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1998-53310-Ordinance No. 98-081 Recorded 11/10/1998REVIEWED AS TO FORM REVIEWED 16 9 2 6 9 6 CODE REVIEW COMM. LEGAL COUNSEL BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DES�Y1 TES��O"T�ri Z., EGON An Ordinance Amending PL -20, the Deschutes County Comprehensive Plan, Adopting Text to Allow a CUUh i Y CLtsK Specific Use Through an Exception from Goals 3 and 14 and Changing the Plan Map Designation for Certain Property and Declaring an Emergency. ORDINANCE NO. 98-081 WHEREAS, Cascade Pumice, Inc., submitted a request for a quasi-judicial amendment to the Deschutes County Comprehensive Plan, PL -20, to change the plan designation on the plan map for certain property from Agriculture to Rural Industrial; and WHEREAS, establishment of the Rural Industrial plan designation is subject to certain use restrictions to comply with Goals 3 and 14, and these restrictions will be fulfilled by use of a Limited Use Combining Zone; and WHEREAS, the adoption of the Rural Industrial plan designation requires the adoption of a plan amendment and an irrevocably committed reasons exception from Goal 3 and reasons exception from Goal 14; and WHEREAS, the approval of the Limited Use Combining Zone to the Rural Industrial zone sets forth a specific use on the subject property for only the storage, crushing, processing, sale and distribution of pumice; and WHEREAS, the Deschutes County Hearings Officer, after review conducted in accordance with applicable law, has recommended approval of the proposed plan amendment; and WHEREAS, after notice was given and hearing conducted according to applicable law, the Board of County Commissioners has considered the Hearings Officers' recommendation; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ORDAINS as follows: Section 1. AMENDMENT. PL -20, Deschutes County Year 2000 Comprehensive Plan, is amended to add the policy set forth in Exhibit "A," for the subject property described in Exhibit `B" and shown in Exhibit "C," attached hereto and by this reference incorporated herein. This policy shall be added to the Rural Development Chapter in the Commercial and Industrial section of the Comprehensive Plan. Section 2. ADOPTION. PL -20, the Deschutes County Year 2000 Comprehensive Plan, is amended by the adoption of an irrevocably committed exception to Goal 3 and a reasons exception to Goal 14, for the land described in Exhibit `B" and shown in Exhibit "C," attached hereto and by this reference incorporated herein. The Exception Statement is acknowledged by adoption of an exception statement as set forth in Exhibit "D," attached hereto and by this reference incorporated herein. Adoption of this ordinance shall have the effect of taking an exception from Goals 3 and 14 for the purposes and reasons stated in the Deschutes County Hearings Officer's decision set forth in Exhibit "E," attached hereto and by this refence incorporated herein. iCEYt'U�?r;E r MICROFILMED PAGE 1 of 2 - ORDINANCE NO. 98-081 (11/9/1998)` 169 - 2697 Section 3. ADOPTION. PL -20, Deschutes County Year 2000 Comprehensive Plan Map, is amended to change the plan map designation for the subject property described in Exhibit `B" and shown in Exhibit "C," attached hereto and by this reference incorporated herein, from Agriculture to Rural Industrial. Section 4. FINDINGS. Findings to support this ordinance are set forth in the Decision of Deschutes County Hearings Officer for File No. PA-98-2/ZC-98-1, attached as Exhibit "E," attached hereto and by this reference incorporated herein. Section 5. EFFECTIVE DATE. This Ordinance being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this Ordinance takes effect on its passage. DATED this __q_ day of , 1998. ATTEST: Recording Secretary PAGE 2 of 2 - ORDINANCE NO. 98-081 (11/9/1998) OF CQ11NTY COMMISSIONERS W jo, ROT L. NIPPER, CtsmI er 4� A L. 4SVWEQNG4ZNtommissioner 169 - 2698 EXHIBIT "A" COMPREHENSIVE PLAN POLICY I la. To ensure that the uses in the Rural Industrial zone on tax lot 16-12-26C-301 are limited in nature and scope, the Rural Industrial zoning on the subject parcel shall be subject to a Limited Use Combining Zone, which will limit the uses to storage, crushing, processing, sale and distribution of pumice. PAGE I OF 1 - "EXHIBIT "A" TO ORDINANCE NO. 98-081 (11/9/98) 'Y. 1 169 "2699 EXHIBIT `B" LEGAL DESCRIPTION, 16-12-26C-301 All that portion of the west 'h of the southwest '/4 of Section 26, Township 16 South, Range 12 East of the Willamette Meridian, Deschutes County, Oregon, lying east of the centerline of the Pilot Butte Canal, west of the westerly right of way of the Oregon Trunk Railway and south of the southerly boundary of Parcel 2 in Volume 474, Page 1863, Official Records, Deschutes County. PAGE IOF 1- "EXHIBIT "B" TO ORDINANCE NO. 98-081 (11/9/98) EXHIBIT" C11 169 - 2700 COMPREHENSIVE PLAN MAP, � RI i TAXLOT \ M161226C000300 TAXLOT 161226C000301 SECTION 16-12-26 SECTION 16-12-35 EXHIBIT "C" TO ORDINANCE 98-081 I Y RAILROAD N CANAL SECTION LINE r1 RURAL INDUSTRIAL 0 TAX LOTS Deschutes County QQ, Geographic Information System Wr{ t, Service Center DISCLAIMER: The information on this map was derived from digital databases on Deschutes County's G.I.S. Care was taken in the creation of this map, but it is provided "as is". Deschutes County cannot accept any responsibility for errors, omissions, or positional accuracy in the digital data or the underlying records. There are no warranties, express or implied, including the warranty of merchantability or fitness for a particular purpose, accompanying this product. However, notification of any errors will be appreciated. 200 0 200 400 600 800 Feet 1-011111111111 DATE: NOVEMBER 3, 1998 FILE: W.' tAVPROJECTSIBRIAN\COMPPLAN.APR 169 - 2701 EXHIBIT "D" EXCEPTION STATEMENT In conjunction with approval of PA-98-2/ZC-98-1, an "irrevocably committed"exception to Statewide Planning Goal 3, Agricultural Lands, and a reasons exception to Goal 14 was taken to allow for the subject comprehensive plan and zone change on agricultural land. The plan amendment and zone change will allow Rural Industrial plan and zoning designation with a Limited Use Combining Zone for the specific use of storage, crushing, processing, sale and distribution of pumice only. Reasons justifying why the state policy embodied in Goal 3 should not apply in this situation are set forth in Exhibit "D" to Ordinance 98-081, which findings are incorporated herein. PAGE 1 OF 1 - "EXHIBIT "D" TO ORDINANCE NO. 98-081 (11/9/98) 169 _- 2702 EXHIBIT "E" FINDINGS (BEING REVIEWED BY LEGAL COUNSEL) PAGE 1 OF 1 - EXHIBIT "E" TO ORDINANCE NO. 98-081 (11/9/98) EXHIBIT -- 169 2703 DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: PA-98-2/ZC-98-1 HEARING DATE: April 21, June 23 & July 21, 1998 APPLICANT: Cascade Pumice Inc. PO Box 1087 Bend, OR. 97709 AGENT: Sharon R. Smith Dale E. Van Valkenburg Bryant, Lovlien & Jarvis, P.C. PO Box 1151 Bend, OR. 97709-1151 PROPERTY OWNER: Applicant REQUESTS: PA -98-2 An application for a Plan Amendment to amend the Deschutes County Comprehensive plan map designation of the subject property from Agriculture to Rural Industrial. ZC-98-1 An application for a Zone Change to amend the Deschutes County Zoning Map to change the zoning on the subject property from Exclusive Farm Use-Tumalo- Redmond-Bend Subzone to Rural Industrial. STAFF CONTACT: Brian Harrington, Associate Planner Decision Summary Approval is granted for a plan amendment and zone change from Agriculture and Exclusive Farm Use to Rural Industrial with a Limited Use Combining Zone for the storage, crushing, processing, sale and distribution of pumice only. Exceptions Criteria As detailed in the Staff Report and the applicant's Second Supplemental Burden of Proof, Staff and the applicant debated the applicable exceptions criteria and how the 1 - (PA -98-22C-98-1) 169 m -2704 application of the criteria would limit the uses permitted pursuant to the exception.' After thorough review of the exceptions regulations in OAR 660-04, 1 find that a reasons exception is required to allow the applicant to use the property in a manner that is not a continuation of an existing use on the property. The language used in the 660-04-018 seems to create an ambiguity in that it refers interchangeably to "exception area" and "exception site;" although 660-04-028 defines "exception area" as that area of land for which a committed exception is taken. Under this definition, the parcel for which an exception is sought is the exception area. Considering this definition in the overall context of OAR 660-04, 1 find that a reasons exception offers the only way to allow a use on the subject site that does not currently exist on the site. This interpretation is consistent with the purpose of the regulations as described in 660-04-018(1), which provides that the physically developed and irrevocably committed exceptions are intended to "recognize" and allow "continuation of existing" types of uses in the exception area. The purpose section then goes on to distinguish these exceptions from other standards in 660-04-018 "which would allow changes in existing types of uses." This language leaves only the reasons exception which follow in 660-04-018(3). In its Third Supplemental Burden of Proof, the applicant did an excellent job of (proving why the use of storage, crushing, processing, sale and distribution of pumice meets the reasons exception criteria I adopt the findings stated therein. ' The decision in PA-97-8/ZC-97-4 cited by the applicant is distinguishable in that it involved existing uses under a physically developed exception. Here, the applicant is proposing new uses pursuant to an irrevocably committed exception. 2 - (PA-98-2/ZC-98-1) r. 169 --2?U5 At the hearing, Staff, joined by ODOT, disagreed with the applicant about whether the reasons exception would also qualify the other uses permitted in the Rural Industrial zone. Following the hearing, the applicant submitted a cursory Fourth Supplemental Burden of Proof which was aimed at qualifying certain additional uses permitted outright and conditionally in the Rural Industrial zone. I find that the reasons exception criteria limit approval to those uses which are justified in the exception. OAR 660-04-018(3)(a). The only use appropriately justified ._--_ by the applicant is the storage, crushing, processing, sale and distribution of pumice. Were I to find that the other uses were also permitted, I would have to deny the application based upon the failure of the applicant to show how these additional uses satisfy the transportation planning rule in OAR 660-12-060. However, the applicant's Supplemental Burden of Proof Regarding Goal 14 and Response to Memorandum Submitted by ODOT Dated April 6, 1998, does satisfy OAR 660-12-060 as it relates to the storage, crushing, processing, sale and distribution of pumice. I agree that ODOT designed the new interchange with an awareness of existing uses, which includes the use permitted by this decision as it is a continuation/replacement of the existing operation on an adjacent parcel. Other Criteria As to the remaining criteria, I hereby adopt the findings set forth in the Staff Report and the applicant's Second Supplemental Burden of Proof, other than the discussion regarding the "Applicable Exception Criteria." 3 - (PA-98-2/ZC-98-1) 169 - 2706 DCC 18.112 calls for and authorizes a limited use combining zone under the circumstances present here. As such, a limited use combining zone is approved as part of the zone change and plan amendment approval. Decision Pursuant to a reasons exception, the subject parcel is approved for a zone change and plan amendment to Rural Industrial with a Limited Use Combining Zone for the storage, crushing, processing, sale and distribution of pumice. Dated: August 9, 1998. Christo h C. Eck, Hearings Officer Mailed: August Ja, 1998. THIS DECISION BECOMES FINAL TEN DAYS AFTER MAILING, UNLESS TIMELY APPEALED. 4 - (PA-98-2lZC-98-1) 2 707 FILE NUMBERS: HEARING DATE: TIME: DESCHUTES COUNTY PLANNING DIVISION STAFF REPORT - PA-98-2/ZC-98-1 Tuesday, April 21, 1998: continued to June 23, 1998 7:00 p.m. LOCATION: Juvenile Justice Center, Hearing Room "A" 1128 NW Harriman Street Bend, Oregon 97701 APPLICANT: Cascade Pumice Inc. P.O. Box 1087 Bend, OR 97709 AGENT: Sharon R. Smith Dale E. Van Valkenburg Bryant, Loviien & Jarvis, P.C. P.O. Box 1151 Bend, Oregon 97709-1151 PROPERTY OWNERS: Same REQUESTS: PA -98-2 An application for a Plan Amendment to amend the Deschutes County Comprehensive plan map designation of the subject property from Agriculture to Rural Industrial. ZC-98-1 An application for a Zone Change to amend the Deschutes County Zoning Map to change the zoning on the subject property from Exclusive Farm Use-Tumalo-Redmond-Bend Subzone to Rural Industrial. STAFF CONTACT: Brian Harrington, Associate Planner I. APPLICABLE CRITERIA A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance: Chapter 18.16, Exclusive Farm Use Zones Section 18.16.020, Uses permitted outright Page 1 - PA-98-2/ZC-98-1 STAFF REPORT • 169 2108 Section 18.16.030, Conditional uses permitted - High value and nonhigh value farmland. Chapter 18.100, Rural Industrial, RI Zone . Section 18.100.020, Uses Permitted Outright Section 18.100.030, Conditional Uses Permitted Section 18.100.040, Use Limitations Section 18.100.050, Dimensional Standards Chapter 18.136.010, Amendments Section 18.36.010, Amendments Section 18.136.020, Rezoning Standards Section 18.136.030, Resolution of Intent to rezone. Section 18.136.040, Record of Amendments B. Oregon Administrative Rules, Chapter 660 Division 4, Interpretation of Goal 2 Exception. OAR 660-04-010, Application of the Goal 2 Exception Process to Certain Goals OAR 660-04-015, Inclusions as Part of the Plan OAR 660-04-018, Planning and Zoning for Exception Areas OAR 660-04-020, Goal 2 Part II(c), Exception Requirements OAR 660-04-025, Exception Requirements for Land Physically Developed to Other Uses OAR 660-04-028, Exception Requirements for Land Irrevocably Committed to Other Use. OAR 660-04-030, Notice and adoption of an exception Division 12, Transportation Planning Rule OAR 660-12--60, Plan and Land Use Regulation Amendments Division 18 - Plan and Land Use Regulation Amendment Review Rule C. Oregon Revised Statutes Chapter 197, Comprehensive Land Use and Planning Coordination ORS 197.732, Goal Exceptions, Criteria, Rules, Review. D. Title 22, of the Deschutes County Code, the County Development Procedures Ordinance E. Deschutes County Year 2000 Comprehensive Plan F. Oregon Statewide Planning Goals, Goal 1, Citizen Involvement Goal 2, Land Use Planning - Part II, Exceptions Goal 3, Agricultural Lands, Goal 11, Public Facilities and Services Goal 14, Urbanization II. FINDINGS OF FACT A LOCATION: The subject property is at 64993 Deschutes Market Road, Bend, and is identified on Deschutes County Assessor's map 16-12-26C-301. Page 2 - PA-98-2/ZC-98-1 STAFF REPORT 169 Q 2109 B. ZONING: The subject property is currently zoned EFU-TRB, Exclusive Farm Use- Tumalo-Redmond-Bend subzone. The subject property is located within the Landscape Management Combining Zone along Highway 97. The Comprehensive Plan designation is Agriculture. C. SITE DESCRIPTION: According to the site plan submitted by the applicant and staff site visit on March 20, 1998, the site is relatively level approximately 6.55 acres in size. A COI irrigation canal (Pilot Butte canal) forms the west boundary of the parcel which is elevated above the property. The site contains a sparse cover of juniper trees and native sagebrush/bitterbrush vegetation. There is a carport/storage buildings and several smaller accessory sheds on the property. According to the applicant, the parcel recently contained a manufactured home used as a caretaker's residence for the adjacent Cascade Pumice facility accessed from the adjacent parcel to the east. According to County Assessor's records, the manufactured home was placed on the property in 1973, including documentation on the accessory sheds. Staff notes that according to a memorandum dated April 21, 1993 regarding effective dates of building code and zoning ordinances, plumbing, structural and mechanical permits were not required in the County until October 18, 1973. Manufactured home permits were not the responsibility of the County until 1977 when the state transferred authority to the counties. This memo is incorporated into the record of these proceedings. D. SURROUNDING LAND USES: The subject property is wedged between the Pilot Butte Canal to the west and the Deschutes Junction Rural Industrial Zone area to the east and northeast. The Deschutes Junction Rural Industrial zone is a triangular shaped area, with its north boundary formed by Deschutes Market Road; its east boundary formed by the Burlington Northern Santa Fe railroad tracks; and the west boundary formed by the westerly quarter section line of Section 26, which is also the east boundary of the subject property. Uses in the Rural Industrial area include the Cascade Pumice processing facility on the adjacent land to the east, tax lots 102 and 108. On tax lot 107 northeast of the subject property and west of the canal is United Pipe and Supply Company. On tax lot 106 to the north and east of the canal is Willamette Graystone, a concrete products manufacturing facility. To the west, across the canal, is vacant, undeveloped land zoned for Exclusive Farm Use, with Highway 97 beyond. This adjacent EFU land is also owned by Cascade Pumice. To the east, beyond the Cascade Pumice facility and the Burlington Northern Santa Fe (BNSF) Railroad Tracks, is a non -conforming mobile home park. To the south is undeveloped land zoned Exclusive Farm Use - Alfalfa Subzone (EFU-AL). E. PROPOSAL: The applicant has submitted concurrent requests for a plan amendment and zone change for the subject property. The applicant has requested that both the Deschutes County Comprehensive Plan map and the Official Zoning map be amended so that the plan designation and the zoning applicable to the subject property will be Page 3 - PA-98-2/ZC-98-1 STAFF REPORT 169 _.- 2710 changed from Exclusive Farm Use-Tumalo/Redmond/Bend subzone EFU-TRB to RI - Rural Industrial. The proposal includes an Exception to Statewide Planning Goal 3, Agricultural Lands. The applicant states that the proposal includes a gross area of 6.55 acres, however the net area usable area will be approximately 4.95 acres due to the canal and right of way restrictions. The applicant further states that the reason for the request is to replace the industrial property lost by the realignment of the Deschutes Junction Interchange containing approximately 4.95 acres of land owned by Cascade Pumice. The new road alignment will bisect the Cascade Pumice facility hampering its function. The applicant concludes that the additional acreage will allow the facility to continue to be operated in an efficient manner after construction of the interchange is completed. F. APPLICATION AND BURDEN OF PROOF: Section 22.24.050 of the County Code states that throughout all local land use proceedings the burden of proof rests on the applicant. The applicant has submitted the following documents in support of this burden: A complete land use application. A burden of proof that addresses the applicable decision criteria and includes the following exhibits listed on page 5 of the application. Exhibit 3, 1996 color aerial photograph of site and copy (black and white) Exhibit 4, 1985 Blueline aerial photograph of site Exhibit 5, Color groundlevel photographs of site (9) Exhibit 6, Vicinity maps (3) and historical photographs of site (6) Exhibit 7, Soil information The application shows the subject property will be served by the following service providers and public facilities: Water: Onsite well Sewer: Onsite septic system Telephone: U.S. West Communications, Inc. Electric: Pacific Power and Light Fire Bend Fire Department Police: Deschutes County Sheriff Transportation: The application shows the site abuts the realigned Deschutes Junction interchange to at the north end and will have internal access across the adjacent parcel to the east and north. G. SOILS: According to the NRCS soils maps, the subject property contains Map #38B - Deskamp-Gosney complex soils, 0-8% slopes. Site capability classification for the Deskamp component is 6e nonirrigated/ 3e irrigated and 7e/4e for the Gosney component. This soil complex is not considered high value soils when irrigated according to the definition of high value farmland in Section 18.04.546 of the DCC. Page 4 - PA -98-22C-98-1 STAFF REPORT 169 - 2 711 H. PUBLIC AGENCY COMMENTS: The Planning Division sent written notice of the April 21, 1998 public hearing on these requests to several affected public agencies on March 23, 1998. The following lists the agencies that submitted transmittal comments on the applications and the substance of their comments: 1. Deschutes County Public Works Department: This zone change and plan amendment is logical in that it allows the expansion of this existing rural industrial land use which is in tum made necessary by the alignment of the Deschutes Junction at Highway 97 which bisects the current operation. The Road Department does not have any recommendations for conditions that the applicant needs to meet for approval of this request. The proposed I and use action can be approved without the imposition of transportation conditions. The applicant has been very cooperative with Deschutes County and ODOT in getting the transportation problems at the new grade separated interchange resolved in the best interest of all parties involved. 2. Central Oregon Irrigation District: COI is currently assessing the subject property with a manufacturing and industrial water right of 2.0 acres. The District has the Pilot Butte Canal facility, which traverses the subject parcel on the west side. This facility has a 100' with an additional 20' right of way for the maintenance road. There is no encroachment of any kind within these right of ways without the prior written consent from this office. 3. Deschutes County Property Address Coordinator: The address of record for this parcel is: 64993 Deschutes Market Road.. 4. Oregon Department of Transportation: ODOT has raised objections to this proposal in a letter dated April 6, 1998 referenced and incorporated herein and attached hereto. 5. Deschutes County Environmental Health Division: The water source for this development must be surveyed and approved by the Oregon State Health Division. The septic system will require a WPCF permit from DEQ. 6. Watermasters: The applicant needs to contact COI to clear water right matters or right of way conflicts prior to approval. 7. DLCD (Bend field office): Staff had a teleconversation with Brent Lake on whereby no concerns were expressed regarding this application. Note: The following agencies either did not respond or did not have comment: DLCD (Salem Office, US West Communications, Burlington Northern/Sante Fe Railway, County Assessor, Pacific Power and Light. Page 5 - PA -98-22C-98-1 STAFF REPORT 16-9T - 2 712 J. PUBLIC NOTICE AND COMMENTS: Section 22.24.030 of the County Development Procedures Ordinance outlines the requirements for notice on land use actions that will be considered at a public hearing. This section requires that individual notice be mailed to owners of record of. property within 500 feet of the property that is the subject of the application for a plan amendment or zone change. Staff identified the owners of record of property within 500 feet of the site and had individual written notice of the April 21, 1998 public hearing mailed on March 23, 1998. Staff has not received any comments from the property owners receiving notice to date. K. LOT OF RECORD: According to County records the subject property has not been determined to be a lot of record. L. Staff notes for the record a public hearing was held on April 21, 1998. The hearing was continued on the record to June 9, 1998. Due to scheduling conflicts with the Hearings Officer, the hearing was rescheduled to June 23, 1998. A correction notice of a continued public hearing was mailed on June 10, 1998. M. Staff adopts the applicant's findings except as modified herein III. CONCLUSIONARY FINDINGS A. CHAPTER 18.136, AMENDMENTS 1. Section 18.136.010, Amendments This title may be amended as set forth in this chapter. The procedures for text or legislative map changes shall be as set forth in chapter 22.12 of this code. 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 Title 22 of this code. FINDING: The applicant has requested a quasi-judicial comprehensive plan map amendment and zone change from Agriculture/EFU -TRB zone to Rural IndustriaVRI zone. The applicant has filed the application on the required forms provided by the Planning Department with the required burden of proof, related maps and site plan. No text changes to the Comprehensive Plan are proposed. 2. Section 18.136.020, Rezoning Standards. A. That the change conforms with the Comprehensive Plan, and the change is consistent with the plan's introductory statement and goals. FINDING: Applicant's response: The proposal will further the goal of allowing on-site processing and storage of mineral and aggregate. resources in order to support the continual productivity of the County's material resources. The replacement of the land lost to the interchange will allow Cascade Pumice, Inc.to continue with the same volume of resource production in an efficient manner. The Applicant believes that the proposal Page 6 - PA-98-2/ZC-98-1 STAFF REPORT 169 -. 2713 is in full compliance with these goals and policies, thus requiring no additional language or amendments to the existing plan language. Staff response: The Comprehensive Plan establishes an overall planning and development framework for the County. The applicant states this change will be in conformance with the policies and goals contained in the Rural Development Chapter (Commercial and Industrial Development) that will support the continued productivity of the County's natural resources. The applicable comprehensive plan policies and goals are addressed further below B. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone classification. FINDING: Applicant's response: The Applicant is proposing to re -zone the property to Rural Industrial in conformance with the zoning on the adjacent property to the east. Pursuant to DCC 18.100.010: "The purposes of the Rural Industrial Zone are to encourage employment opportunities in rural areas and to promote the appropriate economic development of rural service centers which are rapidly becoming urbanized and soon to be full-service incorporated cities, while protecting the existing rural character of the area as well as preserving or enhancing the air, water and land resources of the area. " The proposed rezoning to RI will maintain the previously established inventory of RI zoned lands at Deschutes Junction by replacing the RI zoned land lost to the interchange project. The subject property is ideally situated adjacent to existing RI lands to preserve land resources and is physically isolated from other lands in order to protect the rural character of the area. Staff response: The applicant is proposing a zone change that would allow the use of the property to be consistent with a permitted use in the proposed zone. The applicant has attempted to demonstrate that the site is unsuitable for farm uses, and that the use will be consistent with the proposed zone classification. The applicant has applied for an exception to the Statewide Goals, Goal 3, Agricultural Lands. This criterion is contained in the Oregon Administrative Rules OAR 660-04 addressed further in this report. 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. FINDING: The applicant states that all necessary public facilities and services are available to the site and can be efficiently provided to future uses. The public services provided to the property are the following: Fire protection and emergency services are served by the Bend Fire Department, septic system will be onsite subject to approval of Page 7 - PA-98-2/ZC-98-1 STAFF REPORT 169 2714 the Deschutes County Environmental Health Division, is available by Avion Water Company, or by an onsite well administered by the Watermaster, power will be provided by Pacific Power, and police protection will be provided by Deschutes County Sheriff. According to the proposed plans for the realignment of the Deschutes Junction Interchange project the property will be bounded on the south by the extension of Deschutes Market Road and a new local road that will bisect the property that will connect to the old Deschutes Market Road to the north. Staff finds the services are adequate to accommodate the use and the site, and therefore, this criterion is met. 2. The impacts on surrounding land use will be consistent with the specific goals and policies contained in the Comprehensive Plan. FINDING: The applicant states that there will be minimal impacts on the surrounding land use. Staff notes that in a response letter dated April 6, 1998, ODOT has raised concerns that the proposes zone change would impact the transportation facility and the applicant has not adequately addressed the impacts in accordance with the Transportation Planning Rule, OAR 660-12-060. The surrounding land use contains the following: to the north and east are lands in rural industrial use that include Cascade Pumice, Willamette Graystone and United Pipe company zoned RI. The lands to the west and south are characterized as wooded rangeland zoned EFU-TRB, in the same ownership as the subject property. Staff believes this criterion requires an analysis of any mandatory policies that address impacts on surrounding land uses. Staff has reviewed the Comprehensive Plan and found the following applicable policies: Growth Management Chapter, Transportation section, page 85, Highways and Roads policy 15 states: "15. Access onto existing collectors and arterials shall be limited, consolidated and controlled. Access control shall emphasize the coordination of traffic and access patterns to minimize negative effects. Frontage roads and access collection points shall be used wherever feasible (see Oregon Department of Transportation Access Control Guidelines). Site plans shall conform to the County Public Works Department's access control criteria. Areawide needs, if they are more restrictive should supersede site specific needs." Resource Management Chapter, Agricultural Lands section, Policy 1, page 131 states: "1. All lands meeting the definition of agricultural lands shall be zoned Exclusive Farm Use, unless and exception to State Goal 3 is obtained so that the zoning may be Multiple Use Agriculture or Rural Residential." Agricultural Lands Section, page 131, policy 3 states: "3. Public lands meeting the criteria for EFU zoning shall be so zoned unless some other resource (i.e., forest) or public use exists on the land." Agricultural Lands Section, page 135, policy 20 states: "Farm and non-farm uses in rural areas shall be consistent with the conservation of soil and water." Page 8 - PA-98-2/ZC-98-1 STAFF REPORT 169 - 2715 Although the applicant states generally that the proposal is in compliance with applicable Comprehensive Plan policies, staff recommends the applicant address these policies and concerns raised more specifically at the hearing. D. That there has been a change in circumstances since the property was last zoned, or a mistake in the zoning of the property in question. FINDING: The applicant has stated that the property was zoned Exclusive Farm Use at the same time the property owned by the applicant adjacent to the east was zoned Rural Industrial in 1979. Staff finds that there has not been a mistake in the zoning of the property. There is no other information offered to address this criterion. This should be addressed by the applicant at the Hearing. 3. 18.136.040. Record of amendments All amendments to the text or map of this title shall be riled with the County Clerk. FINDING: This criterion will be incorporated into the conditions of any approval. B. Oregon Administrative Rules, Chapter 660-04, Interpretation of Goal 2 Exception Process. 1. OAR 660-04-010, Application of the Goal 2 Exception Process to Certain Goals. 1) The exception process is not applicable to Statewide Planning Goal 1 "Citizen Involvement". and Goal 2 "Land Use Planning." The exception process is generally applicable to all or part of those statewide goals, which prescribe or restrict certain uses of resource land. These statewide goals include, but are not limited to: a) Goal 3, "Agricultural Lands, "however an exception to Goal "Agricultural Lands" is not required for any of the farm or nonfarm uses permitted in an exclusive farm use (EFU) zone under ORS Chapter 215. FINDING: Applicants Response: ORS 215.283 provides a list of "Uses permitted in exclusive farm use zones in nonmarginal lands counties."Included in subsection (2) of ORS 215.283 is; "(b) Operations conducted for: (D) Processing of other mineral resources and other subsurface resources." The Applicant currently operates a facility for processing mineral resources on Rural Industrial -Zoned land adjacent to the proposed exception area. The proposed exception area is zoned for Exclusive Farm Use. Under this proposal, the subject property could also be used for the operation of processing mineral resources. Although such a use is a nonfarm use permitted under ORS Chapter 215, it is not allowed in the County's EFU Zone. OAR 660-04-010(1)(a) specifically provides that "an exception to Goal 3 "Agricultural Lands" is not required for any of the farm or nonfarm uses permitted in an exclusive Page 9 - PA-98-2/ZC-98-1 STAFF REPORT 169 - 2 716 farm use (EFU) zone under ORS Chapter 215" (emphasis added). Thus, an exception to Goal 3 "Agricultural Lands" would not be necessary for the subject property solely to be utilized for the processing of mineral resources. The Applicant proposes to utilize the site along with its primary existing adjacent wholesale distribution outlet (allowed by DCC 18-100.020 F) and also may wish to replace the caretaker's residence (allowed by DCC 18.100.020 B). Accordingly, the RI Zone is necessary in order to accommodate the existing and future needs of the Applicant. An exception to Goal 3 is necessary to rezone from EFU to RI, as the RI zone allows types and intensities of uses which are not allowed in the EFU zones by ORS 215.283. The Applicant is proposing an approximately equal amount of new RI zoning to that lost to the interchange project. Approximately 5 acres of RI zone were lost to the interchange project. Although 6.55 acres of EFU land is proposed to be rezoned to RI, the west property boundary of the property is the centerline of the Pilot Butte Canal, which is roughly 40 feet wide and centered within a 100' wide easement. Thus, only 4.5 acres of the subject property would be usable for industrial development. Staff response: Goal 2, Land Use Planning, provides an exception process to all or part of the statewide planning goals which prescribe or restrict certain uses of resource land. The applicant proposes to demonstrate that the rezoning of this site from EFU to RI complies with and/or supports all applicable statewide goals, and should therefore be granted an exception to specific text provisions contained in Goal 3. While certain uses allowed by Goal 3 are contemplated onsite such as storage and processing of minerals, the applicant states in a 'Supplemental Burden of Proof" submitted on June 15, 1998, page 8, that the site will also be used for expansion as wholesale distribution outlet. This use would not be allowed by Goal 3 and the county code. At the outset, the applicant has proposed an exception to Goal 3. The applicant has stated that an exception is requested pursuant to OAR 660-04-018/028, Land Irrevocably Committed to Other Uses. This language and its interpretation are discussed in the findings below concerning the proposal's compliance with the comprehensive plan, ordinance requirements and Oregon Administrative Rule requirements. For the reasons set forth below, staff finds that an exception to Goal 3 is required, and that this section is met because the applicant has proposed such an exception. 2. OAR 660-04-015 Inclusion as Part of the Plan. (1) A local government approving a proposed exception shall adopt as part of its comprehensive plan rindings of fact and a statement of reasons, which demonstrates that the standards for an exception have been mei The applicable standards are those in Goal 2, Part ll(c), OAR 660-04020(2) and 660-040-022. The reasons and facts shall be supported by substantial evidence that the standard has been met FINDING: Staff finds the applicant has met this criterion by proposing an amendment to the comprehensive plan to adopt an exception to Statewide Planning Goal 3. As discussed in the findings below, the applicant has demonstrated compliance with the criteria for such a goal exception, and staff recommends that such a plan amendment and goal exception be adopted by the Deschutes County Board of Commissioners._ As Page 10 - PA -98-22C-98-1 STAFF REPORT 169 - 2717 a condition of any approval, the findings justifying the exception must be adopted into the text of the Comprehensive Plan. State law provides that statewide land use goals apply to comprehensive plan amendments, if the goals contain specific provisions which govern the type of action authorized by the plan amendment and are affected by the proposed change. The following finding addresses the applicant's compliance with the applicable Statewide Planning Goals. Goal 1, Citizen Involvement will be met by the County as the County's land use process provides for notice of proposed zone changes and plan amendments to the general public by publication in The Bulletin and by the mailing of notice to surrounding property owners affected by the proposed plan amendment. The Deschutes County land use Hearings Officer will hold at least one hearing regarding the proposed amendment. If the Hearings Officer's decision is appealed, the Board of Commissioners will hold a public hearing regarding the application. The Hearings Officer's decision and the Deschutes County staff report regarding the application will provide further information to citizens and allow them to be informed participants in the plan and zone change process. Goal 2, Land Use Planning will be met because at least one public hearing be held prior to adoption of comprehensive plan and zoning ordinance amendments. The County land use procedures ordinance provides such a hearing, complying with Goal 2. The requested plan amendment is being decided under the State acknowledged plan amendment process and criteria provided in the Deschutes County Comprehensive Plan and the Deschutes County Zoning Ordinance. The amendment is consistent with the requirement of Goal 2 that plans be amended at times to reflect changes in public policy or changed circumstances. Goal 3, Agricultural Lands The applicant states the property is currently designated for Exclusive Farm Use in accordance with Goal 3. The existing, adjacent Cascade Pumice processing facility is a lawful use within the Rural Industrial zone. The subject property is an irregularly shaped strip of land wedged between the Pilot Butte Canal and the industrial zoned and developed Cascade Pumice processing facility. It's small size, irregular shape, physical isolation from other EFU zoned lands, and its situation abutting developed Rural Industrial lands result in a property on which agricultural uses allowed by Goal 3 would be impracticable. Goal 4, Forest Lands is not applicable because the subject property is not designated as forest land by the comprehensive plan. Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources requires the County to conserve open space and protect natural and scenic resources. The related Planning Guidelines and Implementation policies are as follows: Staff finds this goal is not applicable due to the site or adjacent properties are not listed in the County Inventory of Historic sites, mineral resources or lands designated for open space. The resource values for farm use suitability are limited due to the physical constraints of the railroad, Pilot Butte Canal, and realignment of the Deschutes Junction interchange across the property as discussed further. Page 11 - PA-98-2/ZC-98-1 STAFF REPORT 169 2718 Goal 6, Air, Water and Land Resources Quality requires the county to develop a comprehensive plan that would not degrade air, water, and land resources in applicable air sheds and basins. The Deschutes County Comprehensive Plan was acknowledged as meeting this goal. The applicants zone change request does not change any of the mechanisms adopted in the plan or local ordinances to assure compliance with Goal 6. The access to this site is enhanced by the construction of the Deschutes Junction interchange project. Goal 7, Areas Subject to Natural Disasters and Hazards does not apply because the subject property is not located in a known natural disaster or hazard area. Goal 8, Recreational Needs. Deschutes County met its obligation to provide for the recreational needs of its citizens by adopting a park dedication and development ordinance, Chapter 17.44 of the Deschutes County Code. The subject property is not the subject of resort siting as Deschutes County has adopted an ordinance implementing this portion of Goal 8 by the adoption of Chapter 18.113 of the Deschutes County Code. Goal 9, Economic Development is not applicable because the applicant has not proposed changing commercial or industrial zoning to residential. The proposal does not affect the inventory of commercial and industrial lands in an urban growth boundary because the net exchange of land utilized for industrial use will be approximately the same if approved. Goal 10, Housing is not applicable because any residential use proposed for this site or allowed as a use permitted in the RI zone is limited to a residence for a caretaker or nightwatchman. . Goal 11, Public Facilities and Services requires the City to plan and develop in a timely, orderly and efficient fashion, based upon the availability of public services. This goal will be met because all needed public facilities and services are available to serve the subject property. The Deschutes Junction interchange project is being built to enhance the safety and accommodate the increase in traffic the interchange has experienced in the last 10 years. The site will have access to the spur roads from Deschutes Market Road. The proximity to roads and services and the adjacent rural industrial site are factors that influence the site's development in a timely, orderly and efficient fashion. The site will not require the establishment of new sewer or water systems outside urban growth boundaries or unincorporated communities or the extension thereof. Goal 12, Transportation. ODOT has raised concerns that the applicant has not met the applicable provisions of the Transportation Planning Rule, specifically OAR 660-12- 060. These issues should be further addressed by the applicant at the hearing. Goal 13, Energy Conservation requires that land and uses developed on the land be managed so as to maximize the conservation of all forms of energy, based upon sound economic principles. This goal will be met because the site is located on adjacent to a County rural arterial road within 1/8 of a mile from Highway 97. The zone change will be adjacent to existing land zoned rural industrial in a compact area the will serve to Page 12 - PA -98-22C-98-1 STAFF REPORT 169 - 2719 conserve fossil fuel energy sources by reducing the need for and length of vehicular trips. Goal 14, Urbanization The applicant has provided analysis in a supplemental burden of proof statement on page 2 through 4. This analysis is provided below. Goals 15 through 19 address river, ocean, and estuarine resources. These goals are not applicable because the subject property does not abut any of these water resources. OAR 660-14-0040 Incorporation of New Cities on Undeveloped Rural Lands (1) As used in this rule, "underdeveloped rural land" includes all land outside of acknowledged urban growth boundaries except for rural areas committed to urban development. This definition includes all resource and non -resource lands outside of urban growth boundaries. It also includes those lands subject to built and committed exceptions to Goal 3 or 4, but not developed at urban density or committed to urban level development. (2) A county can justify an exception to Goal 14 to allow incorporation of a new city or establishment of new urban development on undeveloped rural land. Reasons which can justify why the policies in Goals 3, 4, 11, and 14 should not apply can include but are not limited to findings that an urban population and urban levels of facilities and services are necessary to support an economic activity which is dependent upon an adjacent or nearby natural resource. (3) To approve an exception under this rule, a county must also show: (a) That Goal 2, Part II(c)(1) and (c)(2) are met by showing the proposed urban development cannot be reasonably accommodated in or through expansion of existing urban growth boundaries or by intensification of development at existing rural centers; FINDING: Applicant's response: As the Applicant has previously described in the initial Burden of Proof, the proposed exception area is located immediately adjacent to the existing rural industrial zoned property, owned by the Applicant. Applicant is seeking to replace the amount of acreage lost to ODOT for the development of the Deschutes Market Road Interchange. The existing rural industrial zone where the pumice processing plant is located, is approximately 7 miles from Bend and 9 Miles from Redmond, the closest urban areas. The industrial use could not be reasonably accommodated in those areas due to this distance. To relocate a second facility in either Bend or Redmond would require the existing truck traffic to travel to the remote location for processing and then travel back to the existing site for loading onto rail cars, which is the primary mode of shipment of the finished product. Moreover, the development cannot be reasonably accommodated by the intensification of development at existing rural centers. The exception area is adjacent to the existing rural center. That rural center is completely built out. The need for the additional land is due to the fact that ODOT has taken approximately 4.5 Acres of the existing rural center. This precludes intensification at the rural center. However, it is in some respects an intensification of the existing rural center in that the additional land is immediately adjacent to the existing rural center. The proposed development could not be Page 13 - PA-98-2/ZC-98-1 STAFF REPORT 169__ - 2720 reasonably accommodated by intensification of development at other rural centers. The closest other rural centers, Terrebonne and LaPine, are located beyond Redmond and Bend and would have even greater transportation impediments than the nearest urban growth boundary locations have. (b) That Goal 2, Part II(c)(3) is met by showing the long term environmental, economic, social and energy consequences resulting from urban development at the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located on other undeveloped rural lands, considering: (A) Whether the amount of land included within the boundaries of the proposed urban development is appropriate, and (B) Whether urban development is limited by the air, water, energy and land resources at or available to the proposed site, and whether urban development at the proposed site will adversely affect the air, water, energy and land resources of the surrounding area. FINDING: Applicant's response: The environmental, economic, social and energy consequences resulting .from development at this site are not significantly more adverse than would typically result from the same proposal be located on other undeveloped rural lands. The proposed site is abutting existing rural industrial uses. The amount of land proposed is equal to the net amount of land that has been lost to the construction of the interchange. By expanding the existing operation in its present location, the impact will be that the existing operation will continue as it has in the past. There will be less impact to the environment because the disturbance due to rural industrial uses will be contained in a single location. Similarly, the economic consequences will have much less impact at the existing location. The existing business will continue uninterrupted without the need to decentralize the business into separate locations. Similarly social and energy consequences will have less impact because the existing operation already has truck traffic. That truck traffic will continue. If the site were to be located at a remote location, that would increase the truck traffic necessary to transport the raw materials for processing and then transport the raw materials to be loaded onto the rail car at the existing industrial site. The site processes pumice extracted from nearby mining sites. By allowing the operation to return to its original size, at the existing location, the truck traffic will still have the same number of trips required. The major factor for locating the processing site in this location is the adjacent rail car siding. The primary means of shipping the finished product is via rail car, and the siding is necessary to load the cars. The number of existing and potential rail car access points in the region is severely limited. Applicant would not be able to obtain another rail car siding from the railroad. Accordingly, in order to use another location for processing of materials, it would require truck traffic to go from the existing mine to the remote location and then to the existing location for shipment. This would have greater adverse impacts on the environment, economics, and energy consequences. The development at the proposed site will not adversely affect the air, water, energy and land resources of the surrounding area. The expansion at the existing site will have no greater impact than the existing operation with respect to air quality. The Applicant continues to work to reduce impacts from airborne pumice particles. The existing Page 14 - PA-98-2/ZC-98-1 STAFF REPORT 169 M 2721 neighbors include: Willamette Graystone, an existing industrial use; undeveloped property to the south, currently owned by the Applicant; the railroad to the east, and a County road to the north. Applicant has not had complaints by the surrounding area land owners that the existing operation adversely affects the air, water, energy, and land resources of the surrounding area. There would be no additional impacts to water. Energy resources would not be impacted. (c) That Goal 2, Part 11(c)(4) is met by showing the proposed urban uses are compatible with adjacent uses or will be so rendered through measures designed to reduce adverse impacts considering: (A) Whether urban development at the proposed site detracts from the ability of existing cities and service districts to provide services; and (B) Whether the potential for continued resource management of land at the present levels surrounding and nearby the site proposed for urban development is assured. FINDING: Applicant's response: The proposed use will be compatible with existing adjacent uses. As described in the previous Burden of Proof, the existing adjacent uses include existing industrial uses, vacant EFU land that is not in production, the railroad, and Deschutes Market Road. Applicant has worked to mitigate impacts from the existing operation. Because the proposal is to include land for the purposes of replacing land lost to ODOT, there should be no significant additional impacts. The expansion would not detract from the ability of existing cities and services districts to provide services. The existing site does not have sewer or water services from public utilities. The existing operation is served by an onsite septic system, as well as, an onsite well. Accordingly, it does not have urban levels of services and therefore would not detract from the ability of existing cities and service districts to provide services. The present resource management of land in the surrounding areas is fairly limited. There is a commercial hay operation across the highway to the west, and a quasi -commercial private "park" with gift antique shop (The Funny Farm) across Deschutes Market Road to the north. To the east and south, there is no existing resource use of the land. The proposed exception area containing approximate 4.5 acres of land is to the south and is physically removed from any nearby existing resource uses. The continuation of the existing operation will have no significant adverse impact on those areas. Accordingly, the continued resource management of land at the present levels surrounding and nearby the site will be unaffected. (d) That an appropriate level of public facilities and services are likely to be provided in a timely and efficient manner; FINDING: Applicant's response: Applicant is not proposing any additional public facilities or services. The existing services include an on-site septic system and a well for water use. These levels are appropriate for the existing and proposed use of the property. (e) That incorporation of a new city or establishment or new urban development of undeveloped rural land is coordinated with comprehensive plans Page 15 - PA-98-2/ZC-98-1 STAFF REPORT 169 2722 of affected jurisdictions and consistent with plans that control the area proposed for incorporation. FINDING: Applicant's response: As described in detail in the original Burden of Proof, the proposed exception area is consistent with the Comprehensive Plan for Deschutes County and that discussion is incorporated herein by reference. 3. OAR 660-04-018, Planning and Zoning for Exception Areas. (1) Purpose. This rule explains the requirements for adoption of plan and zone designations for exception areas. Exceptions to one goal or a portion of one goal do not relieve a jurisdiction from remaining goal requirements and do not authorize uses or activities other than those recognized or justified by the applicable exception. (2) "Physically Developed" and "Irrevocably Committed" Exceptions to goals other than Goals 11 and 14. Plan and zone designation shall limit uses to: (a) Uses which are the same as the existing types of land use on the exceptions site; or FINDING: Applicant's response: The Applicant is proposing an exception to Goal 3 to re -zone the property from Exclusive Farm Use to Rural Industrial. The Applicant is proposing a new zoning designation for the site which would allow the site to be utilized for industrial uses similar to the types of uses as which currently exists on the adjacent Rural Industrial zoned lands. The uses allowed in the RI zone are as listed in Sections 18.100.020 and 18.100.030 of Title 18 of the Deschutes County Code, incorporated herein by reference. All of the uses, with the exception of "farm use" and "veterinary clinic or kennel" are industrial uses or industrial accessory uses similar to the existing uses on the Cascade Pumice, Willamette Graystone, and United Pipe & Supply parcels Staff response: This section requires the applicant to justify how the adoption of plan and zoning provisions that would allow changes to existing types of uses on the subject property would meet the criterion. If the uses proposed by a "physically developed" or "irrevocably committed" exception do not meet the requirements, then the uses may be approved only by addressing the "Reasons" exception criteria set forth in OAR 660-04- 020 and 022. Staff notes that there are a range of conditional uses and uses permitted outright allowed in the RI zone. ODOT has raised concerns with impacts a range of uses allowed in the RI zone might have on the newly constructed transportation facility at the Deschutes Junction interchange. However, staff believes the essential question asked by this criterion is that the proposed zone designation would be consistent with the existing type of land use on the proposed site. The existing site, until recently, contained a manufactured home for the purpose of residential use of a caretaker for the adjacent Cascade Pumice facility. The subject parcel is utilized as miscellaneous storage and irrigation water outlet for the watering truck. It is staffs opinion, these uses might be consistent with rural residential zoning i.e. MUA-10. Meeting this criterion does not justify a change to RI zonng. However, the criterion sets forth other criterion for uses allowed by any plan and zone designations in section (b) through (d). The applicant has addressed the requirements of 2(a) and additionally the Exception Requirements for Page 16 - PA-98-2/ZC-98-1 STAFF REPORT 169 - 2723 Land Irrevocably committed to Other Uses set forth in OAR 660-04-028. It is staffs opinion the applicant needs to address further the criterion set forth in (b) through (d) because the submitted findings do not meet the criterion in the section cited in section 2(a) above. This should be addressed further by the applicant at the hearing and considered by the Hearings Officer. 4. OAR 660-04-028 Exception Requirements for Land Irrevocably Committed to Other Uses; (1) A local government may adopt an exception to a goal when the land subject to the exception is irrevocably committed to uses not allowed by the applicable goal because existing adjacent uses and other relevant factors make uses allowed by the applicable goal impracticable. FINDING: Applicants Response: The Applicant is seeking an exception for a total 6.55 acres of land identified as tax lot 16-12-26C-301. Uses allowed by Goal 3 are impracticable on this parcel for several reasons as outlined in detail below. In this case, the subject property is situated such that it is physically isolated from other EFU lands, and abutting developed industrial zoned lands. The small size of the property combined with its physical isolation from other EFU lands, lack of irrigation water rights, relatively poor agricultural soils, and the developed state of the property for a caretaker's residence all combine to make resource use of the property impracticable. Access to the site is available only from the adjacent industrial zoned lands to the east. The adjacent Cascade Pumice operation includes hauling 150-160 truck loads of pumice material per day to the site, then stockpiling, crushing, washing, and loading material into rail cars. The intensity of the adjacent industrial operation combined with the subject property's exposure to it further hamper the agricultural potential of the subject property. This physical relationship to the adjacent industrial operation combined with the physical barrier between the site and the adjacent EFU land lead a reasonable observer to conclude that the most logical and best use of this property would be for industrial uses of the nature of that which already is occurring in the area. Staff response: The subject site is zoned EFU -TRB, Exclusive Farm Use - Tumalo Redmond Bend Subzone. The applicant states that due to the parcel's size, combined with its physical isolation from other EFU lands, lack of irrigation water rights, relatively poor agricultural soils, and the developed state of the property for a caretaker's residence all combine to make resource use of the property impracticable. Staff provides the following additional findings. The subject site is bounded by Burlington Northern/Sante Fe railroad track to the east, road pavement in the process of construction by the Deschutes Junction interchange project, the Pilot Butte canal and right of way to the west that tapers to a thin wedge of land at the south end of the parcel. The subject site contains class 6e/7e soils when non -irrigated and the land has not been historically put to farm use. Due to the constraints of canal and right of way, the interchange roads being constructed, railroad further to the east that bound the sight, the irriegular shape of the site, the soil and size limitations, the site would be impractical for the purpose of hay or alfalfa production. The constraints of the canal, roads and adjacent industrial land uses would preclude the site to be reasonably put to use for livestock grazing in conjunction with any adjacent parcel. In effect, the Page 17 - PA-98-2/ZC-98-1 STAFF REPORT 169 -- 2724 topographical and existing development isolate the site from the remaining portion of the parcel to the north across the interchange road and to the surrounding parcels. There is no current or historical evidence of irrigation on the subject site. Because of the existing use of the site as an accessory use to the Cascade Pumice site to the east. the plan amendment/zone change would not alter the land use pattern and uses therein to the detriment of farm use in the area. Staff notes that if the Hearings Officer feels that restrictions on this parcel need to be applied, a Limited Use Combining Zone designation is an option pursuant to Chapter 18.112 of the Deschutes County Code. (2) Whether land is irrevocably committed depends on the relationship between the exception area and the lands adjacent to it. The findings for a committed exception therefore must address the following: (a) The characteristics of the exception area; FINDING: Applicant's response: The subject property is an irregularly shaped parcel approximately 1,840 feet in length (north -south) and ranging in width from less than 25' up to 400'. The irregular width is due to the meandering Pilot Butte Canal, the centerline of which forms the west property boundary. Portions of the canal in this area are elevated by backfilled abutments, and the canal itself averages approximately 40 feet in width. It is centered within a 100 foot wide easement. Thus, use of the westerly 50' of the property is restricted due to the terms of the canal easement. The large and elevated canal effectively isolates the property from other EFU-zoned lands to the north, west and south. The entire 1,840 foot east boundary is shared with the Rural Industrial zoned Cascade Pumice processing facility. The property itself is relatively level and supports a vegetative covering of scattered juniper and native brush. The property was until very recently developed with a single wide mobile home, and still has a carport, and several smaller sheds. The mobile home was utilized as a night watchman's residence for the adjacent Cascade Pumice processing facility. (b) The characteristics of the adjacent lands; FINDING: Applicants response: Adjacent EFU-zoned land to the west, north and south is also owned by the Applicant. The adjacent EFU land is in a native state, with junipers, sagebrush, native grasses and brush and numerous lava rock outcroppings and undulating terrain. It has never been used for agriculture. This adjacent land is physically separated from the subject parcel by the Pilot Butte Canal. The entire east boundary of the subject property is shared with the Cascade Pumice processing facility on tax lots 16-12-26C-108 and 102. Both parcels are zoned Rural Industrial. Two other Rural Industrial zoned parcels, tax lots 16-12-26C-106 and 107, are developed with the Willamette Graystone concrete manufacturing plant and United Pipe and Supply facility, respectively. The boundaries of the triangular-shaped Deschutes Junction Rural Industrial zone are formed by Deschutes Market Road on the north, the Burlington Northern Santa Fe Railroad tracks on the east, and the west quarter section line of Section 26 on the west. Page 18 - PA-98-2/ZC-98-1 STAFF REPORT 169 - 2125 The quarter section line also forms the boundary between the Cascade Pumice processing facility and the subject property. The United Pipe and Supply facility is the only industrial site located west of the Pilot Butte Canal, which turns northeast and crosses the quarter section line at the northern end of the area. (c) The relationship between the exception area and the lands adjacent to it; and FINDING: Applicants response: The Pilot Butte Canal forms a significant physical boundary between the subject property and other lands to the west, north and south. The long, narrow, subject property is sandwiched between the Canal to the west and the developed industrial property to the east. Thus, it is physically related and connected to the adjacent Rural Industrial land to the east. The property was, until recently, developed with a manufactured home utilized as a night watchman's residence, evidencing the relationship between the proposed exception area and the adjacent industrial land. Physical access to the site is from the east across the adjacent Cascade Pumice processing facility. Staff response: The subject exception area contains the same soil type as the surrounding adjacent lands (NRCS soil mapping unit 38B, Deskamp-Gosney complex). According to the NRCS soil description data for mapping unit 386, these soils are considered to have severe limitations without irrigation. According to recent and historical aerial photographs of the area, photographs of the site, (Exhibits 3 - 6), and staff site visit on March 20, 1998, the site contains a water truck turnaround facility, accessory sheds and a vegetative cover of juniper trees, native brush and grasses. The parcel is physically separated from adjacent parcels in similar vegetative cover to the west by the elevated Pilot Butte Canal. From an aerial point of view, this parcel consists of a southwest portion of a block of land bounded by the Pilot Butte Canal to the west, the BRSF railroad tracks to the east, Deschutes Market Road to the north and a strip of EFU land between the railroad and canal to the south. In terms of use, the subject property is in proximity to the adjacent rural industrial uses to the east and physically separated from the vacant EFU lands to the west and south. (d) The other relevant factors set forth in OAR 660-04-028(6). The factors set forth in OAR 660-04-028(6) are addressed below. (3) For exceptions to Goal 3 or 4, local governments are required to demonstrate that only the following uses or activities are impracticable: (a) Farm use as defined in ORS 215.203; (b) Propagation or harvesting of a forest product as specified in OAR 660-33-120; and (c) Forest operations or forest practices specified in OAR 660-06- 025 (2) (A). Page 19 - PA-98-21ZC-98-1 STAFF REPORT 169 -2726 FINDING: Applicants Response: Farm uses on the exception area site are impracticable due to a combination of factors including size, isolation from other EFU lands, poor soils, lack of irrigation water, existing development, and existing vegetative covering. The site is impracticable for forest uses due to the lack of merchantable timber species on the site and in the general area. On December 3, 1996, OAR 660-04.028 (3) was amended pursuant to ORS 197.732 (3) (b) to modify the requirements under this section. The modified Administrative Rule clarifies and reduces the burden of a local government to demonstrate that an irrevocably committed exception is justified. Previously, in order to approve an irrevocably committed exception, the findings must have included the conclusion that all uses allowed by the goals are impracticable. Brown v. Jefferson County, 33 Or LUBA 96-095 (1997). Accordingly, in this Application, the applicant proposes to demonstrate that farm use, forest use and forest operations are not practicable at the exception site. The appropriate standard for determining whether farm use is practicable, "whether the subject property is 'capable, now or in the future, of being currently employed for agricultural production "for the purpose of obtaining a profit in money' " id. In this case, the exception area has never been farmed. It is not capable now or in the future of being employed in agricultural production because of a variety of factors: 1. The site has no irrigation water nor access to any irrigation source, 2. There is no physical access except across the adjacent industrial property. The parcel is virtually land locked by the presence of the irrigation canal, and the new interchange construction and the existing industrial operations to the North and to the West, 3. The parcel is too narrow to effectively cultivate and harvest any agricultural crops, and 4. Because of the physical barriers of the canal and the existing industrial operation to the North and to the East, the property cannot be combined with another property and put to agricultural use. The site is not suitable for a livestock operation for the same reasons as described above. In addition, the existing industrial operations produce substantial noise, dust and traffic that would spook and unsettle livestock. The Cascade Pumice, Inc. operation alone, consists of 150 - 160 truck loads of pumice per day. The operation stockpiles and processes the loads of pumice immediately adjacent to the exception area. In addition, the noise and dust from loading of the material onto rail cars would also negatively impact livestock. With regard to the impracticability of propagation or harvesting of a forest product or forest operations, the same factors as described above make the site impracticable for such use. In particular, the access limitation, lack of water, the isolation of the parcel, and the inability to combine it with other properties render the property unsuitable for forest products or operations. Also, the property has no merchantable timber or any Page 20 - PA -98-22C-98-1 STAFF REPORT 169 - 2727 proximity to merchantable timber or forest products. Accordingly, the site is not practicable for any forest uses. The property is not capable for being employed in agricultural production for the purpose of obtaining a profit. (4) A conclusion that an exception area is irrevocably committed shall be supported by findings of fact which address all applicable factors of section (6) of this rule and by a statement of reasons explaining why the facts support the conclusion that uses allowed by the applicable goal are impracticable in the exception area. FINIDNG: Applicant's response The applicable factors of section (6) of OAR 660-04- 028 are addressed below by findings of fact and a statement of reasons explaining why the uses allowed by Goal 3 are impracticable in the proposed exception area. (5) Findings of fact and a statement of reasons that land subject to an exception is irrevocably committed need not be prepared for each individual parcel in the exception area. Lands which are found to be irrevocably committed under this rule may include physically developed lands. FINDING: Applicant's Response: There is only one parcel subject to the proposed exception. Findings of fact and a statement of reasons have been prepared for the subject parcel. The proposed exception area includes some physical development as described previously in this burden of proof and as illustrated on the attached exhibits. (6) Findings of fact for a committed exception shall address the following factors: (a) Existing adjacent uses; FINDING: Existing adjacent uses have been discussed at length previously in this burden of proof statement. These uses include vacant land owned by the Applicant, zoned EFU, to the west and south across the Pilot Butte Canal, characterized by land in native vegetation of juniper tree/sagebrush/bitterbrush rangeland. To the east is the Cascade Pumice processing facility on land zoned Rural Industrial. To the north are the United Pipe and Willamette Gray Stone engaged in uses allowed in the Rural Industrial zone. (b) Existing public facilities and services (water and sewer lines, etc.); FINDING: Applicant's response. Electrical power to the subject property and adjacent industrial operation is provided by overhead power lines which enter the Cascade Pumice property from the north off Deschutes Market Road. Water for drinking, processing, dust control, and on site landscaping is provided from a variety of sources including wells, an Avion Water Company connection, and the Central Oregon Irrigation District. A headgate and pump is located on the Pilot Butte Canal facility near the south end of the subject property. Sewage disposal is provided via on site septic holding tanks and drainfields. Page 21 - PA-98-2/ZC-98-1 STAFF REPORT 169 ¢ 2728 (c) Parcel size and ownership patterns of the exception area and adjacent lands: (A) Consideration of parcel size and ownership patterns under subsection (6)(c) of this rule shall include an analysis of how the existing development pattern came about and whether findings against the Goals were made at the time of partitioning or subdivision. Past land divisions made without application of the Goals do not in themselves demonstrate irrevocable _commitment of the exception area. Only if development (e.g., physical improvements such as roads and underground facilities) on the resulting parcels or other factors make unsuitable their resource use or the resource use of nearby lands can the parcels be considered to be irrevocably committed. Resource and nonresource parcels created pursuant to the applicable goals shall not be used to justify a committed exception... FINDING: Applicant's Response: Industrial development in this area first began in the 1940's when first a sawmill and then a pumice plant were established. By 1968, the pumice plant had grown significantly while the sawmill had been abandoned. In 1979, the RI zoning was established with its current boundaries. The Willamette Graystone building was also constructed in 1979, and the United Pipe & Supply building was constructed in 1982. The subject property was excluded from the 1979 RI zoning, most likely due to the fact that it was in separate ownership from the industrial properties around it and was developed with a residential mobile home. In 1993, the subject property was conveyed to Cascade Pumice and was used until very recently as a night watchman's residence. In 1996, the Deschutes Market Interchange project was designed and received land use approval and funding. The new roadway, for which right of way has now been obtained, bisects the Cascade Pumice facility and results in the loss of 4.95 acres of useable Rural Industrial zoned land. In 1998, Cascade Pumice began this proceeding to replace the RI zoning lost to the interchange project with an approximately equal amount of new RI zoned land. Staff response: Pursuant to the land use history outlined above, supported by historical aerial photographs included in the record (Exhibit 6), and County files for the lands zoned Rural Industrial adjacent to the east of the subject property and the adjacent lands, staff finds there is substantial evidence in the record to conclude that this criterion is satisfied. (B) Existing parcel sizes and contiguous ownerships shall be considered together in relation to the land's actual use... FINDING: Applicants Response: The subject property, at 6.55 acres, is surrounded by other parcels owned by Cascade Pumice. All of the Cascade Pumice property east of the subject site (tax lots 102 and 108) is zoned RI and developed as the Cascade Pumice processing facility. Tax Lot 102 contained 8.4 acres and tax lot 108 12.65 acres prior to right of way dedications for the interchange. Other Cascade Pumice property (tax lot 300) to the west, across the canal, is vacant and zoned EFU. Tax lot 300 Page 22 - PA-98-2/ZC-98-1 STAFF REPORT 169 - 2 129 contained 33 acres prior to right of way dedication. Two other RI zoned parcels to the north of the Cascade Pumice processing facility are developed by Willamette Graystone and United Pipe and Supply. These two parcels are both approximately 5 acres in size. (d) Neighborhood and regional characteristics; FINDING: Applicant's Response: The property is generally considered to be a part of a "rural neighborhood" which surrounds Deschutes Junction, the intersection of Highway 97 and Deschutes_ Market/Tumalo Roads. From a wide-angle perspective, this neighborhood includes the Boonesborough rural residential subdivision to the southeast and the nearest portions of the very large Whispering Pines rural residential subdivision to the northwest. Lands to the southwest and northeast of the junction are zoned EFU and primarily developed as irrigated farmland. The Deschutes Junction Rural Industrial (RI) Zone is located immediately adjacent to the southeast comer of the existing intersection. The RI zoned properties are developed with the Cascade Pumice facility, Willamette Graystone, and United Pipe and Supply. Two very significant transportation corridors, Highway 97 and the Oregon Trunk (Burlington Northern Santa Fe) railway line traverse the area north/south parallel to one another. The Central Oregon Irrigation District Pilot Butte Main Canal, an irrigation water supply of regional significance, also runs northward in the area between the railroad and the highway. (e) Natural or man-made features or other impediments separating the exception area from adjacent resource land. Such features or impediments include but are not limited to roads, watercourses, utility lines, easements, or rights-of-way that effectively impede practicable resource use of all or part of the exception area. FINDING: Applicant's Response: Due to the Pilot Butte canal along its west boundary, the 6.55 acre site is physically isolated from all other adjacent lands except the RI -zoned processing facility to the east. The existing RI zone as a whole is physically isolated from surrounding land by the railroad tracks to the east, Deschutes Market Road to the north, and the canal and Highway 97 to the west. The canal itself averages approximately 40 feet in width in this area while the canal easement is 100 feet in width. The canal is a very significant impediment to practicable resource use, physically isolating the subject property from the adjacent resource -zoned land to the west. (f) Physical development according to OAR 660-04-025; and (g) Other relevant factors. FINDING: Applicant's Response: The recent loss of approximately 5 acres of the usable industrial area, due to the interchange, will cause the existing operation to try and fit onto the reduced existing property. This will intensify the impact to the adjacent property. The activities of hauling, approximately, 150-160 truck loads of pumice per day, stockpiling, processing and loading onto rail cars will be much closer and have grater impact in terms of noise, dust, traffic, on the adjoining property. Applicant's efficiency will be impaired due to the decrease in maneuvering and storage space. The Page 23 - PA-98-2/ZC-98-1 STAFF REPORT 169 - 2730 proposed zone change will replace the lost usable space and restore the efficiency of the existing operation. (7) The evidence submitted to support any committed exception shall, at a minimum, include a current map, or aerial photograph which shows the exception area and adjoining lands, and any other means needed to convey information about the factors set forth in this rule. For example, a local government may use tables, charts, summaries, or narratives to supplement the maps or photos. The applicable factors set forth in section (6) of this rule shall be shown on the map or aerial photograph. FINDING: A site plan, color and black & white aerial photographs, and ground level photographs of the property and adjoining lands, are attached hereto as Exhibits 3, 4, 5 and 6. 5. OAR 660-04-030 Notice and Adoption of an Exception (1) Goal 2 requires that each notice of a public hearing on a proposed exception shall specifically note that a goal exception is proposed and shall summarize the issues in an understandable manner. (2) A planning exception takes effect when the comprehensive plan or plan amendment is adopted by the city or county governing body. Adopted exceptions will be reviewed by the Commission when the comprehensive plan is reviewed for compliance with the goals, when a plan amendment is reviewed pursuant to OAR Chapter 660, Division 18, or when a periodic review is conducted to ORS 197.640. FINDINGS: Staff finds these criteria were met by the mailed and published notice of the April 21, 1998 hearing which specifically stated that a goal exception was proposed. In addition notice of the proposed plan amendment was mailed to the Department of Land Conservation and Development (DLCD) on March 4, 1998. C. OAR 660, Division 12, Transportation Planning Rule: 1. OAR 660-12-060, Plan and Land Use Regulation Amendments: (1) Amendments to functional plans, acknowledged comprehensive plans, and land use regulations which significantly affect a transportation facility shall assure that allowed land uses are consistent with the identified function, capacity, and level of service of the facility. This shall be accomplished by either: (a) Limiting allowed land uses to be consistent with the planned function, capacity and level of service of the transportation facility; (b) Amending the TSP to provide transportation facilities adequate to support the proposed land uses consistent with the requirements of this division; or Page 24 - PA-98-2/ZC-98-1 STAFF REPORT 169 2131 (c) Altering land use designations, densities, or design requirements to reduce demand for automobile travel and meet travel needs through other modes. (2) A plan or land use regulation amendment significantly affects a transportation facility if it: (a) Changes the functional classification of an existing or planned transportation facility; (b) Changes standards implementing a functional classification system; (c) Allows types or levels of land uses which would result in levels of travel or access which are inconsistent with the functional classification of a transportation facility; or (d) Would reduce the level of service of the facility below the minimum acceptable level identified in the TSP. FINDING: Applicants Response: The proposed zone change/plan amendmentigoal exception will not significantly affect a transportation facility, specifically Highway 97 or the new interchange. The Applicant is proposing to simply replace 5 acres of RI zoning lost to the interchange project with an approximately equal amount of useable new RI zoning. If the change is approved, the development potential of the area will be no greater or less than it was when the facility was designed. Staff response: ODOT has stated in a transmittal letter of response dated April 4, 1998 that the proposed zone change does not meet the provisions of the TPR and would impact the transportation facility now under construction. The applicant has submitted a response to these concerns in a supplemental burden of proof statement. (3) Determinations under section (1) and (2) of this rule shall be coordinated with affected transportation facility and service providers and other affected local governments. (4) The presence of a transportation facility or improvement shall not be a basis for an exception to allow residential, commercial, institutional or industrial development on rural lands under this division or OAR 660-04-022 and 028. FINDING: Applicant's Response: The proposed exception is based in part on the industrial zoned land lost to right of way for the new interchange project. The presence of the interchange and its resultant increase in road capacity is not, however, the basis for this proposal. The primary basis for the proposed exception is the physical situation of the subject property adjacent to developed industrial land and isolated from other farm zoned land, as discussed in detail above. Staff response: As referenced above, ODOT has stated in a letter of opposition that the applicant cannot use the presence of the Deschutes Junction interchange project as justification for the zone change. ODOT has also stated that the applicant has been compensated financially for the land lots to roadway as a mitigation measure. Page 25 - PA-98-2/ZC-98-1 STAFF REPORT 169 -2732 D. Deschutes County Year 2000 Comprehensive Plan 1. Rural Development Section Goals and Policies. GOALS: 1. To preserve and enhance the open spaces, rural character, scenic values and natural resources of the County. 2. To guide the location and design of rural development so as to minimize the public costs of facilities and services, to avoid unnecessary expansion of service boundaries, and to preserve and enhance the safety and viability of rural land uses. 3. To provide for the possible long term expansion of urban areas while protecting the distinction between urban (urbanizing) land and rural lands. POLICIES: Rural Development policies are meant to pertain to all non -urban (areas outside urban growth boundaries) and are the basic policies to be followed in guiding rural growth. Specific resource or management policies from other chapters shall augment these policies so that the plan must be viewed as an integrated whole rather than a series of individual chapters. Commercial and Industrial Development (9) Temporary on-site processing and storage of either mineral and aggregate materials or agricultural products shall be permitted as appropriate, in order to support the continued productivity of the County's natural resources. (10) (Identical to 11 with exception of reference to "wrecking or salvage yards") (11) Certain industrial uses, such as research and development facilities (requiring quiet and open surroundings), wrecking or salvage yards and manufacturers of hazardous materials (requiring long distances between the plant and neighbors) are more suitably located in rural areas. The County shall consider making provision for such uses as the need is found to exist (see Tumalo). 2. Agricultural Lands Section. GOAL: To preserve and maintain agricultural land. Page 26 - PA -98-22C-98-1 STAFF REPORT FINDING: Applicant's response. The Applicant believes t else goals anplicies are pertinent to the proposed zone change/plan amendment/goal exception. The proposal will further the goal of allowing on-site processing and storage of mineral and aggregate resources in order to support the continual productivity of the County's material resources. The replacement of the land lost to the interchange will allow Cascade Pumice, Inc. to continue with the same volume of resource production in an efficient manner. The Applicant believes that the proposal is in full compliance with these goals and policies, thus requiring no additional language or amendments to the existing plan language. Staff response: As stated in a letter of opposition by ODOT, the proposed zone change and plan amendment would not be appropriate and the applicant had not addressed adequately the impact industrial uses would have on the transportation facility being constructed. Staff would suggest that if the Hearings Office was concerned that the range of industrial uses allowed by the RI zone would not be consistent with the Comprehensive Plan policies or create adverse impacts on the transportation facility or adjacent lands, an alternative would be the imposition of a Limited Use Combining Zone on the property pursuant to Chapter 18.112 of the DCC. IV. CONCLUSION AND RECOMMENDATION: Pursuant to Goal 2, Part II, Exceptions, a local government may adopt an exception to a goal when: (a) The land subject to the exception is physically developed to the extent that it is no longer available for uses allowed by the applicable goal (OAR 660-04-025). (b) The land subject to the exception is irrevocably committed to uses not allowed by the applicable goal (OAR 660-040-028; or (c) The four "reasons" exception standards are met (OAR 660-040-020/022). The goal thus requires an applicant for an exception to specify which exception requirements are applicable, and provide reasons and facts to satisfy those requirements. Essentially, the main issue with this application was the applicable criteria regarding the exception process. Based upon the initial burden of proof statement, if the use the applicant requests is allowed by the goal but not the DCC code, then the appropriate application would be a text amendment with a subsequent application for a conditional use permit and site plan. If the use the applicant requested is allowed by the goal, they cannot qualify for a goal exception under section OAR 660-04-028. If the applicant qualifies for a goal exception under OAR 660-04-018, then the appropriate plan designation is Rural Residential and the appropriate zone is MUA-10. If the applicant requests Rural Industrial Zoning, they have to address the criteria of OAR 660-04- 020/022. 60-04020/022. Page 27 - PA-98-2/ZC-98-1 STAFF REPORT 169 - 2734 The applicant in their arguments cites the "Irrevocably Committed" criteria of OAR 660- 04-028 to justify the proposed plan amendment and zone change. Staff maintains that the applicant has essentially met the criteria of OAR 660-028. However, at the time of the writing of the staff report, the submitted burden of proof statement had not addressed whether Goal 14 applies on page 13 of this report, the amendment criteria of 18.136.020(2)(D), transportation related issues raised by ODOT, and whether or not OAR 660-04-018 (b), (c) and (d) applies. The applicant has submitted a supplemental burden of proof on June 15, 1998 that addresses Goal 14 and the issues raised by ODOT. While staff maintains that the "irrevocably committed" criterion set forth in OAR 660-04-028 can generally be satisfied, the question remains whether the applicant has provided substantial evidence to justify the request under the criteria of OAR 660-04- 018. It is staffs opinion that if the applicant qualifies for a goal exception under OAR - 660 -018, then the appropriate plan designation is Rural Residential, the appropriate zone is MUA-10. If the applicant seeks Rural Industrial zoning then the "reasons" exception criteria apply under OAR -660-020/022. Staff recommends the Hearings Officer focus on this issue as well as those identified above. Staff further requests of the Hearings Officer the opportunity to provide additional response to the supplemental burden of proof and testimony given at the hearing. Page 28 - PA -98-22C-98-1 STAFF REPORT 169 2735 BEFORE THE DESCHUTES COUNTY HEARINGS OFFICER APPLICANT: ( CASCADE PUMICE, INC. ( THIRD SUPPLEMENTAL ( BURDEN OF PROOF ( APPLICANT: Cascade Pumice, Inc. c/o Dugan Pearsall Post Office Box 1087 Bend, Oregon 97709 OWNER: Cascade Pumice Inc. AGENT: Sharon R. Smith Dale E. Van Valkenburg Bryant, Lovlien & Jarvis, P.C. P.O. Box 1151 Bend, Oregon 97709-1151 LOCATION: Deschutes Junction; Tax Lot 16-12-26C-301 REQUEST: A zone change and plan amendment, including a goal exception, to change the zoning on approximately 6.55 acres of land currently zoned Exclusive Farm Use to Rural Industrial. The site is located at Deschutes Junction adjacent to an existing Rural Industrial zone. The proposal would allow for the expansion of the existing adjacent Cascade Pumice processing facility. The expansion is made necessary by the alignment of the Deschutes Junction interchange at Highway 97, which will bisect the current operation. This proposal seeks to add the same amount of acreage rendered unusable by the new interchange alignment. INTRODUCTION The purpose of this Third Supplemental Burden of Proof is to address the "reasons criteria" at the request of the Planning Department. The Applicant believes that it can meet the Cascade Pumice Inc. Deschutes Junction Zone Change Third Supplemental Burden of Proof Page 1 P. DA I SMCL1EN7NU-C I CPACP117.015 Bryant I. ben ■ Jarvis 40 N.W. Greenwood - P.O. Box 1151 - Bend, Oregon 97709-1151 - (541) 382-4331 - Fax (541) 389-3386 169 - 2 736 criteria for an irrevocably committed exception. The Planning Department concurs that the proposal meets the irrevocably committed exception criteria, but in order to obtain a zoning designation of Rural Industrial, the Applicant must address the reasons exception criteria. There does not seem to be any case law directly on point. Accordingly, Applicant is prepared to address the reasons exception criteria in this Third Supplemental Burden of Proof. As Applicant has stated through this process, their goal is to replace the amount of Rural Industrial zoned property they lost for construction of the interchange. The Applicant wishes to have the same number of acres they had prior to ODOT's acquisition of property and retain all of the same options they had for Rural Industrial zoned property. DISCUSSION I. OAR 660-04-020, Goal 2, Part 11(c), Exception Requirements: (1) If a jurisdiction determines there are reasons consistent with OAR 660-04-022 to use resource lands for uses not allowed by the applicable Goal, the justification shall be set forth in the comprehensive plan as an exception. (2) The four factors of Goal 2 Part II(c) required to be addressed when taking an exception to a Goal are: (a) "Reasons justify why the state policy embodied in the applicable goals should not apply": The exception shall set forth the facts and assumptions used as the basis for determining that a state policy embodied in a goal should not apply to specific properties or situations including the amount of land for the use being planned and why the use requires a location on resource land: RESPONSE: The proposed exception area is immediately adjacent to the existing Rural Industrial zoned property owned by the Applicant. Applicant is seeking to replace the amount of acreage lost to ODOT for the development of the Deschutes Market Road Interchange. ODOT has taken approximately 4.5 acres of Applicant's Rural Industrial zoned property. Applicant is seeking to replace an equivalent net acreage amount. Although the size of the actual re -zone is 6.55 acres, the presence of an easement adjacent to the canal that forms the westerly boundary effectively reduces the usable acreage to approximately 4.5 acres. The proposed exception area is situated between the existing canal to the west and the existing industrial operation to the east. Due to the large irrigation canal forming the western property boundary, the site is physically separated from surrounding lands and is unusable for resource use. The proposed exception site has never been used for agricultural production. The site is uniquely situated and it makes logical sense to add it to the existing operation to replace the lost acreage. The same Cascade Pumice Inc. Deschutes Junction Zone Change - Third Supplemental Burden of Proof Page 2 PADATAISRSICL1EN7s1A-CICPACP117.015 &yant LoAm ■ Jarvis 40 N.W. Greenwood - P.O. Box 1151 - Bend, Oregon 97709-1151 ■ (541) 382-4331 - Fax (541) 389-3386 169 ¢ 2737 reasons described in the initial Burden of Proof addressing the irrevocably committed exception criteria are incorporated herein. Those facts and analysis are also reasons why the applicable Goal should not apply. (b) "Areas which do not require a new exception cannot reasonably accommodate the use": (A) The exception shall indicate on a map or otherwise describe the location of possible alternative areas considered for the use, which do not require a new exception. The area for which the exception is taken shall be identified; RESPONSE: There are four types of areas which would not require a new exception. However, none of these areas could reasonably accommodate the proposed use. Those types of areas include existing Rural Industrial land, existing Surface Mine land, the industrial land in the Bend Urban Area zoned IG and the industrial land in the Redmond area zoned MI. (B) To show why the particular site is justified, it is necessary to discuss why other areas which do not require a new exception cannot reasonably accommodate the proposed use. Economic factors can be considered along with other relevant factors in determining that the use cannot reasonably be accommodated in other areas. Under the alternative factor the following questions shall be addressed: (i) Can the proposed use be reasonably accommodated on nonresource land that would not require an exception, including increasing the density of uses on nonresource land? If not, why not? RESPONSE: The property zoned Rural Industrial in the County is very limited. There is a block of Rural Industrial zoned land in the LaPine area. However, that location is more than 35 miles away. Its remote location makes it unusable for a Rural Industrial site to process pumice because it is too far from the resource pumice site near Tumalo. Similarly there is a small amount of Rural Industrial zoned property to the east of the Redmond urban area. Much like LaPine, that area is located too far from the location of the materials to be used for a processing site. The only other Rural Industrial zoned property exists at Deschutes Junction. Deschutes Junction is completely built out. Moreover, the site is built to maximum density and the additional proposed 4.5 acres could not be accommodated by an increase in density. The next non -resource land category would be Surface Mining zoned property. There are several mineral and aggregate surface mines scattered throughout the Cascade Pumice Inc. Deschutes Junction Zone Change Third Supplemental Burden of Proof Page 3 P: IDA TAISRSICLIEN7SU-0CPIICPI17.015 A 40 N.W. Greenwood • P.O. Box 1151 Bend, Oregon 97709-1151 • (541) 382-4331 • Fax (541) 389-3386 169 - 2738 County. However, these Surface Mines are not located along improved railroad sidings. The Applicant is a regional northwest supplier of pumice. It is currently the only pumice supplier in Deschutes County. At least 50% of its products are shipped by rail car. The rail siding is a unique asset to this particular site. The current railroad siding can accommodate 25 rail cars. It is a two-way siding which allows rail cars to enter on both ends. There are no other existing or potential rail car siding locations in Deschutes County of this size. Accordingly, in order for the Applicant to utilized property zoned surface mine, it would have to ship material to the alternate site from its mine, and then re -ship the material to its present processing facility for rail shipment. This would not be economically feasible. In addition, it would increase the amount of truck traffic in Deschutes County, which would have adverse impacts. Similarly, Applicant's existing pumice mines have the same restriction. Applicant has four separately designated sites under the County Surface Mining Comprehensive Plan. In order to locate a process facility on one of those sites, it would require Applicant to duplicate or move its processing plant, which would be a severe economic hardship. Locating the processing facility at one surface mine site would require the shipment of materials from other sites for processing at the remote site and then shipment to the existing site for rail car distribution. This would be an increase in expense, as well as, an increase in truck traffic. A final reason that a remote surface mining site would not reasonably accommodate the use is the lack of ready access to the highway. The portion of materials sold for local use is typically shipped via trucks. The trucks currently have access to Highway 97 for distribution throughout the local community. This would not be the case if the processing facility were to be located at a remote surface mining site. The areas zoned IG in the Bend urban area and M 1 in the Redmond urban area have similar constraints as described above. Although the zoning would conceivably allow the processing and sales of pumice in those zones, there is no existing rail car siding for shipment. Moreover, those areas are much further away from the resource site. This would increase the number and length of truck trips to transport the material to a processing site and then transport it back to the existing site for shipment. In addition, Applicant has a fairly large area for processing, which enables it to mitigate adverse impacts, such as dust and noise. At its current site, Applicant has employed mitigation measures so as not to impact the surrounding area. If Applicant were to move to an urban area, there would be less acreage for storage and processing. The reduced size could potentially reduce Applicants ability to mitigate dust and noise and potentially cause greater impacts to the surrounding area properties in a more densely developed Cascade Pumice Inc. Deschutes Junction Zone Change Third Supplemental Burden of Proof Page 4 P. IDA TA LSRSICLIEN731A-CICRACP117.015 &yarn Lovlm ■ Jarvis ,FN0FE%K1wC0NFCK,,,a ,,TICENMATLAW 40 N.W. Greenwood • P.O. Box 1151 Bend, Oregon 97709-1151 • (541) 382-4331 • Fax (541) 389-3386 169 27'39 urban area. The remaining category of lands that would not require a Goal 3 exception would include MUA 10 zoned land and RR 10 zoned land. These lands would have the same constraints described above, including lack of proximity to a rail car siding, increased truck traffic due to the necessity for shipment from remote locations to the rail car siding. In addition, the RR 10 and MUA10 zones are constrained by the fact that the proposed use is not an allowed use on those sites and Applicant would need to obtain a zone change to either surface mining or Rural Industrial. It would be nearly impossible to obtain a re -zone to surface mining unless there were significant mineral deposits on the RR 10 or MUA10 sites. Moreover, because both those zones are a rural residential zone, there would be significant potential conflicts with the existing, surrounding residential uses. Accordingly, it would not be feasible to use an RR 10 or an MUA10 site for the proposed use. (ii) Can the proposed use be reasonably accommodated on resource land that is already irrevocably committed to nonresource uses, not allowed by the applicable Goal, including resource land in existing rural centers, or by increasing the density of uses on committed lands? If not, why not? RESPONSE: In the Planning Staff Report, Staff has agreed that the proposed exception site meets the criteria for a "committed lands" exception. Applicant is not aware of any other irrevocably committed lands that would be suitable for the proposed use, for the reasons described above under Paragraph (i). Similarly, Applicant has addressed the unsuitability of resource lands in existing rural centers. The existing rural centers are LaPine and Terrebonne. Those centers are too remote to be used for the processing and shipment of pumice. The material would need to be transported to those locations for processing and then transported to the rail car siding for shipment. Finally, there are no committed lands that would be available for increased density for the proposed use. (iii) Can the proposed use be reasonably accommodated inside an urban growth boundary? If not, why not? RESPONSE: The analysis described above in Paragraph (i) is incorporated herein regarding potential use within an urban growth boundary. Applicant has addressed the unsuitability of the M1 zone in Redmond and the IG zone in Bend. For the reasons described above, those sites would not be suitable. (C) The alternative areas standard can be met by a broad review of similar types of areas rather than a review of specific alternative sites. Initially, a local government Cascade Pumice Inc. Deschutes Junction Zone Change Third Supplemental Burden of Proof Page S P:IDATAISRSICLIENTSU-CICPIICPI17.015 &yam LoAm ■ Jarvis 40 N.W. Greenwood • P.O. Box 1151 :=end, 97709-1151 • (541) 382-1331 • Fax (541) 389-3386 169 -- 2740 adopting an exception need assess only whether those similar types of areas in the vicinity could not reasonably accommodate the proposed use. Site specific comparisons are not required of a local government taking an exception, unless another party to the local proceeding can describe why there are specific sites that can more reasonably accommodate the proposed use. A detailed evaluation of specific alternative sites is thus not required unless such sites are specifically described with facts to support to support the assertion that the sites are more reasonable by another party during the local exceptions proceeding. (c) The long-term environmental, economic, social and energy consequences resulting from the use at the proposed site with measures designed to reduce the adverse impacts are not significantly more adverse than would typically result from the same proposal being located in areas requiring a Goal exception. The exception shall describe the characteristics of each alternative areas considered by the jurisdiction for which an exception might be taken, the typical advantages and disadvantages of using the area for a use not allowed by the Goal, and the typical positive and negative consequences resulting from the use at the proposed site with measures designed to reduce adverse impacts. A detailed evaluation of specific alternative sites is not required unless such sites are specifically described with facts to support the assertion that the sites have significantly fewer adverse impacts during the local exceptions proceeding. The exception shall include the reasons why the consequences of the use at the chosen site are not significantly more adverse than would typically result from the same proposal being located in areas requiring a goal exception other than the proposed site. Such reasons shall include but are not limited to, the facts used to determine which resource land is last productive; the ability to sustain resource uses near the proposed use; and the long-term economic impact on the general area caused by irreversible removal of the land from the resource base. Other possible impacts include the effects of the proposed use on the water table, on the costs of improving roads and on the costs to special service districts. RESPONSE: The alternative areas for which an exception might be taken would be the EFU zoned property in the vicinity of the existing Rural Industrial zoned property or the EFU zoned properties adjacent to existing rural communities. However, the consequences of the proposed use on the subject property are not significantly more adverse than would result from the same proposal being located in those areas. The soils on the subject site are Class 6 and 7 soils unirrigated. These soil complexes are not considered high value soil, even when irrigated, according to the definition of high value farm land in the Deschutes County Code. The subject property has never been irrigated or farmed. On the other hand, the nearby property zoned EFU to the north is an emu farm and to the west across Highway 97 is a commercial hay operation. Both those EFU properties have higher resource value than the subject site. There is additional EFU land Cascade Pumice Inc. Deschutes Junction Zone Change - Third Supplemental Burden of Proof Page 6 P:IDATAISRSICLIENTA4-CICPIICP117.015 Biyatrt Lovhm ■ Jarvis 40 N.W. Greenwood • P.O. Box 1151 - Bend, Oregon 97709-1151 • (541) 382-4331 • Fax (541) 389-3386 • f 169 ,- 2 ? 4 1 to the south of the subject site. However, that EFU property is similar to the subject property. To use the property further to the south would have greater adverse impacts because it is not adjacent to the existing operation and would be separated from the existing operation by the subject property still zoned EFU. It would also require additional roadways to connect that site to the existing site. The EFU zoned property adjacent to existing Rural Communities would have long term environment, economic, social, and energy consequences that are significantly more adverse than would result from the proposed use in the proposed exception area. The proposed site is abutting the existing Rural Industrial uses. The amount of land proposed is equal to the net amount of land that has been lost to the construction of the interchange. By expanding the existing operation in its present location, the impact will be that the existing operation will continue as it has in the past. There will be less impact to the environment because the disturbance due to Rural Industrial uses will be contained in a single location. Similarly, the economic consequences will have much less impact at the existing location. The existing business will continue uninterrupted without the need to decentralize the business into separate locations or to move the processing plant. It would not be economically feasible to have two separate processing facilities or to move the processing plant. Moreover, the social and energy consequences will have less impact because the existing operation already has the truck traffic. If the site were to be located at a remote location, it would increase the truck traffic to transport the raw materials for processing and then transport the material to the existing site to be loaded onto rail cars. There would be no long term economic impact on the general area caused by the irreversible removal of the land from the resource base. The subject property is not currently employed in resource use. The lack of irrigation, poor soils and physical isolation from surrounding EFU lands make it unlikely that this property would ever be in resource use. Conversely, there are productive EFU lands surrounding the rural service centers in LaPine and Terrebonne. It would be a greater adverse impact to take productive EFU lands out of the resource base at these remote locations. The proposed site would have fewer adverse impacts on the water table. Currently, the existing operation uses water for dust suppression. By replacing the amount of land lost to the interchange, the Applicant would be able to use the same water source for dust suppression. A separate processing facility, in a remote location, would require significantly more water than would be required if the processing occurs in the existing location and adjacent lands. The impact on roads would be less significant at the subject site because the truck traffic is already coming and going from the site. There would be less need for additional truck trips to go to a remote site and then to go to the existing processing facility. For these reasons, the proposed site has significantly fewer adverse Cascade Pumice Inc. Deschutes Junction Zone Change Third Supplemental Burden of Proof Page 7 P: IDA TA MSICLIENTSU-CICRACPI17.015 Wyant Lvvim ■ Jarvis neVDRMWO 0=0w Anp•sls W 40 N.W. Greenwood • P.O. Box 1151 Bend, Oregon 97I09-1151 • (541) 382-4331 • Fax (541) 389-3386 � � a 169 .- 2 • 42 impacts on long term environmental, economic, and social consequences than another site requiring a Goal Exception. (d) "The proposed uses are compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts." The exception shall describe how the proposed use will be rendered compatible with adjacent land uses. The exception shall demonstrate that the proposed use is situated in such a manner as to be compatible with surrounding natural resource and resource management or production practices. "Compatible" is not intended as an absolute term meaning no interference or adverse impacts of any type with adjacent uses. RESPONSE: The proposed use will be compatible with existing adjacent uses. As described in the previous Burden of Proof, the existing adjacent uses include existing industrial uses, vacant EFU land that is not in production, the railroad, and Deschutes Market Road. Applicant has worked successfully to mitigate impacts from the existing operation. There have been no complaints regarding adverse impacts on adjacent uses. Because the proposal is merely to replace land lost to the construction of the interchange, there should be no significant additional impacts. The present resource management of land in the surrounding area is fairly limited. There is a commercial hay operation across the highway to the west, and a quasi commercial "park" with a gift antique shop, "The Funny Farm", across Deschutes Market Road to the north. To the east and south, there is no existing resource use of the land. The proposed exception area containing approximately 4.5 net acres of land is to the south and is physically removed from any nearby lands currently in resource production. The continuation of the existing operation will have no significant adverse impacts on those resource uses. Accordingly, the proposal is compatible with the limited surrounding natural resource and resource management practices. (4) For the expansion of an unincorporated community defined under OAR 660- 022-0010. The exception requirements of subsections (2)(b), (c), and (d) of this rule are modified to also include the following: RESPONSE: The proposal is not an expansion of an unincorporated community defined under OAR 660-022-0010. Accordingly, the criteria contained in this OAR 660-040- 0020 (4) is not applicable. The existing Rural Industrial property does not fall within the definition of a "unincorporated community" pursuant to OAR 660-022-0010 (10) because it does not meet the definition under subsection (e). Applicant has consulted with Deschutes County Staff Planner, Dave Leslie, who is responsible for implementation of the Administrative Rule regarding unincorporated communities and he concurs with this analysis. Cascade Pumice Inc. Deschutes Junction Zone Change Third Supplemental Burden of Proof Page 8 P: IDA TA ISRSICLIENTSW-CICPIICP117.015 &yant LoWim ■ Jarvis A Cv,��� 40 N.W. Greenwood • P.O. Box 1151 Bend, Oregon 97709-1151 - (541) 382-4331 • Fax (541) 389-3386 ,'. A 169 - 2743 II. OAR 660-04-022, Reasons Necessary to Justify an Exception Under Goal 2. Part I CJ An exception under Goal 2, Part II(c) can be taken for any use not allowed by the applicable goal(s). The types of reasons that may or may not be used to justify certain types of uses not allowed on resource lands are set forth in the following sections of this rule: (3) Rural Industrial Development: For the siting of industrial development on resource land outside an urban growth boundary, appropriate reasons and facts include but are not limited to the following: (a) The use is significantly dependent upon a unique resource located on agricultural or forest land. Examples of such resources and resource sites include geothermal wells, mineral or aggregate deposits, water reservoirs, natural features, or river or ocean ports; or RESPONSE: The proposed expansion is located adjacent to the existing processing facility. The processing facility is significantly dependant upon a unique resource, which is pumice. The existing processing location is nearby the source of the pumice material. The pumice material has historically been shipped to this nearby location for processing and rail shipment. The critical factor in processing and shipping of the material is the rail car siding. There is no other adequate rail car siding within the County. It makes sense to allow the replacement of land lost to the construction of the Deschutes Junction Interchange so as to enable Applicant to continue its operation in the same or similar manner that it did before and retain all potential expansion opportunities. The adjacent existing industrial processing and shipping facility was located on that site because of its proximity to the resource as well as its proximity to the rail car siding. (b) The use cannot be located inside an urban growth boundary due to impacts that are hazardous or incompatible in densely populated areas; or RESPONSE: Although the proposed processing and shipping facility could potentially be located inside of an Urban Growth Boundary, there would be potentially greater impacts because it would be in a more densely populated areas. The processing and stockpiling of pumice material does create noise and dust. The Applicant is able to mitigate those impacts due to the large size of the site through application of water. Similarly, the truck traffic and processing noise would have greater impacts in a more densely populated area. In its current location, the surrounding areas already include industrial uses that are not Cascade Pumice Inc. Deschutes Junction Zone Change Third Supplemental Burden of Proof Page 9 P:DATA LSRMMENTSIA-CIMICPH7.015 Bryant Lovlim ■ Jarvis APRPEMKAI.®CWQ. AYAMM "LT 40 N.W. Greenwood • P.O. Box 1151 • Bend, Oregon 97709-1151 • (541) 382-4331 ■ Fax (541) 389-3386 1♦ / 169 --2744 adversely impacted by noise and dust, as well as, highway uses which are commonly subjected to truck traffic and noise. (c) The use would have a significant comparative advantage due to its location (e.g. near existing industrial activity, an energy facility, or products available from other rural activities), which would benefit the county economy and cause only minimal loss of productive resource lands. Reasons for such a decision should include a discussion of the lost resource productivity and values in relation to the county's gain from the industrial use, and the specific transportation and resource advantages which support the decision. RESPONSE: Allowing Applicant to replace its lost acreage has a significant advantage due to its location. It is near the existing industrial facility and it is near the existing rail car siding, which is a very unique transportation element, unavailable anywhere else. The proposal would take approximately 4.5 net acres out of resource designation. However, the subject land has never been farmed and therefore would cause no loss of productive resource lands. The soil's capability rating is 6 and 7 unirrigated. On the other hand, the gain from the industrial use is significant. Cascade Pumice, Inc. is the only pumice supplier in the community. It provides resource for the local community, as well as, the entire northwest. Cascade Pumice, Inc. contributes significantly to the tax base and provides family wage jobs. By replacing the land lost, the County will retain their tax base unaltered. Rural Industrial zoned property is taxed at a much higher rate than EFU zoned property. In conclusion, the County benefits greatly by the proposed use and resource values are not impacted whatsoever. CLARIFICATION In the Second Supplemental Burden of Proof on Page 2, Applicant addressed Comprehensive Plan Transportation Policy 15. Applicant noted the proposed exception area takes access via the adjacent parcel. However, there will be an access onto the road identified as "CM2 Line" shown on the attached map. However. Policy 15 is still satisfied because access is provided in a location determined and approved by ODOT and the County Road Department. The CM2 Line is not a collector or arterial. Respectfully Submitted this 10 day of July, 1998 BRYANT OVLIEN & JARVIS, P.C. SHARON R. SMITH, OSB #86292, Of Attorneys for the Applicant Cascade Pumice Inc. Deschutes Junction Zone Change _ Third Supplemental Burden of Proof Page 10 P: IDA TA ISRSICLIEWSIA-CICRACPI17.015 ayalt LOAM ■ Jatvis APONERCNUI.Q'lQMCN ArKMNWATI 40 N.W. Greenwood • P.O. Box 1151 • Bend, Oregon 97709-1151 • (541) 382-4331 ■ Fax (541) 389-3386 169 -1-745 BEFORE THE DESCHUTES COUNTY HEARINGS OFFICER APPLICANT: CASCADE PUMICE, INC. ( ( SECOND SUPPLEMENTAL _ ( BURDEN OF PROOF ( APPLICANT: Cascade Pumice, Inc. c/o Dugan Pearsall Post Office Box 1087 Bend, Oregon 97709 OWNER: Cascade Pumice Inc. AGENT: Sharon R. Smith Dale E. Van Valkenburg Bryant, Lovlien & Jarvis, P.C. P.O. Box 1151 Bend, Oregon 97709-1151 LOCATION: Deschutes Junction; Tax Lot 16-12-26C-301 REQUEST: A zone change and plan amendment, including a goal exception, to change the zoning on approximately 6.55 acres of land currently zoned Exclusive Farm Use to Rural Industrial. The site is located at Deschutes Junction adjacent to an existing Rural Industrial zone. The proposal would allow for the expansion of the existing adjacent Cascade Pumice processing facility. The expansion is made necessary by the alignment of the Deschutes Junction interchange at Highway 97, which will bisect the current operation. This proposal seeks to add the same amount of acreage rendered unusable by the new interchange alignment. INTRODUCTION The Staff Report on this matter was issued June 22, 1998, the day before the scheduled hearing. The purpose of the Second Supplemental Burden of Proof is to address issues raised in Cascade Pumice Inc. Deschutes Junction Zone Change Second Supplemental Burden of Proof Page I P:WATAL5"CL1EN7SW-CICPPCP117.014 &yarn Wvlim ■ Jarvis APICUMCFYN.mA0AMM ArICINWATUW 40 N.W. Greenwood - P.O. Box 1151 - Bend, Oregon 97709-1151 - (541) 382-4331 - Fax (541) 389-3386 e 169 -.. 2746 that Staff Report as far as possible. The Staff Report raises three primary issues: (1), whether Applicant has adequately addressed all applicable Comprehensive Plan provisions; (2), whether Applicant has addressed whether there is a change in circumstances or a mistake in zoning; and (3), whether the appropriate exceptions criteria have been addressed. Specifically, Staff raises the issue of whether the proposed Goal Exception can be accomplished by use of the "irrevocably committed exception" or whether a "reasons exception" is necessary. These issues will be addressed below RESPONSE TO STAFF REPORT'S THREE PRIMARY ISSUES (1.) Compliance with additional Comprehensive Plan provisions: On Page 8 and Page 9 of the Staff Report, Staff recommend that Applicant address the following Comprehensive Plan policies: GROWTH MANAGEMENT Transportation 15. Access onto existing collectors and arterials shall be limited, consolidated and controlled. Access control shall emphasize the coordination of traffic and access patterns to minimize negative effects. Frontage roads and access collection points shall be used wherever feasible (See Oregon Department of Transportation Access Control Guidelines). Site Plans shall conform to the County Public Works Department's access control criteria. Area wide needs, if they are more restrictive, should supercede site-specific needs. RESPONSE: The proposed area for the Zone Change and Plan Amendment is Tax Lot 301, which is bordered on the west by the canal and on the east by property owned by Applicant (Cascade Pumice, Inc.). The subject property does not have access onto an existing collector or arterial. Although Deschutes Market Road bisects the property, the road is atop an elevated fill, making access impossible. The only access is via the adjacent Cascade Pumice, Inc. developed parcel to the east, which has an improved access onto Deschutes Market Road. By sharing the existing access, the property will not increase the existing access points onto a collector or arterial. Instead, the subject property will use existing access points already established. Accordingly, since there will be no additional access points, the goal of access control identified in this policy is met. Cascade Pumice Inc. Deschutes Junction Zone Change Second Supplemental Burden of Proof Page 2 P:WATA1SRMCLIEN7SU-CICPPCP117.014 &yarn LoWm ■ Jarvis 40 N.W. Greenwood • F.O. Box 1151 Bend, Oregon 97709-1151 • (541) 382-4331 • Fax (541) 389-3386 "v c 169 - 2747 RESOURCE MANAGEMENT Agricultural Lands 1. All lands meeting the definition of agricultural lands shall be zoned Exclusive Farm Use, unless an exception to State Goal 3 is obtained so that the zoning may be Multiple Use Agriculture or Rural Residential. RESPONSE: Applicant is seeking an exception to State Goal 3 because the subject property should not be considered agricultural lands either pursuant to the "irrevocably committed exception" or, if deemed necessary, the "reasons exception". Accordingly; if the Applicant meets the criteria for an exception, it is appropriate to re -zone the property. Staff apparently believes, that because the policy states, "unless an exception to State Goal 3 is obtained so that the zoning may be Multiple Use Agriculture or Rural Residential" (emphasis added), that the Applicant is limited to one of these zones. Applicant disagrees with this conclusion for two reasons. First, the policy itself uses the word "may". This language is not mandatory and accordingly the policy does not limit zone changes to MUA or RR zoning. Moreover, it is clear from prior Deschutes County decisions that this language is not mandatory. For example, the Public Works Department recently obtained a zone change and plan amendment to rezone property to a public facilities zone that had been agricultural. Similarly, Midstate Electric obtained a zone change from EFU to LaPine Commercial District. Therefore, Applicant believes that if the criteria of the exception is met, the rezoning is consistent with the Agricultural Lands policies. Agricultural lands 3. Public lands meeting criteria for EFU zoning shall be so zoned unless some other resource (i.e., forest) or public uses exists on the land. RESPONSE: The subject property is not public lands. Accordingly, Applicant believes that this policy does not apply. 20. Farm and non-farm uses in rural areas shall be consistent with the conservation of soil and water. RESPONSE: Applicant is proposing to re -zone the property to Rural Industrial uses. Applicant's current intention is to expand their existing, adjacent wholesale distribution outlet and expand their processing of pumice. The Applicant is replacing property lost to the Deschutes Junction Interchange. Accordingly, the replacement of the property will Cascade Pumice Inc. Deschutes Junction Zone Change Second Supplemental Burden of Proof Page 3 P:IDATAIS"CLIBNTSL4-CICP11CPH7.014 &yant LoAm ■ Jarvis APO®MLCOMFCR i �ATLAW 40 N.W. Greenwood ■ P.O. Box 1151 - Bend, Oregon 97709-1151 - (541) 382-4331 - Fax (541) 389-3386 V ",c. 169 ffi 2748 enable the Applicant to continue its operations in an efficient manner consistent with the conservation of soil and water. Water is already utilized for dust control on the site. It is consistent with conservation of water to have the existing uses in one location. If the Applicant were to have to have a remote processing and distribution site, the water needs would increase and the efficiencies would be lost. Accordingly, the goal to conserve water is met with the Application. There are no impacts to the conservation of soil associated with the proposed Zone Change. Accordingly, the proposed use would be consistent with conservation of soil. Applicant believes that they have addressed all applicable Comprehensive Plan criteria. If Staff or the Hearings Officer believes any other provision should be addressed, Applicant is prepared to do so. (2.) Change in Circumstances or Mistake in the Zoning: The Staff Report on Page 9 notes that DCC 18.136.020 (D) provides the following: "that there has been change in circumstances since the property was last zoned or a mistake in the zone of the property in question". Applicant believes that there was not a mistake in the zoning of the property, but that there has been a change in circumstances since the property was last zoned. Applicant apologizes for not fully addressing this criteria in the initial Burden of Proof. The change in circumstances is the loss of useable Rural Industrial Zoning on the site due to the Deschutes Market Interchange. The Interchange has taken approximately 4.95 acres land previously zoned Rural Industrial out of industrial use. The proposal is to replace the net amount of acreage lost so that the total usable industrial acres available to the Applicant remains unchanged. In essence, the Applicant is merely replacing the amount of Rural Industrial property that it lost to the right-of-way for Deschutes Market Road. (3.) Applicable Exception Criteria: Staff has raised the issue of whether the Application should be processed as a "irrevocably committed exception" or a "reasons exception". This depends on the interpretation of OAR 660-004-0018 (2), a copy of which is attached hereto as Exhibit "ll". The provision limits uses allowed for irrevocably committed exceptions and physically developed exceptions. Applicant believes that the proposal complies with subsection 2 (a), which provides that irrevocably committed exceptions shall limit plan and zone designations to "Uses which are the same as the existing types of land use on the exception site". The purpose statement of OAR 660-004-0018 (1) provides that physically developed and irrevocably committed exceptions are "intended to recognize and allow continuation of existing types of development in the exception area." The analysis for an irrevocably committed exception focuses primarily on surrounding land uses and the extent to which they limit development on the subject property. In this case, Cascade Pumice Inc. Deschutes Junction Zone Change - Second Supplemental Burden of Proof Page 4 P: IDA TA ISRSICLIENTSU-CICPIICPII7.014 Bryant Lovhm ■ Jarvis APICFNooNALCC8F0RAI1CN AiliY M AW 40 N.W. Greertwood - P.O. Box 1151 - Bend, Oregon 97109-1151 - (541) 382-4331 ■ Fax (541) 389-3386 169-- 2749 the surrounding land uses are Rural Industrial. The reason the subject property is irrevocably committed to non -resource use is due to the rural industrial uses in the surrounding area. Staff interprets section (a) as limiting the specific uses existing on the subject property itself. Under that analysis, the exception process would not "recognize and allow continuation of existing types of development in the exception area." For these reasons, it is logical to interpret subsection 2 (a) to limit the use of the subject property to the types of existing uses to which the property is irrevocably committed. In this case, that is Rural Industrial use. If the hearings officer does not agree with this conclusion, the next step in the analysis is to review 660-004-0018 (2) (b), which allows rural uses meeting certain requirements. Applicants believe that in order for this provision to apply, the Hearings Officer must conclude that the proposed Rural Industrial Zone is a rural use. Staff has previously argued that Rural Industrial Zoning is not a rural use and therefore required Applicant to address an exception to Goal 14. Accordingly, 660-004-0018 (2) (b) is not applicable. Therefore, if the Hearings Officer does not concur that 660-004-0018 (2) (a) is met, the next option would be to address the criteria for a "reasons exception" as required by 660-004- 0018 (2) (d), which states: "Uses not meeting the above requirements may be approved only under provisions for a reasons exception as outlined in OAR 660-004- 0020 through 660-004-0022." While Applicant believes that the proposal could meet the reasons exception, it has not undertaken to address those criteria given the short time frame between receiving the Staff Report and the hearing. Moreover, if the Hearings Officer does not concur with staff that a reasons analysis is necessary, Applicant does not want to spend the extra time to do so. However, if the Hearings Officer believes that this is the appropriate course, Applicant would request a continuance of this hearing at the end of the testimony. Applicant will then address the criteria in writing and submit the criteria for Staff review and comment prior to the continued hearing. At that hearing Applicant and Staff can respond to any additional concerns or issues raised by the Hearings Officer or other parties. Cascade Pumice Inc. Deschutes Junction Zone Change Second Supplemental Burden of Proof Page S P:IDATALSRSICLIENTSU-CICPIICP117.014 ayant Lovhm ■ Jarvis A�mORAIO! ATTUNi ATl 40 N.W. Greenwood - P.O. Box 1151 - Bend, Oregon 97709-1151 - (541) 382-4331 ■ Fax (541) 389-3386 CONCLUSION 169 - 2750 In conclusion, Applicant is prepared to address whatever criteria the Hearings Officer deems necessary to achieve the desired result, which is simply to restore the Cascade Pumice, Inc. site to its pre -interchange acreage by adding approximately 4.95 net acres of Rural Industrial Zoned property. Applicant's goal is to be in the same position he was prior to the loss of the property to ODOT, under threat of condemnation. Respectfully Submitted this 23rd day of June, 1998 BRYANT LOVLIEN & JARVIS, P.C. SHARON R. SMITH, OSB #86292, Of Attorneys for the Applicant Cascade Pumice Inc. Deschutes Junction Zone Change Second Supplemental Burden of Proof Page 6 P:(DATAISRSICLIEN7SIA-CICPIICPI17.014 A . i = L M.I. �= *V!Ts� 40 N.W. Greenwood - P.O. Box 1151 - Bend, Oregon 97709-1151 - (541) 382-1331 - Fax (541) 389-3386