HomeMy WebLinkAbout2021-09-21 L Fancher - Letter re Public CommentsLiz Fancher
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Liz Fancher
Tuesday, September 21, 2021 4:53 PM
Kyle Collins
Dave Swisher
File 247 -21-00061 6-PA and -00061 7-ZC, Swisher
supplement to burden of proof revised.pdf
Kyle:
Would you please include the attached document in the record for tonight's hearing?
Thank you,
Liz (Fancher
Liz Fancher, Attorney
2465 NW Sacagawea Ln
Bend, OR 97703
54L-385-3067 (telephone)
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1
BEFORE THE HEARINGS OFFICER OF'DESCHUTES COUNTY, OREGON
FILE NUMBERS: 247-21-000616-pA and -0006t7-ZC
APPLICANT: Dave Swisher
APPLICANT'S
ATTORNEY:Liz Fancher
2465 NW Sacagawea Lane
Bend, Oregon 97703
Phone: 541-385-3067
E-mai I : 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-l8C ("Tax Lot 100',)
Tax Lot 600, Assessor's Map l7-13-18 ("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.
APPLICANT'S RESPONSE TO STAFF REPORT
SUPPLEMENT TO BURDEN OF PROOF
This document provides additional information related to relevant approval criteria to further
address criteria where staff was uncertain whether the criterion was met by the land use
application materials. We have repeated the findings provided in the burden of proof for each
code section addressed and have italicized the prior findings and have added more information to
each using standard font.
Zone Change/Plan Amendment - Swisher Page 1 of4
Chapter 2, Resource Management
Section 2.2, Agricultural Lands Policies
Goal 1, Preserve and maintain agricultural lands and the agricultural industry.
RESPONSET The applicant's soils study, Exhibit D, and thefindings in this bnrden of proof
demonstrate that the subiect property is not agricultural land. This goal, therefore, does notapply The vasl majority of the nbject property is comprised of Class 7 and 8 nonagricultural
soils and the property has no known history of agriculntral use. As noted in the Eastside Bend
decision, Exhibit M, "these [Class 7 and 8J soils [according to soils scientist and soils classifier
Roger BorineJ have severe limitations forfarm use as well as poor soil fertility, shallow ond very
shallow soils, surface stoniness, low available water capacity, and limited availabitity of
livestockforage." According to Agricultrtral HandbookNo. 210 puhtished by the Soit
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 "ltave limitations that preclude their useJbr commercial plant production and
restrict their use to recreation, wildlife, or water supply or to eslhetic purposei. "
The evidence clearly shows that the subject property is not agricultural land. The property is not
comprised predominately of Class VI or better soils. So, it does not quality for protection as
agricultural land based on the classification of its soils. Only if the extremely poor Class VII andVIII soils found on the subject property "are suitable for farm use" taking into consideration a
host of factors. Lands are suitable for "farm use" only if a farmer can expect a profit fromgrowing crops or raising livestock on the property. Wetherell v. Douglas County,342 Or 666,
r60 P3d 614 (2007).
In Deschutes County it is clear that farming Class VII and VIII soils will not be profitable. Only
16.03% of farmers in Deschutes County made a profit in 2017 according to ttre ion US Census
of Agricultute. From my twenty-nine years of experience working in Deschutes County with a
focus on rural land use, I can say that the subject property has one ofthe highest perceniages of
Class VII and VIII soils of any EFU-zoned property in the County. This makes ii evident that it
would be unreasonable for a property owner to expect to make a profit by attempting to farm on
the subject property.
The subject property has never been irrigated and has no known history of farm use.
Approximately 85% of the soils on the property are Class VII and VIII nonagricultural soils.
This percentage is higher than the percentage of these soils found to warrant rezoning to MUA-l0 in the following similar applications for lands on the eastside of Bend. The following are the
percentages:
Eastside Bend, LLC SSYofor TL 1600 and l60l
560/ofor TL 1400
Porter Kelly Burns 67%
Zone Change/Plan Amendment - Swisher Page2 of 4
DSL 51j%
LCC VII and VIII soils are so poor that the NRCS Soil Survey of Upper Deschutes River Area
says that the soils "have very severe limitations that make them unsuitable for cultivation." The
LCC VlI and VIII soils are described by soil scientist Andy Gallagher as predominantly shallow
and ashy-skeletal with interspersed rock outcrops. The only possible agricultural use of the
property is livestock grazing. The soils report shows that these soils are so poor they produce
only approximately one half the typical amount of forage expected based on the soil
classification - far below the level of forage production expected on typical Central Oregon
rangeland.
Only l5 percent of the soils on the combined properties are rated Class VI and these areas are not
suitable for farm use given their limited extent and location. According to the NRCS, Class VI
soils also "have serve limitations that make them generally unsuitable fbr cultivation." they are
do not support the growth of cultivated crops.
Section 3.20 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.
e 2009 legislation permits a new analysis of agricultural designated landso Exceptions can be granted from the Statewide Planning Goalso Some farm Iands 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. Inslead, it is the County's assessment of the
amount of population growth might occxtr on rural residential lands in thefuture based on its
understanding of the types of changes allowed by law. Comprehensive PIan Policy 2.2.3
specifically authorizes rezoning and comprehensive plan map amendments for any property
zoned EFU and i.g 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 sttbject 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 zaned MUA-10 thal is bisected by Butler Market Road. This area is developed
with rural residential uses.
Zone Change/Plan Amendment - Swisher Page 3 of4
The MUA-L0 zone is a rural residential zone. It will providefor an orderly and fficienttransition.fram rural to urhan land use as intendecl by the purpose of the MUA-L0 zone. As a
result, rezoning the subject property MUA-I0 is consistent with Section 3.2.
The staff report asks the hearings officer to determine whether the subject property has soils of
poor quality. The soils analysis and other information in the record establishes that the soils are
poor quality soils that are not "agricultural land."
(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 unito shall
be inventoried as agricultural lands even though this land may not be cropped or
grazed;
RESPONSE: The subject property is not and has nol been a part of afarm unit. It has not been
farmed. As a result, this rule does not apply to the County's review of this application.
Oregon case law explains the meaning of this rule. It applies to lands to land that have a recent a
recent history of farm operations. In particular, it applies where land is divided to create a parcel
of nonagricultural land from a larger farm property that was formerly operated as a farm across
the entire property. I4/etherell v. Doug;las County,235 Or App 246,230 P3d 976 rev den 349 Or
57 (2010). The rule is written to prevent the "piecemeal fragmentation" of large farm properties
to carve out areas for rezoning to a nonagricultural zoning designation. The rule does not apply
to the subject property because it has never been farmed at all. This rule does not supplant and
render meaningless the predominance and suitability test set by Goal 3 to determine whether land
is or is not agricultural land by requiring all land on a property to be inventoried as agricultural
land if there is any Class VI soil on the property.
Even if the subject property is considered to be a 'farm unit" despite thefact it has never been
farmed, Goal 3 applies a predominant soil test to delermine if a property is "agricuhural 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 sludied by the applicant's soils analysis, Exhibit D. The
analysis shows that the predominant soil typefound on the property is Class VII and VIII,
nonagricultural land. Sonte 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 classffied
agriailtural land.
Respectfully submitted this 2l't day of September, 2021 .
Lrf Tanoher
Liz Fancher, OSB #812202
Attorney for Applicant
Zone Change/Plan Amendment - Swisher Page 4 of 4