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2005-764-Ordinance No. 2005-022 Recorded 6/2/2005REVIEWED LEGAL COUNSEL REVIEWED Ml� CODE REVIEW COMMITTEE DESCHUTES COUNTY OFFICIAL RECORDS r NANCY BLANKENSHIP, COUNTY CLERK yj 200100-761 COMMISSIONERS' JOURN L ;NIV11101W VICIN40 rn For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Title 23, the Deschutes County Comprehensive Plan, to change the ORDINANCE NO. 2005-022 designation of certain property from Forest Use to Agriculture, and Declaring an Emergency. WHEREAS, Tumalo Irrigation District has proposed a Plan Amendment to Title 23 of the Deschutes County Code (DCQ, to redesignate certain property from Forest Use to Agriculture; and WHEREAS, the Deschutes County Board of Commissioners (Board), after review conducted in accordance with applicable law, approved the proposed amendment to the County Comprehensive Plan; and WHEREAS, the Board's decision was not appealed; now therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, 0REGON, ORDAINS as follows: Section 1. AMENDMENT. DCC Title 23, Comprehensive Plan, is hereby amended to change the designation of the property described as tax lot 5300 in Section 17 of Township 16 South, Range I I East, Willamette Meridian, and as further described by the legal description attached hereto as Exhibit "A," and depicted on the map set forth as Exhibit "B," and by this reference incorporated herein, from Forest Use to Agriculture. Section 2. FINDINGS. The Board adopts as its findings in support of this decision, the Decision of the Board of County Commissioners, attached hereto as Exhibit "C," and by this reference incorporated herein. PAGE I OF 2 - ORDINANCE NO. 2005-022 (06/01/05) Section 3. EMERGENCY. This Ordinance being necessary for the immediate preservation of the public peace, health and safety, an emergency is declated to exist, and this Ordinance takes effect on its passage. DATED this day of 005. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, 0 GON Z� TOM DEWOLF, Chair Date of I st Reading: j01-- day of 2005. Date of 2 nd Readingj E�( day of qU4-(� '2005. y Record of Adoption Vote Commissioner Yes No Abstained Excused Dennis R. Luke Tom DeWolf Michael M. Daly Effective date: day of QT��' 2005. ATTEST: 6n"� Recording Secretary PAGE 2 OF 2 - ORDINANCE NO. 2005-022 (06/01/05) EXHIBIT 66AOO The Northwest One -Quarter of the Northeast One -Quarter of Section 17 in Township 16 South, Range 11 East Willamette Meridian, Deschutes County, Oregon. PAGE 1 OF 1, EXHIBIT "A" TO ORDINANCE 2005-022 �06/01/05) __j Taxiot 1611000005300 Plan Amendment from Forest (F) to Agriculture (AG) -P "'M Legend Parcels Agriculture (AG) Railroad Forest (F) Subject Property .S�.ER S. � NX--y--VT-1 PROPOSED COMPREHENSIVE PLAN MAP FILE NO. PA -01-01 Exhibit B to Ordinance 2005-022 N w 4h WE S 0 250 500 1.000 1,500 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON Tom DeWoff, Chair Michael M. Daly, Commissioner Dennis R. Luke, Commissioner ATTEST. Recording Secretary Dated this _ day of June, 2005 Effective Date: June . 2005 0 DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS FILENUMBERS: PA-01-1;ZC-01-1 APPLICANT/ OWNER: Tumalo Irrigation District Attn: Elmer McDaniels 64697 Cook Avenue Bend, Oregon 97701 ATTORNEY: Sharon R. Smith Bryant Lovlien & Jarvis, PC P.O. Box 1151 Bend, Oregon 97709 PROPOSAL: The Applicant is requesting approval of a Plan Amendment and Zone Change from Forest Use (F-1) to Exclusive Farm Use (EFU-TRB) for a 40 -acre parcel located west of Highway 97 between Sisters and Bend. PLANNER: Paul Blikstad HEARING DATE: March 30,2005 I. APPLICABLE STANDARDS AND CRITERIA: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance Chapter 18.16, Exclusive Farm Use (EFU) Zone Section 18.16.010, Purpose 2. Chapter 18.36, Forest Use (F-1) Zone Section 18.36.010, Purpose 3. Chapter 18.136, Amendments Section 18.136.010, Amendments Section 18.136.020, Rezoning Standards B. Title 23 of the Deschutes County Code, The Deschutes County Comprehensive Plan 1. Chapter 23.40.010, Agricultural Lands REVIEJED- 2. Chapter 23.40.020, Forest Lands BOCC - Decision (Applicant: Tumalo Irrir MAL jQWH.21ML--j ,,Pn Dist'81- PA-01-1 & ZC-01-1 1hit Page I of 14 Page f Ordinance A005 71 0 0 C. Oregon Administrative Rules, Chapter 660, Division 12, Transportation Planning 1. OAR 660-012-060, Plan and Land Use Regulation Amendments D. Oregon Administrative Rules, Chapter 660, Division 15, Statewide Land Use Planning Goals and Guidelines 11. FINDINGS OF FACT: A. Location: The subject property is located approximately 7,500 feet west of Highway 20 between Sisters and Bend and is further identified as Tax Map 16-11-00, Tax Lot 5300. B. Zoning an Plan Designation: The subject property is zoned Forest Use (F-1) and Wildlife Area Combining zone (WA) and is designated Forest on the Deschutes County Comprehensive Plan Map. C. Surrounding Zoning and Land Uses: Tax Lot 5300 is surrounded by publicly -owned parcels zoned F-1 and parcels zoned Exclusive Farm Use - Sisters/Cloverdale Subzone (EFU-SC). The surrounding publicly -owned parcels are managed by the United States Bureau of Land Management and the State of Oregon. D. Site Description: Tax Lot 5300 is a 40 acre square shaped parcel. The subject parcel has no irrigation water rights and has moderate vegetative cover of Juniper trees and native brush. Tax Lot 5300 is generally level with some ridges and rock outcrops. No public roads provide access to the property. E. Soils: The subject property is composed of 4 soil types: 27A, Clovekamp loamy sand, 0-3 percent slopes. 38B, Deskamp-Gosney Complex, 0-3 percent slopes. 5 8C, Gosney-Rock Outcrop-Deskamp Complex, 0- 15 percent slopes. 36A, Deskamp Sandy Loam, 0-3 percent slopes. All of the subject property consists of soils with agricultural capability ratings of Class VI or worse without irrigation. F. Procedural History: The plan amendment and zone change applications were originally filed with respect to two parcels owned by Tumalo Irrigation District: a 380 acre parcel (Tax Map 16-11-16, Tax Lots 100 & 200) and a 40 acre parcel (Tax Map 16-11, Tax Lot 5300). The applicant requested a Plan Amendment to the Deschutes County Comprehensive Plan from Forest to Agriculture, and a Zone Change from F -I to EFU- TRB. The Hearings Officer denied the plan amendment and zone change applications. The applicant appealed the Hearings Officer's denial to the Board of County Commmissioners (Board). The Board, through Order no. 2001-102, declined to hear the appeal. A notice of appeal by the applicant was then filed with LUBA (LUBA No. 2001 - 161). The LUBA appeal was stayed by a stipulated motion between Deschutes County BOCC - Decision (Applicant: Tumalo Irrigation District) Exhibit PA -01-1 & ZC-01-1 Page Page 2 of 14 Ordinance A �—QX9 0 0 and the applicant. The applicant intended to file alternative land use applications to determine whether the matter could be resolved. Subsequently, the 380 acre parcel was approved for development and was sold by the applicant. Accordingly, the only remaining request by the applicant is with respect to the 40 acre parcel. Applicant requested the Board of County Commissioners withdraw the decision from the Land Use Board of Appeals pursuant to Deschutes County Code (DCQ Chapter 22.34. The Board agreed to withdraw the decision. On January 31, 2005 the Land Use Board of Appeals acknowledged by written letter the withdrawal of the decision. The Board of County Commissioners called up the Hearings Officer's decision on its own and held a hearing on the applicant's plan amendment and zone change application on March 30, 2005. The applicant requested and the Board agreed to re -open the record pursuant to DCC 22.34.040A, and to allow additional testimony and evidence. Additionally, the applicant requested the following modification to the application pursuant to DCC 22.34.04OB: withdraw the request for a plan amendment and zone change with respect to Tax Map 16-11-16, Tax Lots 100 and 200. Applicant is seeking a plan amendment and zone change with respect to the 40 acre parcel identified above. G. Proposal: The Applicant is requesting a Plan Amendment to amend the Deschutes County Comprehensive Plan (Title 23 of the Deschutes County Code) to re -designate the subject 40 acres from Forest to Agriculture, and to rezone it from Forest Use (F-1) to Exclusive Farm Use — Tumalo/Redmond/Bend Subzone (EFU-TRB). H. Public/Private Agency Comments: The Planning Division originally mailed notice of the Applicant's proposal to several public and private agencies and received a response from the Deschutes County Property Address Coordinator, set forth verbatim at Page 2 of the Staff Report. The following agencies either did not response to the County's notice or had no comment: the Deschutes County Road Department, County Assessor; the Bend Fire Department; Oregon Department of Fish and Wildlife, Oregon Water Resources Department, Oregon Department of Land Conservation and Development, Oregon Department of Transportation; Central Electric Cooperative, Pacific Power and Light; Qwest Communications; the Redmond School District and the Bureau of Land Management. 1. Public Notice and Comments. The Planning Division mailed notice of the public hearing before the Board to all parties to the original hearing. In addition, notice of the public hearing was published in the "Bend Bulletin" newspaper. As of the date the Record in this matter closed, the County had received no response from the public to this new notice. In addition, one member of the public testified at the public hearing in support of the zone change. Ill. CONCLUSION OF LAW: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.136, Amendments BOCC - Decision (Applicant: Tumalo Irrigation District) C. PA -01-1 & ZC-01-1 Exhibit Page 3 of 14 Page —.21— Ordinance a �1-02-Z- Section 18.136.010, Amendments DCC Title 18 may be amended as set forth in DCC 18.136. The procedures for text or legislative map changes shall be as set forth in DCC 22.12. A request by a property owner for a quasi-judicial map amendment shall be accomplished by filing an application on forms provided by the Planning Department and shall be subject to applicable procedures of DCC Title 22. FINDING: The Applicant is requesting approval of a quasi-judicial Plan Amendment and Zone Change from F-1 to EFU-TRB. The Record includes an application submitted on the approved County form. Section 18.136.020, Rezoning Standards The applicant for a quasi-judicial rezoning must establish that the public interest is best served by rezoning the property. Factors to he demonstrated by the applicant are: A. That the change conforms with the Comprehensive Plan, and the change is consistent with the plan's introductory statement and goals. FINDING: The subject property is surrounded by land zoned F- I and EFU. As demonstrated in the record (aerial photograph with zoning - Exhibit 2 to Burden of Proof on Remand), Tax Lot 5300 is bordered on the north by land zoned EFU, and on the south, west and east by land zoned F-1. The F-1 zoned land surrounding the subject property is all under the administration of the Bureau of Land Management (BLM). The subject 40 -acre parcel is unirrigated and the following soil classifications: 27A, Clovkamp Loamy Sand; 36A, Deskamp Sandy Loam; 56C, Gosney-Rock Outcrop-Deskamp Complex; and 38B, Deskamp-Gosney Complex, when uniffigated, have agricultural capability ratings of Class VI. The record on this matter indicates that the above soil types have no rating for woodland productivity, and are thus not considered suitable for commercial forest use and have no merchantable trees. As also indicated in the record, the only trees that are located on the property are juniper trees, which have no commercial or merchantable value. The Board finds that none of the soils on this property are capable of supporting merchantable timber. If the soils were capable of supporting merchantable timber, the soil classification would note that the soil has a woodland capability. The Board finds that, based on the record in this matter, the subject property is not and has never been managed for either agricultural or forest use. The Board finds that it is clear from the evidence in the record that the subject property is comprised of soil that has little or no capability of supporting merchantable timber. A letter from the Oregon Department of Forestry submitted into the record by the applicant supports this conclusion. The Deschutes County Comprehensive Plan ("Plan") establishes the County's goals and polices for agricultural lands. The subject property was incorrectly designated and zoned F-1 rather than EFU. The Comprehensive Plan provides: BOCC - Decision (Applicant: Tumalo Irrigation District) PA -01-1 & ZC-01-1 Exhibit C, Page 4 of 14 Page of It Ordinance AC05-02-2— 0 "In order to conserve and maintain the unimpacted forest land base for forest use the county shall identify and zone as F-1 those lands which have the following characteristics: (Emphasis Added) a. Consist of predominately of ownerships not developed by residences or non - forest uses. FINDING: Most ownerships that are not developed with residences or non -forest uses are in the ownership of the federal government, such as the BLM, the Forest Service or in State ownership. By contrast, this property is owned by Tumalo Irrigation District and is the type of property that may typically be developed with a non-farm dwelling, lot of record dwelling or uses not related to forest use. As is shown in the record (Exhibit 2 - Burden of Proof on Remand) there are numerous residences in the surrounding area on lots similar in size and soil capability as the subject property. b. Consist predominantly of contiguous ownerships of 160 acres or larger in size. FINDING: The surrounding area consists of a mix of some contiguous ownerships of 160 acres or larger in size. However, as the record indicates, there are a substantial number of properties in the surrounding area that are less than 160 acres in size. Accordingly, the surrounding area does not consist predominately of contiguous ownerships of 160 acres or larger in size. In addition, the subject parcel is only 40 acres in size and is a separate legal lot of record. C. Consist predominantly of ownerships contiguous to other land utilized for commercial forest or commercial farm uses. FINDING: The subject property is not contiguous to other lands utilized for commercial forest or commercial farm uses. As is shown in the record, the only commercial farm in the area is located in Section 15, over one mile away. In addition, there are no commercial forest operations nearby. The record contains soils information identifying those soils which are EFU soils and those which are suitable for woodland capacity in the surrounding area. The property contiguous to the subject property, as well as the subject property, has neither the capability for commercial forest or commercial farm uses. d. Access by arterial roads or roads intended primarily for forest management. FINDING: The property is not accessed by an arterial road or road intended primarily for forest management. The property has never been logged or irrigated. The only trees on the property are juniper trees, which have no commercial or merchantable value. e. Primarily under forest management." FINDING: The subject property is and has never been under forest management. The subject property has no commercial or merchantable timber capability. BOCC - Decision (Applicant: Tumalo Irrigation District) PA -01-1 & ZC-01-1 Exhibit Page 5 of 14 Page Ordinance 2005--02-2- 9 9 The Board finds it is clear from the record that the subject property does not have the characteristics identified above for properties to be zoned F-1 in the Comprehensive Plan. The Hearings Officer concluded that it was the Goal and Policy of the County to preserve for agricultural use lands of any size with soils meeting certain agricultural capabilities. Although the comprehensive plan does intend to preserve lands for agricultural use if they meet certain capability criteria, it clearly intends that in order for property to be appropriately designated and zoned for forest use, the County: "shall identify and zone as F-1 those lands which have the [specified] characteristics." The subject property was designated forest due to its proximity to the BLM land, and did not have the soils capable of woodland productivity for such a designation. B. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone classification. Chapter 18.16, Exclusive Farm Use (EFU) Zone Section 18.16-010, Purpose A. The purpose of the Exclusive Farm Use Zone is to preserve and maintain agricultural lands and to serve as a sanctuary for farm uses. B. The purposes of this zone are served by the land use restrictions set forth in the Comprehensive Plan and in DCC 18.16 and by the restrictions on private civil actions and enforcement actions set forth in ORS 30.930 through 30.947. FINDING: The subject property could be irrigated and fanned, which would most likely occur by the installation of a well on the property. The Board concurs with the applicant with respect to the uses that might be allowed in the EFU zone. Farming is only one of the uses that are permitted outright; other uses, such as fire service facilities, churches, schools, solid waste disposal facility, winery, utility facilities, and farm dwellings are also allowed outright. Additionally, the EFU zone allows, through the approval of a conditional use permit, uses such as non-farm dwellings, residential homes and facilities, community centers, personal use airports, home occupations, bed and break inns, living history museums, extraction and bottling of water, etc. Not all uses in the EFU zone are focused solely on the production of farm crops and livestock. The Board finds that as long as the property is capable of being put to use as one of the potentially allowable uses under the zone, the zone designation would be consistent with the intent of the proposed zoned classification. In this case, a potential use for the subject property could be a nonfarm dwelling. Nonfarm dwellings are contemplated in the Comprehensive Plan of Deschutes County, the Zoning code and Goal 3. Therefore, the Hearings Officer's conclusion that the only appropriate use for EFU zoned property is to support grazing livestock on irrigated pasture and production of hay would be incorrect. The change in classification for the subject property is consistent with the purpose and intent of the proposed zoning of EFU. BOCC - Decision (Applicant: Tumalo Irrigation District) Exhibit C, PA -01-1 & ZC-01-1 of Page 6 of 14 Page i�� �f- Ordinance AW-5-C2Z 0 0 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 has indicated it would seek to sell the parcel for development with a nonfarm dwelling. This use would require public services and facilities including domestic water, sewage disposal, police protection, fire protection and road access., Each of these services is discussed separately in the findings below: Domestic Water. The Board finds it is reasonable to conclude domestic water could be provided to a future dwelling by an individual well, inasmuch as a dwelling would not require the quantity of water needed for agriculture. 2. Sewage Disposal. The Board finds it is reasonable to conclude sewage disposal for a nonfarm dwelling could be provided through an individual on-site septic system. 3. Police Protection. The subject property is located outside any city limits and therefore police protection would be provided by Deschutes County Sheriffs Department. 4. Fire Protection. As is discussed below, in order to obtain approval for a nonfarm dwelling, the applicant will be required to provide adequate road access to County standards. Once such adequate access is provided, the applicant could seek to obtain fire protection by contract. Or in the alternative, be required to meet fire siting standards for.dwellings as outlined in the DCC. 5. Road Access. Road Access - the subject property does not front on a public road. However, as is illustrated in the record, (Exhibit 8, Burden of Proof on Remand) there is an existing dirt road nearby the property that could provide access to Sisemore Road, a County road. The applicant has been in discussions with the Bureau of Land Management who administers the property where the existing roadway is located. The applicant would be required to obtain an access permit from the BLM as part of any land use approval for a dwelling. The BLM has stated that they will provide access if access is not available by an alternate way. It is clear from the record that many homes in the surrounding area are accessed by similar roadways. The Deschutes County access requirements are a 20 foot wide all-weather surface. Applicant would propose to obtain a BLM access permit and improve the road to County standards as part of the application for a nonfarm dwelling. The County standard for rural roads is used throughout the entire County and is deemed adequate for access by fire protection apparatus. The applicant can also potentially contract with a fire protection district once the access meets the fire district's standards. Similarly the access, once developed to County standards, would provide adequate access for the Deschutes County BOCC - Decision (Applicant: Tumalo Irrigation District) Exhibit C_ PA -01-1 & ZC-01-1 Page :7 of N Page 7 of 14 Ordinance a�005 - 2- 17-A 0 Sheriffs Department, if necessary. The subject property is similar to many other EFU zoned properties in the County which are accessed via roads developed to the County standard of twenty (20) feet wide with an all-weather surface. Accordingly, the zone change will serve the public health, safety and welfare considering the availability of providing necessary public services. 2. The impacts on surrounding land use will be consistent with the specific goals and policies contained within the Comprehensive Plan. FINDING: The Hearings Officer evaluated the impacts on the mostlikely ultimate use of the property, a nonfarm dwelling. As is discussed above, nonfarm dwellings are consistent with the goals and policies of the Comprehensive Plan. They are specifically identified as an allowable use under certain circumstances designed to address impacts. In this instance, the only impact would be the addition of a single family residence as a nonfarm dwelling. The applicant has supplemented the Record to show that there are approximately forty (40) dwellings within the surrounding area. The property also has a Wildlife Area (WA) combing zone designation. The Hearings Officer correctly noted that the zoning does not prohibit the establishment of nonfarm dwellings in the WA zone. Because it is in the WA zone, additional criteria are imposed and any nonfarm dwelling application would need to meet those criteria. Specifically, one requirement is that dwellings be sited within 300 feet of roads or access easements that existed as of August 5, 1992. The applicant has submitted information which indicates there is a road within 255 feet of the proposed homesite. The record includes an air photo dated July 14, 1970 that shows a roadway running through the property. This road could potentially be used as access to the site (with BLM approval) and appears to meet the criteria for existence since before August 5, 1992. In conclusion, as long as an applicant for a conditional use permit for a nonfarm dwelling can address the WA criteria, the Board finds that a nonfarm dwelling is an acknowledged and allowable use consistent with the Goals and Policies of the Comprehensive Plan. D. That there has been a change in circumstances since the property was last zoned, or a mistake was made in the zoning of the property in question. FINDING: The subject property was originally zoned F-1 in 1992. As is described above, the subject property has none of the characteristics identified in the Comprehensive Plan to designate the property F-1. Additionally, none of the soils on the subject property are reated for woodland productivity, indicating that they have no potential for commercial or merchantable tree species. The only trees on the property are juniper trees, which have no commercial value. Accordingly, there has been a mistake in zoning. B. Title 22 of the Deschutes County Code Chapter 22.34, Proceedings on Remand BOCC - Decision (Applicant: Turnalo Irrigation District) Exhibit C-1 PA -01-1 & ZC-01-1 Page — of Page 8 of 14 21 Ordinance 900!5—'— 0 22.34.010, Purpose. DCC 22.34 shall govern the procedures to be followed where a decision of the County has been remanded by LUBA or the appellate courts or a decision has been withdrawn by the County following an appeal to LUBA. FINDING: The procedures conducted by the County for the withdrawn decision are those required under this chapter. 22.34.020, Hearings Body. The Hearings Body for a remanded or withdrawn decision shall be the Hearings Body from which the appeal to LUBA was taken, except that in voluntary or stipulated remands, the Board may decide that it will hear the case on remand. If the remand is to the Hearings Officer, the Hearings Officer's decision may be appealed under DCC Title 22 to the Board, subject to the limitations set forth herein. FINDING: The Board agreed to withdrawn the County's decision from LUBA and that they would hold a de novo hearing on the proposed plan amendment and zone change. 22.34.030, Notice and hearings requirements. A. The County shall conduct a hearing on any remanded or withdrawn decision, the scope of which shall be determined in accordance with the applicable provisions of DCC 22.34 and state law. Unless state law requires otherwise, only those persons who were parties to the proceedings before the County shall be entitled to notice and be entitled to participate in any hearing on remand. FINDING: The Board determined that the hearing would be de novo and was open to all persons who were parties to the original proceedings. Notice to these parties was mailed at least ten (10) days before the date of the hearing. B. The hearing procedures shall comply with the minimum requirements of state law and due process for hearings on remand and need comply with the requirements of DCC 22.24 only to the extent that such procedures are applicable to remand proceedings under state law. FINDING: Notice of the Board's March 30, 2005 hearing was sent to all parties to the original proceedings, as well as notice in the Bend Bulletin, both at least 10 days prior to the hearing. This notice complied with DCC 22.24 and any applicable state law. C. A final decision shall be made within 90 days of the date the remand order becomes effective. BOCC - Decision (Applicant: Turnalo Irrigation District) Exhibit C PA -01-1 & ZC-01-1 Page of -LY— Page 9 of 14 Ordinance 9 0 FINDING: The Board's decision will meet the 90 -day requirement listed above. 22.34.040, Scope of proceeding. A. On remand, the Hearings Body shall review those issues that LUBA or the Court of Appeals required to be addressed. In addition, the Board shall have the discretion to reopen the record in instances in which it deems it to be appropriate. B. At the Board's discretion, a remanded application for a land use permit may be modified to address issues involved in the remand or withdrawal to the extent that such modifications would not substantially alter the proposal and would not have a significantly greater impact on surrounding neighbors. Any greater modification would require a new application. C. If additional testimony is required to comply with the remand, parties may raise new, unresolved issues that relate to new evidence directed toward the issue on remand. Other issues that were resolved by the LUBA appeal or that were not appealed shall be deemed to be waived and may not be reopened. FINDING: The County's decision on the plan amendment and zone change applications was withdrawn from LUBA, so no issues were addressed at LUBA. The applicant's withdrawal of the parcel identified as 16-11-16, tax lots 100 and 200 from the applications does not substantially alter the proposal, since the amount of land being requested for rezoning is being reduced in size. Additionally, since the subject 40 acres was already previously part of the applications, there would be no greater impact on surrounding neighbors. The impact on the neighbors would remain the same. The Board finds that new plan amendment and zone change applications are not required. C. Oregon Administrative Rules, Chapter 660, Division 12, Transportation Planning OAR 660-012-060, Plan and Land Use Regulation Amendments (1) Amendments to functional plan, acknowledged comprehensive plans and land use regulations which significantly affect the 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 (Transportation System Plan) to provide transportation facilities adequate to support the proposed land uses consistent with the requirements of this division; BOCC - Decision (Applicant: Tumalo Irrigation District) Exhibit C� PA -01-1 & ZC-01-1 Page I L*2 of Page 11D of 14 Ordinance AO 1--P42— 0 (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 classiflcation of a transportation system; or (d) Would reduce the level of service of the facility below the minimum acceptable level identified in the TSP. FINDING: The question presented under this rule is whether the Applicant's proposal will C'significantly affect" a transportation facility. The subject property does not have direct access to a public road. The Applicant proposes access to Highway 20 via an easement across adjacent state-owned land. Therefore, for the purposes of discussion, the Board finds the relevant transportation facility is Highway 20. With respect to Paragraphs (2)(a) and (b), the proposal will not change the functional classification applicable to the highway which is a designated state highway. As discussed above, the Board found that with the proposed zone change to EFU, the subject property could be developed with a maximum of one dwelling. The Institute of Transportation Engineers Trip Generation Manual predicts each single-family dwelling will generate 9.5 average daily vehicle trips (ADT's). The Board finds that Highway 20 will continue to function as classified with the addition of approximately 9.5 ADT's. The record does not indicate whether the County's TSP identifies levels of service. However, we find the addition of only approximately 9.5 ADT's to Highway 20 will not affect the highway's level of service. Paragraph (2)(c) provides that an amendment to a land use regulation "significantly affects" a transportation facility if it would allow development that would result in levels of traffic inconsistent with a facility's functional classification. As discussed in the findings above, the Board has found the traffic that would be generated by development of the subject property consistent with applicant's proposed zone change will not exceed the capacity of Highway 20. Therefore, the applicant's proposed zone change will not "significantly affect" a transportation facility. D. Oregon Administrative Rules, Chapter 660, Division 15, Statewide Land Use Planning Goals and Guidelines BOCC - Decision (Applicant: Tumalo Irrigation District) Exhibit C PA -01-1 & ZC-01-1 Page of 1Y Page 11 of 14 Ordinance lAO-09-102- Goal 1, Citizen Involvement. This goal has been met by the County as the County's land use process provides for notice of the proposed Plan Amendment and Zone Change. Notice to general public is provided by publication in "The Bend Bulletin" newspaper and by posting the subject property. Notice to surrounding property owners is provided by the mailing of individual notice. Such notice has been provided. Goal 2, Land Use Planning. This goal has been met because two public hearings were held to consider the applicant's proposed Plan Amendment and Zone Change. Goal 3, Agricultural Lands. Goal 3 and Oregon Revised Statutes, as well as the Comprehensive Plan and County Code recognize agricultural land uses can include much more than just the production of crops and livestock on irrigated land. Accordingly, so long as the subject property can be put to some use identified in Goal 3 and the County Comprehensive Plan and zoning regulations, the proposed re -zone is consistent with Goal 3. Goal 4, Forest Lands. The Applicant's proposed plan amendment and zone change would satisfy Goal 4 because it would preserve the agricultural characteristic of property in the County's inventory as EFU land. Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. The applicant has established that a nonfarm dwelling can be potentially developed consistent with the restrictions established in the WA zone to protect the deer winter range. Although it is premature to speculate the outcome of any nonfarm dwelling application, the mere re -zoning of the property will not have any impacts on the Wildlife Area zone. Goal 6, Air Water and Land Resources Quality. This goal requires that zoning not degrade air, water and land resources in applicable air sheds and river basins. The applicant's proposed Plan Amendment and Zone Change will not have adverse impacts on air or water quality. Goal 7, Areas Subject to Natural Disasters and Hazards. This goal is not applicable because the subject property is not located in a known natural disaster or hazard area. Goal 8, Recreational Needs. This does not apply to the proposed Plan Amendment and Zone Change because the subject property is not planned for future park or recreational use and is not being proposed for destination resort use. Goal 9, Economic Development. This goal does not apply to the proposed Plan Amendment and Zone Change. Goal 10, Housing. This goal does not apply to the proposed Plan Amendment and Zone Change. BOCC - Decision (Applicant: Tumalo Irrigation District) Exhibit C, PA -01-1 & ZC-01-1 Page IA"I of -Lt- Page 12 of 14 Ordinance 90-05—�0-2- 9 0 Goal 11, Public Facilities and Services. The applicant has established that it may be possible to obtain a BLM access permit and to provide adequate access to the subject property. The applicant has also established that public facilities consistent with rural development are available. Moreover, the re -zone will not impact public facilities or services by itself The applicant will be required to go through the nonfarm dwelling conditional use permit application process in order to develop the property. Goal 12, Transportation. The proposed Plan Amendment and Zone Change are consistent with the Transportation Planning Rule in OAR 660-12-060 as discussed in foregoing findings. Goal 13, Energy Conservation. This goal does not apply to the proposed Plan Amendment and Zone Change. Goal 14, Urbanization. This goal does not apply to the proposed Plan Amendment and Zone Change because the subject property lies outside any urban growth boundary. Goal 15, Willamette River Greenway. This goal does not apply to the proposed Plan Amendment and Zone Change because the subject property is not located within the Willamette River Greenway. Goal 16, Estuarine Resources. This goal does not apply to the proposed Plan Amendment and Zone Change because the subject property is not a part of an estuary or wetland and does not contain an estuary or wetland. Goal 17, Coastal Shore lands. The Board finds that this goal does not apply to the proposed Plan Amendment and Zone Change because the subject property is not located within any coastal shorelands. Goal 18, Beaches and Dunes. This goal does not apply to the proposed Plan Amendment and Zone Change because the subject property is not located within or near any beaches or dunes. BOCC - Decision (Applicant: Tumalo Irrigation District) Exhibit PA -01-1 & ZC-01-1 Page 13 of 14 Page 3 of Ordinance IV. DECISION: Based on the foregoing Findings of Fact and Conclusion of Law, the Board of County Commissioners hereby APPROVES the Applicant's proposed Plan Amendment and Zone Change for Tax Lot 5300 from F- I to EFU-TRB. DATED this day of 2005. THE DESCHUTES COUNTY BOARD OF COMMISSIONERS TOM DWULF 41 ATTEST: MICHAEL M. Y IS Recording Secretary DiNNIS R. LUKE BOCC - Decision (Applicant: Tumalo Irrigation District) Exhibit C� PA -01-1 & ZC-01-1 Page 14 of 14 Page I!q of t Z44AI - r— Ordinance AW -6-0-