HomeMy WebLinkAbout2021-09-21 C Macbeth (COLW) - Hearing Submittal1 Kyle Collins From:Carol Macbeth <carol@colw.org> Sent:Tuesday, September 21, 2021 7:40 PM To:Kyle Collins Subject:Re: 247-21-0000616-PA, 617-ZC Attachments:Excerpt Edward Sullivan Article.pdf [EXTERNAL EMAIL] Kyle, It was a pleasure seeing you this evening. Please forward to the Hearings Officer and include in the record for this matter. It is not the qualifications of the person hired to prepare a report, but the demonstrably incorrect legal theory the report is being used to support that LandWatch argues against. For the Hearings Officer's information please find attached a copy of Edward Sullivan's (a member of the law faculty at Lewis and Clark Law School) article in the San Joaquin Agricultural Law Review explaining the history of protection of farmland in Oregon, in which Edward Sullivan explains that the NRCS capability classifications, as LandWatch stated this evening, were expressly and deliberately chosen as the basis for the definition of agricultural land protected by Statewide Planning Goal 3: "As adopted in 1975, Goal 3 incorporated the approach first proposed by OSPIRG during the 1973 legislative session to identify and define agricultural lands using the Soil Conservation Service soil capability ratings, rather than merely "prime farmlands," preferring protection of all suitable agricultural lands. It defined ''agricultural land" differently for two distinct regions of the state (East and West): those lands predominantly composed of Class I-IV soils in western Oregon and Class I-VI soils in eastern Oregon, as well as other lands "suitable for farm use'' and other lands necessary to permit farm practices" on adjacent or nearby lands. These are the lands required to be inventoried and preserved." The applicant's statements in the hearing to the contrary are incorrect. Thank you for your attention to these views. Best regards, Carol Macbeth Le mar. 21 sept. 2021 à 09:46, Kyle Collins <Kyle.Collins@deschutes.org> a écrit : Carol,   Thanks for letting me know your intent to participate tonight. You don't often get email from carol@colw.org. Learn why this is important 2 Please let me know if you have questions, but all the relevant meeting details are listed in agenda packet with the  County’s public meeting portal .   Regards and speak with you soon,   Kyle Collins | Associate Planner DESCHUTES COUNTY COMMUNITY DEVELOPMENT 117 NW Lafayette Avenue | Bend, Oregon 97703  PO Box 6005 | Bend, Oregon 97708  Tel: (541) 383‐4427 | www.deschutes.org/cd Let us know how we’re doing: Customer Feedback Survey Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person.     From: Carol Macbeth <carol@colw.org>   Sent: Tuesday, September 21, 2021 8:29 AM  To: Kyle Collins <Kyle.Collins@deschutes.org>  Subject: 247‐21‐0000616‐PA, 617‐ZC [EXTERNAL EMAIL] Kyle, LandWatch will participate in tonight's hearing on the above matter in opposition to the approval granted on or around September 14, 2021. As LandWatch has explained on a related issue, the County wholly misinterprets the applicable law. Best regards, Carol You don't often get email from carol@colw.org. Learn why this is important 3 -- Carol Macbeth Staff Attorney Central Oregon LandWatch -- Carol Macbeth Staff Attorney Central Oregon LandWatch SAN JOAQUIN AGRICULTURAL LAW REVIEW VOLUME 18 2008-2009 NUMBER 1 THE LONG AND WINDING ROAD: FARMLAND PROTECTION IN OREGON 1961 -2009 Edward Sullivan' and Ronald Eber" Dedicated to Hector Macpherson For his vision and commitment to the preservation of Oregon's farmland 1 ' B.A., St. John's University (N.Y.J. 1966; J.D .. Willamette University. 1969; M.A. (History), Portland State University, 1973; Urban Studies Certificate. Portland State University, 1974; LL.M., University College, London. 1978; Diploma in Law. Univer­ '1ly College, Oxford, 1984; M.A. (Political Thought). llnivcrsity of Durham. 1998. •· B.A. (Geography). San Fernando State College (now California Stale University at Northridge), 1971: M.U.P., University of Oregon, 1975: "'Administrative Law and Proce­ dure." Willamette University. 1982. Agricultural Lands policy specialist for the Oregon Department of Land Conservation and Development, 1976 to 2008 and Special Assistant 10 Ann Squier, Governor Rarbara Robert's Natural Resources Policy Advisor. 1993. The authors gratefully acknowledge the invaluable contributions, particularly Alexia Solomou, L. L. H. with French Law. University College. London, (expected 2009), and also Aren Hinely, R. A., Linfield College, 200 I; J. D. Lewis and Clark, 2008: and Kellie Walters, B.A. DePaul University, 2001: J.D., John Marshall Law School, 2006: LL.M. Lewis and Clark Law School, 2008, in the initial research and preparation of this article. The authors also acknowledge the constructive comments and assistance of Sy Adler, Hlair Raison, Richard Renner, Hanley Jenkins, Jim Johnson, Henry Richmond, Carrie Richter and the staff al the Department of Land Coml'fvation and Dcn:lopment: Dale Hlanlon, Robert Cortright, Katherine Daniels, Rob llallyburton and Cliff Voliva. Finally. a special thank you to Jennifer Bragar of Garvey Schubert Barer, for her diligent assis­ tance with editing. formatting and coordinating the publication of this article with the editors of this Journal. It would not have been possible without her. 18 San Joaquin Agricultural Law Review [Vol. 18 Goal 3 has always complemented these policy statements by declaring: "Agricultural lands shall be preserved and maintained for farm use, con­ sistent with existing and future needs for agricultural products, forest and open space and the state's a1;rirnltural land use policy expressed in ORS 215.243 and 215.700." (Emphasis added).'m B.Defining Agricultural Lands Oregon's earlier efforts to protect agricultural lands using optional EFU zoning and tax incentives did not work because those efforts left to each local jurisdiction not only the decision about whether to protect such lands but also the choice of the type of lands it should protect. Goal 3 is significant in its approach because it provides a relatively clear definition of the lands to be protected. This has been one of the most controversial parts of Oregon's program because it declares a state inter­ est in all land used or suitable for agricultural use and not merely "prime farmlands."110 As adopted in 1975, Goal 3 incorporated the approach first proposed by OSPIRG during the 1973 legislative session to identify and define agricultural lands using the Soil Conservation Service soil capability ratings, rather than merely "prime farm lands," preferring protection of all suitable agricultural lands.111 It defined "agricultural land" differently for two distinct regions of the state (East and West): those lands pre­ dominantly composed of Class I-IV soils in western Oregon and Class I­ VI soils in eastern Oregon, as well as other lands "suitable for farm use'' and other "lands necessary to permit farm practices" on adjacent or nearby lands."" These are the lands required to be inventoried and pre­ served.111 This definition is broader and includes more land than covered by the earlier definitions of "prime farmland" proposed by Rep. Day in 1967 and OSPIRG in 1973, in part because farmers in western and east- '"' Id. 11"' S<'<' OR. AllMIN. R. 660-015-00()0(1) (1975) (amcmkd 199], 1995): OR. AllMIN. R.ti60. Div. :n (199.lJ (amended 1994). 1111 See Hector Macr,herson. Oregon's True Land Use Story, MEDFORD MAIL TRIB., February 19, 1995: see also text accomr,anying notes 67-75. 111 See AAMODT. supra note 69 (OSPIRG recommended protecting all Class I, II and Ill soils.). OK. ADMIN. R. 660-015-0000(.1) ( 1975) (amended 199], 1995). 11" S{'(· OK. Al)MIN. R. 660-015-0000(.l) (197.'i) (amrnded 1993. 199'.iJ. See 1;enerallv Wetherell v. Douglas County. 160 P .. ld 614 (Or. 2007) !LUBA No. 2009-004. April 30. 2009 (remanded)): DLCD v. Curry County, 888 P. 2d 592 (Or. App. 1995 J; DLCD v. Coos County, 844 P.2d 907 (Or. Ar,r,. 1992); 1000 Friends v. Benton County, 575 P.2d 651 (Or. App. 1978): Meyer v. Lord. 586 P. 2d 367 (Or. App. 1978): Kaye/DLCD v. Marion County, 23 Or. LURA 452 (1992). 111 Sl'e OR. AllMIN. R. 660-015-0000U) ( 197.'i) (amended I 99·i. I 995) 2008-2009] Farmland Protection in Oregon 1961-2009 19 em Oregon urged a broader definition for their regions of the state.114 LCDC recognized that Class I and II soils could not be protected without also protecting the Class III and IV soils intermingled with them in a farm operation.115 About I 5.5 million acres are zoned EFU based on the definition of "agricultural land" under Goal 3.116 This is much broader than the I. I million to 4.3 million acres of "prime farmland soils" identified by United States NRCS (depending upon whether the soils are drained, pro­ tected from flooding, or irrigated).117 The breadth of the agricultural lands definition and its use of clear and objective standards, led to much controversy over its implementation at the local county level from citizens, planners and elected officials.118 Implementation of Goal 3 in the Willamette Valley led to over 300,000 acres of land to be down zoned from rural development zones to an EFU zone (16% of all EFU zoned land in the Valley).119 However, the broader approach chosen by LCDC was fully consistent with both the state's agricultural land policy and the federal approach to identifying "prime" lands used by the United States Department of Agriculture ("USDA")/ National Resources Conservation Service ("NRCS"). The state policy encourages the protection of "large blocks" of agricultural land.120 The federal government's approach was not merely to inventory the "nation's most productive" or "prime farmlands" but also provide states with the opportunity to establish farmland categories of "Statewide" and of "lo­ cal" importance.121 This is essentially what Goal 3 did.122 Since the SB IO statutory goal of protecting "prime farmlands" was superseded by Goal 3, the term "prime," or reference to "prime farm land," was not used until the I 992 federal list of soils rated "prime" was incorporated into the LCDC definition of "high-value farmland" under 114 See RICHMOND & HOUCHEN, supra note 14, at 15. 11s Id. m DEP'T. OF LAND CONS. & DEV., GJS ZONING DATABASE. 117 U.S. DEP'T. OF AGRIC., OREGON PRIME FARMLAND ACREAGE, NRCS NASIS DATABASE, PORTLAND, OREGON (MARCH 2, 2009). Seventy-seven percent (77%) or 915,387 of the 1.1 million acres of the prime soils are in the Willamette Valley. "" Minutes and exhibits of the .ILCLU work session and hearings on the Agricultural Lands Goal, Interim Sess. (June 12, 29 and 30. 1978) (Oregon State Archives). 119 Memorandum from DLCD on Resource Lands Protected After Review by LCDC(September 16, I 998) (on file with authors). 120 OR. REV. STAT.§ 215.243(2) (2009). 121 Memorandum from SCS Land Inventory and Monitoring (LIM-3), Background Paper: Prime, Unique and Other Farmlands (October 16, 1975) (on file with authors). 122 See Letter from Jack P. Kanalz, State Conservationist, USDA Soil Conservation Service, to James F. Ross, Director of DLCD (May I 2, 1983) ( on file with authors). 20 San Joaquin Agricultural l-1m· Review IVol. 18 the Goal 3 rule (OR. ADMIN. R. 660-033-080( 1) in 1992). 123 In 1993, theLegislature agreed with this new approach, called for better protection of the state's more productive resource land and added its own definition of "high-value farmland" into OR. REV. STAT. Chapter 21'.'i.12� "Prime"soils only comprise a portion of the land defined as "high-value" farm land under OR. REV. STAT.§ 215.71().12' The significance of these definitions lies in the fact that they are pri­marily based on objective, scientific field data, not on current trends in the agricultural economy or the individual management skills of the farmer. Although these definitions are relatively clear, they did not end the debate over whether land is good or marginal or whether an individ­ual can make a living by undertaking agricultural production.120 This hasbeen made very clear in a recent set of LUBA and Court decisions that have opened the door for the consideration of profitability when deter­ mining whether land is suitable for farm use. 127 What this approach over­looks and why the state protects more 1han just its "prime" farmlands is that state and local agricultural economies not only depend on the best or prime farmlands but need the lower capability lands as well since many crops like orchards, wine grapes, grass seed, alfalfa, and hay grow very well on lower quality soils.12xThe underlying assumption of the Oregon program to protect agricul­tural lands is that long tenn resource decisions should not be based on short-term economics. 129 Oregon requires an inventory of all farmlands primarily based on the land's resource capability, not a farmer's man- '' OK. AllMIN. R. (i60-033-080(1) (1993); See a.lw OK. REV. STAL§ 197.230 (1973): OR. REV. STAT.§ 215.515 (1969) (amended 197:r, repealed by Act of July 26, 1977, ch. 766.1977 Or. Laws 745.12" OR. REV. STAT.§ 215.710 (1993): OR. ADMJN .. R. 660 div. 33 (1994). The full story ahout the development of HB 3661 and the Legislative ,howdown over Oregon· s efforts to protect farmland hctween House Rcpuhlican-;, Senate Democrats and the Governor·, ( )llice is yet to he written and is one worthy or hci1l)! told. ''' OK. REV. S JAT. 215.710 (2009): OK. AoMJN R. 660-033-020(8) (2009) (defining ''high-value farmland" and the additional non-prime soils and lands included); OR. REV. STAT. 195.300(10) (2007) (a revised and updated definition used for the purposes of Measure 49). '" See infra Pali 111.C'. ''' See gcnerallr Wetherell v. Dougla� County. 1(,0 P3d 614 (Or. 2007) (LL/HA No. 2009-004, April ,o. 2009 (remanded)). The 2009 Legislature considered ohviating this decision but failed to adopt it. See H.B. 3222. amilable al http://www.leg.state.or.us/bills_laws/ (last visited June 24, 2009). 12' OR. REv. STAT. § 215.710 (1993); Act of Sepkmber 8, 1993. ch. 792. Or. Laws 2438 (H.B. 3661); OR. Am11N.R. 660 div. 33 (1994). '·"' OK. Rl:V. STAL � 215.243(2) (2009).