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Home My WebLink About2022-02-01 C Macbeth Comments (COLW) 247-21-0000616-PA, 617-ZC Protecting Central Oregon’s Natural Environment And Working For Sustainable Communities 2843 NW Lolo Dr., Ste. 200 | Bend, OR 97703 Phone: (541) 647-2930 www.colw.org February 2, 2022 Board of Commissioners Deschutes County 1300 NW Wall St. Bend, OR 97703 Re: No. 247-21-0000616-PA, 617-ZC; request to change agricultural land to rural residential Dear Commissioners: On behalf of Central Oregon LandWatch thank you for the opportunity to comment on the above matter. LandWatch respectfully urges the Board of Commissioners to reverse the Hearings Officer's decision and to deny the application to re-designate the subject property from Agriculture to Rural Residential Exception Area and to make a corresponding zone change from Exclusive Farm Use Tumalo/Bend subzone to Multiple Use Agricultural. All parties agree the land is classified by the U.S. Natural Resources Conservation Service (NRCS) as predominantly Class I-VI. The below photographs and attached maps demonstrate the same soil that predominates on the subject property is in use by farmers throughout Deschutes County for a variety of agricultural uses, including livestock and nursery. Att. 1-5. That this landowner does not choose to farm his agricultural land does not affect its capability. His choice to farm or not to farm affects neither the land's agricultural capability nor its legal definition. The land is agricultural land as a matter of law. Att. 1. The County is bound by the laws of the State of Oregon including OAR 660-033-0020(1)(a) which provides: (1)(a) Agricultural Land as defined in Goal 3 includes: (A) Lands classified by the U.S. Natural Resources Conservation Service (NRCS) as predominantly Class I-IV soils in Western Oregon and I-VI soils in Eastern Oregon; (B) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a), 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. Protecting Central Oregon’s Natural Environment And Working For Sustainable Communities 2 The subject land is agricultural land by definition. Att. 1. Many other, less capable lands are also included in the legal definition of agricultural land in Goal 3. But at a minimum, lands like the subject property which all parties agree is predominantly Class III when irrigated and Class VI when not irrigated as determined by the NRCS are agricultural land as a matter of law. The County is bound by the definition of agricultural land in OAR 660-033-0020(1)(a). The following lands are the same 38B as the subject property according to Deschutes County's own soil maps. Att. 2-5. The photographs are from Gosney Road, McCardle Road, Rickard Road, Arnold Market Road, Ropp Road, and Billadeau Road. This is a subset of the Deschutes County farms putting the same land to farm use in accordance with the NRCS land capability classification of Class III irrigated, Class VI not irrigated. Even not irrigated, Class VI lands are suited to the grazing of livestock, an agricultural use. Protecting Central Oregon’s Natural Environment And Working For Sustainable Communities 3 Protecting Central Oregon’s Natural Environment And Working For Sustainable Communities 4 Protecting Central Oregon’s Natural Environment And Working For Sustainable Communities 5 Protecting Central Oregon’s Natural Environment And Working For Sustainable Communities 6 The above lands are the same land as the developer's land and are in agricultural use. Deschutes County is bound by state law and is not free to find this land is not agricultural land when state law says that it is. OAR 660-033-0020(1)(a). The land must be inventoried as agricultural land according to the plain language of OAR 660-033-0030(1). That state rule provides: "OAR 660-033-0030, Identifying Agricultural Land (1) All land defined as 'agricultural land' in OAR 660-033-0020(1) shall be inventoried as agricultural land." Additional information may be used to qualify or disqualify other lands as agricultural land, but by the plain language of the applicable rules the land in question is "land defined as agricultural land in OAR 660-033-0020(1)" and therefore shall be inventoried as agricultural land. Rules regarding the circumstances in which additional information for other possibly agricultural lands may be provided are irrelevant. Those rules must be read in conjunction with OAR 660-033-0020(1) and OAR 660- 033-0030(1). There is no question the land is in land capability class I-VI as determined by the NRCS. The land is agricultural land as a matter of law, and must be inventoried as agricultural land. The developer's position is based on a false premise that the subject property was mischaracterized by Deschutes County as agricultural land at the time of acknowledgement or that the first NRCS Deschutes County Soil Survey was completed after the County's first comprehensive plan. This is incorrect. The NRCS characterized Deschutes County's agricultural land capability in 1958, and the first County comprehensive plan was in 1979. See Att. 6. As recently as 2014-2015 Deschutes County considered the County's agricultural land designations, preparing the Agricultural Lands Program Community Involvement Report, June 18, 2014, and found no errors in its Protecting Central Oregon’s Natural Environment And Working For Sustainable Communities 7 designation of EFU or forest lands. In response to the County's proposal to rezone EFU lands to MUA-10 in 2015 DLCD wrote to the County that there is no evidence that either the County's EFU lands or forest lands were incorrectly zoned at acknowledgement. Att. 7: “[The] department has been unable to determine the nature and scope of the mapping error the county intends to address. It is not apparent why the areas the county has shared with the department were incorrectly zoned at acknowledgment.” The land in question meets the definition of agricultural land under state law. The land is subject to Goal 3 and an exception to Goal 3 is required. Because the developer did not justify an exception to Goal 3 the proposed amendments must be denied. Thank you for your attention to these views. Best regards, /s/ Carol Macbeth Carol Macbeth Staff Attorney Central Oregon LandWatch United States Department of Agriculture Natural Resources Conservation Service In cooperation with United States Department of Agriculture, Forest Service; United States Department of the Interior, Bureau of Land Management; and Oregon Agricultural Experiment Station Soil Survey of Upper Deschutes River Area, Oregon, including parts of Deschutes, Jefferson, and Klamath Counties Upper Deschutes River Area, Oregon, Parts of Deschutes, Jefferson, and Klamath Counties 38B—Deskamp-Gosney complex, 0 to 8 percent slopes Map Unit Setting National map unit symbol: 247q Elevation: 3,000 to 4,000 feet Mean annual precipitation: 10 to 12 inches Mean annual air temperature: 47 to 50 degrees F Frost-free period: 70 to 90 days Farmland classification: Farmland of statewide importance Map Unit Composition Deskamp and similar soils:50 percent Gosney and similar soils:35 percent Estimates are based on observations, descriptions, and transects of the mapunit. Description of Deskamp Setting Landform:Lava plains Landform position (two-dimensional):Summit Landform position (three-dimensional):Interfluve Down-slope shape:Concave Across-slope shape:Concave Parent material:Volcanic ash over basalt Typical profile H1 - 0 to 10 inches: loamy sand H2 - 10 to 17 inches: loamy sand H3 - 17 to 32 inches: gravelly loamy sand H4 - 32 to 42 inches: unweathered bedrock Properties and qualities Slope:0 to 8 percent Depth to restrictive feature:20 to 40 inches to lithic bedrock Drainage class:Somewhat excessively drained Capacity of the most limiting layer to transmit water (Ksat):High to very high (5.95 to 19.98 in/hr) Depth to water table:More than 80 inches Frequency of flooding:None Frequency of ponding:None Available water supply, 0 to 60 inches: Low (about 3.7 inches) Interpretive groups Land capability classification (irrigated): 3e Land capability classification (nonirrigated): 6e Hydrologic Soil Group: A Ecological site: R010XA009OR - JUNIPER SHRUBBY PUMICE FLAT 10-12 PZ Map Unit Description: Deskamp-Gosney complex, 0 to 8 percent slopes---Upper Deschutes River Area, Oregon, Parts of Deschutes, Jefferson, and Klamath Counties Natural Resources Conservation Service Web Soil Survey National Cooperative Soil Survey 9/21/2021 Page 1 of 2 Hydric soil rating: No Description of Gosney Setting Landform:Lava plains Landform position (two-dimensional):Summit Landform position (three-dimensional):Interfluve Down-slope shape:Concave Across-slope shape:Concave Parent material:Volcanic ash over basalt Typical profile H1 - 0 to 2 inches: stony loamy sand H2 - 2 to 14 inches: loamy sand H3 - 14 to 24 inches: unweathered bedrock Properties and qualities Slope:0 to 8 percent Depth to restrictive feature:10 to 20 inches to lithic bedrock Drainage class:Somewhat excessively drained Capacity of the most limiting layer to transmit water (Ksat):High to very high (5.95 to 19.98 in/hr) Depth to water table:More than 80 inches Frequency of flooding:None Frequency of ponding:None Available water supply, 0 to 60 inches: Very low (about 1.6 inches) Interpretive groups Land capability classification (irrigated): 7e Land capability classification (nonirrigated): 7e Hydrologic Soil Group: D Ecological site: R010XA023OR - JUNIPER SHRUBBY LAVA BLISTERS 10-12 PZ Hydric soil rating: No Data Source Information Soil Survey Area: Upper Deschutes River Area, Oregon, Parts of Deschutes, Jefferson, and Klamath Counties Survey Area Data: Version 17, Sep 14, 2020 Map Unit Description: Deskamp-Gosney complex, 0 to 8 percent slopes---Upper Deschutes River Area, Oregon, Parts of Deschutes, Jefferson, and Klamath Counties Natural Resources Conservation Service Web Soil Survey National Cooperative Soil Survey 9/21/2021 Page 2 of 2 Subject Property Predominantly 38B according to NRCS official soil survey data imported to Deschutes County GIS Attachment 2 Deschutes County GIS map 38B lands in agricultural use Attachment 3 Deschutes County GIS map 38B lands in agricultural use Attachment 4 Deschutes County GIS map 38B lands in agricultural use Attachment 5 Deschutes County GIS map 38B lands in agricultural use Oregon John A. Kitzhaber, M.D., Governor Department of Land Conservation and Development 635 Capitol Street NE, Suite 150 Salem, Oregon 97301-2540 Phone: (503) 373-0050 Fax: (503) 378-5518 www.oregon.gov/LCD January 8, 2015 Deschutes County Planning Commission SENT VIA E-MAIL c/o Nick Lelack, Community Development Director 117 NW Lafayette Avenue Bend, Oregon 97701 RE: HB 2229 question regarding scope of review Deschutes County planning staff has requested the opinion of the Department of Land Conservation and Development (the department) on whether HB 2229 requires all, or most, farm- or forest-zoned lands in a county to be considered in a “reacknowledgment” process, or whether smaller, non-contiguous tracts could be considered as the first phase of a multi-phase reacknowledgment process. County staff described several non-contiguous problem areas. The county stated that its goal was “for partially platted subdivisions zoned for EFU or Forest to be legislatively rezoned to MUA- 10.” Department staff consulted with county staff on these areas, and studied maps of five of the areas and past county attempts to find solutions. The total acreage of these areas equals about 840 acres. Analysis HB 2229 is memorialized at Chapter 873 Oregon Laws 2009. The relating clause “Relating to recommendations of the Oregon Task Force on Land Use Planning…” gives an indication that certain themes in the bill originated with “The Big Look.” A theme that wound through the Big Look was that land use laws should treat different regions of the state fairly, recognizing the geographical, ecological and cultural aspects of each region. Section 2(B) of HB 2229, for example, directs that the Land Conservation and Development Commission to “consider the variation in conditions and needs in different regions of the state and encourage regional approaches to resolve land use problems.” For this discussion, section 5 of HB 2229 is applicable. A portion of section 5 is provided below. SECTION 5. (1) For the purposes of correcting mapping errors made in the acknowledgment process and updating the designation of farmlands and forestlands for land use planning, a county may conduct a legislative review of lands in the county to determine whether the lands planned and zoned for farm use, forest use or mixed farm and forest use are consistent with the definitions of “agricultural lands” or “forest lands” in goals relating to agricultural lands or forestlands. Deschutes County Planning Commission Page 2 of 3 January 8, 2015 (2) A county may undertake the reacknowledgment process authorized by this section only if the Department of Land Conservation and Development approves a work plan, from the county, describing the expected scope of reacknowledgment. The department may condition approval of a work plan for reacknowledgment under this section to reflect the resources needed to complete the review required by sections 7 and 13 of this 2009 Act. The work plan of the county and the approval of the department are not final orders for purposes of review. (3) A county that undertakes the reacknowledgment process authorized by this section shall provide an opportunity for all lands planned for farm use, forest use or mixed farm and forest use and all lands subject to an exception under ORS 197.732 to a goal relating to agricultural lands or forestlands to be included in the review. This states that the county may undertake a “reacknowledgement” process by conducting a legislative review for the purpose of correcting mapping errors made during its original acknowledgment. Determining whether a proposal is a “legislative review” requires consideration of three questions: 1. Is the process bound to result in a decision? 2. Is the decision bound to apply preexisting criteria to concrete facts? 3. Is the action directed at a closely circumscribed factual situation or a relatively small number of persons? This is not a “bright line” test. The more definitively these questions are answered in the negative, the more likely the process is legislative. In this case, the answer to question 1 is clearly no. Regarding question 2, the project would be subject to existing criteria in (at least) Goals 3 and 4 and HB 2229; it is typical for goals and statutes to apply to local legislative decisions, however, so this is not determinative but it does lend additional weight to question 3. Regarding question 3, the department is uncomfortable determining that the county is proposing a legislative review when it includes only 840 acres in five areas. We don’t know the number of “persons” it would be directed at, but the number can’t be very large. Section 5 states the review is of “lands in the county” and that the county must provide an opportunity for all lands in a resource zone to be provided an opportunity for consideration. While the phrase “lands in the county” is not entirely clear, the department’s understanding of the legislative intent is that the reference to “lands in the county,” when combined with the “legislative review” language, is that counties are not authorized to (1) set up a framework in the comprehensive plan and then require individual applications for re-designation of land or (2) pick and choose small areas to review. While we do not find that the county must review all land in the county, we would be most inclined to approve a work program that includes some major region defined by geographic characteristics rather than by property or subdivision boundaries. Additionally, the county may not pre-determine specific areas for review, as subsection 5(3) requires the county to provide an opportunity for all farm and forest land to be considered. If the Deschutes County Planning Commission Page 3 of 3 January 8, 2015 county receives a request to review an area that is not included in the original proposal, the county must review it. As explained above, we believe that this area must be a geographic area of the county and not individual properties or subdivisions. Regarding phasing of review, the department would entertain a work program that lays out the project in pieces, but those pieces should each address a substantial part of the county and address all the other requirements of HB 2229. Additional Consideration Considering other aspects of HB 2229 not related to your question, the department has been unable to determine the nature and scope of the mapping error the county intends to address. It is not apparent why the areas the county has shared with the department were incorrectly zoned at acknowledgment, and this is a fundamental aspect of the bill. If the county chooses to move forward with a work program, the county will need to demonstrate that the HB 2229 process is an appropriate vehicle for addressing the county’s needs. Summary The department does not read HB 2229 to require the county review all farm and forest lands in the county under the provisions of section 5 of the law. On the other hand, we do not find that it permits the county to look only at small areas defined by existing subdivisions, but instead requires a review of a substantial part of the county. We look forward to working with Deschutes County as it considers whether to submit a work program for a project to correct mapping errors in its rural zones under HB 2229. We hope this adequately answers your question, but we are available for further consultation if it does not. Sincerely, Rob Hallyburton Community Services Division Manager cc: Scott Edelman, Regional Representative Jon Jinings, Community Services Specialist Michael Morrissey, Rural Policy Analyst