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1992-34433-Minutes for Meeting September 28,1992 Recorded 10/14/199292-34433 0119--09' PUBLIC HEARING MINUTES ADAMS' APPEAL OF DENIAL OF MP -91-49 DESCHUTES COUNTY BOARD OF COMMISSIONERS September 28, 1992 Chairman Maudlin reconvened the meeting of the Deschutes County Board of Commissioners at 10:30 a.m. and opened the continued public hearing concerning the Adams' appeal of the Hearings Officer's denial of MP -91-49 creating two 20 -acre farm parcels in an EFU-20 zone off SW Young Avenue. Board members in attendance were: Dick Maudlin, Tom Throop and Nancy Pope Schlangen. Also present were: Dale Van Valkenburg, Planner; George Read, Planning Director; and Bruce White, Assistant Legal Counsel. Dale Van Valkenburg said the Hearings Officer denied this application because he felt a 40 -acre parcel would be more suitable for farm use than two 20 -acre parcels, however this was not a criteria in County ordinances. The Hearings Officer's decision also identified the wrong criteria --it referred to Chapter 17.56, Variances, when it should have been Chapters 17.28 and 18.16 which were the sections which applied to this application. He said a critical criteria was 17.28.020(3) which required that parcels be suited for the intended use. This was a farm partition, therefore the intended use for these parcels was for farm use. There were currently five irrigated acres on each parcel, however the applicant was proposing to obtain more irrigation so there would be nine irrigated acres on each parcel. There was currently livestock on the property, it was fenced and cross fenced, and it was being irrigated. He felt it would be helpful if the applicant would identify more specifically what the intended farm use could be on these parcels. The applicant should attempt to answer the question of whether a farm dwelling could be approved in the future on these parcels, since the issue would eventually come up in the future. The other critical criteria was Chapter 18.16.060(B) which required that the new farm parcels created by the partition be appropriate for the continuation of the existing agricultural enterprise in the area. In the recent Terrill appeal, the Board had applied the methodology outlined in the County's farm study to address this criteria. He suggested the Board incorporate the farm study into this record to establish the reasoning behind applying this methodology and to establish the importance of irrigation to successful farming in Deschutes County. This review would differ from the way the farm study was done, however, because there was no requirement that the applicant show that these two parcels would be commercial scale farms, since the criteria was only that they be suitable for continuation of agricultural enterprise. He recommended that the Board establish an appropriate area for review using this criteria and establish a reason why this distance was chosen. In the Terrill appeal, the area of consideration was a PAGE 1 MINUTES: 9-28-92 0119-0998 one-half mile radius surrounding the subject property. Once the area was established, the Assessor's records could be used to establish the minimum lot sizes on tax deferred properties and also the amount of irrigated acres on each property. Using the farm study methodology, the subject property could be compared to the median lot size and median irrigated acres of all EFU-zoned specially assessed properties in this area. If the proposed parcels were larger than the median lot size and the median irrigated acreage, then the parcels should be found to meet this criteria. Chairman Maudlin said the Hearings Officer found that it would be more suitable for a farm with 40 acres than with two 20 -acre parcels, and he asked if that was a criteria? Mr. Van Valkenburg said no. Chairman Maudlin asked why Mr. Van Valkenburg was using the Terrill decision for comparison. Mr. Van Valkenburg said this proposal was very similar to the Terrill request. He said the properties were located within three-quarters of a mile from each other. Chairman Maudlin said the County did not have an adopted farm study at this point, and he felt it had been mistakenly applied in the Terrill case. Bruce White pointed out, and Mr. Van Valkenburg agreed, that he was not suggesting that the tiered approach from the farm study be used. He was just using the farm study as a justification for a methodology to determine what constituted continuation of agriculture in the area under the existing ordinance provision. Chairman Maudlin pointed out that in the Assessor's comments it stated that this was a marginal farm at 40 acres, and that if it were split into 20 -acre parcels, those parcels would likely be nonfarm parcels with a possible loss of special assessment. Mr. Van Valkenburg said this was basically an editorial comment, and any loss of special assessment could be appealed. Dan Van Vactor, attorney for John Adams, the appellant, submitted a vicinity map (exhibit 6) with the subject property marked in yellow (TL 601). The vicinity went out one-half mile from the center of the subject parcel, and in the top corner they had referenced all of the EFU-zoned parcels by tax lot number and by acreage (size and water). They used County Assessor's farm tax records to prepare this map. He said this map indicated that within one half mile of the center of the subject property, there were 21 EFU-zoned parcels with a median area per lot of 19 acres and a median water right of 7 acres. Their proposal was to break a 40 -acre parcel into two 19.87 acre parcels with an existing 10 acres of water plus the purchase of an additional 8 acres so that each parcel would have 9 acres of water. Therefore, the proposed parcels would exceed the median average acreage for size and amount of water. PAGE 2 MINUTES: 9-28-92 0119-0999 Chairman Maudlin asked if any of the lands not zoned EFU were considered. Mr. Van Vactor said no. Mr. Van Vactor said the reason for submitting this map was because the citizens of Deschutes County have had a "significant struggle trying to determine what is or is not the proper definition of what's suitable under our comprehensive plan and ordinance . for purposes of partitioning and conditional use applications for farm dwellings." They started this process about 18 months ago, and had obtained a variance which was required by the Planning Department before proceeding with this partition. Mr. Adams would not have needed the variance if he had only intended to build one house on the 40 -acres. The parcel was purchased over two years ago, and Mr. Adams wanted to have a home on 20 -acres of this property in the location specified. He received a conditional use permit for a driveway which he had put in, and he had a conditional permit for a home on 20 acres of this property or the whole 40 acres if the partition was denied. Mr. Adams was not asking for any interpretations except on the definition of "suitability" as it existed that day. The map showed they had more acreage and more water than was required under the Terrill decision which they relied on for this appeal. They felt the Hearing Officer did make a mistake and agreed with Dale Van Valkenburg on that matter. They had asked for a de novo hearing and were putting new material in the record. The Fennel case, which went to LUBA, also gave some direction and clarity on minor partitions which they relied on and were placing into the record as an exhibit. Concerning what a future owner could do regarding placement of a dwelling, he passed out some pictures (exhibit 8). This parcel was in farm use with an oat/hay crop to try to bring back the soil since it had a long history of irrigated use and needed regeneration before putting it into alfalfa. The adjacent 20 -acre parcel which Mr. Adams would not be using could be used for a variety of agricultural purposes, i.e. llama farming or as a nursery which would require day-to-day use and occupation by an owner. However, he did not feel this issue was before the Board as a part of this hearing. He hoped that Mr. Adams' request for a partition would be granted, and placed the remainder of his exhibits into the record. Bruce White asked if when the vicinity map was prepared for the Terrill case, they had gone out 1/2 mile from the center of the property or from the perimeter. Dale Van Valkenburg said it was done from the perimeter. Mr. White wondered whether that would change the analysis in this case. Mr. Van Vactor said they could reevaluate the map using 1/2 mile from the perimeter if that was what the Board wanted. Mr. White said he assumed the farm study methodology just considered EFU specially assessed properties, therefore any property which was not receiving special assessment due to its ownership would not be considered as part of the pool. Mr. Van Valkenburg said he believed that was how the Terrill map was done and George Read nodded in agreement. PAGE 3 MINUTES: 9-28-92 0119-1000 Commissioner Throop asked what the primary motivation was for the partition. Mr. Van Vactor said the primary motivation was to create two farm parcels. Commissioner Throop asked what the primary motivation was for creating two farm parcels. Mr. Van Vactor said Mr. Adams could also answer that question. He said Mr. Adams was a resident of Deschutes County, and although he was somewhat disabled, he was a builder. He had built and owned rentals in Deschutes County. His motivation was that by dividing this parcel into two parcels and selling one parcel, he would be able to live on 20 -acres and farm it. He said Mr. Adams could not afford a 40 -acre farm, given what he had to pay for the land. John Adams said he had originally looked for a 20 -acre piece of property. When he found this property, it seemed there would be no problem in dividing it. He didn't feel he could afford or physically work a 40 -acre parcel. Commissioner Throop asked how this proposal would continue the agricultural enterprise in the area and specifically on this 40 - acre parcel. Mr. Van Vactor said that within one-half mile of the parcel, the average parcel size was 19 acres, so what was appropriate to the area was a consistent acreage. Mr. Van Valkenburg said the County and COI properties were excluded from the pool in this case and in the Terrill review, because they were nonassessed properties in public ownership and were not being farmed. Mr. Van Vactor said to determine whether this partition was appropriate in carrying on the existing farm use in the area, they found that the existing farm use in the area had been parcelized into 20 acre or smaller parcels. The consistent use was the 20 -acre farm. This area was being enhanced more in smaller ownership because in Deschutes County small farms would not support a family and required secondary jobs. By increasing the water to these parcels and bringing more land into production, Mr. Adams would be doing exactly what the rest of the neighborhood was already committed to. Bruce White asked how representative the one-half mile surrounding property was of the area in general. Mr. Van Vactor felt it was very representative. The area towards Redmond (north) had been parcelized even smaller, but had been kept in farm deferral. The property to the west (Tumalo area) also had that kind of parcelization. There were several committed residential communities in the area. He pointed out that the property would not be able to be partitioned further without a significant change in state land use laws and County zoning ordinances. Mr. Van Valkenburg agreed that had they mapped 1/2 mile from the perimeter of the proposed parcel, it would have had little impact on the outcome since the line went through the middle of several large parcels. He noted, however, that on the Terrill application (which was 3/4 of a mile from this parcel) the 1/2 mile pool of properties resulted in "a very different set of numbers." The median number of irrigated acreage on Terrill was 16 or 17. PAGE 4 MINUTES: 9-28-92 0119-1001 There being no one else who wished to testify, the public hearing was closed. Commissioner Throop said he would like more time to review the materials before making a decision on this issue. Chairman Maudlin announced that the Board would make their decision at 11:00 a.m. on Wednesday, October 7, 1992. DATED this OM day of 1992, by the Board of Commissioners of Deschutes County, Oreg n. Tom /Throop, /Commissioner ATTE Nancy Pope Schlangen, Commissioner Recording Secretary k Maudlin, Chairman PAGE 5 MINUTES: 9-28-92