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Home My WebLink About2021-10-15 L Fancher - Rebuttal and Final ArgumentLU TANCHER, ATTORNry October 15,2021 STEPHANIE MARSHALL, HEARINGS OFFICER C/O KYLE COLLINS, ASSOCIATE PLANNER DESCHUTES COUNTY CDD PLANNING DIVISION 117 NW LAFAYETTE AVENUE BEND, OR 97703 Re: 247-21-000616-PA, -000617-ZC, Swisher PlanAmendment and ZoneChange I am writing this letter to accompany the applicant's rebuttal and final argument for the above-referenced applications and to identifu each of the documents I am filing. The applicant waives the final argument period set to end on October 22,2021 unless another party also files comments during this rebuttal period. Rebuttal to COL\il Late-Filed Post-Hearing Comments october 14,2021Letter from Andy Gallagher, Soil Scientist and Classifier Rebuttal and Final Argument October 15,2021 Applicant's Rebuttal and Final Argument Burden of Proof Statement andApplication Revised for FinalArgument - October 15,2021 Documents Previously Filed but Not Included in Record on Accela The following documents were filed by the applicant with the County on September 13, 2021 and September 21,2021 for inclusion in the record. They have not been posted to the record. As a result, I am filing them at this time so they will be available for review by the hearings offtcer. The September 13, 2021 comments were discussed by staffat the land use hearing on September 21,202I and both documents were mentioned by the applicant's attorney at that time. September 13,2021E-Mail to Kyle Collins fromLizFancher with "Applicant's Response to Neighbor Comments" document September 21,202I E-Mail to Kyle Collins fromLizFancher with "Applicant's Response to StaffReport/Supplement to Burden of Proof' -2-NIay 24,2021 The content of the September 2I, 2021 e-mail has been edited and included in the Burden of Proof Revised for Final Argument filed on October 15,2021. It is included simply to correct the record. I also wish to point out that the original burden of proof, staff report and COLW argument dated September 28,2021 all misquote the text of the comprehensive plan relevant to the County's review of this application for Policy 2.2.3 and the text of Section 3.3, Rural Housing. The underlined text shown below was inadvertently left out of the text of the policy and text. Policy 2.2.3 Allow comprehensive plan and zoning map amendments, including for those that qualifr as non-resource land, for individual EFU parcels as allowed by State Statute, Oregon Administrative Rules and this Comprehensive Plan. Section 3.3, Rural Housing Rural Residential Exception Areas ,( ts r( In 1979 the County assessed that there were over 17,000 undeveloped Rural Residential ExceptionArea parcels, enough to meet anticipated demand for new rural housing. As of 2010 any new Rural Residential Exception Areas need to be justified through initiating a nonresource plan amendment and zone change bv demonstrating the propertv does not meet the definition of agricultural or forest land. or taking exceptions to farm, forest, public facilities and services and urbanization regulations, and follow guidelines set out in the OAR. Thank you for your consideration of this matter Sincerely, LtATanc,lvr Liz Fancher 2465 NS7 SACAGAWEA LANE . BEND, OREGON . 97703 PHONE 541-385-3067 BEFORE, THE HEARINGS OFFICER FOR DESCHUTES COUNTY, OREGON FILE NUMBERS:247 -2r -0006 I 6-PA/0006 I 7-PA APPLICANT:Dave Swisher OWNERS:Don Swisher Trust Carolyn J Swisher Trust MacCloskey Revocable Trust ATTORNEY:Liz Fancher 2465 NW Sacagawea Lane Bend, OR 97703 54t-38s-3067 liz@,lizfancher.com REQUEST:Plan Amendment from Agriculture to RREA and Zone Change from EFU to MUA-10 HEARINGS OFFICER:Stephanie Marshall Kyle Collins, Associate PlannerPLANNER: APPLICANT'S REBUTTAL AND FINAL ARGUMENT Property Clearly Unsuited for Resource Use The evidence in this matter is clear. The subject property is not suitable for farm use or forest use. As stated by adjoining property owner Sue Conrad "there is not a lot of potential for farming that 80 acres."l As Ms. Conrad observed in pre-hearing comments "[s]ince there is rock at the surface of our 2-ll2 acres in many places, this [development of homes on the Swisher Trust property] will most likely involve extreme measures for the foundation." Land of this type is not "agricultural land" of the type Statewide Land Use Planning Goal 3 seeks to protect. Like the Conrad property, there is rock at the surface in many places throughout the subject property. A set of ten photographs have been filed with the County to illustrate the fact that this is the condition of the property. The following is one of those photographs: I This comment was offered in Ms. Conrad's testimony at the 9l2Il202l hearing. Page 1 - Rebuttal and Final Argument 247-21-000616-PAl000617-PA Page2 - Rebuttal and Final Argument 247-21-000616-pAl000617-pA Ms. Conrad argues that EFU zoning and Oregon's statewide land use planning require that this property be remain undeveloped open space and that the Swishers purchased the property knowing it could not be developed. Her arguments against approval of the zone change and plan amendment assume that retaining EFU zoning will assure that the Swisher/MacCloskey property will remain undeveloped. This is an unwarranted assumption. EFU zoning does not preclude development of the Swisher/MacCloskey property. The EFU zoning that applies to the property now allows the applicant to seek approval of any of following developments without approval of the requested zone andplan change:2 Nonfarm dwelling on each of the two parcels. Two non-irrigated land divisions to create four nonfarm parcels and nonfarm dwellings Home occupations (businesses) in each nonfarm dwelling and accessory buildings. Room and board of up to five unrelated persons in each nonfarm dwelling. Exploration for minerals or geothermal resources. Mining and processing of geothermal resources or natural gas or oil (if found on the property). Fire service facilities providing rural fire protection services. Outdoor mass gatherings allowed by ORS 197.015(10Xd). Church/religious institutions. Public or private school (K-12) Utility facilities, including photovoltaic solar farms and wind power generation. A site for take-off and landing of model aircraft, including associated buildings and facilities. Dog training classes or testing trials. Dog boarding kennel. Public park and playground. Community center for rural community. Personal use airport. Living history museum. Operations for the extraction and bottling of water. Equine and equine-affiliated therapeutic and counseling services. If the property contained soils that could support farm use, the property might qualify for approval of the following additional uses: Outright Uses Farm use, including dairy. Farm buildings. Land application of reclaimed water, agricultural process or industrial process water or biosolids or onsite treatment of septage related to farm use. 2 Most listed uses require County review either to confirm they meet special provisions to be allowed without conditional use review or to demonstrate they meet conditional use criteria. Mining and processing would occur only if a resource is determined to be present on the property. Some uses such as a fire station are allowed subject only to site plan review. Page 3 - Rebuttal and Final Argument 247-21-000616-PAI000617-PA Composting in conjunction with farm use. Outright Uses if Meet Special Provisions Dwellings in conjunction with farm use. Relative farm assistance dwelling. Winery (includes events) (also brewery and cidery allowed by State law). Farm stand. Processing of farm crops or production of biofuel. Agri-tourism and other commercial events. Conditional Uses Commercial activities in conjunction with farm use. Propagation of aquatic species, including insects. Landscape contracting business. Additionally, the uses permitted outright in the MUA-10 zone are much more limited than the uses allowed outright in the EFU zone. Compare, DCC 18.32.020 (single-family dwelling, stables, horse events, Type I home occupation and other uses allowed in EFU zone) with DCC 18.16.020 and 18.16.025(exploration of minerals, fire service facilities, exploration and production of geothermal resources, outdoor mass gathering, composting, relative farm assistance dwelling, church and cemeteries, utility facilities including wetland waste treatment systems, winery, farm stands, model aircraft "airport," processing farm crops).3 Given these facts, it is clear that a change of zoning will not materially alter the impacts on neighbors and the environment that may occur as a result of development of the property. Goal 3 "Agricultural Land" COLW argues that it is impermissible for the County to rely on the Order I Red Hill Soils/Gallagher soils survey because the NRCS conducted a less-detailed soil survey that included the subject property. This same argument was presented rejected by LUBA in Central Oregon LandWatch v. Deschutes County (Aceti), _ Or LUBA _ (LUBA No. 2016-012, August t0,20t6). In Aceti, COLW argued that the results of an Order 1 soils survey were not supported by substantial evidence because the NRCS soil survey provides conflicting information. LUBA found that OAR 660-033-00030 allows the county to rely on more detailed data on soil capability than provided by NRCS soil maps to define agricultural land provided the soils survey has been certified by DLCD. LUBA also noted that'NRCS maps are intended for use at a higher landscape level and include the express statement "Warning: Soil Ratings may not be valid at this scale." The Red Hill Soils survey is an Order I soils survey and has been certified for use by the counff by DLCD. As a result, COLW's arguments lack merit. The following is step-by-step analysis of the applicable law that shows why LUBA's decision is correct: 3 We have not listed uses that are essentially similar to uses allowed in the other zoning district. Page 4 - Rebuttal and Final Argument 247-21-000616-PAl000617-PA Goal 3's definition of "agricultural land" does not say that counties must rely on the soils maps and ratings provided by NRCS soil surveys. Instead, it says that the determination of whether soil is agricultural land is based on the soil classes (I-Vn) described in the Soil Capability Classification System of the US Soil Conservation Service. COLW's arguments erroneously conflate the two (soil classification system and soils mapping). The following is the relevant part of the Goal 3 definition: "Agricultural Land - *** in eastern oregon is land predominantly ClassI il, III, IV, V and VI soils as identified in the Soil Capability Classification System of the United States Soil Conservation Service ***" The Soil Capability Classification System of the US Soil Conservation Service is the system of Land Capability Classification (LCC) used by the soil conservation service. It is described on page 187 of the Soil Survey of Upper Deschutes River Area, Oregon (hereinafter "NRCS Soil Survey") we filed as post-hearing evidence. This is the system that defines soil based on a rating scale of I through VIII based on characteristics of the soil. It is not an NRCS soil survey or survey maps that show the approximate locations of soil map units based on landscape level soils work. OAR 660-033-0020(1)(aXA), Definitions, broadens the definition of "agricultural land" provided in Goal 3 to include "lands classified by the US Natural Resources Conservation Service (NRCS) as predominantly *** Class I-VI soils in Eastern Oregon." This broadening, however, does not remove the language of Statewide Goal 3 that specifically allows counties to rely on more detailed soils data to determine whether land is or is not "Agricultural Land." Goal 3 says: "More detailed soil data to define agricultural land may be utilized by local governments if such data permits achievement of this goal. " The purpose of Goal 3 is to preserve agricultural land. It is not intended to preserve land that does not meet the definition of "agricultural land." A more detailed soils study helps Counties properly sort one from the other by making a better determination of whether land qualifies as agricultural land due to soil classification (LCC). The Oregon Legislature adopted ORS 215.211(1) to assure property owners the right to provide local governments with more detailed soils information than provided by the NRCS's Web Soil Survey to "assist a county to make a better determination of whether land qualifies as agricultural land." ORS 215.211 sets the conditions for such "more detailed" surveys. It requires that soil scientists who conduct the assessment belong to the narrow pool of persons who are soils classifiers and are certified in good standing with the Soil Science Society of America. It also requires that reports be reviewed by DLCD before use by local governments in deciding whether land qualifies as agricultural I 2 J Page 5 - Rebuttal and Final Argument 247-21-000616-PAl000617-pA 4. land. Mr. Swisher obtained DLCD's permission to rely on the Red Hill Soils/Gallagher soils study to address the "agricultural land" issue. LCDC's Goal 3 rules state that property owners may to rely on more detailed data to define "agricultural land." The rules require that the more detailed data be related to the NRCS land capability classification system (LCC) which places soils in LCC I-Vm based on their suitability for agricultural use. OAR 660-033-0030(5)(a). This system is explained on page 187 of the Soil Survey of the Upper Deschutes River Area published by the NRCS (submitted by applicant in the first post-hearing open record period). Subsection (5Xb) of oAR 660-033-0030,Identifying Agricultural Land, says: "If a person concludes that more detailed soils information than that contained in the web soil survey operated by the ffftcE would assist a county to make a better determination ofwhether land qualifies as agricultural land, the person must request that the department arrange for an ossessment of the capability of the land by a professional soil classifier who is chosen by the person using the process in OAR 660-033-0045. " The applicant followed the process in OAR 660-033-0045 to obtain permission to provide the County with more detailed soils information about the subject property. He hired a soil scientist certified by DLCD to conduct a more detailed soils study related to the soil classihcation system of the NRCS, Andy Gallagher of Red Hill Soils. The detailed Order I soil study prepared by soil classifier Andy Gallagher was then reviewed and approved for use by Deschutes county by DLCD. It is clear that the report is expected by DLCD to be used in this zone change and plan amendment application because OAR 660-033-0030 (s)(cXA) says the soils study rules apply to: "A change to the designation of a lot or parcel planned and zoned.for exclusive farm use to a non-resource plan designation and zone on the basis that such land is not agricultural land. " The fact that the soils report must report results based on the NRCS soil classification makes it clear that its classification based on the NRCS system may be used in lieu of the more general information on the topic provided by the NRCS soils study to determine whether a properly meets the definition of agricultural land. COLW's argument to the contrary, therefore, should be rejected as it renders meaningless the LCC-based survey results that must be provided to the county to decide whether a property is "agricultural land." DLCD describes its understanding of the role NRCS soils mapping and the more detailed soils surveys play in defining "agricultural land" on its website as follows: "Soil mapping done by the USDA Natural Resources Conservation Service NRCS) is the most common tool usedfor identifying the types of 5 Page 6 - Rebuttal and Final Argument 247-21-000616-PAI000617-PA 6. soils in an qrea. The NRCS provides a ratingfor each soil type that indicates how suited the soil is for agriculture. *** NRC,S does not have the ability to map each parcel of land, so it looks to larger areas. This means that the map may miss a pocket of dffirent soils. DLCD has a process landowners can use to challenge NRCSsoils information on a specific property. Owners who believe soil on their property has been incoruectly mapped may retain a 'professional soil classifier ... certified by and in good standing with the Soil Science Society of America' *** through a process administered by DLCD. This soils professional can conduct an assessment that may result in a change of the allowable uses for the property. " COLW's argument that the less-detailed NRCS soil study conducted at a landscape level must control over the more detailed information provided by an Order I soils survey for a particular property is illogical. It is an argument rejected by the Oregon Legislature when it adopted ORS 215.211 and by DLCD. The NRCS itself also states that "fa]lthough soil survey information can be used for general farm, local, and wider area planning, onsite investigation is needed to supplement this information in some cases. x* Great differences in soil properties can occur within short distances." Custom Soil Resource Report obtained from NRCS Web Soil Survey. In the Soil Survey of Upper Deschutes River Area, the NRCS explains that the average size of the delineations of soils for the typical higher-level survey (Order 2) provided by NRCS maps is 40 acres. The smallest mapped delineation anywhere in the survey area is five acres. This confirms the fact that the survey is a landscape survey rather than a property-specific survey. It is entirely reasonable to assume that a more detailed review of a property will derive more accurate results because more soil samples will be taken and tested. More Detailed Soil Survey Results for the Subject Property The NRCS soil survey maps indicate that soils on the Swisher properties lie within large mapping unit of soils that are mapped as complexes. The 388 and 58C soils complexes both contain a mix of Deskamp and Gosney soils and the 58C soil complexes also contains rock outcrops. The Order I survey prepared by Mr. Gallagher of Red Hill Soils took a closer look and identified the location and amount of these soils that were expected to be found on the subject property by the NRCS. It shows that approximately 85% of the subject property contains soils properly classified LCC VII and VIII. This information allows the county to correct the "agricultural land" designation that was erroneously applied to the property in the past. Andy Gallagher is a certified soil classifier and scientist. He is highly qualified and approved by DLCD to classifr soils for consideration by the county in this type of land use application. Mr. Gallagher correctly classified land on the subject property using the land capability classihcation (LCC) system that must be used to classiff soil. His report was certified for use by the county in this proceeding by DLCD. PageT - Rebuttal and Final Argument 247-21-000616-PAI000617-PA Ms. Macbeth referred to high-value soil or farmland at the land use hearing. The subject property is not, however, "high-value farmland." As shown by the custom WebSoil Survey report filed in the record by the applicant, the NRCS survey maps indicate that the subject property is comprised of soil mapping units 388 and 58C. The custom report shows that neither soil complex is high-value soil. Additionally, the County's code correctly identifies all high- value farmland in Deschutes County as follows and shows that neither 388 nor 58 C soil mapping units are high-value soils: "High-value farmland" means land in a tract composed predominantly of the following soils when they are irrigated: Agency loam (2A and 2B), Agency sandy loam (lA), Agency-Madras complex (38), Buckbert sandy loam (23A), Clinefalls sandy loam (26A), Clovkamp loamy sand (27A and 28A), Deschutes sandy loam (31A, 318 and 32A), Deschutes-Houstake complex (338), Deskamp loamy sand (36A and 368), Deskamp sandy loam (378), Era sandy loam (44B and 45A), Houstake sandy loam (65A, 66A and 67A), Iris silt loam (68A), Lafollette sandy Ioam (7lA and 7lB), Madras loam (87A and 878), Madras sandy loam (86A and 868), Plainview sandy loam (98A and 988), Redmond sandy loam (104A), Tetherow sandy loam (150A and l50B) andTumalo sandy loam (152A and l52B). In addition to the above described land, high-value farmland includes tracts growing specified perennials as demonstrated by the most recent aerial photography of the Agricultural Stabilization and Conservation Service of the United States Department of Agriculture taken prior to November 4, 1993. For purposes of this definition, "specified perennials" meens perennials grownfor market or research purposes including, but not limited to, nursery stock, berries, fruits, nuts, Christmas trees or vineyards but not including seed crops, hay, pasture or alfalfa. Furthermore, the subject property does not have water rights, is not irrigated and, contrary to Ms. Macbeth's assertion, has no access to irrigation water. It has never been irrigated. It would not qualify to be inigated as imigating Class VII and VIII soil is not a beneficial use of water. Only inigated land, other than land used to grow specified perennials prior to November 4, 1993, is high-value farm land in Deschutes County. Response to COLW Arguments re Soils in Post-Hearing Comments COLW presented layperson arguments about soils mapping and the suitability of Soil Mapping Unit 388 for agricultural use. Andy Gallagher, a certified soil scientist and classifier certified by the State of Oregon to conduct more detailed soils surveys, has written letter dated October 14, 2021to respond to these arguments. The letter is being filed as apart of the applicant's rebuttal and final argument for this matter. The following are some of the key points made by Mr. Gallagher: 1. It would be a mistake to confuse farms in the photographs filed by COLW with the Swisher property. They have no bearing on the conditions that exist on the Swisher property which are "rough, rocky land, lava blisters and native vegetation, not farmland." Page 8 - Rebuttal and Final Argument 247-21-000616-P{000617-PA 2. COLW misstates the information provided by the NRCS soil survey 3. Even if the NRCS soil study data is used and the contrasting inclusions in the 38B soil mapping unit are correctly identified as Bedrock Outcrop, the subject property if predominantly Class VII and higher. 4. The Order 1 more detailed soil survey shows that the NRCS soil survey is very inaccurate for the Swisher property. Response to Argument that Approval of Goal Exceptions is Required COLW argues that the County's comprehensive plan says "no more housing will be approved [in rural residential areas] without the required exceptions fto Statewide Planning Goals]. Ms. Macbeth argues that exceptions to Goal 3, 11 and 14 are required. Ms. Macbeth quotes the comprehensive plan as saying the following: "In 1979 the County assessed that there were over 17,000 undeveloped Rural Residential Exception Area parcel, enough to meet anticipated demandfor 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 plan text is, however, misquoted. It does not require the applicant to obtain plan amendments in order to obtain approval of its application. The text of the comprehensive plan actually says: "In 1979 the County assessed that there were over 17,000 undeveloped Rural Residential Exception Area parcel, enough to meet anticipated demandfor new rurql housing. As of 2010 any new Rural Residential Exception Areas need to be justffied through initiating a non-resource plan smendment and zone change bv demonstratins that the propertv does not meet the definition of agricultural or forest land. or taking exceptions to farm, forest, public facilities and services and urbanization regulations, andfollow guidelines set out in the OAR. " COLW's argument that a goal exception is required by the comprehensive plan, therefore, is effoneous. The applicant's burden of proof and the staff report also misquote this section of the code. The applicant's attorney apologizes for this error and has provided a revised burden ofproofthat has been corrected to include the correct text of the comprehensive plan. A copy of the relevant page of the Comprehensive plan is provided on the following page so that the hearings offrcer may confirm that the text of this part of the plan is now coffectly quoted to include text regarding non-resource plan amendments and zone changes. The revised burden of proof also includes additional findings offered by the applicant in response to the staff report - most of which were filed with Deschutes County on September 2I,2021. Page 9 - Rebuttal and Final Argument 247-21-000616-PA/000617-PA SeotLaw s.B RJ raL tslottsLwg Background Housing is a basic need that provides not just shelter, but connection to a wider community. A variety of housing types and price points ensures options for people at different life stages and needs. Oregon's statewide planning program directs cities to retain an adequate amount of land to accommodate residential growth. Generally counties are directed to protect farms, forests and other rural resources like wildlife while limiting new rural development. This section of the Plan looks specifically at housing on existing and potential new parcels and how the County can support a diverse and affordable housing supply. Housing inside urban growth boundaries is addressed in Statewide Planning Goal 10, Housing and OAR 660-008. Statewide Goal 2, Land Use and Goal 14, Urbanization both have sections that address rural housing, supplemented by OAR 660-004 and 660-014. These rules refine how new rural residential lots can be created. The Deschutes County housing policies provide the framework for residential development. The policies further delineate the role of the County in facilitating the availability of an affordable and quality housing stock within both urban and rural communities. Rural Residential Exception Areas ln 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. ln 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 201 0 any new Rural Residential Exception Areas need to be justified through initiating a non- resource plan amendment and zone change by demonstrating the property does not meet the definition of agricultural or forest land, or taking exceptions to farm, forest, public facilities and services and urbanization regulations, and follow guidelines set out in the OAR. Rural Residential Exception Areas 2009 Source: County GIS dota. 71,000 acres of Rural Residential Exception Area (including right-of-way). 64,000 acres of Rural Residential Exception Area (excluding right-of-way). 24,750 Rural Residential Exception Area lots. I 8, 100 Rural Residential Exception Area lots that are developed Future of Rural Housing in Deschutes County ln looking at rural housing growth, it is important to find the balance between protecting rural values and protecting property rights. ln community meetings some people expressed concern over the level of new development that has been allowed while others highlighted the Drscnures Coururv ColpRenerusrvE PLAN - 201 I Cnnpr-eR 3 Runnl Gnowrn Mnrunceuexr Secrroru 3.3 Runnl Housrr.tc 5 One additional comprehensive plan policy, Policy 2.2.3, was also misquoted in the burden of proof and staff report. The policy includes the underscored text that makes it clear that non- resource land amendments are allowed: Policy 2.2.3 Allow comprehensive plan and zoning map amendments, including for those that qualifr as non-resource land, for individual EFU parcels as allowed by State Statute, Oregon Administrative Rules and this Comprehensive Plan. When a property owner demonstrates that their land is not Goal 3 "agricultural land," it may be rezoned to a rural residential zoning designation without need to obtain approval of a goal exception to Goal 3 or 4. The subject property is not Goal 4 forest land. Some juniper trees grow on the property but they are not a merchantable tree species. As shown by the County's zoning map, there is no forest land zoning within 7.5 miles of the property in any directions. No party has argued that it would be appropriate to inventory the property as forest land. The applicant is asking that the MUA-10 zoning district be applied to the subject property. It is a zone that is properly applied to areas designated RREA on the comprehensive plan map. This zone has been acknowledged by DLCD as limiting allowed development to rural development that complies with all other Statewide Goals including Goals 11 and 14. lt does not allow development that will violate Goal 11 or 14. DLCD also recognizes that rezoning "agricultural land" is permissible and does not require approval of a goal exception to Goals 3 or 4. It also states that this type of amendment is typically utilized to create rural residential parcels. In its 2019 "Rural.Resource Lands" research report on page 7, it says: "Presently, counties may designate rural resource lands through fwo methods. The first, ond to date only process utilized, is by identifying land that does not meet the definition of 'Agricultural Land' or 'Forest Land' and thus is not subject to Goal 3 or 4 protection. These lands ** *oy be developedfor residential and other uses not allowed infarm andforest zones. 'F{<{' Ten Oregon counties [including DeschutesJ have utilized this method to rezone landfrom EFU andforest. The primary purpose for nonresource designations qppears to be the creation ofrural residential parcels. *** These zone changes did not require an exceptionfrom Statewide Planning Goals 3 or 4." Erroneous Claim re Contents of Burden of Proof Asserted by Carol Macbeth at Hearing Ms. Macbeth made the erroneous claim at the land use hearing that the applicant's burden of proof asserts that there was no NRCS soil study that predates publication of the NRCS's Soil Survey of Upper Deschutes River Area. The burden of proof clearly indicates there were prior soil studies saying: "The [comprehensive planJ map was prepared prior to the USDA/NRCS's publication of the "Soil Survey of Upper Deschutes River Area, Oregon." This Page 11 - Rebuttal and Final Argument 247-21-000616-PA/000617-PA 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. The applicant and COLW have both filed copies of parts of the prior 1945 survey that was published in 1958 in the record. The survey was limited to farm land in the northeast part of Deschutes County only (see map on page 1 of 1958 Survey). It did not identifu and name the Deskamp and Gosney soils; the soils found on the subject property by the subsequent survey. Zone Change Criteria Ms. Conrad argued that approval of the zone change will fail to comply with DCC 18.136.020.C because the public interest is not best served by rezoning the property - that rezoning benefits only the current and future property owner and will harm others by adding new development to a property she erroneously believes cannot be developed. Ms. Conrad's argument, however, misses the mark. DCC 18.136.020.C does not require that the public interest be "best served" by rezoning. It required that changing the zoning will serve the public health, safety and welfare considering two factors - the availability and efficiency of providing necessary public service and facilities and whether impacts on sunounding land uses are consistent with specific goals and policies of the comprehensive plan. The burden of proof documents compliance with both factors based on a review of plan goals and policies and a showing that necessary services are available to serve the property. Ms. Conrad's specific concern about the availability of water is addressed by will- serve letters from Avion Water Company, Inc. which is willing to provide water service for the properties. Furthermore, irrigating the subject property in a vain and futile attempt to farm it would consume far more water than will be consumed by the relatively small number of rural residences that may be built on the property if this application is approved. Respectfully submitted this 15th day of October ,2021 LU?Ta'n&"et Liz Fancher, OSB# 812202 Attorney for the Applicant Page 12 - Rebuttal and Final Argument 247-21-000616-PAl000617-PA Andy Gallagher, Soil Scientist PO Box 2233 Corvallis, OR 97339 5 4L-7 4 5-7 87 8 avg@redhi 11soil, com October 14,2021 Stephanie Marshall, Hearings Officer c/o Kyle Collins, Associate Planner Deschutes County Plaruring Division 117 NW Lafayette Avenue Bend, OR 97703 This letter is in response to the letter and submissions dated September 28,2021, by Carol Macbeth, who is an employee of Central Oregon Landwatch (COL). In her long letter Ms. Macbeth references the soil assessment that I made for the Swishers on eighty acres northeast of Bend and while she does not deny any of the basic findings of my soil assessment report, there are a number of claims in her letter that are not comect. She submits aerial photographs and landscape images that seem to be selected specifically to mislead the decision makers by trying to portray this land as having much more agricultural potential than it has. The photos offered are claimed to be from land mapped as 388 and they may well be, but it is a mistake to confuse the farms in the pictures with this land, because this land is not 388. I did not map any 388 on the eighty acres, so all the landscape photos are irrelevant. If anything, these photos provide further evidence that the NRCS soil map here is unreliable" It raises suspicion that COL did not include photos of the Swisher property in their collection of photos. For if they had included photos of the Swisher's land the photos would have shown rough, rocky land, lava blisters and native vegetation, not farmland. For all the claims of the infallibility of the NRCS soil survey, the COL letter misstates the basic facts of what the NRCS mapped on this parcel. In the letter they erroneously claim the parcel is mapped as only Class III irrigated and Class VI noninigated soils. Why didn't the letter mention the Class VII and Class VIII land that is mapped here? The fact is that the 38B soil map unit is a complex. Soil complexes are used in soil mapping where two or more dissimilar soils are mapped together where they either follow a regular pattern or are unpredictable in distribution but are too complexly associated at the given scale to delineate individually and have a legible map. Typically, in a complex each major component occurs in each delineation, although the proportions may vary appreciably from one delineation to another. This last point is key in this case that the proportions may vary appreciably from one delineation to another. Also critical to this case is that if the soils are mapped as a complex and the percentages can vary appreciably from one delineation to the other then the NRCS soil survey does not actually report a hard number for acres of Class 3 and Class 6 soils as the COL lefier states and it is open to interpretation or better yet, more intensive soil mapping. More on this below. =()-trg ccrtified ARCPACS Certified Professional Soil Scientist/Soil Classifier The NRCS repofts that the 38B map unit includes 50% Deskamp (Class III irrigated and Class VI not irrigated), and35%o Gosney (Class VII), and l5oZ contrasting inclusions (unspecified). These percentages are reported in the Soil Survey of the Upper Deschutes River Area, Oregon, now part of WEBSOILSURVEY. Of course, these percentages in the NRCS soil survey are not hard facts but are ballpark estimates that vary appreciably between delineations. But if we take the percentages reported in the soil survey, and in this case the inclusions of Bedrock Outcrop would be contrasting, and then by NRCS's own numbers the property is 50% Class VII and Class VIII on the 38B map delineation that makes up 92Yo of this tract in the NRCS soil map. The other 8% of the tract is mapped as 58C which is the Gosney-Rock Outcrop unit, and the 58C map unit is by NRCS's own numbers 50% Gosney Class VII, 25yo Rock outcrop Class VIII and 20o/o Deskamp and 5% inclusions. Thus, using the NRCS soil map and their soil map unit descriptions (map components percentages) the soils would be predominantly Class VII and higher. Fine detail needed for land use decisions cannot usually be shown at the scale of the NRCS soil survey, nor is this the intent of the soil survey. The minimum size map delineation is very scale- dependent. This is where the Order- I soil mapping is important and provides a distinct advantage over the NRCS map. The Order- I soil survey map is a larger scale map and the minimum map delineation can be much smaller than at the Order-2 scale of the Soil Survey. More detail can be determined because there is more intensive sampling, and rnore detail can be shown because the map scale is larger. In Order- I soil survey maps most soils are mapped as consociations (delineated areas are dominated by a single soil component). Complexes can be used but are usually only mapped where there is not an interpretation difference between components of a complex. For example, on this site I mapped the Gosney- Bedrock Outcrop Complex, because both components are classified as Class VII or higher, there was no practical reason to map them separately and it was more realistic to map them together because they are intimately associated with each other. The intensive sampling of the Order-l soilsurvey supplies a much more realistic measure of map composition of a parcel than the NRCS soil survey. In this case, I was able to map the Deskamp soil as a consociation, separately from the Gosney and Bedrock Outcrop, which gets directly at the issue at hand here of calculating acreage of soils that are Class VI and lower and soils that are Class VII and higher. Another strength the Order- I soil survey has over the NRCS for detailed land use planning decisions is that all field observations are located with GPS and their positions are shown on the map and each profile is logged in the soil profile descriptions section of the report. This is verifiable information that the NRCS soil survey just does not have and cannot provide. If the NRCS soil survey is to be followed like a hard fact, then all the 388 map delineations would have to have the identical makeup of 50%o Deskamp, 35% Gosney and l5oh contrasting inclusions. This defies all reason and experience. These published percentages are simply an estimate based on limited data and projected over the survey area, and this is often far off from the truth on the ground. It is a mistake to believe that the percentages NRCS publishes are anything but the approximation of a concept. Instead of using the percentages that NRCS estimates for the soil complex, an Order- I soil survey provides a more accurate estimate of the percentages of the components. Or as in this case an Order-l soil suwey allowed Deskamp soilto be mapped as a consociation. The Order-l map is also more precise since instead of mapping two soils together they are mapped separately, and boundaries are identified with soil borings on either side of the line which makes a more accurate map. The COP letter refutes the applicants use of the word "accurate" and then provides a definition for accurate to mean free from error. The real issue is "map accuracy" which is based upon set standards for maps. National Map Accuracy Standard CNMAS) provides insurance that maps conform to established accuracy specifications, thereby providing consistency and confidence in their use in geospatial applications. An example of such a standard: "maps on publication scales larger than I :20,000, not more than l0 percent of the points tested shall be in enor by more than l/30 inch, measured on the publication scale; for maps on publication scales of l:20,000 or smaller, l/50 inch." The error stated is specific for a percentage of points, and to suggest that accuracy in maps is the unattainable freedom from error as the COL letter does, is not a relevant or a serious argument. When one map shows point data like an Order-1 soil survey the accuracy can be measured, and when another map does not (like the NRCS soil map) there is a shortage of infonnation, so the accuracy of the NRCS map cannot be determined for point data. The accuracy of the NRCS estimate of the percentage of components in the 388 soilcomplex can be shown to be very inaccurate in this case, and it clearly underestimates the class 7 and class 8. I apologize for the lengthy letter, but the COL letter confused many of the issues relative to soil mapping and the capability classes mapped here by NRCS and the value and rightful use of Order-l soilsurvey and the benefits they bring to the land use planning decision making. It is important to emphasize that the NRCS soil survey of this eighty acres is not conclusive in the percentages of Class VI and lower versus Class VII and higher as the COL letter strongly asserls. This is because NRCS mapped complexes that vary appreciably from one delineation to the other and the Class 7 and 8 components dominate in this case. Also, the high intensity sampling and larger scale of the Order-l soil survey remedies much of the inconclusiveness and other shortcomings of the NRCS map, and my Order-l soil map should be used to provide a better estimate of the soils found here. I also wanted to show that the landscape photos submitted by COL were not representative of the Swisher's land because Swisher's land is not 388 soils and does not have the agricultural potential of the farms shown in these photos. These photos from other areas do not show the Swisher's actual land at ground level and are irrelevant. Thank you, Andy Gallagher BEFORE THE PLANNING DIVISION OF DESCHUTES COUNTY, OREGON APPLICANT:Dave Swisher 250 NW Franklin Avenue, Suite 401 Bend, OR97703 Phone: 541-788-8971 E-mail : dav e@daveswisher.com APPLICANT'S ATTORNEY:Liz Fancher 2465 NW Sacagawea Lane Bend, Oregon 97703 Phone: 541-385-3067 E-mai I : liz@lizfancher. c om 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 l7-13-l8C ("Tax Lot 100',) Tax Lot 600, Assessor's Map 17-13-18 ("Tax Lot 600,,) 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 qualifi, as "Agricultural Land" pursuant to State Law and administrative rules. REQUEST: BURDEN OF PROOF STATEMENT AND APPLICATION REVISED FOR FINAL ARGUMENT - OCTOBER 15,2021 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 I of32 Title 18 of the Deschutes County Code, County Zoning. Chapter 18.16, Exclusive Farm Use (EFU) Zone Chapter 18.32, Multiple Use AgricultwalZone Chapter 1 8. 1 36, Amendments Title23 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 1 2, 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 ofTax 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. Property Size: Each tax lot is 40 acres in size Lot of Record: Deschutes County determinedin24T-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. 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 qualif' as "agricultural land" under state law or administrative rule. As a result, an exception to Statewide Planning Goal 3, Agricultural Land is not required. C D E. Zone Change/Plan Amendment - Swisher Page2 of32 F Site Description: The subject property is vacant and is not irrigated. It has no known history of farm use. The vegetation is comprised ofjuniper trees, sagebrush, rabbit brush 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 ofthe 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 88Yo of Tax Lot 100 is comprised of LCC 7 and 8 soils and 82Yo of Tax Lot 600 is comprised of LCC 7 and 8 soils. The remainder of each property is comprised of soils t-I!rrlri | | sEHb r{fun rcrpal! lhrnponr I I =:'I I III $ ihc ers r{f^r-(fiftrt I.R tr*,r:hlrS Zone Change/Plan Amendment - Swisher Page 3 of31 G 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 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. 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, 10.0,12.21and 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 Page4of3l 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 76lots 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-I0. ll l;i l, tl : i i I .R 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 northernmostparcel 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-I0. None of these properties appear to be engaged t.; : f.ll l;1. I r t ,l f,,ll l;"olrr f,,ll ld t ri Zone Change/Plan Amendment - Swisher Page 5 of31 in commercial farm use. The use of these properties is addressed again later in this document. 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. 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 at2500 NE Neff Road, H. I Zone Change/Plan Amendment - Swisher Page 6 of31 J 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. Relevant Land use History:. rn1979, 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 USDAAtrRCS'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 I soils survey that is apart 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 215.21l, 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 17,202L 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 noffesource 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 ofzone change and plan amendment include: ordinance No.2013-009 for File PA-lr-,zc-rl-2, state of oregonDSZ, 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 a Zone Change/Plan Amendment - Swisher Page 7 of31 nonagricultural land and that an RREA designation is appropriate for nonagricultural land. Ordinance No. 2017-007 for File 247 -16-0003 17 -ZCl31 8-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, P A-07 -l IZC-07 -1, Pagel, Exhibit J. Ordinance No. 2011-01.4, PA-08-IIZC-08-1, The Doniels Group, Exhibit K. Ordinance No. 2019-006, 247 -18-000485-P N247 -18-000486-ZC, Eastside Bend, LLC, F-xhibit 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: I 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. LUBA affirmed the County's determination that property that had been inigated 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 inigation, a fact confirmed by Central Oregon Irrigation District, Exhibit C. 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 acceptedfarm practice in Central Oregon to iruigate and cultivated poor quality Class VII and VIII soils - particularly where, qs here those soils are adjacent to rural industrial uses, urban density residential neighborhoods that complain about dust and chemicals and to high trffic counts on the surrounding roads and highways. Irrigating rock is not productive. " lnAceti, the County also found that commercial agricultural uses in the vicinity were limited. a a a a a 2 J Zone Change/Plan Amendment - Swisher Page 8 of31 III. 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." DISCUSSION OF RELEVANT APPROVAL CRITERIA AND APPLICABLELAW 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. RBSPONSE: 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 9 of31 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 fClass 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." The evidence clearly shows that the subject property is not agricultural land. The propert), is not comorised oredominatelv of Class VI or better soils. So. it does not qualitv for orotection as aericultural land based on the classification of its soils. Only if the extremely poor Class VII and VITI soils forrnd on the srrhiect nronertv "are suitable for farm use" takins into consideration a host of factors. Lands are suitable for "farm use" only if a farmer can expect a orofit from growins. crops or raisins.livestock onthe property. Wetherell v. Douglas Counv.342 Or 666. 160 P3d 614 (2007\. Class VII and VIII soils will 16.03% of farmers in Deschutes Countv made a profit in2017 accordins to the 2017 US Census in Deschutes Coun I can that the has Class VII and VIII soils of anv EFIl-zoned in the County. This makes it evident that it would be unreasonable for a property owner to expect to make a profit blu attempting to farm on the subiect property. never been and has no known Aooroximatelv 85% of the soils on the are Class VII and VIII nonasricultural soils. This nercentase is hisher than the nercentase these soils found to warrant rezonins to MIIA- 10 in the followins similar aonlications for lands on the eastside of Bend. The followins are the percentages: Eastside Bend. LLC 58% for TL 1600 and 1601 56%;ofor TL 1400 Porter Kellv Burns 67% Zone Change/Plan Amendment - Swisher Page 10 of31 DSL 5t.5% soils are so that the NRCS Soil S of savs that the soils "have verv severe limitations that make them unsuitable for cultivation." The LCC VII and VIII soils are described by soil scientist Andy Gallagher as predominantl)' shallow and ashv-skeletal with intersnersed rock outcrops. The onlv possible aericultural use of the propertv is livestock grazing. The soils report shows that these soils are so poor they produce half amount of bas classification - far below the level of forase duction expected on tyoical Central Orecon rangeland. Onlv 15 percent of the soils on the combined properties are rated Class VI and these areas are not use ven their limited extent and location. soils also "have serve limitations that make senerallv unsuitable for cultivation." thev are do not support the srowth of cultivated crops. Policy 2.2.2Exelusive Farm Use sub-zones shall remain as described in the 1992Farm 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, including for those that qualifr as non-resource land, 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-l l-llzc-ll-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, I6 Or LUBA 817, 820 (1988), there are two ways a county can justifu a decision to allow nonresource use of land previously designated and zonedfor 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 or Goal 4 applies to the property. Caine v. Tillamook County, 25 Or LUBA 209, 2I8 (1993); DLCD v. Josephine County, I8 Or LUBA 798, 802 (1990)." Zone Change/Plan Amendment - Swisher Page ll of31 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 2I5.203(2)(a), which means, in part, "the current employment of land for the primary purpose of obtaining aprofit 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 solls when irrigated and, when not iruigated 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 -16-0003 l7 -ZCl31 8-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 Goal3. In the DSI 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 3l Policy 2.2.13Identiff and retain accurately designated agricultural lands. RESPONSE: This plan policy makes it clear that it is county policy to identif' 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. Inigating 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 inigation 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 identi$ 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 of31 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 Counfy 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. o 2009legislation permits a new analysis of agricultural designated landso Exceptions can be granted from the Statewide Planning Goals o 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 qualiff as agricultural land that must be protected by Goal 3. The subject property also adjoins a sizeable area of property zoned MUA-I0 that is bisected by Butler Market Road. This area is developed with single-family homes. The MUA-I0 zone is a rural residential zone. It will provide for an orderly and effrcient 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 Section3.2. The staff report asks the hearings officer to determine whether the subiect orooertv 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 "asricultural land." 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 Zone Change/Plan Amendment - Swisher Page l4 of31 Community is designated Rural Residential Exception Area. The County had to follow a process under Statewide Goal2 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 initiatins a nonres nlan amendment and zone chanse demonstratins the nropertv does not meet the definition of agricultural or forest land. or 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 specifically allows the County to apply new Rural Residential Exception Areas to land that do not meet the dehnition of agricultural or forest land. This text is consistent with decisions of the Board of Commissioners that have desienated nonasricultural land RREA . dees-ne+$ar ees net te requi+e that exeeptiens be taken fer reseuree lands that reqnire rn exeeptien; net te require i€ns- As LUBA and the Oregon Supreme Court recognized in the Wetherell decision, there are two ways a county can justi$' 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 qualifu either as forest lands or agricultural lands under the statewide planning goals. Here, the applicant is pursuing the latter approach. The ion @ 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: "Ifind that Deschutes County has interpreted the RREA plan designation as the property " catchall " designation for non-resource land. " Zone Change/Plan Amendment - Swisher Page 15 of31 4.4 The comprehensive plan now recosnizes this fact. 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 Goal4 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 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 Agriculturctl 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 qf 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 ncttural and scenic resources; to maintain and improve the quality of the air, water and land resources o.f the County; to establish stondards and procedures for the use of those lands designated unsuitable for intense development by the Comprehensive Plan, and to provide for an orderly and fficient 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 Zone Change/Plan Amendment - Swisher Page 16 of31 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 inigation 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. 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 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. Zone Change/Plan Amendment - Swisher Page 17 of31 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 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 properfy 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 propertyin 1979 and 1980 when Deschutes County adopted zones, a zoning ordinanie and compr.tt""ri"" 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 ownerr *.r. 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 windowto 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 ofthe otherproperty owners of lands east of Bend received approval to rezone theirproperties from EFU to MUA-10 because their properties contained poor soils and were improperly inlluded in the EFU zone. The soils on the subject property are similarly poor and also meril Vt-Ua-l0 zoning to correct the "broad brush" mapping done in 1979 and 1980. Since 197911980, there is a change o? circumstances related to this issue. The County's comprehensive plan has been amend.a 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 hasgrown signincantty and its need for workers has increased. The area now includes The Acade-y it Sisters, a 20 student and20 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 grouna ana Zone Change/Plan Amendment - Swisher Page 18 of31 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). ln2}I2,the percentage was 16,45% (211 of 1283 farm operations) . In2007, according to the 2012 US Census of Agriculture, that figure was lTYo (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. C. STATE LAW L. Statewide Goal3 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 2I5.243 and215.700." Farm use is an activity undertaken for the purpose of making a profit in money. Goal 3 defines agricultural land. Most of the definition is restated in OAR 660-033-0020 which is addressed below. Goal 3- as it relates to eastern SAVS: Land _ ***is land Class VI. V and VI as identified in the Soil Capabilin Classifi cation Svstem of the Soil land use t soil other classes to pr(rctices to be undertaken on adiacent or nearbv lands.shall be included as agricultural land in anv event. More detailed soil data to de/ine apricultural land mav be utilized bv local governments if such data permits achievement o-f this qoal. Asricultural land does not include landwithin urban srowth boundaries or land with in acknowledged exceptions to Goals 3 or 4. Zone Change/Plan Amendment - Swisher Page 19 of31 Goal 3's definition of "aericultural land" makes it clear that "more detailed soil data" than the NRCS be used to define whether land is or is not tural stating "[m]ore detailed soil data to define aericultural land may be utilized by local sovernments if such data permits achievement of this soal." 2. OAR 550, 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: (lXa) "Agricultural Land" as defined in Goal3 includes: (A) Lands classilied 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 and82%;o 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)o 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 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 inigation water rights could be obtained for that purpose. The soils simply do not hold enough water to sustain and support crop growth. Zone Change/Plan Amendment - Swisher Page 20 of 3 I Given the high cost of irrigating and maintaining the property as pasture or cropland (high labor costs, labor-intensive, high cost of inigation equipment and electricity, high cost of fertrlizer, 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 and494 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 offorage).. On good quality forage, an animal unit will gain2 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 $ 1.15 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 x2#ldaylacre: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 Adjust expected income based on forage on subject property: 440 + 494 I 2: 467 pounds offorage per acre per year 467 pounds/90O pounds of forage per acre per year assumed in OSU formula : 5l.89Yo 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 oflivestock, veterinary costs, or any other costs of production which would exceed income. Property taxes, alone, were $4,341 .64 for the two tax lots in2020. 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: Zone Change/Plan Amendment - Swisher Page 21 of31 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 qualifu 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 LI.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 diffrcult 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 lrrigation Purposes: No new inigation 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 Inigation 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 inigation 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 zorttng. The subject property adjoins MUA-10 properties on the south and lots developed at a density of one lot per l0 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 altematives. Pumping irrigation water requires energy inputs. The application of lime and fertilizer typically requires the use of farm machinery that consumes energy. The inigation of Zone Change/Plan Amendment - Swisher Page22 of3l 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 occurs on Class VI non-irrigated soils. Crops are typically grown on soils rated soil class III and IV when irrigated. The predominant soils on the subject property do not fall into those categories. (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. ADJOTNTNG PROPERTTES TO THE WEST (SOUTH TO NORTH) Tax Mapn Lot and Size Use Potential Farm Practices Need Subject Property? 17-13-18CD 300 16.35 acres Small inigated 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 Inigated 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. Zone Change/Plan Amendment - Swisher Page 23 of31 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 aues Wilderness Horse Adventures (trail riding business not a farm use); dwelling. Grazing Dry lot feeding Fertilizing field Herbicide use Inigation No, TL 400 about 660' west of subject property. Horses used for trail riding out of area. Adjoins nonfarm dwelling. 17-13-18C 500 19.32 acres Nonfarm dwelling, inigated pasture for grazing. Grazing Fertilizing field Herbicide use Irrigation No, self-contained hobby farm use. 17-12-r3D 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-t2-l3D r00 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. l7-12-I3A r00 39.26 acres Inigated pasture; patchy growth of grass. Approved for Measure 49 dwelline. Grazing Fertilizing field Herbicide use Irrigation No, too remote (1320') and separated by other farm properties. 17-t2-13A200 Nonfarm parcel; Measure 49 dwellino approval. None No Zone Change/Plan Amendment - Swisher Page 24 of 3l r7-12-13A300 Inigated 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 eastem 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 inigated. 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. 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 grazeil; RESPONSE: The subject property is not and has not been apart 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. Oreson case law the meanins of this rule. It anolies to lands havearecentarecent historv of farm operations. In particular. it applies to prevent the creation of parcel of land out of a was Wetherell v. Douslas C . 235 Or Aoo 246. 230 P3d 976 rev den 349 Or 57 f2010). The rule is designed to prevent the "piecemeal fraqmentation" of large farm properties. The farm unit does not annlv to the subiect propertv because it has never been farmed and is a farm rule is not a does not sav that if anv part of a orooertv is comorised of Class VI better soils. it must be classified as agricultural land. Such a reading would eliminate the predominance and suitability tests nrescri bed Goal 3 to define "agricultural land-" Zone Change/Plan Amendment - Swisher Page 25 of31 (c) "Agricultural Land" does not include land within acknowledged urban growth boundaries or land within acknowledged exception areas for Goal3 or 4. RESPONSE: The subject property is not located in a UGB or exception area. oAR 650-033-0030 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, Goal3 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). 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-I0 zoning Zone Change/Plan Amendment - Swisher Page 26 of 3 1 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 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 364' soils on the southern two of these parcels that are high-value soils when inigated. 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 36,4' soils are an irrigated farm field. The 364 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 36,4' is found on the property to the south and it is also inigated but the parcel is not high-value farmland by definition. This field is about 500 feet west of the south part ofthe 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 Zone Change/Plan Amendment - Swisher Page27 of3I 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 Janu^ry 2r20l2,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 Iand 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. (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 l,20ll. 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 l,20ll. 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 Goal3 and OAR 660-033-0020. Zone Change/Plan Amendment - Swisher Page 28 of31 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 plano 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 systeml 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. (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. Zone Change/Plan Amendment - Swisher Page 29 of 3I 4. oAR 660. Division 15. statewide plannins Goals and Guidelines RESPONSE: Goal 1, Citizen Involvement. Deschutes County will provide notice of the application to thepublic 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 publi. hearings held regarding this application will be placed in the Bend Bulletin. A minimum of two p.rUtit hearings will be held to consider the application. GoalZ, 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 Goal2. Goal3, Agricultural Lands. The applicant has shown that the subject property is notagricultural land so Goal 3 does not apply. Goal4, 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 asforest 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 Goui +. - Cout 4 also says that "[w]here **a plan amendment involving forest lands is proposed, forest land shall includelands 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 forestedpart of Deschutes County. Goal5, Natural Resourceso Scenic and Historic Areas, and Open Spaces. The subject property does not contain any inventoried Goal 5 resources. Goal6, 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 theinigation and pond water rights associated with the property will ultimately be returned to the Deschutes River or used to irrigate productive farm ground found elsewheie in Deschutes County. Goal7, 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 comprehlnsive plan as aknown natural disaster or hazard area. Goal8, 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 thatmeet Goal 8 needs. Zone Change/Plan Amendment - Swisher Page 30 of31 Goal9, 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. Goal10, 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 zoningdistrict. Goal12' 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 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. Zone Change/Plan Amendment - Swisher Page 3l of3l