Loading...
HomeMy WebLinkAbout2021-10-05 C Macbeth (COLW) - 1st Open Record Period Comments (pt 2 Corrected)1 Kyle Collins From:Carol Macbeth <carol@colw.org> Sent:Tuesday, October 5, 2021 6:53 AM To:Kyle Collins Subject:Fwd: September 28, 2021 comments apparently misfiled Attachments:247-21-000616 COLW Sept 28.pdf; Swisher comments received September 28.pdf [EXTERNAL EMAIL] Note- the originals were submitted to county staff in color. The original color photographs are necessary for the record. Please ensure the color photographs are retained and are submitted to the Hearings Officer for this matter as I specifically requested when I submitted them on September 28. Thanks again, Carol ---------- Forwarded message --------- De : Carol Macbeth <carol@colw.org> Date: mar. 5 oct. 2021 à 06:47 Subject: September 28, 2021 comments apparently misfiled To: Kyle Collins <Kyle.Collins@deschutes.org> Hi Kyle, Attached are the comments I submitted on this matter on September 28, stamped received by Deschutes County. They are 70 pages of comments and exhibits about the Swisher property application. These comments are unrelated to and do not refer to the airport, which has a similar file number (247-21- 000616 and 247-21-000666). Attached is a letter with the corrected heading, and a copy of the 70 pages of comments stamped received by Deschutes County stamped Sept. 28 which I just obtained on Accela from the Harper airport file. Please add these to the record of the Swisher file, to which they refer, and delete them from the Harper airport file, to which they do not refer. Thanks. Best regards, Carol Macbeth 2 -- Carol Macbeth Staff Attorney Central Oregon LandWatch -- Carol Macbeth Staff Attorney Central Oregon LandWatch Protecting Central Oregon’s Natural Environment And Working For Sustainable Communities 2843 NW Lolo Dr., Ste. 200 | Bend, OR 97703 Phone: (541) 647-2930 www.colw.org September 28, 2021 Hearings Officer Deschutes County Community Development 117 NW Lafayette Avenue Bend, OR 97703 re: File No. 247-21-000616-PA, -617 ZC; Comprehensive Plan Amendment to change designation from Agricultural to Rural Residential Exception Area; Zone Change to rezone from Exclusive Farm Use to Multiple Use Agricultural Dear Hearings Officer: On behalf of Central Oregon LandWatch, thank you for the opportunity to comment on the above application. We respectfully urge the Hearings Officer to deny the application. The fallowed subject property is classified as Class III and Class VI land by the NRCS and so is agricultural land by definition. An exception to Goal 3 is required. Because no exception has been justified, the application must be denied. Applicant's theory of the case is erroneous for three main reasons. First, the Oregon Court of Appeals has already determined that additional detail such as that provided by the applicant's paid report has no effect on whether land determined by the NRCS to be Class I-VI in eastern Oregon is agricultural land. Such data are relevant only to whether land not comprised of the specified classes determined by the NRCS is also agricultural land. Second, the paid report is an "Order 1 survey." Application, 7. Order 1 surveys, by definition, do not affect the NRCS land capability classifications of the official soil survey, which here are Class III and Class VI. Third, the applicant misinterprets the meaning of "accurate" and the relationship between detail and accuracy, and thus confuses the significance of the paid report, an Order 1 survey. Each of these reasons is explained in more detail below. Protecting Central Oregon’s Natural Environment And Working For Sustainable Communities 2 Additional information is relevant only to whether lands not comprised of Class I-VI as determined by the NRCS are also agricultural land The land on the fallowed subject property is agricultural land because the NRCS official soil survey has identified the land as Class III irrigated and Class VI not irrigated. OAR 660-033- 0020: "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" Goal 3, OAR 660-015-0000(3) provides: „Agricultural land in eastern Oregon … is land of predominantly Class I, II, III, IV, V and VI soils as identified in the Soil Capability Classification System of the United States Soil Conservation Service.“ The applicant's land is predominantly 38B according to the official survey of the NRCS. Att. 1. The land is classified by the NRCS as a "farmland of statewide importance." Id. The same 38B land is shown to be in use across Deschutes County for irrigated crop production. Figures 1- 12. The Court of Appeals has interpreted Goal 3 to mean land comprised of the specified classes I-VI is per se agricultural land. Any additional information, such as the applicant's paid report, is relevant only to whether land which is not predominantly comprised of such soils is also agricultural land. 1000 Friends of Oregon v. LCDC, 85 Or App 18, 22-23, 735 P.2d 645 (1987). While applicant correctly noted that more detailed information may be used, the purpose of such information is to identify whether more land may qualify as agricultural land in addition to the lands identified as Class I-VI by the NRCS. The Oregon Court of Appeals decision accords with the legislative history of Goal 3. The legislative history leading to the adoption of the NRCS land capability classifications as the applicable legal standard is summarized in Edward Sullivan’s law review article on the history of protection of Oregon farmland. Edward Sullivan and Ron Eber, The Long and Winding Road: Farmland Protection in Oregon 1961-2009. San Joaquin Agricultural Law Review, 18, 1 (2009) (excerpt, Att. 2): Protecting Central Oregon’s Natural Environment And Working For Sustainable Communities 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 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 preserved." As the article further explains, the underlying assumption of the Oregon program to protect agricultural lands is that long-term resource decisions should not be based on short-term economics or finances. Id. Here, the applicant's lack of interest in farming is irrelevant to Oregon's agricultural land use policy to preserve the state's agricultural industrial land base for future generations of farmers. Farm after farm in Deschutes County is shown in the attached Figures 1-12 to be producing irrigated crops and pasture using the same 38B the NRCS examined and reported to comprise the applicant’s land. Figures 1-12. There is no reason, except will, that the applicant cannot do the same. By definition, the land is protected for farm use by Goal 3 and an exception to Goal 3 is required. The Court of Appeals decision in 1000 Friends of Oregon v. LCDC, the legislative history of the definition of agricultural land in Oregon, and the plain language of both Goal 3 and OAR 660-033-0020 mean that agricultural land include all lands classified by the NRCS as Class I, II, III, IV, V, and VI in eastern Oregon, and thus include the fallowed subject property. Order 1 surveys have no effect on NRCS land capability classifications The applicant's paid report is an Order 1 survey. By definition an Order 1 survey does not affect the land capability classifications of the NRCS soil survey. The NRCS invented Order 1, Order 2, Order 3, Order 4, and Order 5 surveys. The Upper Deschutes River Survey is an Order 2, intensive survey. It is the customary, usual order for NRCS soil surveys. Protecting Central Oregon’s Natural Environment And Working For Sustainable Communities 4 The NRCS explains in the attached official published document from the U.S. Department of Agriculture that an Order 1 Survey has no effect on the results of the NRCS survey. Att. 3: "Order 1 soil surveys and site-specific data collected are supplements to the official soil survey, but they do not replace or change the official soil survey." An Order 1 survey is used to support a determination of whether a manure storage facility, or other highly specialized land use, can be placed on land like the applicant’s land that is currently lying fallow. Id. The Hearings Officer is not presiding over a determination of whether a manure storage facility can be placed on the subject property. The evidence presented by the applicant is supplemental to, but does not change, the official NRCS survey information. Applicant’s paid report provides detailed, but irrelevant, data for this inquiry. The legal theory of the applicant is based on a false premise. It would be disingenuous for the applicant to try to mislead the Hearings Officer into believing that use of an Order 1 survey replaces or changes the official soil survey that is the correct legal standard since, by definition, it does not. Att. 3 (Order 1 surveys do not replace or change the official soil survey). The applicant's only evidence that no exception to Goal 3 is required does not address the applicable legal standard. The applicant’s evidence, an Order 1 survey, by definition has no effect on the official soil survey. Goal 3 defines agricultural land as land in classes I-VI in eastern Oregon as determined by the official NRCS soil survey. The applicant’s evidence is not directed at this legal standard, and has no effect on it. The land is agricultural land by definition, an exception to Goal 3 is required, and the application must be denied. Applicant misinterprets the nature of map units and the effect of more detail The crux of applicant's legal theory is that the applicant's paid report should preferentially be relied upon in a determination of whether land is agricultural land because its greater detail makes it more accurate. This is incorrect. See Application, 7, 18. First, according to the NRCS soil mapping units are already the most detailed soils information for determining land capability class. The NRCS invented the concept of soil map units and of land capability class. The subject property is predominantly map unit 38B, which is Protecting Central Oregon’s Natural Environment And Working For Sustainable Communities 5 Class III irrigated and Class VI unirrigated. Mapping units are the basis for all interpretive groupings of soils: "They furnish the information needed for developing capability units, forest site groupings, crop suitability groupings, range site groupings, engineering groupings, and other interpretive groupings. The most specific management practices and estimated yields are related to the individual mapping unit.“ Att. 4, USDA SCS, Agricultural Handbook No. 210 (1961). The necessary level of detail is present in the official soil survey of the Upper Deschutes River Area. Second, the applicant misinterprets the word "accurate," which means "free from error." It is not the case that a more detailed map is more accurate. A more detailed map is simply more detailed. A map cannot be more "free from error." A map that correctly portrays how to get from one house to a neighbor’s house is accurate. Additional details such as the layout of the rooms in the houses does not affect the map's accuracy. As misinterpretation of the word "accurate" is the fundamental premise on which the applicant bases its position that the paid-for report is relevant to the legal standard for this application and that no exception to Goal 3 is required, the application must be denied. Land is classified based on whether irrigation water is available Farm after farm in Deschutes County is shown in Figures 1-12 to be irrigating crops and pasture using the same 38B the NRCS examined and documented on the applicant’s fallowed land. There is no reason, except will, that the applicant cannot do the same. As shown in Att. 5, the property is within the boundaries of the Central Oregon Irrigation District. Thus irrigation water is fully available. The applicant may not choose to irrigate, but irrigation water is available as surface water through the irrigation district or as groundwater. Land capability classifications consider whether lack of irrigation or other constraints are permanent or can be remedied. Here, the subject property's unirrigated state can be remedied. The land is wholly within the boundaries of the Central Oregon Irrigation District and even if it were not, the applicant could irrigate using groundwater upon acquiring water rights from a water broker as is common practice in the region.1 1 e.g. Water Right Services LLC, https://oregonwater.us/, "Water Right Services, LLC helps secure and manage water rights for properties with simple uses like small pastures or ponds up through 100,000+ acre ranches and communities with overlapping, multi-use water rights." Protecting Central Oregon’s Natural Environment And Working For Sustainable Communities 6 The applicant's arguments regarding the current irrigation status are irrelevant because irrigation water is available and that is the basis for land capability classifications. It is further irrelevant that there is no history of farm use. That information is not directed at the correct legal standard, which is the definition of agricultural land in Goal 3. Exceptions to Goals 3, 11, and 14 are required by DCCP 3.3 The application must be denied because it is inconsistent with the express language of the County’s acknowledged comprehensive plan. The acknowledged plan provides at section 3.3 that as of 2010, thus at this time, any new Rural Residential Exception Area designation must be justified through taking exceptions to farm (Goal 3), public facilities (Goal 11) and urbanization (Goal 14) regulations pursuant to Goal 2. DCCP, 3.3. The applicant is proposing a new Rural Residential Exception Area. Therefore exceptions to Goal 3, Goal 11, and Goal 14 are required as a matter of law. Deschutes County Comprehensive Plan (DCCP) 3.3: 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. The applicant did not attempt to justify exceptions to Goal 3, Goal 11, or Goal 14, and would not qualify for exceptions if it did. Therefore, as a matter of law, the application must be denied. Applicant is in error in arguing the County’s comprehensive plan does not mean what it expressly says. It is untenable to argue this property can be designated a Rural Residential Exception Area without exceptions to Goals 3, 11, and 14 when the acknowledged comprehensive plan states there are already 17,000 undeveloped rural residential parcels that are enough to meet anticipated demand for new rural housing, and no more such housing will be approved without the required exceptions. The comprehensive plan cannot plausibly be interpreted to mean anything except that any new proposals for Rural Residential Exception Areas must qualify for exceptions to Goals 3, 11, and 14. A comprehensive plan is not a guideline that may be followed or disregarded at will. Rather, a comprehensive plan is analogous to legislation that grants rule-making power but Protecting Central Oregon’s Natural Environment And Working For Sustainable Communities 7 establishes the power for which and the limits within which that power may be exercised. Baker v. City of Milwaukie, 271 Or 500, 506 n6, 533 P2d 772 (1975). The DCCP is the controlling land use planning instrument for Deschutes County. The acknowledged comprehensive plan, DCCP 3.3, governs the requested change in plan designation to "Rural Residential Exception Area." The only way the applicant can obtain the requested designation is to comply with the requirements for that designation as outlined in the acknowledged comprehensive plan. It is hard to imagine how the language of the county’s comprehensive plan could be more clear. The comprehensive plan is acknowledged as in compliance with Goals 3, 11, and 14, in part because the acknowledged comprehensive plan will not allow the proposed use for a rural residential exception area without exceptions to the goals. Comprehensive plans must be adopted and amended in compliance with the 19 Oregon statewide planning goals, which were enacted to protect the public interest. ORS 197.175(2)(a),(d).2 It would make a mockery of the legislature’s intent in passing ORS 197.175(2) if the express language of the County's comprehensive plan, having been acknowledged as in compliance with the applicable goals, could be disregarded at will when it does not suit the financial objectives of an applicant. The application is incomplete for its failure to include exceptions pursuant to Goal 2 for Goal 3, Goal 11, or Goal 14 as expressly required by the acknowledged DCCP, and must be denied. CONCLUSION A paid report that is an Order 1 survey is the objective of the applicant's evidentiary showing in this case. Because that evidence is directed at the wrong legal standard, it is irrelevant to this proceeding. Land that is classified by the NRCS as Class I-VI like the fallowed subject property is per se agricultural land. 1000 Friends, 85 Or App at 22-23. The application is based on three false premises. First, that Goal 3 and OAR 660-033-020 do not define agricultural land 2 ORS 197.175(2)Pursuant to ORS chapters 195, 196 and 197, each city and county in this state shall: (a) Prepare, adopt, amend and revise comprehensive plans in compliance with goals approved by the commission.***d) If its comprehensive plan and land use regulations have been acknowledged by the commission, make land use decisions and limited land use decisions in compliance with the acknowledged plan and land use regulations. Protecting Central Oregon’s Natural Environment And Working For Sustainable Communities 8 as land in land capability classification I, II, III, IV, V, and VI as determined by the NRCS; second, that an Order 1 soil survey affects the official NRCS land capability classification; and third, that a more detailed study is more "accurate." The Hearing Officer lacks the authority to approve a change in plan designation that violates the express language of the acknowledged comprehensive plan. Thank you for your attention to these views. Best regards, /s/ Carol Macbeth Carol Macbeth Staff Attorney