, Willamette Greenway. This goal does not apply because the subject property is not located in the Willamette Greenway. Goals 16 through 19. These goals do not apply to land in Central Oregon. EXHIBIT A EXHIBIT A EXHIBIT A EXHIBIT B EXHIBIT B EXHIBIT B From: Kelley O'Rourke [mailto:landuse@coid.org] Sent: Wednesday, December 02, 2020 1:29 PM To: Pam Tennant <ptennant@tyeengineering.com> Cc: DanDowning <ddowning@coid.org> Subject: FW: Don Swisher Trust properties water history Hello Pam, Below are the responses from the COID team: • Settler contract for 25.0 acres of water on each of these parcels. Contracts were not fulfilled and water was never adjudicated to these properties; no water rights. • There are no active facilities on the property; however, it does appear that there use to be an old COID ditch that ran through taxlot 171318C000100 (SE corner). • No COID facilities on 17-13-18-00 Tax lot 600. Thank you, Kelley EXHIBIT C Department of Land Conservation and Development 635 Capitol Street NE, Suite 150 Salem, Oregon 97301-2540 Phone: 503-373-0050 Fax: 503-378-5518 www.oregon.gov/LCD Soil Assessment Completeness Review In accordance with OAR 660-033-0045(6)(a), the Department of Land Conservation and Development (DLCD) finds that this soils assessment is complete and consistent with reporting requirements for agricultural soils capability. The county may make its own determination as to the accuracy and acceptability of the soils assessment. DLCD has reviewed the soils assessment for completeness only and has not assessed whether the parcel qualifies as agricultural land as defined in OAR 660-033-0020(1) and 660-033-0030. Hilary Foote June 16, 2021 The department will consider soil assessments under OAR 660-033-0030 to be complete if they meet the following standards: (1) General information, to include: (a) Title of the report: ‘Soil Assessment for Two 40-acre Parcels, Bend Oregon’ (b) Person making request for soils assessment; Dave Swisher, Trustee Don swisher Trust (c) Names of soil scientist/classifier conducting the field work and preparer of the report, along with their certification numbers; Andy Gallagher, ARCPACS CPSSc/SC 03114 (d) Land use case file number (if available); Not stated (e) County in which the assessment was conducted; Deschutes (f) Location of the project site, including the township, range, section and tax lot numbers; Taxlots 100 & 600 in Township 17S, Range 13E, Section 18. (g) Present zoning designation; EFU (h) Current land use; Habitat (i) Parcel acreage: 80 acres; evaluated: 80 acres evaluated. (j) A description of the purpose of the assessment. Plan Amendment and Zone Change (2) Previous Mapping or Background: The soil scientist/classifier shall provide a copy of the applicable and most current National Cooperative Soil Survey map(s) provided by the Natural Resources Conservation Service (NRCS) on the Web Soil Survey, with the area of investigation outlined on the map(s). The scale of the map(s) shall be identified and a list of the map units under investigation shall be listed. The applicable EXHIBIT D Page 2 of 4 interpretations and minor components (inclusions) for the map units for which the investigation is being made shall also be provided. Table 1A & 1B and Figure 2, page 7. NRCS identified soils are Gosney-Rock Outcrop complex, 0 to 15 percent slopes (capability class 6, 7 & 8) and Deskamp-Gosney complex, 0 to 8 percent slopes (capability class 6 & 7). (3) Methods Used by Soil Scientist/Classifier: The soil scientist/classifier shall describe the methodologies used for the preparation of the report and shall include the following: (a) The level of order of survey used in the field survey, scale and type of maps used for field investigations, number of sample locations and observation points all confirming or disagreeing with the NRCS mapping units. The survey shall be one or more level of order higher than the NRCS survey as described in the NRCS Soil Survey Manual, 1993. Note that an Order 1 survey is more detailed than an Order 2 or greater survey. Order 1 survey (b) The date(s) of the field investigation; September 30, 2020 (c) The methods used for observations (backhoe, auger, shovel, etc.) and methods used for documentation (for slope, color, pH, etc.); Soil borings, slope gradients as measured by DEM and clinometer, moist soils determined using Munsell color chart, as described on page 2. (d) The number and location of borings either shown on an aerial photograph base map of the parcel or provided in a table with latitude and longitude coordinates. In conducting Order 1 soil surveys, the scale of the base maps used for the survey needs to be large enough to enable the identification of polygons of soil map units as consociation map units. Soil map units identified as a complex, association, or undifferentiated group should be avoided as this defeats the purpose of an Order 1 survey. If, however, the soils are so intermingled that they cannot be mapped at a reasonable scale so as to identify consociation map unit polygons, then there should be sufficient sampling and documentation of the complex to demonstrate this soil component distribution. A percentage of each member of the complex will used in determining area of extent and the reported percentages will be based on this sampling and its documentation, including soil profile descriptions, boring locations and, where useful, photographs. 82 boring locations are identified in Figure 5A and Figure 5B on pages 11 and 12. Coordinates are provided on pages 18 and 19. (e) Geomorphic and vegetation correlations supporting the interpretation of land capability classes of soils that differ from those in the official soil survey information; and Provided on page 2. (f) A notation of any limitations encountered during the field investigation, such as soil depth, drainage, slope or inaccessibility. No limitations were identified (page 2). (4) Results, Findings, and Decisions: The soils report shall describe how the level of EXHIBIT D Page 3 of 4 order of survey used in this investigation differs from that used by NRCS in the original soil survey. The soils report shall also include: (a) An overview of the geology or geologic setting, describing sources of parent material, bedrock and related factors; (Page 2) (b) A description of the landforms and topography, confirming the relationship of landforms to soil mapping units; (Page 2) (c) A description of on-site and adjacent hydrology, including surface and subsurface features, intermittent versus perennial, floodplain and floodways and other related information; (Page 2) (d) A description of the revised soil mapping units with their range of characteristics, explaining how and why they differ from NRCS soil mapping. The soils report shall include a summary of soil variability incorporating significance of preceding weather (above or below average), where known and crops and natural vegetation present; and (Page 2-4) (e) A tabulation of all previous and revised soil mapping units complete with their acreages and land capability classification. Table 1A and Table 1B, page 4. (5) Summary or Conclusion: The soils report shall contain a section reiterating the purpose of the investigation, explaining the significance of the revised soil mapping and describing any other significant issues related to the report’s purpose. Provided on pages 5 and 6. (6) References: This section may list any manuals or publications utilized or referenced by the report. Provided on page 6. (7) Attachments: Other informational materials provided as attachments, such as maps, figures or appendices shall include the following and shall be printed on 8 ½ x 11” wherever possible: (a) Vicinity map at a scale of 1:48,000 or smaller showing the project location; Figure 1, page 6 (b) The NRCS soils map generated from Web Soil Survey at a scale of 1:20,000 or larger outlining the project site; Figure 2, page 7 (c) Site condition map (aerial photo) at a scale of 1:5,000 or larger outlining the project site and showing the location of site investigations (borings) and other relevant features; Figure 3, page 8 (d) Topography map at a scale of 1:24,000 or larger outlining the project site; Figure 3, page 8 (e) Assessor’s map at a scale of 1:5,000 or larger outlining the project site; Figure 4A and 4B, page 9 and page 10 (f) Revised soils map of the project site at a scale of 1:5,000 or larger; Figure 5A and 5B, page 11 and 12 (g) Soil profile descriptions and site observation notes; Pages 2-4. Boring notes EXHIBIT D Page 4 of 4 pages 13-17 (h) Representative soil profile descriptions of any soil type identified in the project area that is not described or identified in the published soil survey for the area mapped. (8) Soils reports shall be submitted electronically to the department to hilary.foote@state.or.us, accompanied by a Soils Assessment Submittal Form. Payment of a non-refundable administrative fee of $625 should be sent by check. EXHIBIT D Soil Assessment for Two 40-acre Parcels, Bend Oregon For: Dave Swisher and Don Swisher November 2, 2020 By: Andy Gallagher CPSSc/SC 03114 EXHIBIT D SOIL ASSESSMENT REPORT 1. GENERAL INFORMATION A. TITLE: Soil Assessment for two 40-acre parcels Bend, Oregon. B. LANDOWNER: Don Swisher Trust, c/o Dave Swisher, Trustee, 250 BW Franklin Ave, Suite 401, Bend, Oregon 97703. C. SOIL SCIENTIST AND CERTIFICATION NUMBER: Andy Gallagher ARCPACS CPSSc/SC 03114 D. LAND USE CASE FILE NUMBER: E. COUNTY: Deschutes County, Oregon. F. LOCATION: Tax lot 100 and 600 Sec. 18., T. 17 S., R. 13E., W.M. G. PRESENT ZONING: Exclusive Farm Use. H. CURRENT LAND USE: Natural Habitat I. PURPOSE OF INVESTIGATION: Many decisions about land use and zoning are based on soil maps. This property was previously mapped at 1:20,000 scale, which is generally too small a scale for detailed land use planning and decision making. This Order -1 soil survey and soil assessment is done to provide the percentages of soils by land capability classes for proposed rezone to MUA-10 that is currently zoned EFU. 2. PREVIOUS MAPPING / BACKGROUND This property was previously mapped by the USDA-SCS Soil Survey of the Deschutes County Area and compiled by NRCS into the Web Soil Survey. The NRCS soil map of this parcel (Figure 2) shows: 1) 58C Gosney-Rock outcrop-Deskamp complex, 0 to 15 percent slopes 2) 38B Deskamp-Gosney complex, 0 to 8 percent slopes The Land Capability Class of these soils by soil series is shown in Table 1A and 1B. EXHIBIT D Don Swisher Trust 2 Red Hill Soils 3. METHODS A. LEVEL ORDER OF SURVEY USED IN THIS FIELD SURVEY: This current soil investigation is a high intensity (Order-1) soil survey. It is used as a basis for making the soil classification and soil map for this parcel. A total of six soil borings are used to document the soils on this parcel. Four soil borings were made on the parcel to revise the soil map. Soil borings and observations of rock outcrops average one observation/boring per acre. These two lots were mapped at the same time, so the numbering of borings is not sequential for each lot and all borings and observations are included in this report. B. DATES OF FIELD INVESTIGATIONS: Field work was done on September 30, 2020. C. FIELD METHODS: Methods used for observation included soil borings from soil pits to classify soils. Slope gradients were measured with digital elevation model and compared to observations on the ground with a clinometer. Soil colors were determined moist, using a Munsell Color Chart. Borings locations and property corners were recorded with a GPS receiver and compiled into a soil map following processing with GIS software. Percentages of revised soil map unit areas were calculated from the revised map using GIS software. D. LIMITATIONS ENCOUNTERED: None. 4. RESULTS: A. GEOLOGY OVERVIEW: The geology of the survey area volcanic ash over hard basalt. Soils formed in volcanic ash. B. LANDFORMS AND TOPOGRAPHY: Gently rolling lava plains with low pressure ridge and collapsed lava tube features. C. SITE HYDROLOGY: Soils observed are somewhat excessively drained. E. Geomorphic and vegetation correlations supporting the interpretation of land capability classes of soils that differ from those in the official soil survey information. The site has western Juniper, sagebrush, rabbit brush and bunch grasses. Ecological Group Juniper shrubby pumice flat and Juniper shrubby lava blisters. F. DESCRIPTION OF REVISED SOIL MAP UNITS Revised Soil Map Units Soils on this parcel are revised and reclassified based on high intensity soil mapping. The soils found here are remapped as Gosney-Rock Outcrop Complex EXHIBIT D Don Swisher Trust 3 Red Hill Soils Capability Class 7 and Deskamp ashy sandy loam Class 3 irrigated and 6 non- irrigated GR Gosney-Rock Outcrop Complex Capability Class 7 These soils are mapped together in a complex because both components are Capability Class 7 or greater, and it was not practical to map them separately. These soils are estimated to be about 25 percent Rock Outcrop and 75 percent Gosney. They have lower productivity than NRCS map unit 38B because they do not contain a mappable area of Deskamp soils that were mapped separately. The productivity reported in Table 2 for Gosney-Rock Outcrop are 20 percent less than the 58C map unit to account for more shallow and very shallow soils in the GR map unit in the revised map unit. Based on the observations here the map unit is about 40 percent very shallow soils, 35 percent Gosney soils and 25 percent rock outcrops. Gosney (0 to 15 percent slopes) Description: Gosney series consists of shallow 10 to 20 inches to hard basalt bedrock, somewhat excessively drained soils on lava plains. These soils have rapid permeability. They formed in volcanic ash over hard basalt bedrock. Slopes are 0 to 15 percent. The mean annual precipitation is less than 12 inches, and the mean annual temperature is about 45 degrees F. Capability Class: 7 Soil Variability: Depth to bedrock is from surface exposures of bedrock to 20 inches depth. There may be small inclusions of soils like Deskamp that are moderately deep (>20 inches). Many of the pedons are sandy skeletal family. This unit includes very shallow soils <10 inches. Very shallow phase 0-15 percent slopes Description: this component of the complex is less than 10 inches to basalt. Capability Class: 7 Soil Variability: Depth to bedrock is from 1 to 10 inches. This soil is a very shallow soil that is similar to Gosney but shallower. It has lower available water holding capacity and an estimated 40 percent lower productivity. Rock Outcrop (0 to 15 percent slopes) Description: This is a large proportion of the map unit and represents areas where bedrock is at the surface often times standing several feet about the general grade, and in places where suspected lava tubes collapsed the rock out crops are rimrock Capability Class: 8 Soil Variability: In places rocks are an inch or two below the surface but mainly are surface exposed and are detectible in aerial photographs. Dk Deskamp Description: Moderately Deep somewhat excessively drained soils with rapid permeability on lava plains. They formed in ash and have hard basalt at 20 to 40 EXHIBIT D Don Swisher Trust 4 Red Hill Soils inches. Slopes are 1 to 15 percent. The A and AB horizon are loamy sand. The 2B is loamy sand and gravelly loamy sand. The NRCS soil survey mapped Deskamp and Gosney in a complex described as 50% Deskamp and 35% Gosney. In this Dk unit I broke out the Deskamp component of the former complex based on much more detailed soil sampling than the NRCS soil survey. Capability Class: 3 irrigated and 6 non-irrigated Soil Variability: There are inclusions of rock outcrop and of deep soils with sandy skeletal family. Any rock outcrop I observed in the field was delineated from the Deskamp unit, but because not all rock outcrops could be resolved at the one boring per acre average soil observation given the brushy conditions. Table 1A: Lot 600. PREVIOUS AND REVISED SOIL MAPPING UNITS WITH LAND CAPABILITY CLASS. Previous Map Symbol Revised Map Symbol Soil Series Name Capability Class (subclass) nonirrigated Previous Map* Revised Map Ac -%- Ac -%- 38B -- Deskamp-Gosney complex, 0 to 8 percent slopes 6 and 7 36.8 92 0 0 58C -- Gosney-Rock outcrop- Deskamp complex, 0 to 15 percent slopes 6, 7 and 8 3.2 8 0 0 -- Dk Deskamp 6 0 0 7.2 18 -- GR Gosney-Rock Outcrop Complex 7 and 8 0 0 32.8 82 *Soils that were previously mapped as components of a complex that are mapped as consociations in revised map. Table 1B: Lot 100. PREVIOUS AND REVISED SOIL MAPPING UNITS WITH LAND CAPABILITY CLASS. Previous Map Symbol Revised Map Symbol Soil Series Name Capability Class (subclass) non-irrigated Previous Map* Revised Map Ac -%- Ac -%- 38B -- Deskamp-Gosney complex, 0 to 8 percent slopes 6 to 7 40 100 0 0 -- Dk Deskamp 6 0 0 4.7 12 -- GR Gosney-Rock Outcrop Complex 7 and 8 0 0 35.3 88 *Soils that were previously mapped as components of a complex that are mapped as consociations in revised map. EXHIBIT D Don Swisher Trust 5 Red Hill Soils Total Range Production from NRCS Websoil survey and estimates based soil percentages in revised soil map units Soil Map Unit Total annual range production pounds per acre Unfavorable year Normal year Favorable year 38B 700 900 1100 58C 411 558 705 Dk 700 900 1100 GR1 315 441 567 1 Estimated based on percentage of soils within consociation Total range production is the amount of vegetation that can be expected to grow annually in a well-managed area that is supporting the potential natural plant community. It includes all vegetation, whether or not it is palatable to grazing animals. It includes the current year's growth of leaves, twigs, and fruits of woody plants. It does not include the increase in stem diameter of trees and shrubs. It is expressed in pounds per acre of air-dry vegetation. In a normal year, growing conditions are about average. Yields are adjusted to a common percent of air-dry moisture content. The productivity provided for Dk map unit is from Websoil survey for the Deskamp soil and that provided for the GR map unit is based on 40% shallow soils, 35% Gosney and 25% rock outcrop. Lot 600 based on previous NRCS map has a weighted average annual productivity of 884 pounds per acre in a normal year. Based on the revised Order-1 map the annual productivity is 440 pounds per acre. Lot 100 based on NRCS map has a weighted average annual productivity of 900 pounds per acre in a normal year. Based on the revised Order-1 map the annual productivity is 494 pounds per acre. SUMMARY AND CONCLUSIONS: Soils were remapped in a high intensity (Order-1) soil survey on two 40-acre parcels Lots 100 and 600 that are currently zoned EFU. Previously this area was mapped as a soil complex that included soils that ranged from Land Capability Class 3 irrigated to Class 8. In the revised map soil the Deskamp soils (Class 3 irrigated and 6 nonirrigated are mapped as a consociation and the Gosney, rock outcrop and very shallow soils mapped as a complex in which all three components are either Capability Class 7 or 8. The soils in both of these 40 acre parcels are predominantly shallow and ashy-skeletal and rock outcrops Land Capability Class 7 and 8. Revised Order -1 Mapping is based on soil pits, surface observations of rocks, aerial photo interpretation and GPS location of features. Borings demonstrated somewhat excessively drained soils that included areas of shallow soils 12 to 20 inches deep that are moderately rapid to rapid permeability. The sampling intensity averages one observation per acre with boring distributions of higher EXHIBIT D Don Swisher Trust 6 Red Hill Soils intensity in areas of more variability and lower intensity in areas of lower variability. 6. REFERENCES: Soil Survey of Deschutes County Area\NRCS Websoilsurvey. Websoilsurvey NRCS 7. MAPS AND ATTACHMENTS: a. Figure 1. Vicinity Map (1:100,000 scale). b. Figure 2. Previous Soil Map (NRCS Websoilsurvey) c. Figure 3. Topographic Map and Site Condition Map (contour lines from Digital elevation model d. Figure 4A and 4B. Assessors Map e. Figure 5A and 5B. Revised Soil Map of the Project Site and location of Soil Borings f. Soil Profile Notes and Site Observation Notes Attachment 1. g. GPS coordinates Attachment 2. Figure 1. Vicinity Map (1:100,000 scale parcel at blue balloon) EXHIBIT D Don Swisher Trust 7 Red Hill Soils Figure 2. NRCS Soil Map Data Layer on aerial image. Lot 600 North 40 Acres, Lot 100 South 40 acres. NRCS Soil Map Legend Capability Class SYMBOL Name nonirrigated 38B Deskamp-Gosney complex 6 and 7 58C Gosney, Rock Outcrop, Deskamp Complex 6, 7 and 8 EXHIBIT D Don Swisher Trust 8 Red Hill Soils Figure 3. Topographic map and soil condition map of the study area (Contour interval 10 ft). 0200 400 600 800 1000 1200 1400 0 200 400 600 800 3420 3420 3440 3460 EXHIBIT D Don Swisher Trust 9 Red Hill Soils Figure 4. Assessor’s map the tract under consideration. EXHIBIT D Don Swisher Trust 10 Red Hill Soils EXHIBIT D Don Swisher Trust 11 Red Hill Soils Figure 5A: Revised Soil Map of the Lot 600 Project Site and soil boring locations 0200 400 600 800 1000 1200 1400 0 200 400 600 800 Dk GR DkDk Revised Soil Legend of Property Symbol Map unit Capability Class GR Gosney-Rock Outcrop 7 and 8 Dk Deskamp 6- not irrigated EXHIBIT D Don Swisher Trust 12 Red Hill Soils Figure 5: Revised Soil Map of the Lot 100 Project Site and soil boring locations 0200 400 600 800 1000 1200 1400 0 200 400 600 800 Dk Dk EXHIBIT D Soil Soil Upper Lower Coarse Boring Name Horizon Depth Depth Color Fragments Texture Notes (IN) (IN) 1 V shallow A 0 9 10YR3/2 loamy sand R 9 basalt 2 Gosney A 0 10 10YR3/2 stony loamy sand R 10 3 Rock outcrop 70 x 70 feet 4 Deskamp A 0 10 10YR3/2 loamy sand A2 10 15 10YR3/3 loamy sand Bw1 15 40 10YR4/3 loamy sand R 40 basalt 5 V shallow A 0 6 10YR3/3 loamy sand R 6 basalt 6 Rock outcrop basalt 7 Rock outcrop basalt 8 Deskamp A 0 20 loamy sand Bw 20 25 loamy sand R 25 basalt 9 Rock outcrop basalt 4 ft above grade 10 V shallow A 0 6 10YR3/3 R 6 basalt 11 Rock outcrop basalt 5 ft above grade 12 Deskamp A 0 10 10YR3/2 loamy sand A2 10 15 10YR3/3 loamy sand Bw1 15 36 10YR4/3 loamy sand R 36 basalt 13 Rock outcrop basalt 14 Gosney A 0 10 10YR3/2 stony loamy sand R 10 basalt 15 Gosney A 0 3 10YR3/3 loamy sand A2 3 20 10YR4/3 loamy sand R 20 basalt 16 V shallow A 0 3 10YR3/2 loamy sand 3 basalt 17 Deskamp A 0 10 10YR3/2 loamy sand Bw 10 22 10YR4/3 loamy sand R 22 basalt 18 Rock outcrop basalt 19 Rock outcrop basalt 2 ft above grade EXHIBIT D Soil Soil Upper Lower Coarse Boring Name Horizon Depth Depth Color Fragments Texture Notes (IN) (IN) 20 Rock outcrop basalt connects to #19 21 Deskamp A 0 10 10YR3/2 loamy sand Deep Phase A2 10 16 10YR3/3 loamy sand Bw1 16 48 10YR4/3 loamy sand R 48 basalt 22 Gosney A 0 18 10YR3/2 loamy sand 18 basalt 23 Rock outcrop basalt southern edge of #19 and #20 24 Gosney A 0 19 R basalt rock outcrop on two sides 25 V. shallow A 0 4 R 4 basalt 26 Gosney 0 10 10YR3/3 loamy sand 10 basalt 27 Deskamp A 0 12 10YR3/2 loamy sand Bw 12 31 10YR4/3 loamy sand R 31 basalt 28 Rock outcrop basalt 29 Rock outcrop basalt 30 Gosney A 0 19 R 19 basalt rock outcrop to north of pit 31 Rock outcrop basalt pressure ridge 32 Deskamp A1 0 6 10YR3/3 gravelly loamy sand A2 6 20 10YE3/3 gravelly loamy sand Bw 20 40 10YR4/3 stony loamy sand R 40 basalt 33 Rock outcrop basalt pressure ridge 34 Rock outcrop basalt pressure ridge 35 Rock outcrop basalt 36 Deskamp A 0 8 10YR3/3 loamy sand deep Bw 8 21 10YR4/3 loamy sand Bkqm 21 41 10YR4/4 loamy sand 20% weakly cemented nodules R 41 37 Rock outcrop basalt 38 Very shallowA 0 6 10YR3/3 loamy sand EXHIBIT D Soil Soil Upper Lower Coarse Boring Name Horizon Depth Depth Color Fragments Texture Notes (IN) (IN) R 6 39 Gosney A1 0 7 10YR3/2 stony loamy sand A2 7 14 10YR3/3 stony loamy sand R 14 basalt 40 Rock outcrop basalt 41 Deskamp A 0 8 10YR3/3 loamy sand Bw 8 35 10YR4/3 loamy sand R 35 42 Rock outcrop basalt 20 ft north of #41 43 Gosney A 0 17 10YR3/3 loamy sand R 17 basalt 44 Gosney A 0 10 10YR3/3 loamy sand A2 10 20 10YR3/3 gravelly loamy sand R 20 basalt 45 Rock outcrop basalt 46 Rock outcrop basalt 47 V. Shallow A 0 7 10YR3/3 loamy sand R 7 basalt 48 Rock Outcrop basalt 49 Deskamp A 0 8 10YR3/3 loamy sand Bw 8 20 10YR4/3 loamy sand Bkqm 20 32 10YR4/4 loamy sand 20% weakly R 32 basalt 50 Rock outcrop basalt 5 ft above grade 51 v shallow A 0 6 10YR 3/3 very stony loamy sand R 6 basalt 52 Rock outcrop basalt 3 ft above grade 53 Deskamp A 0 8 10YR3/3 loamy sand Bw 8 31 10YR4/3 loamy sand R 31 basalt 54 Rock outcrop basalt 55 Rock outcrop basalt 56 Deskamp A 0 8 10YR3/3 loamy sand Bw 8 24 10YR4/3 loamy sand Bq 24 31 10YR4/3 weakly cemented nodules R 31 basalt EXHIBIT D Soil Soil Upper Lower Coarse Boring Name Horizon Depth Depth Color Fragments Texture Notes (IN) (IN) 57 v shallow A 0 5 10YR 3/3 very stony loamy sand R 5 basalt 58 Rock outcrop basalt from 57 to fence 59 Rock outcrop basalt standing 6 ft above grade 60 Gosney A 0 9 10YR 3/3 loamy sand A2 9 20 10YR 3/3 stony loamy sand R 20 basalt 61 Rock outcrop basalt 100 ft to SE includes piles 62 Deskamp A 0 10 10YR3/2 loamy sand deep AB 10 24 10YR3/3 loamy sand Bq1 24 41 10YR4/3 loamy sand Bq2 41 basalt 63 V shallow A 0 2 10YR4/3 loamy sand 2 basalt 64 Deskamp A 0 8 10YR3/3 loamy sand Bw 8 21 10YR4/3 loamy sand Bq 21 31 10YR4/3 weakly cemented nodules R 31 basalt 65 Rock outcrop basalt 100 ft to south east 66 Rock outcrop basalt ridge extends NW and NE 67 Deskamp A 0 8 10YR3/3 loamy sand Bw1 8 24 10YR4/3 loamy sand Bw2 24 37 10YR4/3 stony loamy sand R 37 basalt 68 Rock outcrop basalt 69 Gosney A1 0 8 10YR3/3 loamy sand outcrop field extends 100 ft SE A2 8 18 10YR4/3 loamy sand R 18 basalt 70 v shallow A 0 4 10YR3/3 loamy sand R 4 basalt 71 Gosney A 0 8 10YR3/3 loamy sand A2 8 18 10YR4/3 loamy sand R 18 basalt 72 Rock outcrop basalt 73 Rock outcrop basalt 74 v shallow A 0 5 10YR3/3 loamy sand EXHIBIT D Soil Soil Upper Lower Coarse Boring Name Horizon Depth Depth Color Fragments Texture Notes (IN) (IN) R 5 75 Gosney A 0 18 10YR3/3 loamy sand R 18 basalt 76 Gosney A 0 12 loamy sand R 12 basalt 77 Rock outcrop basalt 78 Rock outcrop basalt 79 Rock outcrop basalt rimrock 12 ft high 80 Rock outcrop basalt rimrock from 79 to 80 81 Rock outcrop basalt 82 Rock outcrop basalt EXHIBIT D boring latitude longitude 1 44.09871 -121.218286 2 44.09952 -121.218319 3 44.099835 -121.218457 4 44.100028 -121.218442 5 44.10095 -121.218037 6 44.101623 -121.217891 7 44.101472 -121.216981 8 44.101555 -121.216961 9 44.102067 -121.217192 10 44.102686 -121.217003 11 44.102541 -121.217032 12 44.103165 -121.216819 13 44.103507 -121.217916 14 44.103507 -121.217747 15 44.104235 -121.217897 16 44.104695 -121.217776 17 44.105757 -121.217709 18 44.105472 -121.217046 19 44.105428 -121.216754 20 44.104715 -121.216426 21 44.104603 -121.216729 22 44.103882 -121.216277 23 44.104853 -121.216166 24 44.103173 -121.215889 25 44.103612 -121.215384 26 44.104112 -121.215439 27 44.104627 -121.215332 28 44.104718 -121.215332 29 44.104543 -121.214817 30 44.104833 -121.214562 31 44.104987 -121.214281 32 44.104713 -121.213871 33 44.104632 -121.214137 34 44.1046 -121.213686 35 44.105155 -121.213722 36 44.105058 -121.213552 37 44.104332 -121.213746 38 44.104172 -121.213734 39 44.104252 -121.214709 40 44.104233 -121.215834 41 44.104107 -121.216294 42 44.104127 -121.216252 43 44.104188 -121.217146 44 44.104357 -121.217696 45 44.10402 -121.217396 46 44.103333 -121.217516 EXHIBIT D boring latitude longitude 47 44.103077 -121.217097 48 44.102003 -121.216369 49 44.101682 -121.216249 50 44.101495 -121.215927 51 44.100833 -121.215701 52 44.10072 -121.214946 53 44.100568 -121.215021 54 44.100418 -121.214281 55 44.100398 -121.213552 56 44.100417 -121.213726 57 44.100153 -121.213816 58 44.09978 -121.213829 59 44.099695 -121.214002 60 44.099682 -121.213609 61 44.09979 -121.214766 62 44.100072 -121.214612 63 44.100243 -121.215446 64 44.100192 -121.215877 65 44.09992 -121.216176 66 44.10041 -121.215889 67 44.100263 -121.217129 68 44.10052 -121.217537 69 44.099108 -121.217977 70 44.098587 -121.217717 71 44.098585 -121.217711 72 44.1098382 -121.216729 73 44.098402 -121.216531 74 44.09855 -121.215226 75 44.098502 -121.214312 76 44.098478 -121.213734 77 44.098692 -121.214582 78 44.098925 -121.215081 79 44.0992 -121.215073 80 44.098453 -121.216202 81 44.103168 -121.213804 82 44.102095 -121.213799 EXHIBIT D CENTRAL ELECTRICCOOPERATIVE, INC.wwwcec.coopaP.O. Box 846, Redmond, OR 97756Office:541 .548.2144 o Fax 541 .548.0366January 6,2021Pamela TenantTye Engineering & Surveying, Inc725 NW Hill StreetBend, OR 97703RE: Will Serve Letter for 63350 Abbey RdIn response to your inquiry, please be advised that the property located atT.l7., R.13., W.M., Section18C, Tax Lot 100 in Deschutes County, Oregon, is within the service area of Central ElectricCooperative, Inc.Central Electric Cooperative has reviewed the provided load information (New 200 amp Single phase120/240 volt service) associated with the submitted Residential and is willing and able to serve thislocation in accordance with the rates and policies of Central Electric Cooperative.Sincerely,^%gfurqChristy Wa'd /Engineering Service RepresentativeEXHIBIT E CENTRAL ELECTRICCOOPERATIVE, INC.www.cec.coop . P.o. Box 846, Redmond, oR 97756 r office: 541.548.21M o Fax: 541.548.0366January 6,2021Pamela TenantTye Engineering & Surveying, Inc.725 NW Hill StreetBend, OR 97703RE: Will Serve LetterIn response to your inquiry, please be advised that the property located atT.l7., R.13., W.M., Section 18,Tax Lot 600 in Deschutes County, Oregon, is within the service area of Central Electric Cooperative,Inc.Central Electric Cooperative has reviewed the provided load information (New 200 amp Single phase120/240 volt service) associated with the submitted Residential and is willing and able to serve thislocation in accordance with the rates and policies of Central Electric Cooperative.Sincerel_y.@a/a4Christy Ward ?Engineering Service RepresentativeEXHIBIT E EXHIBIT F EXHIBIT G EXHIBIT H EXHIBIT H EXHIBIT H EXHIBIT H EXHIBIT H EXHIBIT H EXHIBIT H EXHIBIT H EXHIBIT H EXHIBIT H EXHIBIT H EXHIBIT H EXHIBIT H EXHIBIT H EXHIBIT H EXHIBIT H EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT I EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT J EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K EXHIBIT K For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Deschutes County Code Title 23, the Deschutes County Comprehensive Plan, to Change the Comprehensive Plan Map Designation for Certain Property From Agriculture to Rural Residential Exception Area, and Amending Deschutes County Code Title 18, the Deschutes County Zoning Map, to Change the Zone Designation for Certain Property From Exclusive Farm Use to Multiple Use Agricultural. * * * * * * ORDINANCE NO. 2019-006 WHEREAS, Eastside Bend, LLC, applied for changes to both the Deschutes County Comprehensive Plan Map (247-18-000485-PA) and the Deschutes County Zoning Map (247-18-000486-ZC), to change a portion of the subject property from an Agricultural (AG) designation to a Rural Residential Exception Area (RREA) designation and a corresponding zone change from Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA-10); and WHEREAS, after notice was given in accordance with applicable law, a public hearing was held on December 4, 2018, before the Deschutes County Hearings Officer and, on December 18, 2018, the Hearings Officer recommended approval of both the Comprehensive Plan Map change and Zoning Map change; and WHEREAS, after notice was given in accordance with applicable law, a de nova public hearing was held on February 27, 2019, before the Board of County Commissioners ("Board"); and WHEREAS, the Board, after review conducted in accordance with applicable law, both approved the plan amendment to change the Comprehensive Plan Map designation from Agriculture to Rural Residential Exception Area, and approved the Zoning Map amendment to change from Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA-10); now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. AMENDMENT. DCC Title 23, Deschutes County Comprehensive Plan Map, is amended to change the plan designation for certain property described in Exhibit "A" and depicted on the map set forth as Exhibit "B", with both exhibits attached and incorporated by reference herein, from Agriculture to Redmond Urban Growth Area. PAGE l OF 2 -ORDINANCE NO. 2019-006 EXHIBIT L Section 2. AMENDMENT. DCC Title 18, Zoning Map, is amended to change the zone designation from Exclusive Fann Use (EFU) to Multiple Use Agricultural (MUA-10) for certain property described in Exhibit "A" and depicted on the map set forth as Exhibit "C." Section 3. AMENDMENT. DCC Section 23.01.010, Introduction, is amended to read as described in Exhibit "D" attached and incorporated by reference herein, with new language underlined. AMENDMENT. Deschutes County Comprehensive Plan Section 5.12, Legislative History, is amended to read as described in Exhibit "E" attached and incorporated by reference herein, with new language underlined. Section 5. FINDINGS. The Board adopts as its findings in support of this Ordinance, the Decision of the Hearings Officer as set forth in Exhibit "F", and incorporated by reference herein. Date of 1st Reading: Date of 200 Reading: Commissioner Philip G. Henderson Patti Adair Anthony DeBone Effective date: BOARD OF COUNTY COMMISSIONERS OF DESCHUTES Record of Adoption Vote: No Abstained Excused PAGE 2 OF 2-0RDINANCE NO. 2019-006 EXHIBIT L Exhibit "A" That portion of the Northeast Quarter of the Southeast Quarter of Section 35, Township 17 South, Range 12 East of the Willamette Meridian, Deschutes County, Oregon, lying Northerly of U.S. Highway 20. Excepting therefrom the following described tract of land: Beginning at the Northeast Corner of the Northeast Quarter of the Southeast Quarter of Section 35, Township 17 South, Range 12 East of the Willamette Meridian, Deschutes County, Oregon; thence South along the East line of said Northeast Quarter of the Southeast Quarter a distance of 495 feet; thence Westerly, parallel with the North line of said Northeast Quarter of the Southeast Quarter a distance of 1320 feet, more or less to a point on the West line of said Northeast Quarter of the Southeast Quarter; thence Northerly along said West line 495 feet to the Northwest corner of the Northeast Quarter of the Southeast Quarter of said Section; thence Easterly along the North line of said Northeast Quarter of the Southeast Quarter a distance of 1320 feet, more or less to the point of beginning. Also excepting therefrom that portion conveyed to J.B. Casey, et ux by Deed recorded December 2, 1965, In Book 146, Page 360, Deed Records Deschutes county, Oregon. Also excepting therefrom any portion lying within the limits of Roads or Highways. All that portion of the Southeast Quarter of the Southeast Quarter and the Northeast Quarter of the Southeast Quarter of Section 35, Township 17 South, Range 12 East of the Willamette Meridian, Deschutes County, Oregon lying southerly of U.S. Highway 20. Excepting therefrom the following: Beginning at the Southwest corner of the Southeast Quarter of the Southeast Quarter of Section 35, Township 17 South, Range 12 East of the Willamette Meridian, Deschutes County, Oregon; thence North along the West line of said Southeast Quarter of the Southeast Quarter, 534 feet; thence Easterly, parallel with the South PAGE 1 OF 1-EXHIBIT A TO ORDINANCE NO. 2019-006 EXHIBIT L line of said Southeast Quarter of the Southeast Quarter, 370 feet; thence s·outh and parallel to the West line of said Southeast Quarter of the Southeast Quarter, 534 feet to a point on the south line of said Southeast Quarter of the Southeast t Quarter; thence Westerly along said South line 370 feet to the point or beginning. Also excepting therefrom any portion lying within the limits of Roads or Highways. Also Excepting that portion conveyed to Deschutes County by Warranty Deed recorded November 8, 1990 In Book 222, Page 2181, Deschutes County Records. A tract of land in the Southeast Quarter of the Southeast Quarter (SE1 /4SE1 /4) of Section 35, Township 17 South, Range 12 East of the Willamette Meridian, Deschutes County, Oregon, beginning at the Southwest corner of said SE1 /4SE1 /4, 370.0 feet; thence South and parallel to the West line of said SE1 /4SE1 /4, 534.0 feet; thence West 370.0 feet to the point of beginning. Excepting therefrom Richardson Road, now known as Bear Creek Road. PAGE 1 OF 1-EXHIBIT A TO ORDINANCE NO. 2019-006 EXHIBIT L ---r City o~ Bend URA Legend URA RREA AG Proposed Plan Amendment Boundary I J Bend Urban Growth Boundary Comprehensive Plan Designation AG -Agriculture RREA -Rural Residential Exception Area URA -Urban Reserve Area Taxlol 17-12-35-1601 Taxlol 17-12-35-1400 Plan Amendment from Agriculture (AG) to Rural Residential Exception Area (RREA) Taxlot 17-12-35-1600 PROPOSED COMPREHENSIVE PLAN MAP Exhibit "B" to Ordinance 2019-006 ® ~!!!!!!!liiiiii~iil!0 !!!!!!!1!1iiaii00!0!!!!!!!1!!!!!!!1!!!!!!!1!!!!!!!1!!!!!!!1!!!!!!!1!1i>~ C: F<!lll February 12, 201!il AG BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON Philip G. Henderson, Chair Patti Adair, Vice Chair Tony DeBone, Commissioner ATIEST: Recording Secretary Dated this ~~~--day of~ 2019 ElfecHve Date: , 2019 EXHIBIT L City o,f Bend UAR10 Legend MUA10 EFUTRB Proposed Zone Change Boundary J Bend Urban Growth Boundary Zoning EFUTRB -Tumalo/Redmond/Bend Subzone MUA10 -Multiple Use Agricultural UAR10 -Urban Area Reserve Taxlot 17-12-35-1400 Zone Change from EFU Tumalo!RedmondlBend {EFUTRB) to Multiple Use Agricultural (MUM 0) Taxi at 17-12-35-1601 Taxlot 17-12-35-1600 PROPOSED ZONING MAP Exhibit "C" to Ordinance 2019-006 ® ~ 600 1,200 l!!!!!!!!!liiiiiiiJ!!!!!!!!!liiiiiiil!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!l!!!!!Feet February 12, 2019 EFUTRB BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON Tony DeBone, Commissioner Dated this __ day of~ 2019 Elfecuve Date: , 2019 EXHIBIT L Chapter 23.01 COMPREHENSIVE PLAN Chapter 23.01 COMPREHENSIVE PLAN 23.01.010. Introduction. A. The Deschutes County Comprehensive Plan, adopted by the Board in Ordinance 2011-003 and found on the Deschutes County Community Development Department website, is incorporated by reference herein. B. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2011-027, are incorporated by reference herein. C. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2012-005, are incorporated by reference herein. D. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2012-012, are incorporated by reference herein. E. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2012-016, are incorporated by reference herein. F. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2013-002, are incorporated by reference herein. G. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2013-009, are incorporated by reference herein. H. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2013-012, are incorporated by reference herein. I. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2013-007, are incorporated by reference herein. J. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2014-005, are incorporated by reference herein. K. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2014-006, are incorporated by reference herein. L. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2014-012, are incorporated by reference herein. M. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2014-021, are incorporated by reference herein. N. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2014-027, are incorporated by reference herein. 0. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2015-021, are incorporated by reference herein. P. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2015-029, are incorporated by reference herein. Q. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2015-018, are incorporated by reference herein. R. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2015-010, are incorporated by reference herein. S. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2016-001, are incorporated by reference herein. T. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2016-022, are incorporated by reference herein. V. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2016-005, are incorporated by reference herein. PAGE 1 OF 2 -EXHIBIT D TO ORDINANCE NO. 2019-006 EXHIBIT L V. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2016-027, are incorporated by reference herein. W. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2016-029, are incorporated by reference herein. X. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2017-007, are incorporated by reference herein. Y. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2018-002, are incorporated by reference herein. Z. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2018-006, are incorporated by reference herein. AA. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2018-011, are incorporated by reference herein. BB. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2018-005, are incorporated by reference herein. CC. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2018-008, are incorporated by reference herein. DD. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2019-002, are incorporated by reference herein. EE. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2019-001, are incorporated by reference herein. FF. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2019-003, are incorporated by reference herein. GG. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2019-004, are incorporated by reference herein. 2019-004 §1, 2019; Ord. 2019-003 §1, 2019; Ord. 2019-001 §1, 2019; Ord. 2019-002 §1, 2019; Ord. 2018-008 §1, 2018; Ord. 2018-005 §2, 2018; Ord. 2018-011 §1, 2018; Ord. 2018-006 §1, 2018; Ord. 2018-002 §1, 2018; Ord. 2017-007 §1, 2017; Ord. 2016-029 §1, 2016; Ord. 2016-027 §1, 2016; Ord. 2016-005 §1, 2016; Ord. 2016-022 §1, 2016; Ord. 2016-001 §1, 2016; Ord. 2015-010 §1, 2015; Ord. 2015-018 § 1, 2015; Ord. 2015-029 § l, 2015; Ord. 2015-021 § 1, 2015; Ord. 2014-027 § 1, 2014; Ord. 2014-021 §1, 2014; Ord. 2014-12 §1, 2014; Ord. 2014-006 §2, 2014; Ord. 2014-005 §2, 2014; Ord. 2013-012 §2, 2013; Ord. 2013-009 §2, 2013; Ord. 2013-007 §1, 2013; Ord. 2013-002 §1, 2013; Ord. 2013-001 §1, 2013; Ord. 2012-016 §1, 2012; Ord. 2012-013 §1, 2012; Ord. 2012-005 §1, 2012; Ord. 2011-027 §1through12, 2011; Ord. 2011-017 repealed; Ord.2011-003 §3, 2011) Click here to be directed to the Comprehensive Plan (http://www.deschutes.org/compplan) PAGE 2 OF 2 -EXHIBIT D TO ORDINANCE NO. 2019-006 EXHIBIT L sectto""' s.12 ugtstattve Background This section contains the legislative history of this Comprehensive Plan. Table 5.1 l. I Comprehensive Plan Ordinance History Ordinance Date Adopted/ Effective 2011-003 8-1 0-1 I II 1-9-1 I 2011-027 I 0-3 1-1 I II 1-9-1 I 2012-005 8-20-12111-19-12 2012-012 8-20-1218-20-12 2012-016 12-3-1213-4-13 2013-002 1-7-13/1-7-13 2013-009 2-6-13/5-8-13 2013-012 5-8-13/8-6-13 2013-007 5-29-13/8-27-13 Chapter/Section Amendment All, except Transportation, Tumalo and Terrebonne Community Plans, Comprehensive Plan update Deschutes junction, Destination Resorts and ordinances adopted in 2011 2.5, 2.6, 3.4, 3.10, 3.5, Housekeeping amendments to 4.6, 5.3, 5.8, 5.1 I, 23.40A, 23.40B, ensure a smooth transition to 23.40.065, 23.01.0 I 0 the updated Plan 23.60, 23.64 (repealed), Updated Transportation 3.7 (revised), Appendix C (added) System Plan 4.1, 4.2 la Pine Urban Growth Boundary 3.9 Housekeeping amendments to Destination Resort Chapter Central Oregon Regional 4.2 large-lot Employment Land Need Analysis Comprehensive Plan Map Amendment, changing 1.3 designation of certain property from Agriculture to Rural Residential Exception Area Comprehensive Plan Map 23.01.010 Amendment, including certain property within City of Bend Urban Growth Boundary Newberry Country: A Plan 3.10, 3.11 for Southern Deschutes County DESCHUTES COUNTY COMPREHENSIVE Pl.AN -20 I I CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY EXHIBIT "E" TO ORDINANCE NO. 2019-006 EXHIBIT L Compre: ·-··-: • .;. Map 2013-016 I 0-21-13/I 0-21-13 23.01.010 Amendment, including certain property within City of Sisters Urban Growth Boundary Comprehensive Plan Map 2014-005 2-26-14/2-26-14 23.01.010 Amendment, including certain property within City of Bend Urban Growth Boundary 2014-012 4-2-14/7-1-14 3.10, 3.11 Housekeeping amendments to Title 23. Comprehensive Plan Map Amendment, changing designation of certain 2014-021 8-27-14111-25-14 23.01.010, 5.10 property from Sunriver Urban Unincorporated Community Forest to Sunriver Urban Unincorporated Community Utility Comprehensive Plan Map Amendment, changing designation of certain 2014-021 8-27-14/11-25-14 23.01.010, 5.10 property from Sunriver Urban Unincorporated Community Forest to Sunriver Urban Unincorporated Community Utility Comprehensive Plan Map Amendment, changing 2014-027 12-15-14/3-31-15 23.01.0 I 0, 5.10 designation of certain property from Agriculture to Rural Industrial Comprehensive Plan Map Amendment, changing 2015-021 I 1-9-15/2-22-16 23.01.010 designation of certain property from Agriculture to Surface Minin1:. Comprehensive Plan Map Amendment, changing 2015-029 11-23-15/11-30-15 23.01.010 designation of certain property from Tumalo Residential 5-Acre Minimum to Tumalo Industrial 2015-018 12-9-15/3-27-16 23.01.0 I 0, 2.2, 4.3 Housekeeping Amendments to Title 23. DESCHUTES COUNTY COMl"REHENSIVE PLAN -2::;:0~11~--~---~---~-~-----2 CHAl"TEl'l S SUPPLEMENTAL SECTIONS SECTION S.12 LEGISLATIVE HISTORY EXHIBIT "E" TO ORDINANCE NO. 2019-006 EXHIBIT L 2015-010 12-2-15112-2-15 2016-001 12-21-15/04-5-16 2016-007 2-10-16/5-10-16 2016-005 I 1-28-16/2-16-17 2016-022 9-28-16/11-14-16 2016-029 12-14-16/12128/16 2017-007 I 0-30-17/ I 0-30-17 2018-002 1-3-1811-25-18 3 . _ · . ,:: Plan T4 and 'I'""'' 2.6 Map Amendment recognizing Greater Sage-Grouse Habitat Inventories Comp, ..... .:;;•:· .. .;. Plan Map Amendment, changing 23.01.010; S.10 designation of certain property from, Agriculture to Rural Industrial (exception area) Comp;-.:~ • .:11sive Plan Amendment to add an exception to Statewide 23.01.010; 5.10 Planning Goal I I to allow sewers in unincorporated lands in Southern Deschutes County Comprehensive Plan Amendment recognizing non- 23.01.0 I 0, 2.2, 3.3 resource lands process allowed under State law to .. , ,_, •6 ... EFU zoning Comprehensive plan 23.01.0 I 0, 1.3, 4.2 Amendment, including certain property within City of Bend Urban Growth Boundary Comprehensive Plan Map Amendment, changing 23.01.0 I 0 designation of certain property from, Agriculture to Rural Industrial Comprehensive Plan Map Amendment, changing 23.01.0 I 0 designation of certain property from Agriculture to Rural Residential Exception Area Comprehensive Plan 23.01, 2.6 Amendment permitting churches in the Wildlife Area Combining Zone DESCHUTES COUNTY COMPREHENSIVE Pl.AN -2011 CHAl"TER S SUPl"l..EMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY EXHIBIT "E" TO 01\DINANCE NO. 2019-006 EXHIBIT L 2018-006 2018-011 2018-005 2018-008 2019-002 2019-001 8-22-18/ I 1-20-18 23.01.0 I 0, 5.8, 5. 9 9-12-18112-11-18 23.01.0 I 0 23.01.010, 2.5, Tumalo 9-19-18/ I 0-10-18 Community Plan, Newberry Country Plan 9-26-18/10-26-18 23.01.0 I 0, 3.4 1-2-19/-'t-2-l 9 23.01.0 I 0, 5.8 1-16-19/-'t-16-I 9 1.3, 3.3, 4.2, 5.10, 23.0 I '"""'". • •• A' • I -~-#-,,UUOiiifUdllU\;;i!SU •• ~ correcting tax lot numbers in Non-Significant Mining Mineral and Aggregate Inventory; modifying Goal 5 Inventory of Cultural and Historic Resources Comprehensive Plan Map Amendment, changing designation of certain property from Agriculture to Rural Residential Exception Area Comprehensive Plan Map Amendment, removing Flood Plain Comprehensive Plan Designation; Comprehensive Plan Amendment adding Flood Plain Combining Zone .., ..... yvillc statement. Comprehensive Plan Amendment allowing for the potential of new properties to be designated as Rural Commercial or Rural Industrial Comprehensive Plan Map Amendment changing designation of certain property from Surface Mining to Rural Residential Exception Area; Modifying Goal 5 Mineral and Aggregate Inventory; Modifying Non- Significant Mining Mineral and Aggregate: .. ,. ......... ; 1 Comprehensive Plan and Text Amendment to add a new zone to Title 19: Westside Tran sect Zone. ,~-----------~"""""""--""""""""'-------------DESCHUTES COUNTY COMl"l\EHENSIVE Pl.AN -20 I I CHAl"TEll. 5 SUl"l"LEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY EXHIBIT "E" TO ORDINANCE NO. 2019-006 EXHIBIT L 2019-003 TBD/TBD 2019-004 TBD/TBD 5 23.01.0 I 0, 4.2 23.01.0 I 0, 4.2 Comprehensive Plan Map Amendment changing designation of certain property from Agriculture to Redmond Urban Growth Area for the Large Lot Industrial Program Comprehensive Plan Map Amendment changing designation of certain property from Agriculture to Redmond Urban Growth Area for the expansion of the Deschutes County Fairgrounds and relocation of Oregon Military Department National Guard Armory. DESCHUTES COUNTY COMPREHENSIVE PLAN -2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY EXHIBIT "E" TO ORDINANCE NO. 2019-006 EXHIBIT L FILE NUMBERS: HEARING: APPLICANT /OWNER: AGENT FOR APPLICANT: TRANSPORTATION ENGINEER: HEAltlNGS OFFICER DECJSION 247-18-000485-PA, 247-18-000486-ZC December 4, 2018, 6:00 p.m. Barnes & Sawyer Rooms Deschutes Services Center 1300 NW Wall Street Bend, OR 97708 Eastside Bend, llC Tia M. lewis Schwabe, Williamson & Wyatt, P.C. Joe Bessman Transight Consulting, llC PROPOSAL: The applicant requests approval of a Comprehensive Plan Amendment to change the designation of the property from Agricultural (AG) to Rural Residential Exception Area (RREA) designation. The applicant also requests approval of a corresponding Zone Change to rezone the property from Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA-10). STAFF REVIEWER: HEARINGS OFFICER: Nicole Mardell, Associate Planner ===~~=====-541-317-3157 Will Van Vactor I. APPLICABLE $!ANDARD5 AND CRITERIA: Chapter 18.04, Title, Purpose, and Definitions Chapter 18.16, Exclusive Farm Use Zones Chapter 18.32, Multiple Use Agricultural Zone Chapter 18.136, Amendments Chapter 2, Resource Management Chapter 3, Rural Growth Management Appendix C, Transportation System Plan Eastside Bend llC 247-18-000485-PA 247-1111-000486-ZA 1 Exhibit "F" to Ordinance 2019-006 EXHIBIT L Division 6, Forest Lands Division 12, Transportation Planning Division 15, Statewide Planning Goals and Guidelines Division 33, Agricultural Land Chapter 215.211, Agricultural Land, Detailed Soils Assessment. II. FINDINGS OF FACT: A. LOCATION: The subject property is a 59.24-acre tract containing three separate parcels under the same ownership and identified on the Deschutes County Assessor's Map as 17-12-35, tax lots 1400, 1600, and 1601. The corresponding addresses are 21588 Highway 20 (tax lot 1400), 21457 Highway 20 (Tax Lot 1600), and 21510 Bear Creek Road (Tax Lot 1601). B. LOT OF RECORD: Tax lots 1400 and 1600 were verified as legal lots of record per previous county land use approvals, the most recent being a property line adjustment in 2003 that altered the acreages of the property to their current configuration. Tax lot 1400 is 20.55 acres and Tax lot 1600 is 34.4 acres in size. Tax lot 1601 has not previously been verified as a legal lot of record. Per DCC 22.04.040 Verifying Lots of Record, lot of record verification is required for certain permits: B. Permits requiring verification 1. Unless an exception applies pursuant to subsection (8)(2) below, verifying a lot parcel pursuant to subsection (C) shall be required to the issuance of the following permits: a. Any land use permit for a unit of land in the Exclusive farm Use Zones (DCC Chapter 18.16), forest Use Zone -fl (DCC Chapter 18.36), or forest Use Zone -f2 (DCC Chapter 18.40); b. Any permit for a lot or parcel that includes wetlands as show on the Statewide Wetlands Inventory; c. Any permit for a lot or parcel subject to wildlife habitat special assessment; d. In all zones, a land use permit relocating property lines that reduces in size a lot or parcel; e. In all zones, a land use, structural, or non-emergency on-site sewage disposal system permit if the lot or parcel is smaller than the minimum area required in the applicable zone; In the Powell/Ramsey (PA-14-2, ZC-14-2), the hearings officer in that case held to a prior decision (Belveron ZC-08-04) that a property's lot of record status was not required to be verified as part of a plan amendment and zone change application. Rather, the applicant would be required to receive lot of record verification prior to any development on the subject property. The Hearings Officer here agrees. Thus, this criterion does not apply. Eastside Bend LLC 247-18-000485-PA 247-18-000486-ZA 2 Exhibit "F" to Ordinance 2019-006 EXHIBIT L figure 1. Subject Property Map C. PROPOSAL: The applicant requests approval of a Comprehensive Plan Map Amendment to change the designation of the subject property from Agricultural (AG) designation to a Rural Residential Exception Area (RREA) designation. The applicant also requests approval of a corresponding Zoning Map Amendment to change the zoning of the subject property from Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA-10). The applicant asks that Deschutes County change the zoning and the plan designation because the subject property does not qualify as "agricultural land" under Oregon Revised Statutes (ORS) or Oregon Administrative Rules (OAR) definitions. The applicant proposed that no exception to Statewide Planning Goal 3, Agricultural land is required because the subject property is not agricultural land. The applicant submitted an application form, a burden of proof statement, and other Eastside Bend LlC 247-18-000485-PA 247-18-000486-ZA 3 Exhibit "F" to Ordinance 2019-006 EXHIBIT L supplemental materials, all of which are included in the record for the subject applications. With its application, the applicant submitted an Order 1 Soil Survey for tax lots 1600 and 1601, titled "Agricultural Soils Capability Assessment" ("Borine study") prepared by soil scientist Roger Borine, CPSC, CPSS, PWS of Sage West, llC. Prior to the hearing, the applicant also submitted a site-specific soil study for tax lot 1400 that was prepared by Brian Rabe, CPSS, WWS of Cascade Earth Sciences ("Rabe study"). The applicant has also submitted a traffic analysis prepared by Transight Consulting, llC titled "Eastside Bend, llC" ("traffic study"). D. ZONING AND PLAN DESIGNATIONS: The Deschutes County Comprehensive Plan map designates the subject property as Agriculture. The property is zoned Exclusive Farm Use - Tumalo/Redmond/Bend subzone (EFU-TRB). E. SITE DESCRIPTION: The subject property encompasses approximately 59.24 acres and is divided by State Highway 20. Tax lot 1400 is located to the north of Highway 20 and west of Hamby Road while tax lots 1600 and 1601 are located south of Highway 20 and west of Ward Road. The property is not in farm tax deferral and does not contain any irrigation water rights or irrigated area. A Central Oregon Irrigation District (COID) irrigation can runs through the center of tax lot 1400, although the property does not contain any irrigated areas, nor does it hold irrigation water rights. Historical images of the subject property provide evidence of irrigated pasture on tax lots 1400 and 1600, as recently as 2011. The applicant stated in the burden of proof that the tax lots formerly had water rights but lost the rights due to a lack of beneficial use. Tax lot 1600 is developed with a manufactured home placed on the property in 1984. Tax lot 1601 is developed with a residence that appears to have been constructed in 1935. Tax lot 1400 is currently vacant. Vegetation on site consists of juniper and sagebrush scattered sparingly throughout. F. SURROUNDING LAND USES: land uses in the area vary in scale. The subject property is located approximately 0.25 miles from the City of Bend city limits and urban growth boundary. Within the city limits, land uses consist of residential subdivisions, apartment buildings, a nursery, and several strip malls with commercial uses. Outside of city limits and adjacent to the subject property are EFU-zoned parcels, many containing single family residences and a few vacant properties, none of which are in farm tax deferral. The property immediately adjacent to the west of tax lot 1400 was recently approved for a commercial dog kennel and training facility. Farther east of the property is Grace Community Church, Christian life Center, and a Pacific Power and light substation. Farther south is property zoned MUA- 10, developed with residences on 1-acre parcels platted as part of the Dobbin Acres subdivision. A property to the southeast (Tl 1500) recently received approval for a plan amendment and zone change to redesignate the property from Agricultural to Rural Residential Exception Area, and to rezone the property from EFU-TRB to MUA-10. G. SOILS: According to Natural Resources Conservation Service (NRCS) maps of the area, the subject property contains two different soil types, as described below. Pursuant to the NRCS, tax lot 1400 is designated entirely as 58C -Gosney-Rock Outcrop, Deskamp complex. The NRCS shows lots 1600 and 1601 each contain SSC-Gosney-Rock Outcrop, Deskamp complex Eastside Bend LLC 247-18-000485-PA 247-18-000486-ZA 4 Exhibit "F" to Ordinance 2019-006 EXHIBIT L and 36A-Deskamp loamy sand. The applicant submitted two soil studies. The Borine study determined tax lots 1600and1601 are comprised of soils that do not qualify as Agricultural land pursuant to OAR 660-033. The Borine study did not include Tax lot 1400. The purpose of this Borine study was to inventory and assess the soils on the tax lots 1600 and 1601 and to provide more detailed data on soil classifications and ratings than is contained in the NRCS soils maps. The findings are addressed in more detail below. The Rabe study determined that tax lot 1400 is also comprised of soils that do not qualify as agricultural lands as defined by OAR 660-033. The purpose of the Rabe study was (1) to present the results of a site-specific assessment to verify, and where necessary, refine the soils, map units, and boundaries of the previously prepared NRCS study for tax lot 1400, and (2) determine whether the soils on the tax lot 1400 meet the land classification criterion for a non-resource zoning designation. The Rabe study is also addressed in more detail below. The NRCS soil map units identified on the property are described below. ='-"'-'==.:..:.:..i::'-'-"'==""--"==-"'-=-"'-'==.:.=:..:.== This soil complex is composed of 85 percent Deskamp soil and similar inclusions, and 15 percent contrasting inclusions. The Deskamp soils are somewhat excessively drained with a rapid over moderate permeability, and about 5 inches of available water capacity. Major uses of this soil type are irrigated cropland and livestock grazing. The agricultural capability rating for 36A soils are 35 when irrigated, and 6S when not irrigated. This soil is high-value when irrigated. Approximately 37.6 percent of the subject parcel is made up of this soil type. SSC, Gosney-Rock Outcrop-Deskamp complex, O to 15 percent slopes: This soil type is comprised of SO percent Gosney soil and similar inclusions, 25 percent rock outcrop, 20 percent Deskamp soil and similar inclusions, and 5 percent contrasting inclusions. Gosney soils are somewhat excessively drained with rapid permeability. The available water capacity is about 1 inch. Deskamp soils are somewhat excessively drained with rapid permeability. Available water capacity is about 3 inches. The major use for this soil type is livestock grazing. The Gosney soils have ratings of 7e when unirrigated, and 7e when irrigated. The rock outcrop has a rating of 8, with or without irrigation. The Deskamp soils have ratings of 6e when unirrigated, and 4e when irrigated. Approximately 62.4 percent of the subject parcel is made up of this soil type. Further discussion regarding soils is found in Section Ill below. H. PUBLIC AND PRIVATE AGENCY COMMENTS: The Planning Division mailed notice of the application and notice of the public hearing to several agencies and the following comments were received: Bend Park and Recreation District's Comprehensive Plan calls for a park in the vicinity of the property addressed 21588 Highway 20. The District would like to coordinate with the property Eastside Bend LLC 247-18-000485-PA 247-18-000486-ZA 5 Exhibit "F" to Ordinance 2019-006 EXHIBIT L owner as their plans progress for this area. Staff received an additional email comment from Sarah Bodo on behalf of Bend Parks and Recreation District on December 4, 2018. It was received before the close of the hearing and record. The Hearings Officer therefore includes the email in the record. In that email, Bend Parks and Rec encourages the applicant to consider park and trail connectivity to the west and notes that when development occurs, the property will be subject to Systems Development Charges. COID Facilities: • The subject's property has the A-24 sub lateral that runs through it. o It has a 40' canal right of way along with a 20' road right of way along the west side of the canal o No structures are allowed within CO/D's right of way o No crossings are allowed without first obtaining a crossing license COID Water Rights: • None COID Guideline Statement • None NOTICE: The Deschutes County Building Safety Divisions code mandates that Access, Egress, Setbacks, Fire & life Safety, Fire Fighting Water Supplies, etc. must be specifically addressed during the appropriate plan review process with regard to any proposed structures and occupancies. Accordingly, all Building Code required items will be addressed, when a specific structure, occupancy, and type of construction is proposed and submitted for plan review. Note: This section contains comments following a revised traffic study submitted on October 26, 2018. Mr. Russell's original comments can be found in the full record. I have read the revised traffic study for the roughly 59-acre rezone from EFU>MUA-10 adjacent to the intersection of Hamby-Ward/US 20. I agree with the report's methodology, findings, and conclusions. I've cc'd Cody as the report assesses the crash history at Bear Creek/Ward and recommends several countermeasures . .!.!.!.:~::.:.:.:r::.:=-=.:w:..J:~~..::..:.::::..:.i:.:....:.l.'~~.=.:~~.:...:::.:....:::.:~=.::...!.!::.:~~~-=.:.:=..:.:.~~Bend/la Pine School District, Bend City Engineering, Bend Fire Department, Bend Growth Management Department, Bend Planning Department, Bend Public Works Department, BLM -Prineville District Deschutes Field Manager, Central Electric Cooperative, Department of Environmental Quality, Department of land Conservation and Development -Bend Office, Eastside Bend llC 6 247-18-000485-PA 24 7-18-000486-ZA Exhibit "F" to Ordinance 2019-006 EXHIBIT L Department of land Conservation and Deveropment -Salem Office, Deputy State Fire Marshal, Deschutes County Assessor, Deschutes County Environmental Soils Division, Deschutes County Road Department, Pacific Power & light, Watermaster-District 11, ODOT. I. PUBLIC COMMENTS: On June 20, 2018, the Planning Division mailed a Notice of Application to all property owners within 750 feet of the subject property. By letter dated June 27, 2018, Kendra Vogt submitted written comments. She expressed concern with use of the property to grow marijuana. She also expressed concern regarding traffic impact. On December 4, 2018, prior to the hearing, staff received an email from Sandy McJunkin. Ms. McJunkin expressed concern about developing multiple housing and apartments on the property. Specifically, she is concerned that development will increase the number of vehicle and bicycle accidents in the area. Road and traffic concerns are addressed below under the Transportation Planning Rule. J. NOTICE REQUIREMENT: The applicant complied with the posted notice requirements of Section 22.23.030(B) of Deschutes County Code (DCC) Title 22. The applicant submitted a land Use Action Sign Affidavit, dated June 19, 2017, indicating the applicant posted notice of the land use action on the property on that same date. On November 6, 2018 the Planning Division mailed a Notice of Public Hearing to all property owners within 750 feet of the subject property and agencies. A Notice of Public Hearing was published in the Bend Bulletin on Sunday, November 11, 2018. Notice of the first evidentiary hearing was submitted to the Department of Land Conservation and Development on October 29, 2018. K. PUBLIC HEARING: On December 4, 2018, at 6:00 pm the Hearings Officer conducted a public hearing. The Hearings Officer read the preliminary statement, including the normal disclosure regarding biases, conflict of interest, and ex pa rte contacts. There were no objections to the Hearings Officer conducting the hearing. l. REVIEW PERIOD: The application was submitted on June 14, 2018. The application was deemed incomplete on July 13, 2018. Upon submission of additional application materials, the application was deemed complete on October 26, 2018. According to Deschutes County Code 22.20.040(D), the review of the proposed quasi-judicial plan amendment and zone change application is not subject to the 150-day review period. As a procedural note, the hearing on December 4, 2018, was the first of two required de novo hearings since this applicant's request concerns land designated for agricultural use. DCC 22.28.030(c}. The second de novo hearing will be heard in front of the Board of County Commissioners. M. LAND USE HISTORY: Previous land use decisions for the property include the following: Tax lot 1400 Eastside Bend LLC 247-18-000485-PA 247-18-000486-ZA 7 Exhibit "F" to Ordinance 2019-006 EXHIBIT L • LR-03-12: Lot of Record verification confirming the property is a legal lot of record. • LL-03-20: Lot line adjustment with Tax Lot 1600. Tax Lot 1400 decreased in size from 21.18 acres to 20.55 acres. Tax Lot 1600 • TU-84-40: Temporary Use Permit to place a manufactured home on a farm property. • CU-84-86: Conditional Use Permit to allow the permanent placement of a manufactured home on a farm property. • LM-98-142: Approval of Landscape Management Review to replace the manufactured home on the property. • LL-03-20: Lot line adjustment with Tax Lot 1400. Tax Lot 1600 increased in size from 33.77 to 34.4 acres in size. • 247-17-000184-CE: Code enforcement case regarding garbage on the property, case closed. Tax Lot 1601 • No land use permits to date. Ill. CONCLUSIONS OF LAW TITLE 18 OF THE DESCHUTES COUNTY CODE -ZONING ORDINANCE Chapter 18.136, Amendments DCC Title 1.8 may be amended as set forth in DCC 18.1.36. The procedures for text or legislative map changes shall be as set forth in DCC 22.1.l. A request by a property owner for a quasi-judicial map amendment shall be accomplished by filing an application on forms provided by the Planning Department and shall be subject to applicable procedures of DCC Titlell. FINDING: The applicant, also the property owner, has requested a quasi-judicial plan amendment and filed the applications for a plan amendment and zone change. The applicant has filed the required land use application forms for the proposal. The application will be reviewed utilizing the applicable procedures contained in Title 22 ofthe Deschutes County Code. The applicant for a quasi-judicial rezoning must establish that the public interest is best served by rezoning the property. Factors to be demonstrated by the applicant are: A. That the change conforms with the Comprehensive Plan, and the change is consistent Eastside Bend LLC 247-18-000485-PA 247-18-000486-ZA 8 Exhibit "F" to Ordinance 2019-006 EXHIBIT L with the plan's introductory statement and goals. FINDING: The applicant provided the following response in its burden of proof: Per prior Hearings Officers decisions {Powell/Ramsey and landholdings} for plan amendments and zone changes on EFU-zoned property, this paragraph establishes two requirements: (1) that the zone change conforms to the Comprehensive Plan and (2) that the change is consistent with the plan's introductory statements and goals. Both requirements are addressed below: 1. Conformance with the Comprehensive Plan: The applicant proposes a plan amendment to change the Comprehensive Plan designation for the subject property from Agriculture to Rural Residential Exception Area. The proposed rezoning from EFU-TRB to MUA-10 will need to be consistent with its proposed new plan designation. 2. Consistency with the Plan's Introductory Statement and Goals: In previous decisions, the Hearings Officer found the introductory statements and goals are not approval criteria for the proposed plan amendment and zone change. However, the Hearings Officer in the Landholdings decision found that depending on the language, some plan provisions may apply and found the following amended comprehensive plan goals and policies require consideration and that other provisions of the plan do not apply as stated below in the Landholdings decision: "Comprehensive plan statements, goals and policies typically are not intended to, and do not, constitute mandatory approval criteria for quasi-judicial/and use permit applications. Save Our Skyline v. City of Bend, 48 Or LUBA 192 (2004). There, LUBA held: '.As intervenor correctly points out, local and statutory requirements that land use decisions be consistent with the comprehensive plan do not mean that all parts of the comprehensive plan necessarily are approval standards. [Citations omitted.] local governments and this Board have frequently considered the text and context of cited parts of the comprehensive plan and concluded that the alleged comprehensive plan standard was not an applicable approval standard. [Citations omitted .] Even if the comprehensive plan includes provisions that can operate as approval standards, those standards are not necessarily relevant to all quasi- judicial land use permit applications. [Citation omitted.] Moreover, even if a plan provision is a relevant standard that must be considered, the plan provision might not constitute a separate mandatory approval criterion, in the sense that it must be separately satisfied, along with any other mandatory approval criteria, before the application can be approved. Instead, that plan provision, even if it constitutes a relevant standard, may represent a required consideration that must be balanced with other relevant considerations. [Citations omitted.]' LUBA went on to hold in Save Our Skyline that it is appropriate to 'consider first whether the comprehensive plan itself expressly assigns particular role to some or all of the Eastside Bend LLC 247-18-000485-PA 247-18-000486-ZA 9 Exhibit "F" to Ordinance 2019-006 EXHIBIT L plan's goals and policies.' Section 23. 08. 020 of the county's comprehensive plan provides as follows: ==~=:..::....:::.:.::..:..=;=:.:...:..::..::.:..::.:::.consider the significant factors which affect or are affects by development in the county ==::..=..;:..;..:;..;.:::=to promote the greatest efficiency and equity possible, which managing the continuing growth and change of the area. Part of that process is identification of an appropriate land use consider the sociological, economic and environmental consequences of various actions which may have effects beyond physical changes of the land. (emphases added by applicant) The Hearings Officer previously found that the above-underscored language strongly suggests the county's plan statements, goals and policies are not intended to establish approval standards for quasi-judicial land use permit applications. In Bothman v. City of Eugene, 51 Or LUBA 426 {2006), LUBA found it appropriate also to review the language of specific plan policies to determine whether and to what extent they may in fact establish decisional standards. The policies at issue in that case included those ranging from aspirational statements to planning directives to the city to policies with language providing 'guidance for decision-making' with respect to specific rezoning proposals. In Bothman LUBA concluded the planning commission erred in not considering in a zone change proceeding a plan policy requiring the city to '[r]ecognize the existing general office and commercial uses located * * * [in the geographic area including the subject property] and discourage future rezonings of these properties.' LUBA held that: ***even where a plan provision might not constitute an independently applicable mandatory approval criterion, it may nonetheless represent a ==:;==~:::;pursuant to ordinance provisions that require*** consistency with applicable plan provision.' (Emphasis added.} The county's comprehensive plan includes a large number of goals and policies. The applicant's burden of proof addresses goals for rural development, economy, transportation, public facilities, recreation, energy, natural hazards, destination resorts, open spaces, fish and wildlife, and forest lands. The Hearings Officer finds these goals are aspirational in nature and therefore are not intended to create decision standards for the proposed zone change." Hearings Officer Karen Green adhered to these findings in the Powell/Ramsey decision (file nos. PA-14-2/ZC-14-2), and found the above referenced introductory statements and goals are not approval criteria for the proposed plan amendment and zone change. This Hearings Officer also adheres to the above findings herein. Nevertheless, Eastside Bend llC 247-18-000485-PA 24 7-18-000486-ZA 10 Exhibit "F" to Ordinance 2019-006 EXHIBIT L depending upon their language, some plan provisions may require "consideration" even if they are not applicable approval criteria. Save Our Skyline v. City of Bend, 48 Or LUBA 192, 209 (2004). I find that the following amended comprehensive plan goals and policies require such consideration, and that other provisions of the plan do not apply:" The comprehensive plan goals and polices that the Landholdings Hearings Officer found to apply include the following ... The applicant utilizes the analysis provided in prior hearings officers decisions to determine and respond to only the goals and policies in the County's Comprehensive Plan that apply. Those goals and policies are listed in this Decision. The Hearings Officer agrees with the applicant's analysis and finds this provision to be met. B. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone classification. FINDING: The applicant provided the following response in the burden of proof: The applicant is proposing to change the zone classification from EFU to MUA-10. Approval of the application is consistent with the purpose of the MUA-10 zoning district, which stated in DCC 18.32.010 as follows: "The purposes of the Multiple Use Agricultural Zone are to preserve the rural character of various areas of the County while permitting development consistent with that character and with the capacity of the natural resources of the area; to preserve and maintain agricultural lands not suited to full-time commercial farming for diversified or part-time agricultural uses; to conserve forest lands for forest uses; to conserve open spaces and protect natural and scenic resources; to maintain and improve the quality of the air, water and land resources of the County; to establish standards and procedures for the use of those lands designated unsuitable for intense development by the Comprehensive Plan, and to provide for an orderly and efficient transition from rural to urban land use." The subject property is not suited to full-time commercial farming as discussed in the findings above. The MUA-10 zone will allow property owners to engage in hobby farming. The low- density of development allowed by the MUA-10 zone will conserve open spaces and protect natural and scenic resources. In the Landholding's case, the Hearings Officer found: I find that the proposed change in zoning classification from EFU is consistent with the purpose and intent of the MUA-10 zone. Specifically, the MUA-10 zone is intended to preserve the rural character of various areas of the County while permitting development consistent with that character and with the capacity of the natural resources of the area. Approval of the proposed rezone to MUA-10 would permit applications for low-density development, which will comprise a transition zone between EFU rural zoning, primarily to the east and City zoning to the west. Eastside Bend llC 247-18-000485-PA 247-18-000486-ZA 11 Exhibit "F" to Ordinance 2019-006 EXHIBIT L The maximum density of the approximately 60-acre property if developed with a cluster development under Title 18 is 11 lots. This low density will preserve open space, allow owners to engage in hobby farming, if desired, and preserve natural and scenic resources and maintain or improved the quality of air, water, and land resources. The MUA-10 zoning provides a proper transition zone from City, to rural zoning to EFU zoning. The Hearings Officer finds the applicant has demonstrated the change in classification is consistent with the purpose and intent of the MUA-10 Zone. This provision is met. C. That changing the zoning will presently serve the public health, safety and welfare considering the following factors: 1. The availability and efficiency of providing necessary public services and facilities. FINDING: Although there are no current plans to develop the property, the criterion specifies if the zone change will presently serve public health, safety, and welfare. The applicant provides the following response in the burden of proof: Necessary public facilities and services are available to serve the subject property and include will-serve letters from PacifiCorp, Central Electric Cooperative, and Avion Water Company, Inc., as well as logs in the area show that electric power and water services are available to serve the property. Exhibits 10 and 12. The subject property adjoins four major roadways: Highway 20, Hamby Road and Ward Road, and Bear Creek Road. The impact of rezoning the subject property will have minimal impacts to the road system. MUA-10 zoning and a standard subdivision would allow the creation of up to six residential lots. If developed with a cluster development, the property would generate up to 55 additional daily trips. The existing road network is available to serve the use. The traffic report by Transight Consulting found that the proposed rezone does not change the functional classification of Hamby Road-Ward Road-or result in levels of travel that would be inconsistent with the roadway function and concluded that a "significant affect does not occur with the proposed rezone." The property receives police services from the Deschutes County Sheriff The property is in a rural fire protection district and the nearest fire station is nearby. It is efficient to provide necessary services to the property because the property is already served by these service providers and the property is close to the City limits of Bend and adjacent to large tracts of land zoned MUA-10 that are extensively developed with rural and urban density residences. Neighboring properties contain residential and commercial uses, which have water service from a quasi-municipal source or wells, on-site sewage disposal systems, electrical service, telephone services, etc. There are no known deficiencies in public services or facilities that would negatively impact public health, safety, or welfare. Prior to development of the property, the applicant would be required to comply with the applicable requirements of the Deschutes County Code, including possible land use permit, building permit, and sewage disposal permit processes. Through these Eastside Bend LLC 247-18-000485-PA 247-18-000486-ZA 12 Exhibit "F" to Ordinance 2019-006 EXHIBIT L development review processes, assurance of adequate public services and facilities will be verified. The Hearings Officer finds this provision is met. 2. The impacts on surrounding land use will be consistent with the specific goals and policies contained within the Comprehensive Plan. FINDING: The applicant reviews potential impacts on surrounding land uses in their response to each individual policy and goal item. Further analysis is detailed below. D. That there has been a change in circumstances since the property was last zoned, or a mistake was made in the zoning of the property in question. FINDING: The applicant is proposing to rezone the property from EFU to MUA-10 and redesignate the property from Agriculture to Rural Residential Exception Area, as the property was improperly designated as farmland. The applicant has provided the following response in the burden of proof: 1. Mistake: The EFU zoning designation was likely based on the best available soils data that the County had at the time in the County in the late 1970's when the comprehensive plan and map were adopted. 1. Change in Circumstances: There clearly has been a change in circumstances since the property was last zoned in the 1970s: Soils: New soils data provided in the Borine soils report shows the property does not have agricultural soils. Traffic: Increased traffic along the road systems fronting and bisecting the subject property. Highway 20, Bear Creek Road, Hamby Road, and Ward Road have all experienced an increase in traffic over the past 30 years, making it increasingly difficult to operate farm equipment and graze cattle. fS!J~YJSl..fil;.ffiQ!!!lf§. in Central Oregon have significantly changed; the evidence is clear that it is difficult to make a profit in farming, particularly on smaller parcels such as the subject property . ..::..:.:::.==.<.....:::..1..J.:.;.;;.:..:-== are not viable on the property or on other area properties and, as a result, many property owners are choosing to forego irrigating their properties. ~=!.::::...!:!.!-£=-'"-'-"=.:...::..:== have steadily declined in Deschutes County between 2007 and 2012, with only a small fraction of farm operators achieving a net profit from farming in 2011. (Exhibit 13). fl]IT.Q~Wrui.~UQJru!!f!!! in the City of Bend to the west of the subject property has brought both traffic and higher intensity commercial uses to the area. Eastside Bend LLC 247-18-000485-PA 247-18-000486-ZA 13 Exhibit "F" to Ordinance 2019-006 EXHIBIT L The above analysis from the applicant's burden of proofregarding traffic, farming economics, viability of farm uses, decline in farm operations, and encroaching development demonstrates that there has been a change in circumstances. Additionally, the 8orine and Rabe soil studies (as discussed below) show and otherwise confirm that the subject property does not have agricultural soils. For the reasons described by the applicant, the Hearings Officer finds that there was a mistake made when the property was zoned and that a change in circumstances has occurred since the property was last zoned. TITLE 23 OF THE DESCHUTES COUNTY CODE -COMPREHENSIVE PLAN Chapter 2, Resource Management Goal 1, Preserve and maintain agricultural lands and the agricultural industry. FINDING: The applicant is pursuing a plan amendment and zone change on the basis that the subject property does not constitute "agricultural lands", and therefore, the subject lands are not necessary to preserve or maintain as such. The applicant states the following in the burden of proof: In the Landholdings decision (and Powell/Ramsey decision) the Hearings Officer found that this goal is an aspirational goal and not an approval criterion ... The Borine soils report and the NRCS data show the subject property consist[s] predominantly (63. 7%} of Class 7 and 8 non-agricultural soils. According to Mr. Borine, these soils have severe limitations for farm use as well as poor soil fertility, shall and very shallow soils, surface stoniness, low available water capacity, and limited availability of livestock forage. In addition, the property is isolated from farmlands being surrounded by high traffic roadways near the City of Bend, including Highway 20, Bear Creek Road, Hamby, and Ward Roads, and other non- agricultural and unproductive agricultural lands. After submitting its burden of proof, the applicant submitted the Rabe study for Tax Lot 1400. In that study, Mr. Rabe notes the entire tax lot to be within map unit 58C (Gosney, Rock outcrop, Deskamp complex). Gosney soils are Class 7, rock outcrops are Class 8, and Deskamp are Class 6. According to Mr. Rabe, map unit 58C is expected to consist of about 75% Class 7 and 8 soils. Mr. Rabe's site specific study determined the soils to be "generally consistent" with the NRCS soil survey. Rabe study, pg. 3. He found that of the 20.33 acres, 11.41 (56%) are Class 7 and Class 8 soils in map units 578 and 109. The remaining 8.92 acres (44%) are Class 6 soils in map unit 368. In sum, Mr. Rabe determined that since 56% of the soils are Class 7 and 8, the site is not considered Agricultural Land. Rabe study, pg. 4 and 6. While the Hearings Officer agrees with the applicant's general conclusion relating to this policy (as quoted above), it is not clear, in light of the Rabe study, that the above quoted figures are accurate. Specifically, the Hearings Officer is not sure how the "63.7%" was calculated. Eastside Bend LLC 247-18-000485-PA 247-18-000486-ZA 14 Exhibit "F" to Ordinance 2019-006 EXHIBIT L The Hearings Officer notes, though, that the Borine study is substantial evidence that tax lots 1600 and 1601 are comprised of 58% (22.4) Class 7 and 8 soils (see Table 3, pg. 5, Borine study), and the Rabe study is substantial evidence that tax lot 1400 is comprised of 56% (11.4 acres) Class 7 and Class 8 soils (see Rabe study, pg. 4). Thus, of the 59.2 acres that make up the subject property, 57% (33.8 acres) are Class 7 and Class 8 soils. In addition to the soil class, both the Rabe and Borine studies describe the severe limitations for farm use, including poor soil fertility and limited livestock forage. Additionally, the subject property is isolated from farmlands and surrounded by high traffic roadways. For these reasons, and as described in more detail below, the subject property is not agricultural land and does not need to be preserved or maintained as such. The proposed plan amendment and zone change are consistent with this policy. Policy 2.2.2 Exclusive Farm Use sub-zones shall remain as described in the 1992 Farm Study and shown in the table below1 unless adequate legal findings for amending the sub-zones are adopted or an individual parcel is rezoned as allowed by Policy 2.2.3. FINDING: The applicant is not asking to amend the subzone that applies to the subject property; rather, the applicant is seeking a change under Policy 2.2.3 and has provided evidence to support rezoning the subject property to MUA-10. Policy 2.2.3 Allow comprehensive plan and zoning map amendments for individual EFU parcels as allowed by State Statute, Oregon Administrative Rules and this Comprehensive Plan. FINDING: The applicant is seeking approval of a plan amendment and zone change to redesignate and rezone the property from Agricultural to Rural Residential Exception Area. The applicant is not seeking an exception to Goal 3 -Agricultural lands, but rather is attempting to demonstrate that the subject property does not meet the state definition of "Agricultural Land", as defined in Statewide Planning Goal 3 (OAR 660-033-0020). Deschutes County has allowed this approach in previous Hearings Officer's decisions including Porter Kelly Burns Landholdings (247-16-000317-ZC/318-PA), Department of State lands (PA-11-7 /ZC-11-2), Pagel (PA-08-1/ZC-08-1), and the Daniels Group (PA-08-1, ZC-08-1). Additionally, the land Use Board of Appeals (LUBA) allowed this approach in Wetherell v. Douglas County, 52 Or LUBA 677 (2006). In Wetherell v. Douglas County, LUBA states at pp. 678-679: As we explained in DLCD v. Klamath County, 16 Or LUBA 817, 820 (1988), there are two ways a county can justify a decision to allow nonresource use of land previously designated and zoned for farm use or forest uses. One is to take an exception to Goal 3 (Agricultural lands) and Goal 4 (Forest lands). The other is to adopt findings which demonstrate the land does not qualify either as forest lands or agricultural lands under the statewide planning goals. When a county pursues the latter option, it must demonstrate that despite the prior resource plan and zoning Eastside Bend llC 247-18-000485-PA 247-18-000486-ZA 15 Exhibit "F" to Ordinance 2019-006 EXHIBIT L designation, neither Goal 3 or Goal 4 applies to the property. Caine v. Tillamook County, 25 Or LUBA 209, 218 {1993}; DLCD v. Josephine County, 18 Or LUBA 798, 802 (1990). The facts presented by the applicant in the burden of proof for the subject application are sufficiently similar to those in the Wetherall decisions and in the aforementioned Deschutes County plan amendment and zone change applications. Therefore, the Hearings Officer agrees the applicant has the potential to prove the property is not agricultural land and does not require an exception to Goal 3 under state law. Policy 2.2.4 Develop comprehensive policy criteria and code to provide clarity on when and how EFU parcels can be converted to other designations. FINDING: This plan policy provides direction to Deschutes County to develop new policies to provide clarity when EFU parcels can be converted to other designations. Thus, the Hearings Officer finds this does policy does not apply to a specific property owner or applicant. The Hearings Officer concurs, though, with the County's previous determinations in plan amendment and zone change applications and finds the proposal is consistent with this policy. Goal 3, Ensure Exclusive Farm Use policies, classifications and codes are consistent with local and emerging agricultural conditions and markets. Policy 2.2.1.3 Identify and retain accurately designated agricultural lands. FINDING: This plan policy makes it clear that it is County's policy to identify and retain agricultural lands that are accurately designated. The applicant proposes that the subject property was not accurately designated as demonstrated by the soil study, NRCS soil data, and the applicant's burden of proof. Further discussion on the soil analysis provided by the analysis is detailed under the OAR Division 33 criteria below. Goal 6, Coordinate land use and water policies. Policy 2.5.24 Ensure water impacts are reviewed and, if necessary, addressed for significant land uses or developments. FINDING: The applicant is not proposing a specific development propo?al at this time. Therefore, the applicant is not required to demonstrate the water impacts associated with development. Rather, the applicant will be required to address this criterion during development of the subject property, which would be reviewed under any necessary land use process for the site (e.g. conditional use permit, tentative plat). This criterion does not apply. Goal 1., Coordinate with property owners to ensure protection of significant open spaces and scenic views and sites. Eastside Bend LLC 247-18-000485-PA 24 7-18-000486-ZA 16 Exhibit "F" to Ordinance 2019-006 EXHIBIT L Policy 2.7.3 Support efforts to identify and protect significant open spaces and visually important areas including those that provide a visual separation between communities such as the open spaces of Bend and Redmond or lands that are visually prominent. Policy 2.7.5 Encourage new development to be sensitive to scenic view and sites. FINDING: The applicant addressed this criterion in their burden of proof, stating: ... The majority of the property has an overlay of landscape Management Combining Zone (lM). The applicable landscape Management road as identified in Section 5.5, Goal 5 Inventory, Open Spaces, Scenic Views and Sites of the Comprehensive Plan, is "Highway 20 east to the County line" which is about 25 miles. The lM area extends% mile on either side from the centerline of Highway 20. Thus, as shown on page 3 of Exhibit 6 of the Burden of Proof, the majority of the subject properties are located in the lM zone. Chapter 18.84 of Deschutes County Code (DCC) is the implementing code that addresses the landscape Management Combining Zone (LM). Per Section 18.84.050, Use limitations, subsection (A) lM review is not triggered until a use or structure requires a building permit or an agriculture structure ... The proposed plan amendment and zone change does not contain any changes to the existing lM overly and will not trigger lM review as no development is proposed at this time. Any future development will be subject to LM review and be sensitive to the scenic views as seen from Highway 20 . ... If the plan amendment and zone change were approved, the applicant would likely develop the property for residential purposes and cluster the homes in one area leaving the remainder of the property in "open space" and undeveloped. The landscape Management (LM) Combining Zone associated with Highway 20 extends over the entirety of the subject property. The applicant's response demonstrates sensitivity to the potential impact on the scenic corridor from development scenarios. As no actual development of the property is proposed at this time, though, the Hearings Officer finds these policies do not apply to the subject proposal. Chapter 3, Rural Growth Growth Potential As of 2010, the strong population growth of the last decade in Deschutes County was thought to have leveled off due to the economic recession. Besides flatter growth patterns, changes to State regulations opened up additional opportunities for new rural development. The following list identifies general categories for creating new residential lots, all of which are subject to specific State regulations. • Some farm lands with poor soils that are adjacent to rural residential uses can be rezoned as rural residential Eastside Bend LLC 247-18-000485-PA 247-18-000486-ZA 17 Exhibit "F" to Ordinance 2019-006 EXHIBIT L FINDING: This section of the Comprehensive Plan does not contain goals or policies but does provide the guidance above. In response to this section, the applicant's burden of proof provides the following: In the Landholdings case, the Hearings Officer found that the "County's Comprehensive Plan and the County Code provisions anticipate the need for additional rural residential lots as the region continues to grow. The Plan and the Code provide for a mechanism to rezone farm lands with poor soils to a rural residential zoning designation". The applicant has demonstrated that the subject property is comprised of poor shallow rocky soils, is adjacent to rural residential property located west of tax lots 1600 and 1601 and south of Bear Creek Road, and partially isolated by State and County road systems serving Bend. Rezoning the subject property to MUA- 10 is consistent with this criterion, as it will provide for an orderly and efficient transition from the Bend Urban Growth Boundary to rural and agricultural land. The Hearings Officer notes that the MUA-10 Zone is a rural residential zone and as discussed in the Findings of Fact above, there are many adjacent properties to the south and west that are zoned MUA-10 or RR-10. Additionally, many properties to the west are within urban residential zones within the city limits of Bend. Other MUA-10 and RR-10 zoned properties are located farther south, east, and north of the subject property. The above policy notes that lands with poor soil can be rezoned to rural residential. The two soil studies submitted by the applicant demonstrate that the three tax lots that are the subject of this application all have poor soils. The Hearings Officer therefore finds that this policy applies to the subject property and that it should be rezoned to rural residential (MUA-10). Rural Residential Exception Areas In Deschutes County most rural lands are designated for farms, forests or other resources and protected as described in the Resource Management chapter of this Plan. The majority of the land not recognized as resource lands or Unincorporated Community is designated Rural Residential Exception Area. The County had to follow a process under Statewide Goal 2 to explain why these lands did not warrant farm or forest zoning. The major determinant was that many of these lands were platted for residential use before Statewide Planning was adopted. In 1979 the County assessed that there were over 17,000 undeveloped Rural Residential Exception Area parcels, enough to meet anticipated demand for new rural housing. As of 2010 any new Rural Residential Exception Areas need to be justified through taking exceptions to farm, forest, public facilities and services and urbanization regulations, and follow guidelines set out in the OAR. FINDING: The applicant provided the following response to this provision in the burden of proof: Eastside Bend LLC 247-18-000485-PA 247-18-000486-ZA 18 Exhibit "F" to Ordinance 2019-006 EXHIBIT L The Hearings Officer in the Landholdings decision found that the language set forth above in Section 3.3 is "background text and not a plan policy or directive" as stated below: "The Hearings Officer finds that the language set forth above under Section 3.3 of the County Comprehensive Plan is background text and not a plan policy or directive. As set forth in the findings above, incorporated herein by this reference, no goal exception is required for the subject applications because the Hearings Officer has made findings that the land does not qualify as forest lands or agricultural lands under the statewide planning goal. The Hearings Officer relies in part on the Hearings Officer's decision for PA-11-17/ZC-11-2 (Daniels Group) concerning this language of Section 3.3 in which, Hearings Officer Kenneth Helm, states at page 11 of the decision: To the extent that the quoted language above represents a policy, it appears to be directed at a fundamentally different situation than the one presented in this application. The quoted language addresses conversions of ''farm" or ''forest" land to rural residential use. In those cases, the language indicates that some type of exception under state statute and DLCD rules will be required in order to support a change in Comprehensive Plan designation. See ORS 197. 732 and OAR 660, Division 004. That is not what this application seeks to do. The findings below explain that the applicant has been successful in demonstrating that the subject properly is composed predominantly of nonagricultural soil types. Therefore, it is permissible to conclude that the properly is not "farmland" as defined under state statute, DLCD rules, and that it is not correctly zoned for exclusive farm use. As such, the application does not seek to convert "agricultural/and" to rural residential use. If the land is demonstrated to not be composed of agricultural soils, then there is no "exception" to be taken. There is no reason that the applicant should be made to demonstrate a reasons, developed or committed exception under state law because the subject property is not composed of the type of preferred land which the exceptions process was designed to protect. For all these reasons, the Hearings Officer concludes that the applicant is not required to obtain an exception to Goal 3. There is one additional related matter which warrants discussion in connection with this issue. It appears that part of Staff's hesitation and caution on the issue of whether an exception might be required is rooted in the title of the Comprehensive Plan designation that would ultimately apply to the subject property -which is "Rural Residential Exception Area." There appears to be seven countywide Comprehensive Plan designations as identified in the plan itself. These include "Agriculture, Airport Development, Destination Resort Combining Zone, Forest, Open Space and Conservation, Rural Residential Exception Area, and Surface Mining." Of the seven designations, only rural Residential Exception Area provides for associated zoning that will allow rural residential development. As demonstrated by reference to the Pagel decision discussed above, there appears to be instances in which rural residential zoning has been applied without the underlying land necessarily being identified as an exception area. This makes the title of the "Rural Residential Exception Area" designation confusing and in some cases inaccurate, because no exception is associated with the underlying land in question. However, it is understandable that since this designation is the only one that will allow rural residential development, that it has become a catchall designation for land types that are authorized for rural residential zoning. That is the case Eastside Bend LLC 247-18-000485-PA 24 7-18-000486-ZA 19 Exhibit "F" to Ordinance 2019-006 EXHIBIT L with the current proposal, and again, for the same reason set forth in the Hearings Officer Green's decision in Pagel, I cannot find a reason why the County would be prohibited from this practice. (emphasis added). I find that Deschutes County has interpreted the RREA plan designation as the property "catchall" designation for non-resource land. As a result, the Hearings Officer finds that the RREA plan designation is the appropriate plan designation for the subject property. As stated above, the Hearings Officer finds that the language set forth above under Section 3.3 of the County Comprehensive Plan is background text and not a plan policy or directive. In addition, the County has interpreted the RREA plan designation as the proper "catchall" designation for non-resource land and therefore, the RREA plan designation is the appropriate plan designation for the subject property. The Hearings Officer agrees with the above quoted language that Section 3.3 is not a policy and does not require an exception to the applicable Statewide Planning Goal 3. Therefore, the RREA plan designation is the appropriate plan designation to apply to the subject property. Appendix C -Transportation System Plan ARTERIAL AND COLLECTOR ROAD PLAN Goal 4. Establish a transportation system, supportive of a geographically distributed and diversified economic base, while also providing a safe, efficient network for residential mobility and tourism. Policy 4.4 Deschutes County shall consider roadway function, classification and capacity as criteria for plan map amendments and zone changes. This shall assure that proposed land uses do not exceed the planned capacity of the transportation system. FINDING: This policy applies to the County and advises it to consider the roadway function, classification and capacity as criteria for plan amendments and zone changes. The County can comply with this direction by determining compliance with the Transportation System Planning Rule (TPR), as described below. OREGON ADMINISTRATIVE RULES CHAPTER 660, LAND CONSERVATION AND DEVELOPMENT DEPARTMENT Division 6, Goal 4 -Forest Lands (7) "Forest lands" as defined in Goal 4 are those lands acknowledged as forest lands, or, in the case of a plan amendment, forest lands shall include: (a) Lands that are suitable for commercial forest uses, including adjacent or nearby lands which are necessary to permit forest operations or practices; and Eastside Bend LLC 247-18-000485-PA 247-18-000486-ZA 20 Exhibit "F" to Ordinance 2019-006 EXHIBIT L (b) Other forested lands that maintain soil, air, water and fish and wildlife resources. FINDING: The subject property is not zoned for forest lands, nor are any of the properties within a two-mile radius. The property does not contain merchantable tree species and there is no evidence in the record that the property has been employed for forestry uses historically. None of the soil units comprising the parcel are rated for forest uses according to NRCS data. The property does not qualify as forest land. Division 33 -Agricultural Lands & Statewide Planning Goal 3 -Agricultural Lands; To preserve and maintain agricultural lands. Agricultural lands shall be preserved and maintained for farm use, consistent with existing and future needs for agricultural products, forest and open space and with the state's agricultural land use policy expressed in ORS 215.243 and 215.700. FINDING: Goal 3 continues on to define "Agricultural land", which is repeated in OAR 660-033- 0020(1). The Hearings Officer makes findings on this topic below and incorporates those findings herein by reference. For purposes of this division, the definitions in ORS 197. 015, the Statewide Planning Goals, and OAR Chapter 660 shall apply. In addition, the following definitions shall apply: (1)(a) "Agricultural Land" as defined in Goal 3 includes: (A) Lands classified by the U.S. Natural Resources Conservation Service (NRCS) as predominantly Class I-IV soils in Western Oregon and I-VI soils in Eastern Oregon1; FINDING: The applicant does not request an exception to Goal 3 because it believes that the subject property does meet the definition of "Agricultural land". In support, the applicant offers the following: The subject property is not properly classified as Agricultural Land and does not merit protection under Goal 3. The soils are predominately Class 7 and 8 soils as shown by the more detailed soils report prepared by soils scientist Roger Borine, which State law, OAR 660-033-0030, allows the County to rely on for more accurate soils information. Mr. Borine found that approximately 58% of the soils on Tax Lots 1600 and 1601 (40 acres) is Land Capability Class 7 and 8 soils that 1 OAR 660-033-0020(5): "Eastern Oregon" means that portion of the state lying east of a line beginning at the intersection of the northern boundary of the State of Oregon and the western boundary of Wasco County, then south along the western boundaries of the Counties of Wasco, Jefferson, Deschutes and Klamath to the southern boundary of the State of Oregon. Eastside Bend llC 247-18-000485-PA 247-18-000486-ZA 21 Exhibit "F" to Ordinance 2019-006 EXHIBIT L have severe limitations for farm use. He also found the site to have poor soil fertifity, shallow and very shallow soils, surface stoniness, low available water capacity, and limited availability of livestock forage, which are considerations for the determination for suitability for farm use. The Hearings Officer has reviewed Borine study and agrees with the applicant's representation of the data for tax lots 1600 and 1601. The Hearings Officer has also reviewed the Rabe study. The Rabe study demonstrates that tax lot 1400 is comprised predominantly of Class 7 and 8 soils and thus does not meet the definition of "Agricultural land". As noted previously, 57% of the subject property is Class 7 and 8 soil, so it does not meet the definition of "Agricultural land" under OAR 660-033- 0020(1)(a)(A) because it is not predominantly Class I-VI soils. (B) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a), taking into consideration soil fertility; suitability for grazing; climatic conditions; existing and future availability of water for farm irrigation purposes; existing land use patterns; technological and energy inputs required; and accepted farming practices; and FINDING: The applicant's basis for not requesting an exception to Goal 3 is based on the proposal that the subject property does not meet the definition of "Agricultural land". The applicant provides the following analysis of this determination in the burden of proof. This part of the definition of "Agricultural Land" requires the County to consider whether the Class 7 and 8 soils found on the subject property are suitable for farm use despite their Class 7 and 8 classification. The Oregon Supreme Court has determined that the term ''farm use" as used in this rule and Goal 3 means the current employment of land for the primary purpose of obtaining a profit in money through specific farming-related endeavors. The costs of engaging in farm use are relevant to determining whether farm activities are profitable and this is a factor in determining whether land is agricultural land. Wetherell v. Douglas County, 342 Or 666, 160 P3d 614 {2007). According to Deschutes County records, a portion of the property on tax lot 1600 at one time was irrigated and used to grow hay crop and grazing purposes. Central Oregon Irrigation District's (COID) research shows the property (tax Jot 1600) had 20 acres of appurtenant irrigation that was conveyed to COID in 2012 and later removed via a water transfer with Oregon Water Resources Department in 2014. COID's records also show that tax lot 1601 had 2.0 acres of appurtenant irrigation that was conveyed to COID in 2006 and later removed in 2008. Tax lot 1400 had 9.5 acres of water rights that were transferred in 1997. The extremely poor soils found on the property p'revent it from providing sufficient feed for livestock for dry/and grazing. The dry climate, the proximity to US Highway 20 and area development prevent grazing from being a viable or potentially profitable use of the property. The soils are so poor that they would not support the production of crops for a profit, assuming irrigation water rights could be obtained for that purpose. The primary agricultural use conducted on properties with poor soils is grazing cattle. Given the high cost of irrigating and maintaining the property as pasture or cropland (high labor costs, labor-intensive, high cost of irrigation equipment and electricity, high cost of fertilizer, etc.), dry Eastside Bend LLC 247-18-000485-PA 247-18-000486-ZA 22 Exhibit "F" to Ordinance 2019-006 EXHIBIT L land grazing is the accepted farm use of poor soils in Deschutes County. This use can be conducted until the native vegetation is removed by grazing (see the discussion of the suitability of the property for grazing, below). When assessing the potential income from dry land grazing, Deschutes County uses a formula and assumptions developed by the OSU Extension Service. This formula is used by the County to decide whether EFU-zoned land is generally unsuitable for farm use. • One AUM is the equivalent to the forage required for a 1000 lb. cow and calf to graze for 30 days (900 pounds of forage). • On good quality forage, an animal unit will gain 2 pounds per day. • Two animal units will eat as much in one month as one animal unit will eat in two months. • Forage production on dry land is not continuous. Once the forage is eaten, it generally will not grow back until the following spring. • An average market price for beef is $1.20 per pound. Based upon these assumptions, the value of beef production on the entire subject property can be calculated using the following formula: (1 acre per AUM) 60.0 lbs. Beef/acre x 59.24 acres x $1.20/lb. = $4,265.28 per year gross income Thus, the total gross beef production potential for the subject property would be approximately $4,265.28 annually. This figure represents gross income and does not take into account real property taxes, fencing costs, land preparation, purchase costs of livestock, veterinary costs, or any other costs of production, which would exceed income. In addition, as the subject property abuts a busy state highway and road intersections, the cost for liability insurance due to the risk of livestock escape and the potential for a vehicle/livestock accident, would likely be expensive. A review of the seven considerations listed in the administrative rule, below, shows why the poor soils found on the subject property are not suitable for farm use that can be expected to be profitable: Soil Fertility: Mr. Borine found the soil fertility in terms of organic matter to be "extremely low to non- measureable and clay content is less than five percent." In addition, Mr. Borine states that high levels of fertilization are required for a grass crop to be produced and due to the "very low Cation Exchange Capacity" which is important because it provides a reservoir of nutrients for plant uptake, the fertilization is "readily leached out of the soil by irrigation and precipitation" and ends up on the surface or in the groundwater. In addition, lime is needed as a soil amendment to raise the soil pH to an acceptable range for plant nutrient uptake. He concludes this section of soils fertility by saying: To maintain a minimum level of essential nutrients for proper crop growth multiple yearly applications of very high rates of fertilizer and soil amendments are required. Without soil Eastside Bend LlC 247-18-000485-PA 247-18-000486-ZA 23 Exhibit "F" to Ordinance 2019-006 EXHIBIT L sampling, lab analyses, proper fertilization and soil amendments;:.!.!.!=-==~!::...!.=.:~=~= ~:=.=.:....::.;;..:;;.,;:.::.· [Emphasis added by applicant.] The fact that the soils are infertile unless made fertile through artificial means supports the applicant's position that the Class 7 soils and the entire property is not suitable for farm use. The costs to purchase and apply fertilizer and soil amendments and the costs to sample and test soils are a part of the reason why it is not profitable to farm the subject property. Unsuitability for Grazing: Mr. Borine also reviewed the suitability for grazing on the property and concluded: Soil, vegetation, climate and landscape are determinant factors for the suitability for grazing of livestock. limitations that are recognized on this site include very low available water for plant growth. Restricted depth limits seeding only to drought tolerant species, and rock outcrop limits the areas suitable for grazing. The cold climate and soil temperatures delay growth of forage and low water retention in the soil and no summer moisture shortens the growing season. Reestablishment of the native vegetation is likely impossible due to the pumice ash surface layer and past land alterations. Restricted depth limits seeding only to drought tolerant species, and rock outcrop limits the areas suitable for grazing. Existing and Future Availability of Water for farm Irrigation Purposes: No new irrigation water rights are expected to be available to the Central Oregon Irrigation District {COID} in the foreseeable future. In order to obtain water rights, the applicant would need to convince another COID customer to remove water rights from their property and sell them to the applicant and obtain State and COID approval to apply the water rights to the subject property. In such a transaction, water rights would be taken off productive farm ground and applied to the nonagricultural soils found on the subject property. Such a transaction runs counter to the purpose of Goal 3 to maintain productive Agricultural land in farm use. Given the poor quality of these soils, it is highly unlikely that Central Oregon Irrigation District would approve a transfer of water rights to this property. In addition, no person intending to make a profit in farming would go to the expense of purchasing water rights, mapping the water rights and establishing an irrigation system to irrigate the lands on the subject property. Given the dry climate, it is necessary to irrigate the subject property to grow a hay crop and to maintain a pasture. Irrigating the soils found on the subject property, according to Mr. Borine, leaches nutrients from the soil so that expensive testing, soils amendments and fertilizers are needed to grow crops. Afarmer would need to also spend significant sums of money to purchase additional water rights, purchase irrigation systems, maintain the systems, pay laborers to move and monitor equipment, obtain electricity, pay irrigation district assessments and pay increased liability insurance premiums for the risks involved with farming operations. Termination of Historic Irrigation Water Rights: Eastside Bend LLC 247-18-000485-PA 247-18-000486-ZA 24 Exhibit "F" to Ordinance 2019-006 EXHIBIT L As described earlier in the burden of proof, the subject property had water rights in the past but failed to put the water to beneficial use and the water rights were terminated. Restoring the water rights would not improve the NRCS soils rating of the property to the point where a majority of the property would be Class 1 through 6 soils, and become "Agricultural Land" as defined by Statewide Goal 3. The lack of beneficial use of the water rights, at times prior to high land values and development pressure, is a reflection that irrigating this property and its very poor soils was not prudent. Existing Land Use Patterns: Existing land use patterns in the area are a mixture of urban, rural, and farm-zoned lands that are in use, not so much for farm uses, but for other conditionally allowed uses in the EFU zone, including churches, electrical substations, and solar farms. There are no large-scale commercial farming operations in the area, only small, hobby farms. Further, the subject property is surrounded and bisected by a busy highway and roadway systems that lead to the City of Bend's urban landscape. Specifically: North of tax lot 1400 is a 5-acre rectangular-shaped parcel zoned EFU that is developed with a 1978 home and outbuildings. East of Hamby are two churches, including one with an outdoor amphitheater, and a vacant 11.2-acre parcel zoned EFU. Properties further east include an electrical power substation and solar farms. East of Ward Road is a privately-owned 43.89-acre vacant and dry parcel zoned EFU receiving farm tax deferral. West of the property and north of Highway 20 are privately owned lands zoned EFU that are vacant, unirrigated, and no known agricultural uses being employed. West and south of Highway 20 is an approximate 35-acre EFU zoned privately owned parcel (Tax Lot 17-12-35- 1500). This property is adjacent to the Bend City limits and recently received Board of County Commissioners of Deschutes County approval to change the Comprehensive Plan designation from Agriculture to Rural Residential Exception Area and to change the zone from EFU-TRB to Multiple Use Agricultural (MUA-10, see landholdings decision (Exhibit 1 ). The County found and concluded that the property does not constitute "Agricultural Land" and that no goal exception is required for the property because the land does not qualify as forest lands or agricultural lands under the statewide planning goal. South of Bear Creek Road are exception lands zoned MUA-10 and include several subdivisions many of which are developed with homes, with small acres of irrigation for pasture and other hobby farm uses. South and west of Bear Creek Road is a larger 53-acre parcel zoned EFU-TRB that is developed with a homes, is irrigated and engaged in hay production and receiving farm tax deferral. The close proximity to the City of Bend, the busy highway and residential areas limits the types of agricultural activities that could reasonably be conducted for profit on the subject property. The subject property would not be suitable for raising animals that are disturbed by noise. Additionally, the property owner would bear the burden of paying for harm that might be caused by livestock escape along the extremely busy highway, in particular livestock and vehicle collisions. Any agricultural use that requires the application of pesticides and herbicides would Eastside Bend llC 247-18-000485-PA 247-18-000486-ZA 25 Exhibit "F" to Ordinance 2019-006 EXHIBIT L -be-vety:difficuftt0:eondueto~t:he propetty gtven the numerous homes located in close proximity to the property and the heavy traffic along Highway 20 due to aerial drift of these chemicals. In addition, the creation of dust which accompanies the harvesting of crops is a major concern on this property due to the close proximity of Highway 20 and the significant amount of traffic using the highway on a daily basis. Heavy dust could limit vision along the highway and be a concern for major traffic accidents in this area. Technological and Energy: According to Mr. Borine, "[t]his parcel requires technology and energy inputs=~=~~!=. that considered acceptable farming practices. Excessive fertilization and soil amendments; very frequent irrigation applications pumped from a pond with limited availability; and marginal climatic conditions restrict cropping alternatives" [Emphasis added by applicant]. Accepted Farming Practices: Farming lands comprised of soils that are predominately Class 7 and 8 is not an accepted farm practice in Central Oregon. Dry/and grazing, the farm use that can be conducted on the poorest soils in the County, typically occur on Class 6 non-irrigated soils that have a higher soils class if irrigated. The applicant would have to go above and beyond accepted farming practices to even attempt to farm the property for dry/and grazing. Crops are typically grown on soils in soil class 3 and 4 that have irrigation, which this property has neither. Past use of the property to irrigate and grow hay was not sufficient enough to achieve a profit in farming and does not qualify as farm use per ORS 215.203(2)(a). Similarly, the Rabe study notes that in addition to the poor soils, the subject property "does not warrant retention as agricultural land based on OAR 660-033-0020{1)(a)(B) because of: 1. Soils Fertility 2. Suitability for Grazing 3. Climatic Conditions 4. Existing and Future Availability for Irrigation 5. Existing Land Use Patterns 6. Technological and Energy Inputs Required 7. Accepted Farming Practices Each of these limitations is discussed in more detail on pages 4-6 of the Rabe study. The Hearings officer incorporates those findings in this Decision as evidence that factors (as required by OAR 660- 033-0020(1)(a)(B)), in addition to the poor soils, indicate that the subject property is not agricultural land. For the above reasons, the Hearings Officer finds that many factors not relating to soil class -such as the proximity to the City of Bend city limits, current residential and non-agricultural related land uses in the area, soil fertility, and lack of availability of water rights prevent the possibility of farming on the entire subject property. Eastside Bend LLC 247-18-000485-PA 247-18-000486-ZA 26 Exhibit "F" to Ordinance 2019-006 EXHIBIT L For the above reasons, the Hearings Officer finds that the subject property is not suitable for farm use. (C) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands. FINDING: The applicant provided a detailed analysis of land uses and agricultural operations surrounding the subject property on pages 31-32 of the burden of proof. The applicant found that the only agricultural zoned lands currently engaged in an agricultural use are found south of Bear Creek Road and operate independently from each other, and from other properties. Barriers for the subject property to engage with in farm use with these properties include: poor quality soils, lack of irrigation, proximity, and physical barriers such as Highway 20 and Bear Creek Road. The Hearings Officer agrees with the applicant's analysis; the subject property is not necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands. (1.b) Land in capability classes other than I-IV/I-VI that is adjacent to or intermingled with lands in capability classes I-IV/I-VI within a farm unit, shall be inventoried as agricultural lands even though this land may not be cropped or grazed; FINDING: The applicant provided the following response in the burden of proof: The subject property is not and has not been a part of a farm unit that includes other lands not currently owned by the applicant. Goal 3 applies a predominant soil type test to determine if a property is "agricultural land". if a majority of the soils is Class 1-6 in in Central or Eastern Oregon, it must be classified "agricultural land." 1000 Friends position is that this is a 100% Class 7 -8 soils test rather than a 51 % Class 7 and 8 soils test because the presence of any Class 1-6 soil requires the County to identify the entire property "agricultural land." Case law indicates that the Class 1-6 soil test applies to a subject property proposed for a non-agricultural plan designation while the farm unit rule looks out beyond the boundaries of the subject property to consider how the subject property relates to lands in active farming in the area that were once a part of the area proposed for rezoning. It is not a test that requires that 100% of soils on a subject property be Class 1-6. The farm unit rule is written to preserve large farming operations in a block. It does this by preventing property owners from dividing farmland into smaller properties that, alone, do not meet the definition of "agricultural land." The subject property is not formerly part of a larger area of land that is or was used for farming operations and was then divided to isolate poor soils so that land could be removed from EFU zoning. The subject property is not in farm use and has not been in farm use of any kind (hobby farming or commercial farming) from at least 1997 when water rights were removed from tax lot 1400, in 2006 where 2.0 acres of water rights were removed from tax lot 1601, to 2012 where all water rights were removed from tax lot 1600. It has no known history of commercial farm use and contains soils that make the property generally unsuitable for farm use as the term is Eastside Bend LLC 247-18-000485-PA 247-18-000486-ZA 27 Exhibit "F" to Ordinance 2019-006 EXHIBIT L defined by State law. It is not a part of a farm unit with other land. The subject property ls predominately Class 7 and 8 soils and would not be considered a farm unit itself nor part of a larger farm unit based on the poor soils and the fact that none of the adjacent property is farmed. As shown by the soils capability study by Borine, the predominant soil type found on the subject property south of Highway 20 is Class 7 and 8, nonagricultural land (22.36 acres Class 7-8; 16.48 acres Class 3-4 or 42%). The area north of Highway 20 on tax lot 1400 consists of one NRCS soil mapping unit, 58[, which has predominantly 75% Classes 7 and 8. The entire property including the area north of Highway 20 consists of 63. 7% of Class 7 and 8 soils. The predominance test says that the subject property is not agricultural soil and the farm unit rule does not require that the Class 7-8 soils that comprise the majority of the subject property be classified as agricultural land due to the presence of a small amount of Class 1-6 soils on the subject property that are not employed in farm use and are not part of a farm unit. As a result, this rule does not require the Class 7 and 8 soils on the subject property to be classified agricultural land because a minority of the property contains soils rated Class 7 and 8. The subject property is not part of a farm tract or unit. Therefore, the Hearings Officer finds that the three tax lots that make up the subject property do not need to be inventoried as agricultural land under this rule. (c:) "Agricultural I.and" does not include land within acknowledged urban growth boundaries or land within acknowledged exception areas for Goal 3 or 4. FINDING: The subject property is not within an acknowledged urban growth boundary or land within acknowledged exception areas for Goals 3 or 4. (1.) All land defined as "agricultural land" in OAR 660-033-0020(1.) shall be inventoried as agricultural land. (2) When a jurisdiction determines the predominant soil capability classification of a lot or parcel it need only look to the land within the lot or parcel being inventoried. However, whether land is "suitable for farm use" requires an inquiry into factors beyond the mere identification of scientific: soil classifications. The factors are listed in the definition of agricultural land set forth at OAR 660-033-0020(1.)(a)(B). This inquiry requires the consideration of conditions existing outside the lot or parcel being inventoried. Even if a lot or parcel is not predominantly Class I-IV soils or suitable for farm use, Goal 3 nonetheless defines as agricultural "lands in other classes which are necessary to permit farm practices to be undertaken on adjacent or nearby lands". A determination that a lot or parcel is not agricultural land requires findings supported by substantial evidence that addresses each of the factors set forth in 660-033-0020(1.). FINDING: The applicant addressed the factors in 660-033-0020(1) above. As an initial note, the soils on the subject property are predominantly Class 7 and 8. As this rule notes, though, that alone does not make the subject property non-agricultural. The property is also subject to other barriers to farm Eastside Bend LLC 247-18-000485-PA 247-18-000486-ZA 28 Exhibit "F" to Ordinance 2019-006 EXHIBIT L use including: lack of irrigation, proximity, and physical barriers such as Htghway 20 and Bear Creek Road. Moreover, there is no evidence in the record that the subject property is necessary to permit farm practices on adjacent or nearby lands. (3) Goal 3 attaches no significance to the ownership of a lot or parcel when determining whether it is agricultural land. Nearby or adjacent land, regardless of ownership, shall be examined to the extent that a lot or parcel is either "suitable for farm use" or "necessary to permit farm practices to be undertaken on adjacent or nearby lands" outside the lot or parcel. FINDING: The applicant-submitted evidence that shows that the subject property is not suitable for farm use and is not necessary to permit farm practices to be undertaken on adjacent or nearby lands, has not assigned any significance to the ownership of the subject or adjoining properties. (S)(a) More detailed data on soil capability than is contained in the USDA Natural Resources Conservation Service (NRCS) soil maps and soil surveys may be used to define agricultural land. However, the more detailed soils data shall be related to the NRCS land capability classification system. (b) If a person concludes that more detailed soils information than that contained in the Web Soil Survey operated by the NRCS as of January 1, 1011, would assist a county to make a better determination of whether land qualifies as agricultural land, the person must request that the department arrange for an assessment of the capability of the land by a professional soil classifier who is chosen by the person, using the process described in OAR 660-033-0045. FINDING: The Borine and Rabe studies provide more detailed soils information than contained in the NRCS Web Soil Survey. Both soil studies relate to the NRCS land capability classification system (LCC) that classifies the soils as class 1 through 8. An LCC rating is assigned to each soil type based on rules provided by the NRCS. NRCS sources provide general soils data for large units of land. The site specific Borine and Rabe soil studies provide detailed and accurate information about the subject property based on numerous soil samples taken from the property. The NRCS mapping for the subject property is shown in Figure 2. According to the NRCS Web Soil Survey tool, the subject property (all tax lots) contains approximately 37.6% 36A soil and contains 62.4% 58C soil. Eastside Bend llC 247-18-000485-PA 247-18-000486-ZA 29 Exhibit "F" to Ordinance 2019-006 EXHIBIT L Eastside Bend LLC 247-18-000485-PA 24 7-18-000486-ZA Figure :z. NRCS Soil Map (dial.deschutes.org) 36A 30 Exhibit "F" to Ordinance 2019-006 EXHIBIT L The Borine study found the soil types on tax lots 1600 and 1601 vary from the NRCS identified soil types. The soil types are described below and the characteristics and LCC rating are shown in Table 1 below. Table 1. Summary of Order I Soil Survey -Tax Lots 1600 and 1601 Ta~lot1601 The Rabe study found the soil type on tax lot 1400 to be composed of 56 percent (11.41 acres) Gosney (Class 7) or Rock Outcrop (Class 8) in map units 57B and 109. The remaining 44 percent (8.92 acres) are Deskamp soils (Class 6) in map unit 36B. Mr. Rabe concluded that since tax lot 1400 is predominantly composed of Class 7 and 8 soils, it is not agricultural land. Rabe Study, pg. 4. (c) This section and OAR 660-033-0045 apply to: (A) A change to the designation of land planned and zoned for exclusive farm use, forest use or mixed farm-forest use to a non-resource plan designation and zone on the basis that such land is not agricultural land; and FINDING: The applicant is seeking approval of a non-resource plan designation on the basis that the subject property is not defined as agricultural land. (d) This section and OAR 660-033-0045 implement ORS 215.211, effective on October 1, 2011. After this date, only those soils assessments certified by the department under section (9) of this rule may be considered by local governments in land use proceedings described in subsection (c) of this section. However, a local government may consider soils assessments that have been completed and submitted prior to October 1, 2011. FINDING: The Borine study is dated August 22, 2015. The soils study was submitted following the ORS 215.211 effective date. Staff received acknowledgement via email on June 18, 2018 from Tim Murphy, Farm and Forest Lands Specialist with the Oregon Department of Land Conservation and Development (DLCD) that the soil study is complete and consistent with DLCD's reporting requirements. As of the hearing date, the applicant the Rabe study for tax lot 1400. The Rabe study is dated after the effective date of this rule. However, DLCD has not certified that the study is complete and Eastside Bend LLC 247-18-000485-PA 247-18-000486-ZA 31 Exhibit "F" to Ordinance 2019-006 EXHIBIT L consistent with its reporting requirements. This rule can be complied with If the applicant submits the required certification before the required BOCC hearing, though. Therefore, the Hearings Officer, requires as a condition of approval, that prior to the BOCC hearing, the applicant submit the required certification from DLCD. Condition of Approval: 1. Prior to the required Board of County Commissioners hearing, the applicant shall submit to the record certification from DLCD confirming the Soil Study prepared by Cascade Earth Science (Rabe) for tax lot 1400 meets DLCD requirements for such studies. (e) This section and OAR 660-033-0045 authorize a person to obtain additional information for use in the determination of whether land qualifies as agricultural land, but do not otherwise affect the process by which a county determines whether land qualifies as agricultural land as defined by Goal 3 and OAR 660-033-0020. FINDING: Here, Deschutes County is relying on the more detailed soil studies. This requirement is met, though, because the County is utilizing its normal process to determine whether the land qualifies as agricultural land. DIVISION 12, TRANSPORTATION PLANNING (1) If an amendment to a functional plan, an acknowledged comprehensive plan, or a land use regulation (including a zoning map) would significantly affect an existing or planned transportation facility, then the local government must put in place measures as provided in section (2) of this rule, unless the amendment is allowed under section (3), (9) or (10) of this rule. A plan or land use regulation amendment significantly affects a transportation facility if it would: (a) Change the functional classification of an existing or planned transportation facility (exclusive of correction of map errors in an adopted plan); (b) Change standards implementing a functional classification system; or (c) Result in any of the effects listed in paragraphs (A) through (C) of this subsection based on projected conditions measured at the end of the planning period identified in the adopted TSP. As part of evaluating projected conditions, the amount of traffic projected to be generated within the area of the amendment may be reduced if the amendment includes an enforceable, ongoing requirement that would demonstrably limit traffic generation, including, but not limited to, transportation demand management. This reduction may diminish or completely eliminate the significant effect of the amendment. Eastside Bend LLC 247-18-000485-PA 247-18-000486-ZA (A) Types or levels of travel or access that are inconsistent with the functional classification of an existing or planned transportation facility; (B) Degrade the performance of an existing or planned transportation facility such that it would not meet the performance standards identified in the TSP or comprehensive plan; or 32 Exhibit "F" to Ordinance 2019-006 EXHIBIT L (CJ Degrade the pet[orrru:ince of an existing or planned transportation factltty that is otherwise projected to not meet the performance standards identified in the TSP or comprehensive plan. FINDING: As referenced in the agency comments section in the Findings of Fact above, the Senior Transportation Planner for Deschutes County requested revised details than what the initial traffic study materials provided. The applicant submitted an updated report from Transight Consulting LLC dated October 25, 2018, to address concerns related to the Bear Creek/Ward and US 20/Hamby- Ward intersections. The update included adjustments to total daily trip generation and p.m. peak hour trips, a review of potential high impact land use scenarios, as well as an extension of the traffic analysis to the year 2038. In response to this criterion, the applicant's burden of proof provides the following: Attached as Exhibit 14 is a transportation impact analysis memorandum prepared by traffic engineer, Joe Bessman, PE. Mr. Bessman made the following findings with regard to the proposed zone change and concluded that a significant affect does not occur with the proposed rezone: • Rezoning of the 59.24-acre property from EFU-TRB to MUA could generate up to 55 additional daily trips, including six additional trips during the weekday p. m. peak hour. • County plans show that Hamby-Ward Road operates well within its carrying capacity as a Rural Arterial. The proposed rezone does not change the functional classification of the facility or result in levels of travel that would be inconsistent with the roadway function. • The Deschutes County TSP identifies failing conditions in 2030 along US 20 west of Hamby-Ward Road and a need for improvements at the US 20/Hamby-Ward Road intersection to convert the intersection to a roundabout. This improvement is identified in the TSP as a low priority. • The County SOC ordinance includes the US 20/Hamby-Ward Road intersection improvements to mitigate long-term needs. Based on OAR 660-12-0060{4)(b)(B) this is considered as a planned improvement that can be relied on in determining whether a significant affect occurs. • Review of crash patterns shows a high incidence of turning and angle crashes at the US 20/Hamby Road-Ward Road intersection over the past five years. Several safety measures have been implemented at the intersection to increase awareness. Review of crash records and field review showed that enhancing and ensuring clear sight lines could further improve safety, particularly with the observed crash pattern between westbound and northbound motorists. Long-term installation of a roundabout as identified in County plans would significantly reduce crashes. • The Bear Creek Road/Ward Road intersection experiences a crash rate higher than the 9oth percentile of similar unsignalized intersections. It is recommended that increased warning treatments be provided on the intersection approaches. The specific treatments should be coordinated by Deschutes County balancing installation costs, effectiveness, and maintenance costs. Eastside Bend LLC 33 247-18-000485-PA 247-18-000486-ZA Exhibit "F" to Ordinance 2019-006 EXHIBIT L • Based on this review a significant affect does not occur with the proposed rezone. Mr. Bessman also recommended that while available sight lines are adequate, that Deschutes County and ODOT work with the property owners on each of the intersection quadrants to ensure that the intersection remains free of sight line obstructions from the stop bar and potentially for vehicles one position back. Based on the traffic analysis and findings by Mr. Bessman, the application complies with the TPR. There were some concerns expressed about the traffic impact the plan amendment and zone change might have on area roads. The Hearings Officer notes no development is currently proposed and that County staff and the applicant's engineer do not believe the zone change will have a significant impact on the transportation facilities in the area. Based on the County Senior Transportation Planner's comments and the amended traffic study from Transight Consulting LLC, the Hearings Officer finds compliance with the Transportation Planning Rule has been effectively demonstrated FINDING: The Statewide Planning Goals are outlined below in the applicant's burden of proof: Goal 1, Citizen Involvement. Deschutes County will provide notice of the application to the public through mailed notice to affected property owners and by requiring the applicant to post a "proposed land use action sign" on the subject property. Notice of the public hearings held regarding this application will be placed in the Bend Bulletin. A minimum of two public hearings will be held to consider the application. Goal 2, Land Use Planning. Goals, policies, and processes related to zone change application are included in the Deschutes County Comprehensive Plan and Titles 18 and 23 of the Deschutes County Code. The outcome of the application will be based on findings of act and conclusions of law related to the applicable provisions of those laws as required by Goal 2. Goal 3, Agricultural Lands. The applicant has shown that the subject property is not agricultural land because it is comprised predominantly of Class 7 and 8 soils that are not suitable for farm use. Therefore, the proposal is consistent with Goal 3. Goal 4, forest Lands. Goal 4 is not applicable because the subject property does not include any lands that are zoned for, or that support, forest uses. Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. The majority of the subject property is located in the landscape Management Combining Zone (LM Zone}. The lM Zone is a Goal 5 resource acknowledged by DLCD that is set out to protect scenic views as seen, in this case, from Highway 20 through a landscape Management Combining Zone that extends X mile on either side of the centerline of the designated roadway. The County typically requires LM site plan review when a building permit is required for a new or substantial alteration to an Eastside Bend LLC 247-18-000485-PA 247-18-000486-ZA 34 Exhibit "F" to Ordinance 2019-006 EXHIBIT L existing structure. The proposal ls consistent with Goal 5 because the LM zoning requirements apply when development is proposed and the rezone and plan amendment is not development, and therefore, will not impact any Goal 5 resource. Goal 6, Air, Water and Land Resources Quality. The approval of this application will not impact the quality of the air, water, and land resources of the County. Any future development of the property would be subject to local, state and federal regulations that protect these resources. Goal 7, Areas Subject to Natural Disasters and Hazards. This goal is not applicable because the subject property is not located in an area that is recognized by the comprehensive plan as a known disaster or hazard area. Goal 8, Recreational Needs. This goal is not applicable because there is no development proposed and the property is not planned to meet the recreational needs of Deschutes County. Goal 91 Economy of the State. This goal does not apply to this application because the subject property is not designated as Goal 9 economic development land. In addition, the approval of this application will not adversely affect economic activities of the state or area. Goal 10, Housing. The County's Comprehensive Plan Goal 10 analysis anticipates that farm properties with poor soils, like the subject property, will be converted from EFU to MUA-10 or RR-10 zoning and that these lands will help meet the need for rural housing. Approval of this application, therefore, is consistent with Goal 10 as implemented by the acknowledged Deschutes County Comprehensive Plan. Goal 11, Public facilities and Services. The approval of this application will have no adverse impact on the provision of public facilities and services to the subject site. Utility service providers have confirmed that they have the capacity to serve the subject property. Goal 11, Transportation. The application complies with the Transportation System Planning Rule, OAR 660-012-0060, the rule that implements Goal 12. Compliance with that rule also demonstrates compliance with Goal 12. Goal 13, Energy Conservation. The approval of this application does not impede energy conservation. The subject property is located adjacent to the city limits for the City of Bend. Providing homes in this location as opposed to more remote rural locations will conserve energy needed for residents to travel to work, shopping and other essential services provided by the City of Bend. Goal 14, Urbanization. This goal is not applicable because the applicant's proposal does not involved property within an urban growth boundary and does not involve the urbanization of rural land. The MUA-10 Zone is an acknowledged rural residential zoning district that limits the intensity and density of developments to rural levels. The compliance of this zone with Goal 14 was recently acknowledged when the County amended its comprehensive plan. The plan recognizes the fact that the MUA-10 and RR zones are the zones that will be applied to lands designated Rural Residential Exception Areas. Eastside Bend llC 247-18-000485-PA 247-18-000486-ZA 35 Exhibit "F" to Ordinance 2019-006 EXHIBIT L Goals 15 through 19. These goals do not apply to land in Central Oregon. The Hearings Officer accepts the applicant's responses and finds compliance with the applicable Statewide Planning Goals has been effectively demonstrated. IV. DECISION The Hearings Officer concludes that with the adoption of the below listed condition of approval, the applicant has met the burden of proof necessary to justify changing the Plan Designation from Agriculture to Rural Residential Exception Area and Zoning of the subject property from Exclusive Farm Use to Multiple Use Agricultural through demonstrating compliance with the applicable criteria of DCC Title 18 (The Deschutes County Zoning Ordinance), the Deschutes County Comprehensive Plan, and applicable sections of OAR and ORS. The requested plan amendment and zone change is APPROVED subject to the following condition of approval: 1. Prior to the required Board of County Commissioners hearing, the applicant shall submit to the record certification from DLCD confirming the Soil Study prepared by Cascade Earth Science (Rabe) for tax lot 1400 meets DLCD requirements for such studies. This decision becomes final twelve (12) days after the date of mailing, unless appealed by a party of interest. Will Van Vactor, Hearings Officer Eastside Bend LLC 247-18-000485-PA 247-18-000486-ZA 36 Exhibit "F" to Ordinance 2019-006 EXHIBIT L EXHIBIT M EXHIBIT M EXHIBIT M EXHIBIT M EXHIBIT M EXHIBIT M EXHIBIT M EXHIBIT M EXHIBIT M EXHIBIT M EXHIBIT M EXHIBIT M EXHIBIT M EXHIBIT M EXHIBIT M EXHIBIT M EXHIBIT M EXHIBIT M 1526REP Date: February 22, 2021 To: Liz Fancher From: Joe Bessman, PE Project Reference No.: 1535 Project Name: Swisher Rezone The purpose of this memorandum is to address the Transportation Planning Rule requirements associated with rezoning tax lots 1713180000600 and 1713180000100 from Exclusive Farm Use (EFU-TRB) to Multiple-Use Agricultural (MUA-10). The combined parcels are 80 acres in size and are located immediately north of property already zoned for MUA-10. Access to the parcels is provided from Abbey Road, which connects south to NE Butler Market Road. The current UGB is located where NE Butler Market Road meets the Hamehook Road intersection, which is about 6,500 feet west. There are no specific development plans for the property at this time. The purpose of the rezone is to better reflect the transitional use of the property and better position the land for future urbanization, consistent with adjacent development patterns. In order to rezone the subject property to MUA-10 the application will need to show compliance with the Transportation Planning Rule section on Plan and Land Use Regulation Amendments (OAR 660-12-0060). OAR 660‐012‐0060(1) and (2) establish a two-step process for evaluating an amendment’s impacts on transportation facilities. The first step in assessing an amendment’s potential transportation impact is to compare the trip generation potential of the property assuming a “reasonable worst‐case” development scenario under the existing and proposed zoning. If the trip generation potential increases under the proposed zoning, additional operational analysis may be required to assess whether the rezone will “significantly affect” the transportation system. Conversely, if the trip generation under the proposed zoning is equal to or less than that under the existing zoning, no additional operational analysis is necessary to conclude that the proposal does not ʺsignificantly affectʺ the transportation system. A comparison between trip generation associated with the existing and proposed zoning scenarios is presented below. EXHIBIT N Swisher Rezone Page 2 Figure 1. Location of Subject Property. TRANSPORTATION PLANNING RULE ANALYSIS SCENARIOS Existing EFU-TRB Zoning Scenario Per Chapter 18.16 of the Deschutes County Code, the existing Exclusive Farm Use – Tumalo-Redmond- Bend (EFU-TRB) designation on subject property limits land uses to those associated with “preserving and maintaining agricultural lands.” There are several conditional uses associated with the EFU zoning but for the TPR analysis, only those uses permitted outright, as designated in Chapter 18.16.020 are typically considered, which includes the following: • Farm uses and related buildings • Operations for mineral exploration • Fire service facilities providing rural fire protection services • Marijuana production • Geothermal exploration and production operations • Utility facility service lines • Propagation or harvesting of timber products While there are no proposed uses at this time, to assess a reasonable worst-case trip generation scenario for the existing EFU zoning a marijuana production facility was assumed, consistent with direction from Deschutes County staff on similar rezone applications. While new marijuana production facilities are not allowed in Deschutes County due to a November 2020 ballot measure, hemp production remains an allowed and similar use (though not limited to indoor enclosed buildings, but more seasonal if planted outdoors). Other uses within the EFU-TRB zoning that are also allowed outright were identified as temporary/seasonal, or low trip generators. Unlike these uses, a marijuana production facility generates trips year-round. Deschutes County Code (DCC) 18.116.330 addresses standards for marijuana EXHIBIT N Swisher Rezone Page 3 production, processing, and retailing. It requires that marijuana be produced and processed entirely within fully enclosed buildings. Due to this requirement, the Land Use Category 150: Warehousing, from the standard industry reference, Trip Generation, published by the Institute of Transportation Engineers (ITE), has been known to be used to describe trips generated by this usage. Parcels equal to or greater than 40 acres but less than 60 acres are allowed up to 20,000 square-feet of mature canopy, which would allow a total of 40,000 square-feet of enclosed production space within the two parcels. Other allowable uses described as “Uses Permitted Subject to the Special Provisions and a Review Under DCC Chapter 18.124 where applicable” within the EFU zoning were also reviewed. These uses are not conditional uses. They are ORS 215.283(1) uses that are approved if specific conditions are met, and therefore included within this TPR analysis. While not listed by the County as an outright allowable use per findings from the Oregon Court of Appeals in the Brentmar v. Jackson County, 321 Or 481, 900 P2d 1030 (1995) decision all of the uses within ORS 215.213(1) and 215.283(1) should be considered outright allowable uses for Deschutes County. Effectively, within these decisions the Oregon Supreme determined that certain uses within an EFU zone were considered uses allowed as a “right” (those specifically outlined in ORS 215.213(1)(a) through (bb)) that is not subject to additional County restrictions as a conditional use. In Lane County v. LCDC, 325 Or 569, 942 P2d 278 (1997) the Supreme Court allowed LCDC to impose conditions on ORS 215.213(1) and (3) but reiterated that Counties may not. LCDC rules do not make any such uses conditional uses. This means that the following uses are allowed outright if LCDC’s conditions exist on the subject property, in addition to those identified by the County: • Dog training classes (less than 10 dogs per class and 6 or fewer classes per day) • Winery • Cider Business • Farm Brewery • Farm Stand • Church and cemeteries Trip generation for these uses was reviewed as summarized below in Table 1. Table 1. Outright Allowable EFU Trip Generation Comparison Land Use ITE Land Use Code/Surrogate Weekday Daily Trips Weekday PM Peak Hour Trip Rate Winery, Farm Brewery or Cider Business ITE 970 Range: 1,500 to 7,000 SF Average: 3,000 SF 45.96/KSF 7.31 PM Trips/KSF Farm Stand No Data Est. 40 to 100 Trips Est. 4-10 PM Trips Church/ Cemetery ITE 560 (Average 32 KSF) ITE 566 (Average 59 Acres) 6.95/KSF 6.02/Acre 0.49/KSF 0.46/Acre Dog training classes Independent Study Est. 160 to 200 Trips Est. 16 to 20 PM Trips Table 1 shows that a winery (or other similar brewery/cider business), church, or dog training classes would generate the highest number of weekday p.m. peak hour trips, likely within the range of 16 to 22 total weekday p.m. peak hour trips. This rate could be even higher with a co-located church and cemetery. These uses could also generate about 200 weekday daily trips, which results in a higher trip generation EXHIBIT N Swisher Rezone Page 4 potential than even a marijuana production facility. Dog training classes are allowed outright on any land zoned EFU as long as they are limited to 10 dogs per class and 6 classes per day, per DCC 18.16.025(K). Proposed MUA-10 Zoning Scenario Deschutes County Code describes the purpose of the Multiple Use Agricultural zone as follows: The purpose of the Multiple Use Agricultural Zone are to preserve the rural character of various areas of the County while permitting development consistent with that character and with the capacity of the natural resources of the area; to preserve and maintain agricultural lands not suited to full-time commercial farming for diversified or part-time agricultural uses; to conserve forest lands for forest uses; to conserve open spaces and protect natural and scenic resources; to maintain and improve the quality of the air, water and land resources of the County; to establish standards and procedures for the use of those lands designated unsuitable for intense development by the Comprehensive Plan, and to provide for an orderly and efficient transition from rural to urban land use. Allowable uses within the MUA zone include agricultural uses, a single-family dwelling or manufactured home, propagation or harvesting of a forest product, operations and maintenance of piping and irrigation systems operated by an Irrigation District, home occupation, or accessory dwelling units. Within the MUA zone individual lots are required to be 10-acres or larger unless conditional use approval is obtained for a cluster or planned development. A density of one dwelling per 7.5 acres might be allowed in such a development. Since, however, the use is a conditional use, it is not appropriate to consider this use in assessing compliance with the TPR. As configured, the subject property would qualify for approval of two dwellings. If subdivided, a total of eight lots and 8 single-family homes should be allowed on the two parcels. TRIP GENERATION COMPARISON Table 1 presents a comparison of the trips that could be generated by the existing and proposed zoning per the assumptions outlined above. As shown in this table, the proposed rezone reduces the trip generation potential compared to what could be produced within the EFU zoning. EXHIBIT N Swisher Rezone Page 5 Table 1. Trip Generation Comparison Land Use ITE Code Size/Units Daily Trips Weekday PM Peak Hour Total In Out Existing EFU Zoning – Highest Outright Allowable uses per ORS 215.213(1) Uses allowed by ORS 215.213(1) in EFU Varies Varies Approx. 200 16-22 8 to 11 8 to 11 Proposed MUA Zoning – Highest Allowable Trip Generator Single Family Detached Housing 210 8 Homes 76 (9.44/unit) 8 (0.99/unit) 5 (63%) 3 (37%) Trip Difference (Proposed Zoning – Existing Zoning) -124 -8 to -14 -3 to -6 -5 to -8 Deschutes County Code 18.116.310 provides the applicable requirements for traffic impact studies. This section of Code is not specific to the study requirements for a rezone application, which by default will still require compliance with the TPR. For projects zoned appropriately, DCC 18.116.310(C)(3)(b), only a Site Traffic Report (STR) is required if the development or change in use will cause the site to generate 50 to 200 daily trips and less than 20 weekday p.m. peak hour trips. The Deschutes County Engineer retains the right to expand this discretionary application as included within Section B and C, so additional information has been prepared within these scoping materials to help inform this direction. Overall, the trip generation comparison provided in Table 1 shows that the uses allowed outright within EFU zoning could generate more trips than those within the MUA zoning and subject to more restrictive conditions by Deschutes County. TRIP DISTRIBUTION PATTERN For impact purposes, it was assumed that all access to the two parcels would occur from Abbey Road south to NE Butler Market Road via NE Silvis Road. From this location the majority of trips would distribute toward Bend, with the following percentages: • 15% of trips to and from the east toward the Bend Airport or Prineville • 85% of trips west toward the Bend metro area, with these trips continuing north at Hamehook Road towards the Deschutes Junction if destined toward Redmond (15%) or due west if traveling toward Bend (70%). These travel patterns will shift within the horizon planning period as Yeoman Road is extended due west from NE Butler Market Road through the Petrosa neighborhood and to NE 18th Street. Travel due west on Yeoman Road will provide access to the Cooley Triangle area and other sections of northern Bend. This is reflected in the trip assignment shown in Figure 2. EXHIBIT N Swisher Rezone Page 6 Figure 2. Distribution and Assignment of Additional Weekday PM Peak Hour Trips STUDY AREA Based on a review of Deschutes County Code requirements, study intersections are identified as locations that are impacted by 20 or more weekday p.m. peak hour trips. ODOT and the City of Bend considers projects as having a significant impact with 50 or more weekday p.m. peak hour trips at an intersection. As there are more trips that could be produced within the existing EFU zoning there is a trip reduction throughout the system, both on a weekday p.m. peak hour and weekday daily trip basis within this “worst- case” trip generation comparison. ADOPTED AREA PLANNING The Deschutes County Transportation System Plan (TSP) was reviewed to identify transportation improvement needs within the study area. The County’s TSP classifies NE Butler Market Road and the Powell Butte Highway as Rural Arterials. The roadway continues west into Bend as a Minor Arterial from its intersection at Hamehook Road. The County TSP describes this segment of NE Butler Market Road as connecting the City of Bend to the Bend Airport. In 2008 the segment served 3,779 weekday daily trips. EXHIBIT N Swisher Rezone Page 7 The County applies a Level of Service “D” mobility standard to existing County facilities. Table 2.2.T2 of the TSP provides generalized County segment level of service standards, which shows that two-lane County roadways should operate with Average Daily Traffic volumes of less than 9,600 vehicles to maintain a Level of Service “D”. Pre-COVID traffic counts collected as part of the Petrosa project in 2018 shows that volumes on this segment increased to 4,280 weekday daily trips, or about 1.3% annual growth. This level of traffic is well within the acceptable volume thresholds (approximately 45% of the capacity per County standards, or a rural segment Level of Service “C”). With 22 years of continued growth adjusting these 2018 counts through the Bend MPO horizon year of 2040 (10 years beyond the horizon of the adopted County TSP) would show about 5,687 weekday daily trips, or about 5,500 trips if the rezone is taken at its additive impact. This remains well below the County’s LOS “D” performance threshold. Deschutes County has identified the Powell Butte Highway intersection with NE Butler Market Road as a high-priority single-lane roundabout. The project follows similar improvements that were completed at the Powell Butte Highway intersection with Neff Road. As discussed within the safety section, while the current crash rate is low this project will help maintain a low crash rate and reduce the severity of crashes that do occur by eliminating typical turning and angle collisions. This project is being partially funded through transportation System Development Charges, therefore, any future development of the project will help contribute toward these planned modifications. The proposed rezone will not change the need or priority for this project and will not impact the County’s ability to implement this project. AREA SAFETY REVIEW In compliance with guidance within the Transportation Planning Rule and Deschutes County Code, the study intersection crash history was reviewed to identify any historical intersection safety issues that would be exacerbated with the proposed rezone. Crash records were obtained from ODOT Crash Analysis and Reporting Section (ODOT-CARS) for a five-year period from January 2014 through December 2018, as summarized in Table 2. This reflects the most recent (complete) crash data available. Table 2. Intersection Crash History (January 2014 to December 2018) Intersection Crash Type Crash Severity Total Crashes Angle/ Turn Side- swipe Rear End Fixed Object Ped/ Bike Other Non- Injury Injury Fatal NE Butler Market Rd/ NE Hamehook Rd 1 0 0 1 0 0 1 1 0 2 NE Butler Market Rd/ NE Silvis Rd 0 0 0 0 0 1 animal 1 0 0 1 NE Butler Market Rd/ Powell Butte Hwy 1 0 2 0 0 0 1 2 0 3 As shown in Table 2, the crash incidence throughout the study area intersections has been low over the past five years. With the low crash incidence there were no patterns identified within the dataset. The project field review did not identify any signing, striping, sight line, or control needs. There were no portions of NE Butler Market Road identified within ODOT’s Safety Priority Index System. Based on this review there are no existing safety issues that will be exacerbated or even impacted with the proposed rezone to MUA-10. The Deschutes County Capital Improvement Project list shows that a single-lane roundabout is planned as a high-priority project at the Powell Butte Highway intersection. This project will further reduce area EXHIBIT N Swisher Rezone Page 8 speeds and help reduce angle and turning movement crashes. While the crash incidence is low today, this will support area growth through the horizon period. TRANSPORTATION PLANNING RULE COMPLIANCE OAR Section 660-012-0060 of the Transportation Planning Rule (TPR) sets forth the relative criteria for evaluating plan and land use regulation amendments. Table 3 summarizes the criteria in Section 660-012- 0060 and the applicability to the proposed rezone application. Table 3. Summary of Criteria in OAR 660-012-0060 Section Criteria Applicable? 1 Describes how to determine if a proposed land use action results in a significant impact. Yes, see response below 2 Describes measures for complying with Criterion #1 where a significant impact is determined. No 3 Describes measures for complying with Criteria #1 and #2 without assuring that the allowed land uses are consistent with the function, capacity and performance standards of the facility. No 4 Determinations under Criteria #1, #2, and #3 are coordinated with other local agencies. Yes (Application will require coordination with ODOT and the City of Bend) 5 Indicates that the presence of a transportation facility shall not be the basis for an exception to allow development on rural lands. No 6 Indicates that local agencies should credit developments that provide a reduction in trips. No 7 Outlines requirements for a local street plan, access management plan, or future street plan. No 8 Defines a mixed-use, pedestrian-friendly neighborhood. No 9 Outlines requirements under which a local government may find that an amendment to a zoning map does not significantly affect an existing and planned transportation facility. No 10 Outlines requirements under which a local government may amend a plan without applying performance standards related to motor vehicle traffic congestion, delay or travel time. No 11 Outlines requirements under which a local government may approve an amendment with partial mitigation. No EXHIBIT N Swisher Rezone Page 9 As noted in Table 3, there are eleven criteria that apply to Plan and Land Use Regulation Amendments. Of these, Criteria #1 and #4 are applicable to the proposed land use action. These criteria are provided below in italics with responses shown in standard font. OAR 660-012-0060 (1) Where an amendment to a functional plan, an acknowledged comprehensive plan, or a land use regulation (including a zoning map) would significantly affect an existing or planned transportation facility, the local government must put in place measures as provided in section (2) of this rule, unless the amendment is allowed under section (3), (9) or (10) of this rule, to assure that allowed land uses are consistent with the identified function, capacity, and performance standards (e.g. level of service, volume-to-capacity ratio, etc.) of the facility. A plan or land use regulation amendment significantly affects a transportation facility if it would: (a) Change the functional classification of an existing or planned transportation facility (exclusive of correction of map errors in an adopted plan); (b) Change standards implementing a functional classification system; or (c) As measured at the end of the planning period identified in the adopted transportation system plan: (A) Allow land uses or levels of development that would result in types or levels of travel or access that are inconsistent with the functional classification of an existing or planned transportation facility; Response: Based on the incremental traffic reduction from EFU-TRB zoning to the proposed MUA- 10 zoning, the functional classification of all the adjacent roadways will not be affected with the proposed zone change. Surrounding road segments are shown to operate well within acceptable Deschutes County performance standards, and the minor change in trip generation potential will not modify the current classifications of any of the adjacent roadways. As shown within this report, the reduction in trip generation potential under a “worst-case” trip generation scenario will allow surrounding facilities to remain within the County’s LOS D threshold for a two-lane road. (B) Degrade the performance of an existing or planned transportation facility such that it would not meet the performance standard identified in the TSP or comprehensive plan; or Response: The City of Bend’s recently adopted Transportation System Plan does not show any nearby intersections or segments that do not meet performance standards in 2040 with the proposed build-out of the UGB lands. The minor change in trips with the rezone will not degrade or impact nearby transportation facilities. Deschutes County’s Rural Arterial standards show that the facility can accommodate up to 9,600 daily trips while remaining at LOS D. In the year 2040 the facility is projected to operate at approximately 60% of this level. (C) Degrade the performance of an existing or planned transportation facility that is otherwise projected to not meet the performance standard identified in the TSP or comprehensive plan. Response: None of the adjacent transportation facilities are shown to exceed operational standards. The County is planning to convert the Butler Market Road/Powell Butte Highway intersection to a single-lane roundabout for functional and route continuity issues (along with EXHIBIT N Swisher Rezone Page 10 maintaining a high safety performance); there were no safety deficiencies identified at this intersection today. OAR 660-12-0060(4) Determinations under sections (1)–(3) of this rule shall be coordinated with affected transportation facility and service providers and other affected local governments. Response: Deschutes County coordinates land use applications with affected agencies. It is understood that this land use application will be provided to ODOT and the City of Bend for their review and comment. FINDINGS AND RECOMMENDATIONS Key findings of this transportation review include the following: • Per the Oregon Supreme Court’s Brentmar v. Jackson County decision, all of the uses within ORS 215.283(1) should be considered as outright allowable uses for EFU zoning, including those subject to conditions set by LCDC. • With inclusion of these uses, rezoning of the two 40-acre properties from EFU-TRB to MUA-10 within a “worst-case” scenario could generate about 124 fewer weekday daily trips, including fourteen fewer trips during the weekday p.m. peak hour. • The reduction in trips does not meet Deschutes County, ODOT, or City of Bend thresholds of significance at any nearby locations and would not create a significant impact. • The site will be served through the Abbey Road and Silvis Road connections to NE Butler Market Road. NE Silvis Road is a paved two-lane facility, Abbey Road contains a gravel surface. • The surrounding intersections do not exhibit any crash trends that would be impacted by the proposed rezone. The Butler Market Road connections to Hamehook Road, Silvis Road, and the Powell Butte Highway contain between 1 and 3 crashes over the five-year review period. Based on this review a significant affect does not occur with the proposed rezone. However, as Deschutes County (and the City of Bend) have discretion within a rezone analysis to require additional assessment of nearby infrastructure we request agency review and confirmation of these materials. If additional details are necessary please let us know. I can be reached if there are any questions on this analysis at (503) 997-4473 or via email at joe@transightconsulting.com. EXHIBIT N Table 4. Net Cash Farm Income of the Operations and Producers: 2017 and 2012 [For meaning of abbreviations and symbols, see introductory text.] Item Oregon Baker Benton Clackamas Clatsop Columbia Net cash farm income of the operations .................... $1,000, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Farms with net gains 1 ............................................. farms, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Farms with net losses ............................................. farms, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Net cash farm income of producers (see text) ........... $1,000, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Producers reporting net gains 1 (see text) ............... farms, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Producers reporting net losses (see text) ................ farms, 2017 2012 Average per farm .............................................. dollars, 2017 2012 743,194 813,476 19,757 22,954 11,797 12,988 116,276 102,725 25,819 22,451 24,343 23,193 642,103 730,435 17,070 20,611 11,749 12,921 109,429 97,747 25,867 22,518 24,880 23,650 14,269 15,750 20,240 24,418 302 296 85,133 88,334 403 349 28,389 29,792 14,240 15,466 20,198 23,978 302 296 85,088 87,360 403 349 28,429 29,779 11,752 20,449 12,191 23,080 314 352 82,815 89,199 650 534 21,926 20,503 11,644 20,738 12,078 23,407 314 350 82,444 89,681 650 536 21,914 19,869 70,376 58,451 16,378 15,608 1,018 1,170 120,573 81,760 3,279 2,575 15,970 14,450 67,113 58,194 15,618 15,539 1,014 1,175 117,861 80,920 3,283 2,570 15,960 14,353 264 3,379 1,168 16,980 59 58 46,261 80,605 167 141 14,764 9,192 232 3,310 1,028 16,632 59 58 46,128 80,605 167 141 14,906 9,683 485 -3,162 614 -4,210 172 181 41,748 20,535 617 570 10,852 12,068 486 -3,355 615 -4,467 172 177 41,748 21,097 617 574 10,851 12,350 Item Coos Crook Curry Deschutes Douglas Gilliam Net cash farm income of the operations .................... $1,000, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Farms with net gains 1 ............................................. farms, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Farms with net losses ............................................. farms, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Net cash farm income of producers (see text) ........... $1,000, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Producers reporting net gains 1 (see text) ............... farms, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Producers reporting net losses (see text) ................ farms, 2017 2012 Average per farm .............................................. dollars, 2017 2012 15,560 10,360 27,835 15,841 234 278 87,277 62,565 325 376 14,963 18,705 12,502 8,267 22,365 12,641 235 274 73,806 56,503 324 380 14,945 18,986 4,593 5,476 7,408 9,937 176 137 75,654 94,332 444 414 19,645 17,990 4,606 5,477 7,429 9,940 175 137 76,509 94,352 445 414 19,737 17,994 3,907 2,962 19,533 15,036 92 83 68,876 92,891 108 114 22,499 41,649 3,907 2,596 19,536 13,179 92 82 68,876 90,508 108 115 22,494 41,960 -19,093 -14,803 -12,866 -11,538 238 211 31,739 30,489 1,246 1,072 21,386 19,810 -19,054 -14,819 -12,839 -11,550 238 215 31,622 29,769 1,246 1,068 21,332 19,868 7,844 -4,729 3,904 -2,454 604 621 42,073 26,579 1,405 1,306 12,504 16,259 7,789 -5,573 3,877 -2,892 604 621 41,997 26,250 1,405 1,306 12,511 16,749 18,414 16,429 120,352 96,640 118 132 173,486 158,762 35 38 58,789 119,153 16,631 11,010 108,699 64,767 114 128 167,919 127,395 39 42 64,408 126,100 Item Grant Harney Hood River Jackson Jefferson Josephine Net cash farm income of the operations .................... $1,000, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Farms with net gains 1 ............................................. farms, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Farms with net losses ............................................. farms, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Net cash farm income of producers (see text) ........... $1,000, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Producers reporting net gains 1 (see text) ............... farms, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Producers reporting net losses (see text) ................ farms, 2017 2012 Average per farm .............................................. dollars, 2017 2012 -117 1,684 -307 4,232 109 147 61,485 59,173 274 251 24,888 27,945 -175 1,614 -458 4,056 108 147 61,931 58,147 275 251 24,959 27,622 20,142 14,197 37,861 28,565 218 239 133,749 112,402 314 258 28,711 49,098 18,865 13,304 35,461 26,769 218 237 131,262 112,655 314 260 31,051 51,520 2,202 -737 3,810 -1,331 230 215 120,322 74,740 348 339 73,195 49,576 1,277 -1,092 2,210 -1,971 230 216 116,233 73,188 348 338 73,150 50,001 -17,040 -2,527 -7,977 -1,467 438 463 29,809 37,386 1,698 1,259 17,725 15,756 -17,105 -2,564 -8,008 -1,489 438 465 29,772 37,178 1,698 1,257 17,753 15,793 12,419 4,795 31,281 10,117 161 168 123,736 94,092 236 306 31,792 35,987 12,485 4,473 31,448 9,437 161 168 124,034 92,391 236 306 31,715 36,105 -1,651 -2,351 -2,213 -3,811 176 209 25,934 23,056 570 408 10,904 17,573 -1,650 -2,347 -2,212 -3,803 176 210 25,939 22,947 570 407 10,904 17,606 See footnote(s) at end of table. --continued EXHIBIT O Table 4. Net Cash Farm Income of the Operations and Producers: 2017 and 2012 (continued) [For meaning of abbreviations and symbols, see introductory text.] Item Klamath Lake Lane Lincoln Linn Malheur Net cash farm income of the operations ................... $1,000, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Farms with net gains 1 ............................................ farms, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Farms with net losses ............................................. farms, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Net cash farm income of producers (see text) .......... $1,000, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Producers reporting net gains 1 (see text) ............... farms, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Producers reporting net losses (see text) ............... farms, 2017 2012 Average per farm .............................................. dollars, 2017 2012 26,776 25,682 26,643 26,892 403 385 112,073 112,866 602 570 30,547 31,178 26,143 24,201 26,013 25,342 402 382 111,061 111,400 603 573 30,686 32,031 24,544 22,798 64,419 61,119 191 175 180,988 160,628 190 198 52,763 26,830 22,404 22,745 58,804 60,980 188 176 177,046 159,617 193 197 56,375 27,144 25,661 10,492 9,698 3,944 769 816 64,386 44,416 1,877 1,844 12,707 13,965 24,241 10,114 9,161 3,802 768 816 62,738 44,516 1,878 1,844 12,749 14,214 818 377 2,130 1,041 90 114 40,443 29,282 294 248 9,598 11,941 792 374 2,063 1,034 90 113 40,400 29,533 294 249 9,673 11,900 24,980 34,465 11,242 16,546 598 685 120,103 90,997 1,624 1,398 28,843 19,934 18,172 32,525 8,178 15,615 598 679 109,792 89,515 1,624 1,404 29,239 20,125 54,937 56,045 56,988 50,355 496 581 153,743 138,014 468 532 45,555 45,378 53,295 51,986 55,285 46,708 494 577 151,592 136,375 470 536 45,940 49,818 Item Marion Morrow Multnomah Polk Sherman Tillamook Net cash farm income of the operations ................... $1,000, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Farms with net gains 1 ............................................ farms, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Farms with net losses ............................................. farms, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Net cash farm income of producers (see text) .......... $1,000, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Producers reporting net gains 1 (see text) ............... farms, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Producers reporting net losses (see text) ............... farms, 2017 2012 Average per farm .............................................. dollars, 2017 2012 118,763 108,549 43,015 42,286 895 1,019 196,528 142,921 1,866 1,548 30,616 23,958 117,068 106,692 42,401 41,563 896 1,016 194,982 142,011 1,865 1,551 30,904 24,236 89,112 89,796 237,633 223,929 206 220 542,759 532,521 169 181 134,295 151,155 52,981 76,657 141,282 191,165 198 217 388,126 481,757 177 184 134,849 151,543 20,154 16,412 30,864 27,445 189 221 144,623 100,385 464 377 15,474 15,313 19,907 16,134 30,486 26,980 191 220 141,922 100,694 462 378 15,584 15,923 23,617 25,589 19,000 22,387 334 422 132,321 92,371 909 721 22,638 18,574 22,112 24,607 17,789 21,528 334 422 127,909 90,034 909 721 22,673 18,568 19,058 33,247 100,304 178,747 144 148 146,551 231,493 46 38 44,467 26,685 14,565 23,707 76,657 127,456 138 145 122,677 174,668 52 41 45,475 39,512 26,527 22,017 90,536 78,631 132 148 236,514 176,753 161 132 29,148 31,385 25,885 22,774 88,345 81,334 132 150 231,651 179,178 161 130 29,148 31,562 Item Umatilla Union Wallowa Wasco Washington Wheeler Yamhill Net cash farm income of the operations ................... $1,000, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Farms with net gains 1 ............................................ farms, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Farms with net losses ............................................. farms, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Net cash farm income of producers (see text) .......... $1,000, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Producers reporting net gains 1 (see text) ............... farms, 2017 2012 Average per farm .............................................. dollars, 2017 2012 Producers reporting net losses (see text) ............... farms, 2017 2012 Average per farm .............................................. dollars, 2017 2012 57,765 93,808 33,507 58,520 672 758 147,898 170,952 1,052 845 39,565 42,336 38,285 65,100 22,207 40,612 664 736 126,101 140,526 1,060 867 42,874 44,206 7,950 13,437 9,695 16,209 290 334 60,921 66,563 530 495 18,334 17,767 6,669 11,644 8,133 14,046 287 331 57,749 62,967 533 498 18,583 18,470 5,406 13,469 10,030 25,803 226 248 60,032 75,917 313 274 26,075 19,556 5,344 12,772 9,916 24,468 227 248 59,833 73,254 312 274 26,402 19,690 5,239 20,127 8,806 30,040 276 327 86,703 103,510 319 343 58,591 40,003 957 15,377 1,608 22,951 271 319 79,526 92,117 324 351 63,564 39,910 25,011 44,149 14,251 26,871 558 709 102,039 92,447 1,197 934 26,672 22,909 22,897 41,718 13,047 25,391 553 698 99,675 91,042 1,202 945 26,808 23,100 -942 -2,948 -6,279 -19,269 61 48 49,178 103,018 89 105 44,288 75,172 -1,141 -3,174 -7,605 -20,743 61 48 49,539 99,351 89 105 46,772 75,643 43,492 60,344 20,342 29,756 608 670 141,029 131,472 1,530 1,358 27,617 20,428 37,733 59,780 17,649 29,477 607 672 137,070 130,422 1,531 1,356 29,698 20,549 1 Farms with total production expenses equal to market value of agricultural products sold, government payments, and farm-related income are included as farms with gains of less than $1,000. EXHIBIT O 254 Oregon 2012 Census of Agriculture - County Data USDA, National Agricultural Statistics Service Table 4. Net Cash Farm Income of the Operations and Operators: 2012 and 2007 [For meaning of abbreviations and symbols, see introductory text.] Item Oregon Baker Benton Clackamas Clatsop Columbia Coos Net cash farm income of the operations .................... $1,000, 2012 2007 Average per farm ............................................... dollars, 2012 2007 Farms with net gains 1 ......................................... number, 2012 2007 Average per farm ........................................... dollars, 2012 2007 Farms with net losses .......................................... number, 2012 2007 Average per farm ........................................... dollars, 2012 2007 Net cash farm income of operators ............................ $1,000, 2012 2007 Average per farm ............................................... dollars, 2012 2007 Farm operators reporting net gains 1 ....................... farms, 2012 2007 Average per farm ........................................... dollars, 2012 2007 Farm operators reporting net losses ........................ farms, 2012 2007 Average per farm ........................................... dollars, 2012 2007 813,476 903,728 22,954 23,441 12,988 13,455 102,725 95,534 22,451 25,098 23,193 15,208 730,435 840,635 20,611 21,805 12,921 13,367 97,747 91,894 22,518 25,186 23,650 15,394 15,750 5,619 24,418 8,168 296 258 88,334 68,361 349 430 29,792 27,948 15,466 5,878 23,978 8,544 296 255 87,360 68,789 349 433 29,779 26,935 20,449 11,969 23,080 13,211 352 308 89,199 66,012 534 598 20,503 13,984 20,738 9,612 23,407 10,609 350 306 89,681 58,887 536 600 19,869 14,012 58,451 88,946 15,608 22,298 1,170 1,248 81,760 100,231 2,575 2,741 14,450 13,186 58,194 85,921 15,539 21,540 1,175 1,238 80,920 98,714 2,570 2,751 14,353 13,190 3,379 2,723 16,980 11,889 58 85 80,605 46,533 141 144 9,192 8,560 3,310 2,722 16,632 11,888 58 85 80,605 46,530 141 144 9,683 8,560 -3,162 -441 -4,210 -548 181 200 20,535 22,291 570 605 12,068 8,098 -3,355 -497 -4,467 -617 177 198 21,097 22,350 574 607 12,350 8,109 10,360 12,405 15,841 16,629 278 334 62,565 51,628 376 412 18,705 11,744 8,267 11,500 12,641 15,416 274 333 56,503 49,129 380 413 18,986 11,767 Item Crook Curry Deschutes Douglas Gilliam Grant Harney Net cash farm income of the operations .................... $1,000, 2012 2007 Average per farm ............................................... dollars, 2012 2007 Farms with net gains 1 ......................................... number, 2012 2007 Average per farm ........................................... dollars, 2012 2007 Farms with net losses .......................................... number, 2012 2007 Average per farm ........................................... dollars, 2012 2007 Net cash farm income of operators ............................ $1,000, 2012 2007 Average per farm ............................................... dollars, 2012 2007 Farm operators reporting net gains 1 ....................... farms, 2012 2007 Average per farm ........................................... dollars, 2012 2007 Farm operators reporting net losses ........................ farms, 2012 2007 Average per farm ........................................... dollars, 2012 2007 5,476 985 9,937 1,584 137 158 94,332 51,227 414 464 17,990 15,321 5,477 930 9,940 1,495 137 155 94,352 51,887 414 467 17,994 15,230 2,962 7,773 15,036 39,860 83 91 92,891 103,525 114 104 41,649 15,848 2,596 7,565 13,179 38,795 82 91 90,508 101,727 115 104 41,960 16,271 -14,803 -12,954 -11,538 -9,220 211 239 30,489 19,895 1,072 1,166 19,810 15,188 -14,819 -12,951 -11,550 -9,218 215 241 29,769 19,820 1,068 1,164 19,868 15,230 -4,729 -943 -2,454 -450 621 561 26,579 29,276 1,306 1,534 16,259 11,321 -5,573 -1,069 -2,892 -510 621 560 26,250 29,165 1,306 1,535 16,749 11,337 16,429 17,174 96,640 104,719 132 106 158,762 170,900 38 58 119,153 16,233 11,010 13,590 64,767 82,864 128 105 127,395 140,131 42 59 126,100 19,053 1,684 869 4,232 2,182 147 124 59,173 46,530 251 274 27,945 17,888 1,614 483 4,056 1,213 147 122 58,147 47,080 251 276 27,622 19,062 14,197 6,338 28,565 12,118 239 198 112,402 68,010 258 325 49,098 21,933 13,304 6,427 26,769 12,290 237 198 112,655 68,458 260 325 51,520 21,930 Item Hood River Jackson Jefferson Josephine Klamath Lake Lane Net cash farm income of the operations .................... $1,000, 2012 2007 Average per farm ............................................... dollars, 2012 2007 Farms with net gains 1 ......................................... number, 2012 2007 Average per farm ........................................... dollars, 2012 2007 Farms with net losses .......................................... number, 2012 2007 Average per farm ........................................... dollars, 2012 2007 Net cash farm income of operators ............................ $1,000, 2012 2007 Average per farm ............................................... dollars, 2012 2007 Farm operators reporting net gains 1 ....................... farms, 2012 2007 Average per farm ........................................... dollars, 2012 2007 Farm operators reporting net losses ........................ farms, 2012 2007 Average per farm ........................................... dollars, 2012 2007 -737 12,571 -1,331 22,731 215 265 74,740 87,304 339 288 49,576 36,684 -1,092 11,792 -1,971 21,323 216 263 73,188 85,803 338 290 50,001 37,153 -2,527 1,953 -1,467 988 463 481 37,386 42,776 1,259 1,495 15,756 12,456 -2,564 1,556 -1,489 788 465 479 37,178 42,158 1,257 1,497 15,793 12,450 4,795 8,196 10,117 16,071 168 203 94,092 74,415 306 307 35,987 22,507 4,473 8,015 9,437 15,715 168 204 92,391 73,429 306 306 36,105 22,761 -2,351 -2,666 -3,811 -3,949 209 167 23,056 19,274 408 508 17,573 11,584 -2,347 -2,657 -3,803 -3,937 210 167 22,947 19,326 407 508 17,606 11,584 25,682 28,912 26,892 23,954 385 498 112,866 85,656 570 709 31,178 19,386 24,201 28,164 25,342 23,334 382 490 111,400 85,856 573 717 32,031 19,393 22,798 17,636 61,119 42,292 175 214 160,628 108,171 198 203 26,830 27,157 22,745 17,631 60,980 42,281 176 215 159,617 107,386 197 202 27,144 27,013 10,492 10,914 3,944 3,273 816 806 44,416 45,898 1,844 2,529 13,965 10,312 10,114 10,039 3,802 3,010 816 806 44,516 44,971 1,844 2,529 14,214 10,363 See footnote(s) at end of table. --continued EXHIBIT P 2012 Census of Agriculture - County Data Oregon 255 USDA, National Agricultural Statistics Service Table 4. Net Cash Farm Income of the Operations and Operators: 2012 and 2007 (continued) [For meaning of abbreviations and symbols, see introductory text.] Item Lincoln Linn Malheur Marion Morrow Multnomah Polk Sherman Net cash farm income of the operations .................... $1,000, 2012 2007 Average per farm ................................................ dollars, 2012 2007 Farms with net gains 1 .......................................... number, 2012 2007 Average per farm ............................................ dollars, 2012 2007 Farms with net losses ........................................... number, 2012 2007 Average per farm ............................................ dollars, 2012 2007 Net cash farm income of operators ........................... $1,000, 2012 2007 Average per farm ................................................ dollars, 2012 2007 Farm operators reporting net gains 1 ....................... farms, 2012 2007 Average per farm ............................................ dollars, 2012 2007 Farm operators reporting net losses ....................... farms, 2012 2007 Average per farm ............................................ dollars, 2012 2007 377 -390 1,041 -1,050 114 102 29,282 25,224 248 269 11,941 11,013 374 -392 1,034 -1,056 113 102 29,533 25,224 249 269 11,900 11,020 34,465 33,622 16,546 14,461 685 716 90,997 77,757 1,398 1,609 19,934 13,706 32,525 31,417 15,615 13,513 679 714 89,515 74,255 1,404 1,611 20,125 13,408 56,045 50,386 50,355 40,309 581 629 138,014 110,521 532 621 45,378 30,808 51,986 45,687 46,708 36,550 577 626 136,375 104,316 536 624 49,818 31,434 108,549 129,228 42,286 48,400 1,019 1,052 142,921 146,090 1,548 1,618 23,958 15,116 106,692 125,738 41,563 47,093 1,016 1,043 142,011 144,283 1,551 1,627 24,236 15,212 89,796 71,890 223,929 170,760 220 240 532,521 322,986 181 181 151,155 31,088 76,657 71,975 191,165 170,962 217 237 481,757 329,184 184 184 151,543 32,834 16,412 21,724 27,445 38,586 221 246 100,385 109,387 377 317 15,313 16,358 16,134 21,582 26,980 38,334 220 245 100,694 109,691 378 318 15,923 16,642 25,589 38,099 22,387 30,430 422 466 92,371 101,529 721 786 18,574 11,723 24,607 35,781 21,528 28,579 422 457 90,034 99,428 721 795 18,568 12,148 33,247 19,011 178,747 91,398 148 164 231,493 119,917 38 44 26,685 14,903 23,707 12,604 127,456 60,598 145 162 174,668 82,425 41 46 39,512 16,270 Item Tillamook Umatilla Union Wallowa Wasco Washington Wheeler Yamhill Net cash farm income of the operations .................... $1,000, 2012 2007 Average per farm ................................................ dollars, 2012 2007 Farms with net gains 1 .......................................... number, 2012 2007 Average per farm ............................................ dollars, 2012 2007 Farms with net losses ........................................... number, 2012 2007 Average per farm ............................................ dollars, 2012 2007 Net cash farm income of operators ........................... $1,000, 2012 2007 Average per farm ................................................ dollars, 2012 2007 Farm operators reporting net gains 1 ....................... farms, 2012 2007 Average per farm ............................................ dollars, 2012 2007 Farm operators reporting net losses ....................... farms, 2012 2007 Average per farm ............................................ dollars, 2012 2007 22,017 30,657 78,631 101,512 148 158 176,753 211,622 132 144 31,385 19,303 22,774 30,157 81,334 99,857 150 158 179,178 210,145 130 144 31,562 21,153 93,808 90,323 58,520 54,477 758 745 170,952 142,440 845 913 42,336 17,299 65,100 72,377 40,612 43,653 736 741 140,526 121,894 867 917 44,206 19,570 13,437 12,299 16,209 13,976 334 331 66,563 61,292 495 549 17,767 14,551 11,644 9,422 14,046 10,706 331 322 62,967 55,690 498 558 18,470 15,252 13,469 7,254 25,803 13,791 248 257 75,917 51,248 274 269 19,556 21,995 12,772 7,162 24,468 13,616 248 256 73,254 51,347 274 270 19,690 22,158 20,127 25,947 30,040 39,981 327 276 103,510 123,615 343 373 40,003 21,905 15,377 22,815 22,951 35,155 319 271 92,117 115,543 351 378 39,910 22,478 44,149 75,176 26,871 42,689 709 745 92,447 119,438 934 1,016 22,909 13,588 41,718 72,122 25,391 40,955 698 742 91,042 116,219 945 1,019 23,100 13,850 -2,948 2,256 -19,269 13,754 48 67 103,018 65,814 105 97 75,172 22,204 -3,174 2,189 -20,743 13,350 48 66 99,351 65,948 105 98 75,643 22,073 60,344 78,269 29,756 37,007 670 717 131,472 142,877 1,358 1,398 20,428 17,292 59,780 75,345 29,477 35,624 672 714 130,422 139,339 1,356 1,401 20,549 17,233 1 Farms with total production expenses equal to market value of agricultural products sold, government payments, and farm-related income are included as farms with gains of less than $1,000. EXHIBIT P 1/20/2021 Printable https://extension.oregonstate.edu/node/94211/printable/print 1/7 Extension Service Gardening in Central Oregon's climate Behind the beauty of the High Desert landscape lie many factors that create challenges for gardeners. Some of the main factors that contribute to difficulties include temperature, precipitation, soil types, elevation, USDA hardiness zones and microclimates. Learning how to work with these challenges can allow you to have a successful and beautiful garden. What zone are we in? What is a hardiness zone or rating, and what zone is Central Oregon considered? The term “hardiness” refers to the ability of a plant to withstand an average minimum temperature. Oftentimes, when we go to purchase plants, the catalog or plant tag will indicate hardiness zone followed by a number. This number is based upon the hardiness zones derived from a map put out by the (https://planthardiness.ars.usda.gov/PHZMWeb/)by the (https://planthardiness.ars.usda.gov/PHZMWeb/) U.S. Department of Agriculture. (https://planthardiness.ars.usda.gov/PHZMWeb/)The map is based on the average annual minimum temperatures recorded throughout North America from 1974 to 1986. There are 11 designated zones, with 1 being the coldest climate and 11 being the most temperate zone. When choosing a plant, pick one with a rating that falls within your zone, or one zone colder. For example, if your area is designated as hardiness zone 4, purchase plant material hardy to zone 4 or less, such as zone 3. There are other climate zone or hardiness maps in existence, but these are not used universally, as is the USDA Hardiness Zone map. An example would be the climate zones (which is different than a hardiness zone) designated by the popular Sunset Western Garden Book. Sunset's climate zone information, although very informative, will not be designated on plant tags or in catalogs. Hardiness ratings or zones are intended to be used only as a guide, not an absolute for plant selection and survivability. That is especially the case here in Central Oregon, where we have several microclimates. A microclimate is the climate of a small area (for example, your backyard or even a portion of your backyard), as opposed to that of a larger region. Some of the factors that determine a microclimate include cold pockets, hills and the location of houses or other structures. There are numerous factors that contribute to whether or not a plant will survive besides minimum temperatures. Some of these factors include soil type, rainfall, heat tolerance and exposure to wind and sun. According to the USDA Hardiness Zone map, Central Oregon is placed in Zone 6 (–10 degrees Fahrenheit to 0 degrees Fahrenheit). However, this is really oversimplified given our many EXHIBIT Q 1/20/2021 Printable https://extension.oregonstate.edu/node/94211/printable/print 2/7 microclimates. The following chart is a more accurate guide to use when looking at plant hardiness for Central Oregon. Just remember to think about microclimates within your own landscape. Use this hardiness zone guide in selecting plant material for your landscape. Plant hardiness zones Location USDA hardiness zone Bend 3–5 Crooked River Ranch 4–5 Culver 4–5 La Pine 3–4 Madras 4–5 Prineville 3–5 Redmond 3–5 Sisters 3–5 Sunriver 3–4 Terrebonne 4–5 Tumalo 3–5 Warm Springs 4–5 Soils Most Central Oregon soils are coarse with a sandy texture, and tend to be sterile with minimal organic matter. These soils need to be amended with organic material such as compost or aged manure to improve water-holding capacity, increase microorganism activity levels, and improve the overall health of the soil. The soil pH is generally between 6.0 and 7.0, which is neutral, and suitable for most plants. In some areas, the soil may be a bit more alkaline (pH above 7.0) and require soil amendments to reduce the pH. A soil test is beneficial in determining soil pH and the nutrient analysis of your soil. Precipitation We often think of precipitation in terms of rain. However, here in the High Desert, our natural precipitation ranges from 8–22 inches per year, most of which falls during winter as snow. Monthly mean precipitation (in inches) 1981-2010 1 (#footnote1_epo1fjb) Month Bend La Pine 2 (#footnote2_6czonhz)Madras Prineville Redmond Sisters January 1.53 3.05 1.30 1.12 .97 1.89 February 1.09 2.48 .96 1.00 .65 1.31 March .73 1.78 .81 .87 .66 .98 April .78 1.31 .92 .87 .73 .95 EXHIBIT Q 1/20/2021 Printable https://extension.oregonstate.edu/node/94211/printable/print 3/7 May .89 1.23 1.01 1.17 1.02 1.21 June .70 1.07 .68 .92 .64 .86 July .56 .71 .54 .56 .53 .53 August .48 .75 .34 .34 .50 .44 September .41 .65 .41 .38 .41 .48 October .60 1.37 .85 .83 .65 1.05 November 1.39 3.05 1.25 1.18 .96 1.86 December 2.20 3.87 1.38 1.44 1.16 1.97 Year 11.36 21.32 10.45 10.68 8.88 13.53 Elevation Central Oregon increases in elevation as you go from north to south. The elevation in Warm Springs is 1,000 feet, increasing to 4,200 feet in La Pine. Higher elevations tend to have winters that are longer and colder. Other effects of higher elevations include lower night temperatures, especially during the growing season, and increased intense sunlight year-round. Location Elevation (feet) Bend 3,650 La Pine 4,200 Madras 2,230 Prineville 2,840 Redmond 3,060 Sisters 3,180 Sunriver 4,156 Warm Springs 1,000 Temperature Many people are attracted to Central Oregon because of the large number of sunny days we experience here. Interestingly enough, these sunny days are responsible for the occurrence of radiational cooling, resulting in frost any time of the year. Historically, there are less than 10 frost-free days (32°F or greater) in the city of Bend. These dates occur during July and August. The higher elevations are especially susceptible to frost and can experience frost during the summer months. Established plant material in the landscape will suffer frost damage at temperatures of 24°F or below. More tender plants will freeze between 24°F and 32°F. EXHIBIT Q 1/20/2021 Printable https://extension.oregonstate.edu/node/94211/printable/print 4/7 Central Oregon’s climate has a wide range of temperature extremes between day and night. These temperature fluctuations often cause plants to bud out prematurely, only to get nipped by frost at a later date. Relatively low evening temperatures limit plant growth and the production of some heat-loving crops such as tomatoes, peppers, eggplant and melons. Our spring and autumn months do not warm up and cool down gradually, which is often the case in more temperate regions. The growing season ranges from 60 to 120 growing days, with the shorter seasons occurring in the higher elevations and southern regions of Central Oregon such as La Pine and Sunriver. We also experience many microclimates here in Central Oregon. Microclimates can influence plant adaptability in your own backyard and should be considered when selecting plant material. The growing season or time during the year where you can achieve plant growth varies each year due to our low evening temperatures and the frost factor. However, we can approximate the number of days you generally have to grow plants during the growing season, based on averages taken over the years. Length of growing season Location Average growing season (number of days) Bend 80–90 La Pine 70–80 Madras 90–100 Prineville 80–90 Redmond 80–90 Sisters 75–85 Sunriver 70–80 Warm Springs 100–110 Median frost dates 1971–2002 1 (#footnote1_epo1fjb) Location Last occurrence in spring of 24°F Last occurrence in spring of 32°F First occurrence in fall of 24°F First occurrence in fall of 32°F Bend May 10 June 20 Oct. 15 Sept. 2 LaPine 2 (#footnote2_6czonhz)April 30 June 20 Oct. 11 Sept. 8 Madras April 16 May 27 Nov. 1 Oct. 3 Prineville May 5 June 28 Oct. 3 Aug. 31 Redmond May 5 June 17 Oct. 17 Sept. 9 Sisters May 23 July 10 Sept. 20 Aug. 17 Monthly mean temperature (°F) 1981–2010 1 (#footnote1_epo1fjb) Month Bend La Pine 2 (#footnote2_6czonhz)Madras Prineville Redmond Sisters January 32.7 29.6 32.5 34.1 32.7 31.7 February EXHIBIT Q 1/20/2021 Printable https://extension.oregonstate.edu/node/94211/printable/print 5/7 34.2 31.8 35.4 37.4 35.2 33.8 March 39.3 36.8 41.1 42.3 39.9 39.5 April 43.6 41.7 45.6 46.6 44.4 44.0 May 50.5 49.0 52.7 53.9 51.4 50.7 June 57.1 56.0 59.4 60.3 58.5 57.1 July 64.5 63.7 65.9 66.9 65.9 64.3 August 63.8 62.8 65.0 66.0 65.0 63.6 September 56.5 55.8 57.6 59.0 57.2 56.1 October 47.3 46.0 47.2 49.3 47.4 46.4 November 37.6 35.6 38.3 39.6 37.4 37.0 December 31.1 28.6 30.8 32.3 30.6 30.0 Year 46.6 44.9 47.7 49.0 47.2 46.3 Monthly maximum and minimum mean temperatures (°F) 1981–2010 1 (#footnote1_epo1fjb) Month Bend La Pine 2 (#footnote2_6czonhz)Madras Prineville Redmond Sisters January 41.1 / 24.3 39.3 / 19.9 41.8 / 23.3 42.8 / 25.4 42.4 / 23.1 40.6 / 22.8 February 44.3 / 24.2 42.8 / 20.8 46.4 / 24.4 48.0 / 26.8 46.8 / 23.7 44.3 / 23.3 March 51.0 / 27.5 48.3 / 25.3 54.3 / 28.0 54.7 / 29.9 53.8 / 26.0 51.7 / 27.4 April 56.7 / 30.4 54.4 / 28.9 60.6 / 30.7 60.8 / 32.5 59.6 / 29.1 58.4 / 29.6 May 64.6 / 36.3 63.1 / 34.9 68.6 / 36.8 68.5 / 39.2 67.5 / 35.4 66.4 / 35.1 June 72.3 / 41.9 71.4 / 40.6 76.2 / 42.6 76.4 / 44.2 76.1 / 41.0 74.6 / 39.5 July 81.5 / 47.5 81.7 / 45.7 85.3 / 46.6 85.9 / 47.9 85.6 / 46.2 85.1 / 43.5 August 81.3 / 46.3 81.6 / 43.9 84.7 / 45.3 85.4 / 46.6 84.8 / 45.2 84.5 / 42.8 September 73.5 / 39.5 74.4 / 37.2 76.4 / 38.8 77.9 / 40.1 76.2 / 38.2 75.8 / 36.4 October 61.9 / 32.8 61.6 / 30.4 63.4 / 31.0 64.9 / 33.6 63.5 / 31.3 62.6 / 30.2 November 47.3 / 27.9 45.3 / 25.9 49.3 / 27.3 49.8 / 29.4 48.9 / 25.8 47.4 / 26.5 December 39.4 /37.6 / 19.6 39.8 /40.9 /40.5 /38.9 / EXHIBIT Q 1/20/2021 Printable https://extension.oregonstate.edu/node/94211/printable/print 6/7 22.7 21.8 23.8 20.7 21.2 Year 59.7 / 33.5 58.6 / 31.2 62.3 / 33.1 63.1 / 35.0 62.2 / 32.2 60.9 / 31.6 Tips for cold-climate gardening Here are some basic tips to extend the growing season in your area and to help you find ways to successfully garden. OSU Extension provides more than 70 other garden publications available to you at little to no cost. Use season extenders such as row covers (to prevent frost damage), Walls-O-Water (for tomatoes), cold frames and greenhouses. Water during periods of winter drought if the ground is warm enough to accept water. Every six to eight weeks, give your plants a deep soak to prevent winter desiccation. Mulch around your perennials to insulate them for the winter. Select adaptable plant material for your areas and be sure to put the right plant in the right place. Consider mature size, light and water requirements of the plants you select. Protect plants from wind by planting a windbreak or planting on the east side of your home. Add 14 days to the number of days given for maturation on the seed packet for direct-seeded vegetables and flowers due to our cool evening temperatures. Sources Bauer, M. 1994. The Central Oregon Climate. Sunset Western Garden Book. 2001. Sunset Publishing Corp. 1. (#footnoteref1_epo1fjb) a. (#footnoteref1_epo1fjb) b. (#footnoteref1_j2hspp1) c. (#footnoteref1_tfo7twb) d. (#footnoteref1_ptroccf) Oregon Climate Service, Corvallis 2. (#footnoteref2_6czonhz) a. (#footnoteref2_6czonhz) b. (#footnoteref2_zjkxmra) c. (#footnoteref2_egdf91i) d. (#footnoteref2_u6xhoek) Climate data taken from the Wickiup Dam, 10 miles west of La Pine Previously titled Central Oregon climate and how it relates to gardening January 2016 EXHIBIT Q 1/20/2021 Printable https://extension.oregonstate.edu/node/94211/printable/print 7/7 Amy Jo Detweiler (https://extension.oregonstate.edu/people/amy-jo-detweiler) Horticulture Source URL: https://extension.oregonstate.edu/gardening/techniques/gardening-central-oregons- climate EXHIBIT Q