Loading...
HomeMy WebLinkAbout2021-10-05 L Fancher - Applicant Rebuttal CommentsBEFORE THE HEARINGS OFFICER FOR DESCHUTES COUNTY, OREGON FILE NUMBERS: 247-21-000616-PAl000617-pA APPLICANT:Dave Swisher ATTORNEY:Liz Fancher 2465 NW Sacagawea Lane Bend, OR 97703 s4t-385-3067 liz@lizfancher.com REQUEST:Plan Amendment from Agriculture to RREA and Zone Change from EFU to MUA-10 HEARINGS OFFICER:Stephanie Marshall PLANNER:Kyle Collins, Associate Planner APPLICANT'S REBUTTAL The applicant learned just before 10:00 am on October 5,2021that Central Oregon LandWatch belatedly filed a large set of post-hearing comments in the record of the above-referenced cases on October 5,2021. COLW had earlier misidentified and filed these documents in the record of another county case, File 247-21-000666-CU where they were not available to the applicant, hearings officer or county planner. The materials are voluminous. Consequently, the applicant has not had an adequate opportunity to respond. The materials do not rebut any of the materials filed by any party during the post-hearing comment period. According to DCC 22.24.I40.D., "Leaving record open. If at the conclusion of the initial hearing the Hearings Body leaves the record openfor additional written evidence or testimony, the record shall be left open for at least I4 additional days, allowing at least the first seven days for submittal of new written evidence or testimony and at least seven additional days for response to the evidence received while the record was held open. Written evidence or testimony submitted during the period the record is held open shall be limited to evidence or testimony that rebuts previously submitted evidence or testimony. " The "previously submitted evidence or testimony" that may be rebutted by COLW is evidence or testimony submitted during the prior, first post-hearing open record period. This is made clear by the fact that the second seven-day period is provided to respond to evidence received while the record was held open after the hearing. Attempts to resolve this issue with COLW that protect the applicant's right to respond but is not yet aware of the outcome of those efforts so provides the following responses. RECEIVEE ti,'r' $ ij "Ji]21 Deschutes CountY CDD Rebuttal to Timely Filed Documents Carol Macbeth E-mail of September 21, 2021 at 7:40 pm (after hearing) Ms. Macbeth filed an article written by Edward Sullivan re Statewide Land Use Planning Goal 3. The article and Ms. Macbeth correctly note that the State of Oregon chose to use the Soil Conservation Service soil capability ratings in classifying "agricultural land" entitled to protection by Goal 3. Ms. Macbeth erroneously claims that I, as the applicant's attorney, made statements to the contrary. It appears that Ms. Macbeth failed to understand my argument or to understand that a soil classification system and soil study maps are not one and the same thing. I pointed out that Goal 3 says: "Agricultural Land - *** in eastern Oregon is land predominantly Class I, II, ill, IV, V and VI soils as identified in the Soil Capability Classffication System of the United States Soil Conservation Service ***" I argued that Goal 3 does not say that "agricultural land" is land mapped by NRCS soil studies as Class I, II, III, IV, V and VI. That is a correct statement. DLCD rules supplement the goal. They say that NRCS mapped soils in Class I-VI are agricultural land but they also provide property owners with the right to challenge NRCS soil study results. This is done by hiring a certified soil scientist to conduct a more detailed soils study and obtaining DLCD approval to use the study in the present application. This right to challenge NRCS mapping is allowed both by the text of Goal 3 itself and by ORS 215.211. ORS 215.2I1, in the event of conflict, controls over conflicting provisions of the Goal 3 rules adopted by LCDC. E-Mailfrom Sue Conrad dated September 22, 2021 at 8:45 am Ms. Conrad argues that the approval of the zone change will not benefit anyone other than the developer and will unwind land use laws that protect agricultural land. The applicant disagrees that the subject property is agricultural land that is protected by Oregon land use laws. Therefore, they will not be unwound by approval of this application. We have filed ten photographs that show the condition of the land. These confirm our position and the results of the soils study that show that this property is not suitable for agricultural use and is not "agricultural land." The system designed to protect resource lands will in no way be harmed by allowing nonresource land to be developed with somewhat more housing than the four houses that should be able to be approved on this property given its current EFU zoning. Rebuttal of Late Filed Macbeth/COLW Comments Ms. Macbeth erroneously states that Goal 3 defines agricultural land as land in classes I-VI in eastem Oregon "as determined by the official NRCS soil survey." Goal 3 itself (as opposed to goal rules) does not say this. It merely requires use of the SCS soil classification system. Ms. Macbeth correctly notes that the applicant's land is mapped by the NRCS soil survey as being comprised predominantly of 388 soils. Lands that are predominantly 388 soils are stated by Ms. Macbeth as being "farmland of statewide importance" - not the superior high-value farmland claimed at the hearing. Ms. Macbeth, without legal support, asserts that while the law allows more detailed studies it does not allow soil scientist to challenge soil classifications. This is not coruect as the law specifically requires soil scientists to study and report on the soils based on the SCS soil classification system. OAR 660-033-0030(5)(a). It, therefore, is obvious that it is permissible to use the results of the soils survey to determine whether soils on a particular property are properly classified as being in Class I-VI. Nothing in the soils study rules suggests that ihe results of th.- study are confined to addressing the suitability of Class VII and VIII for farm use. The applicant's soils study shows that about 85% of the subject property is Class VII and VIIIsoil - something that is no surprise based on the condition of tn. p.operty shown in the following and attached photographs ofthe subject property. The Class 388 soils are a soils complex. This means that a large unit of land is mapped as containing a mix of soils of different types. In this case, the Deskamp soils are Class VI and the Gosney soils are Class VII. Soil classifier Andy Gallagher's soil survey that was approved by DLCD determined that the subject property contains much a higher percentage of Gosney and Class VIII rock outcrop soils than Deskamp soils than found in the entire Class 388 soil mapping unit that applies to the subject property. Ms. Macbeth filed color photographs of other Bend area properties that are mapped 388 by the NRCS soil survey. The pattern of development shown in the aeial photos is a mix of irrigated and non-irrigated land that is not in farm use - presumably a pattern dictated by the location of the suitable Deskamp and unsuitable Gosney soils. Large non-irrigated areas much like the subject property that are not employed in visible farm use are shown in Figure 1. Photos of farm pastures in areas allegedly mapped as being Class 388 soils by the NRCS soil survey were filed by Ms. Macbeth. The COLW photos prove little or nothing of relevance to the subject property because it is unknown whether any of the photographs depict land mapped Class 388 that is 85% Gosney soil or whether they are similar to the subject property. It is highly unlikely that they do. The subject property contains rock outcrops and surface rock not seen in Ms. Macbeth's photos of farm uses occurring on 38B soil (excluding the aerial photographs). Ms. Macbeth claims that the applicant could inigate the subject property by obtaining water rights to irrigate the subject property. The applicant disagrees. The subject property has no legal right to obtain water from Central Oregon Irrigation District. It has no access to inigation water. The subject property was previously owned by the district and it did not establish inigation water rights on the property. It is very telling that the district which delivers and holds inigation water rights chose not to irrigate its own property - most logically due to its nonagricultural soils. Furthermore, irrigation water must, by law, be put to beneficial use. Inigating land that is comprised of 85%o Class VII and VIII is not a beneficial use of water and one COID would surely not allow. Drilling a well and purchasing water rights to irrigate to inigate these nonagricultural soils in a futile attempt to farm them is cost prohibitive and not an accepted farm practice in Central Oregon. Such an approach would require a person farming good farm ground to retire their water right and transfer it to the applicant to inigate rocks because no new water rights are available in the Deschutes Basin to serve the subject property. See, photographs of the subject property. The following additional claims and implications contained in the Ms. Macbeth letter are mcorrect: " [TJhe NRCS soil mapping units are already the most detailed soils informationfor determining land capability class. " NRCS publications, State law re soil surveys and Ms. Macbeth' evidence makes it clear that NRCS soil survey maps are not the most detailed soil survey. The NRCS provides an Order 2 soil survey and Mr. Gallagher conducted a more detailed Order I survey. DLCD has confirmed, in its review of the soils report, that the Red Hill Soils/Gallagher soils report is more detailed than the NRCS soils survey. If it were not, DLCD would not have allowed the applicant to rely on the report in this proceeding. "Accuracy means free from ewor. " Accuracy is also defined by Webster's Third New International Dictionary (Jnabridged as it relates to measurement - the concept atplay here in calculating the amount and type of soil on the subject property - as "the degree of conformity to some recognized standard value accepted as true; deviation of a result obtained by a particular method from the value accepted as true." It would be disingenuous to "mislead" the Hearings Officer into believing that use of an Order l survey replaces or changes the NRCS soil survey - implying this is the applicant's argument. The applicant has not and need not even argued that this is the case. The applicant has argued that ORS 215.211 and DLCD rules specifically allow it to provide more detailed information about the soils found on the subject property to the County and that the County may rely on that information in determining whether the soils is predominantly Class I-VI soil and whether it is otherwise suitable for farm use. Respectfully submitted this 5th day of October ,2021 LizF for Applicant Dave Swisher osB #812202 ! tv ,'+t' ::l i _l. :'j: i t_.i ":t :i; 1{, .ii .':'!r':i ''.( !'f' "rth 'r'*"f. qF t l{ Jtq].'tlc-\:,&'.FJ. tr4.1| .;=,.4- ?t --v '.b'& ,l,'.i,tii'I ri.lIIt:lq:tlf.I;r,lf ifJtIi;3$:i,1,*'t',,{ , n!-;'L"i-" '