HomeMy WebLinkAbout2022-02-23 L Fancher - BOCC Final ArgumentPage 1 – Final Argument 247-21-000616-PA/000617-ZC
BEFORE THE BOARD OF COMMISSIONERS OF DESCHUTES COUNTY, OREGON
FILE NUMBERS: 247-21-000616-PA/000617-ZC APPLICANT: Dave Swisher
OWNERS: Don Swisher Trust
Carolyn J Swisher Trust MacCloskey Revocable Trust ATTORNEY: Liz Fancher
2465 NW Sacagawea Lane
Bend, OR 97703 541-385-3067 liz@lizfancher.com
REQUEST: Plan Amendment from Agriculture to RREA and Zone
Change from EFU to MUA-10 PLANNER: Kyle Collins, Associate Planner
APPLICANT’S FINAL ARGUMENT
SUMMARY OF RESPONSE TO COLW’S ARGUMENTS
Correction of Misunderstanding of Fact by COLW Central Oregon LandWatch has repeatedly made the erroneous claim that “all parties agree the [Swisher] land is classified by *** (NRCS) as predominantly Class I – VI.” In fact, all parties do
not agree. The NRCS soil survey shows that no mapping unit on the Swisher property is
comprised of more than 50% LCC I-VI soils. This makes it clear that LCC I-VI soils have not been classified by the NRCS as predominant (over 50%). The applicant’s soil scientist, Andy Gallagher, has written a letter (attached) that explains that the NRCS soil map for the Swisher property shows that the Swisher property is predominantly Class VII and VIII.
Legal Issue Raised by COLW COLW claims that the information provided by the Red Hill Soils/Gallagher Order 1 soil survey approved by the Department of Land Conservation and Development (“DLCD”) for use in this
proceeding to determine whether the Swisher property is or is not agricultural land must be
ignored County because it allegedly differs from the results of an NRCS soil study. This is not correct.
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OAR 660-033-0030(5) shows the fallacy of COLW’s argument. It says:
“(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 define agricultural land. However, the more detailed soils data shall be related to the NRCS land capability classification system.”
This rule requires that the Red Hill Soils data provided to Deschutes County “be related to the
NRCS land capability classification (LCC) system.” The LCC system rates soils LCC I through VIII. This rule says that this information “may be used to define agricultural land.” The Red Hill Soils study 85% of the Swisher property is comprised of Class VII and VIII soil.
OAR 660-033-0020(1) and OAR 660-033-0030(1) do not require the Board arrive at the absurd
conclusion that the Swisher property is “agricultural land” despite the fact only 15% of its soils are Class VI or better. State statutes, Statewide Goal 3 and other clearly written provisions of LCDC’s administrative rules specifically authorize the county to rely on this information instead of the data provided by the NRCS soils surveys.
COLW has made much the same argument, without success, in Central Oregon LandWatch v.
Deschutes County (Aceti), __ Or LUBA __ (LUBA No. 2016-012, August 10, 2016). In Aceti, LUBA found that the county’s reliance on the applicant’s more-detailed soils analysis prepared by soil scientist Roger Borine supported a finding that the Aceti property was “nonagricultural
land” even though the NRCS soil study mapped it as high-value farmland.
Requested Action The applicant asks the Board to approve its applications based on: (a) the Order 1 soils study that
shows that 85% of the Swisher property is comprised of LCC VII and VIII soils; and (b) the
NRCS Web Soil survey information that shows that the NRCS has not classified the Swisher property as predominantly comprised of NRCS LCC I-VI soils. NRCS SOIL STUDY DOES NOT CLASSIFIY OVER 50% OF THE SWISHER
PROPERTY AS BEING COMPRISED OF CLASS VI OR BETTER SOILS
OAR 660-033-0020(1)(a)(A),1 the rule COLW claims prohibits consideration of the Red Hill Soils report, does not require the County to classify the Swisher property as Agricultural Land. OAR 660-033-0020(1)(a)(A) says that agricultural land includes:
“Lands classified by the US Natural Resources Conservation Service (NRCS) as
predominantly *** Class I-VI soils in Eastern Oregon;” This rule applies only if the NRCS has classified the Swisher property as predominantly
Class I-VI soils – over 50%. It has not done so.
1 COLW has also argued that OAR 660-033-0030 requires that agricultural land be inventoried as such. The Swisher property is not, however, agricultural land.
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The NRCS Web Soil Survey for the Swisher property shows the following:
• Two mapping units exist on the Swisher property – 38B and 58C
• 50% of the 38B soil mapping unit is Class VI or better
• 20% of the 58C soil mapping unit is Class VI or better As no soil mapping unit classifies more than 50% of the property predominantly Class VI or better soils, it cannot be said that the NRCS has classified the Swisher property as predominantly Class I-VI soils. As a result, OAR 660-033-0020(1)(a)(A) does not require that the Swisher
property be inventoried as Agricultural Land. The applicant’s soils classifier, Andy Gallagher, agrees and has advised the county: “For all the claims of the infallibility of the NRCS soil survey, the COL letter
[filed with the hearings officer] 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 soils. Why didn’t the letter mention the Class VII and Class VIII land that is mapped here? ***
[U]sing the NRCS soil map and their soil map unit description (map
components percentages) the soils would be predominantly Class VII and higher.2 MORE DETAILED SOIL SURVEY RESULTS FOR THE SWISHER PROPERTY
An Order 1 detailed survey prepared Andy Gallagher of Red Hill Soils shows that approximately 85% of the subject property contains soils properly classified LCC VII and VIII. This information allows the county to find that the Swisher property is not “agricultural land.”
Andy Gallagher is a certified soil classifier and scientist. He is highly qualified and has been approved by DLCD to classify soils to assist the county in determining whether the Swisher property is or is not agricultural land. Mr. Gallagher classified land on the subject property using the land capability classification (LCC) system that must be used by him in his report to classify soil. His report was certified for use by the county by DLCD.
2 Mr. Gallagher’s letter says: “The NRCS reports that the 38B map unit includes 50% Deskamp
(Class III irrigated and Class VI not irrigated), and 35% Gosney (Class VII), and 15% contrasting inclusions (unspecified). ** [I]f 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 92% 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, 25% rock outcrop Class VIII and 20% Deskamp and 5% inclusions.”
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RIGHT TO RELY ON MORE DETAILED SOIL STUDY
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. As LUBA noted in Aceti: “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 following is step-by-step analysis of the applicable law that shows why LUBA’s decision in
Aceti is correct and COLW’s argument is not correct: 1. Statewide Land Use Planning Goal 3’s definition of “agricultural land” does not say that
counties must rely on the soils mapping completed by the NRCS. Instead, it says that the
determination of whether soil is agricultural land is based on the soil classes (I-VIII) described in the Soil Capability Classification System of the US Soil Conservation Service – the system used by Mr. Gallagher in his soils study.
The following is the relevant part of the Goal 3 definition:
“Agricultural Land - *** in eastern Oregon is land predominantly Class I, II, III, IV, V and VI soils as identified in the Soil Capability Classification System of the United States Soil Conservation Service ***”
The Soils Capability Classification System is a system of soils classification – the one used by Andy Gallagher; not an NRCS soils map or publication. 2. OAR 660-033-0020(1)(a)(A), Definitions, broadens the definition of “agricultural land”
provided by Goal 3 to include “lands classified by the US Natural Resources
Conservation Service (NRCS) as predominantly *** Class I-VI soils in Eastern Oregon.” This rule does not, however, remove the language of Statewide Goal 3 and LCDC administrative rules that specifically allow counties to rely on more detailed soil data than provided by the NRCS to determine whether land is “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 sort one from the other by making a better determination of whether land qualifies as agricultural land due to soil classification (LCC). 3. The Oregon Legislature adopted ORS 215.211(1). It says:
(1) If a person concludes that more detailed soils information than that
contained in the Web Soil Survey operated by the United States Natural Resources Conservation Service would assist a county to make a better
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determination of whether land qualifies as agricultural land, the person must request that the Department of Land Conservation and Development
arrange for an assessment of the capability of the land by a professional
soil classifier…” This text of this law gives the Swishers the legal right to obtain more detailed information than provided by the NRCS Web Soil Survey and provide it to the County to use in
making a better determination that provided by the NRCS survey about whether their
property is non-agricultural land. ORS 215.211 also requires that a soils classifier in good standing with the Soil Science Society of America prepare the report. Such a requirement would not be imposed unless it was expected that the soils expert would be classifying soils LCC I-VIII.
4. OAR 660-033-0030(5)(a) implements ORS 215.211. It makes the unambiguous statement that “[m]ore detailed data on soil capability than is contained in the USDA Natural Resources Conservation Service (NRCS) soil maps and soil surveys allowed by ORS 215.211 may be used by the county to define agricultural land” and requires that
this data “be related to the NRCS land capability classification system.” COLW’s claim
that the soils classification information provided by Mr. Gallagher in his soils report is “irrelevant” is false because it is specifically required by OAR 660-033-0030(5)(a). Soils classification information about the Swisher property would not be required if it
were not to be considered by the county. Instead, if COLW’s legal position were correct,
the rule would prohibit the soil scientist from providing soils classification information other than NRCS data. OAR 660-033-0030(5)(e) also confirms the fact that the land capability classification
information provided by the more detailed soils report (LCC I-VIII) may be used “in the
determination of whether a parcel qualifies as agricultural land” soils. Subsection (5)(e) says that the process for determining whether land is agricultural land is “not otherwise” affected – meaning that it is affected by the rule that allows reliance on the better soils classification information provided by the Red Hill Soils report.
5. COLW’s argument should also be rejected because as it violates Oregon rules of statutory construction. It ignores and effectively omits the provisions of ORS 215.211 and OAR 660-033-0030(5) that say that the information provided by a more detailed soils study that is required to classify soils LCC I-VIII may be used instead of the information
provided by the NRCS Web Soil Survey’s studies. ORS 174.010 plainly states that it is
not permissible for the county to “omit what has been inserted” in the law and that directs the county to give effect to all parts of the law. In this case, the interpretation that gives effect to all parts of the law is that land defined as LCC VI or better by the NRCS is agricultural land unless a more detailed soils information is provided in the manner
allowed by ORS 215.211, Statewide Goal 3 and OAR 66-033-0030.
6. COLW’s argument should be rejected because it is inconsistent with LUBA’s Aceti decision and LUBA’s decision in Wetherell v. Douglas County, 58 Or LUBA 101 (2008).
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In Wetherell, LUBA found it was appropriate for the county to rely on the applicant’s 2007 soil study for property that the NRCS soils survey mapped as predominantly LCC I-
IV, land meeting the definition of “agricultural land.”3 It should also be rejected because
COLW’s reading was reviewed and rejected by the Board of Commissioners in its decision approving the Porter Kelly Burns plan amendment and zone change nonagricultural land use application (a copy of this decision was filed as an exhibit to the Swisher land use application).
7. COLW’s argument should also be rejected because it is based solely on administrative rules and conflicts with a state statute, ORS 215.211. Where administrative rules and state statutes are in conflict the state statute controls. Wetherell v. Douglas County, 346 Or 666, 160 P3d 614 (2007).4 In this case, the state statute allows Deschutes County to
rely on the superior information offered by the Red Hill Soils report rather than soils
information provided by the NRCS soils survey. 8. 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 used for identifying the types of soils in an area. The NRCS provides a rating for each soil type that indicates how suited the soil is for agriculture. ***
NRCS 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 different soils. DLCD has a process landowners can use to challenge NRCS soils information on a specific property. Owners who believe soil on their
property has been incorrectly 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.”
RESPONSE TO COLW CLAIM THAT COUNTY DID NOT ERR IN MAPPING SWISHER PROPERTY AS AGRICULTURAL LAND IN 1979 COLW claims that the applicant’s position is based on a “false premise” that his property was
mischaracterized by Deschutes County as agricultural land before an NRCS soil survey was
prepared. This is not the applicant’s position. The applicant’s position is that new evidence
3 The specific issue raised by COLW was not raised in this Wetherell case but LUBA found that it was appropriate for the County to rely the applicant’s 2007 soils study to find that a majority of the land was non-agricultural soil for property the NRCS study showed otherwise.
4 LCDC rule that conflicted with ORS definition of “farm use” found to be invalid. The State statute controls where administrative rules and state statutes are in conflict.
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from a certified soil classifier demonstrates that its property was incorrectly identified as agricultural land when it was classified as such in 1979. If accurate information had been
available to the county at the time, the property should have been classified as non-agricultural
land. A soils study existed in 1979 but if was as detailed as the current Soil Survey of Upper Deschutes River Area, Oregon or the Red Hill Soils survey. It did not even include the soil mapping units currently mapped on the subject property by the NRCS soil survey.
COLW claims that Deschutes County considered the County’s agricultural land designations
when preparing an Agricultural Land Program Community Involvement Report dated June 18, 2014 and “found no errors in its designation of EFU or forest lands.” This claim is not supported by the DLCD letter COLW filed to support this claim. The DLCD letter shows that DLCD asked the why eight small areas of the County were incorrectly zoned; not whether all
agricultural lands in the County were incorrectly zoned. RESPONSE TO COLW PHOTOGRAPHS OF OTHER RURAL LANDS COLW’s February 2, 2022 and February 15, 2022 letters include photographs it claims “are the
same land as the developer’s land.” Certified soil scientist and classifier Andy Gallagher
responded to a similar claim and the same photographs in his letter to the hearings officer dated October 14, 2021 as follows: “She [Ms. Macbeth] submits aerial 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 38B and they may well be, but it is a mistake to confuse the farms in the pictures with this land [Swisher property], because this land is not 38B.
I did not map 38B on the eighty acres, so all the landscape photos are irrelevant.
If anything, these photos provide further evidence that the NRCS soil map is unreliable. It raises suspicion that COL did not include photos of the Swisher property in their collection of photos. For if they included photos of the Swisher’s
land the photos would have shown rough, rock land, lava blisters and native
vegetation, not farmland.”
The following is photograph of the Swisher property included in the record that confirms that Mr. Gallagher’s description of the Swisher property as “rough, rock land, lava blister and native
vegetation, not farmland” is accurate:
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USES ALLOWED BY EFU ZONING/PLAN DESIGNATION
EFU zoning does not preclude development of the Swisher property. The EFU zoning that
applies to the property allows the applicant to seek approval of any of following land uses:5 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(10)(d). 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 parks and playgrounds.
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. 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.
5 Most listed uses require County review to confirm they meet objective conditions to be allowed without conditional use review or to demonstrate they meet conditional use criteria.
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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 more limited than the uses allowed outright in the EFU zone. Given these facts, it is clear that a change of zoning will not materially alter the impacts of future development of the Swisher property on neighbors, the water table or the environment.
WATER ISSUES We have addressed issues regarding water use and its availability to serve future development of the Swisher property in post-hearing comments dated February 9, 2022. We have shown that
water is available from Avion Water Company to serve future development of the Swisher
property. We have also shown that the Board of Commissioners has determined in prior similar zone change and plan amendment decisions that the impact of water use is not a relevant issue for consideration during the review of zone change and plan amendments. Instead, this issue is to be addressed during the review of development applications.
PENDING SIMILAR APPLICATION We understand, as mentioned by Commissioner Chang at the February 2, 2021 hearing that a similar nonagricultural lands plan amendment and zone change is pending review by the County.
We would ask that the Board apply consistent interpretations of all relevant laws, including
LCDC rules regarding soils studies and plan policies and code criteria regarding water, to both cases. CITY SEWER TREATMENT PLANT PROPERTY
Questions were raised at the February 4, 2022 hearing about the location of the City of Bend’s sewer treatment plant property. Its location relative to the Swisher tax lots is shown on aerial photographs filed with the Swisher burden of proof that are also provided as as enclosures to this letter.
Respectfully submitted this 23rd day of February, 2022.
Liz Fancher
Liz Fancher, OSB# 812202 Attorney for the Applicant
Enc - 2
The NRCS reports that the 38B map unit includes 50% Deskamp (Class III irrigated and Class
VI not irrigated), and 35% Gosney (Class VII), and 15% 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 92% 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, 25% Rock outcrop Class VIII and
20% 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-1 soil mapping is important and provides a distinct
advantage over the NRCS map. The Order-1 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 more detail can be
shown because the map scale is larger.
In Order-1 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-1 soil survey 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-1 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 38B map delineations
would have to have the identical makeup of 50% Deskamp, 35% Gosney and 15% 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-1 soil
survey provides a more accurate estimate of the percentages of the components. Or as in this
case an Order-1 soil survey allowed Deskamp soil to be mapped as a consociation. The Order-1
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 (NMAS) 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 1:20,000, not more than 10 percent of the points tested shall be in error by more than
1/30 inch, measured on the publication scale; for maps on publication scales of 1:20,000 or
smaller, 1/50 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 information, 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 38B soil complex 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-1 soil survey 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 asserts.
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-1 soil survey remedies much of the inconclusiveness and other
shortcomings of the NRCS map, and my Order-1 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 38B 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
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AERIAL PHOTOS SHOWING SWISHER PROPERTY AND CITY OF BEND SEWER
TREATMENT PLANT PROPERTY (SOUTH PART)
Page 2 – Swisher PA/ZC – 247-21-000616-PA/-000617-ZC