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2005-957-Ordinance No. 2005-006 Recorded 7/27/2005REVIEWED LEGAL COUNSEL REVIEWED C9W1,1- CODE REVIEW COMMITTEE DESCHUTES COUNTY OFFICIAL RECORDS NANCY BLANKENSHIP, COUNTY CLERK CJ SHP COMMISSIONERS' JOURN L 07/27/2005 01:20:01 PM 20 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 Plan ORDINANCE NO. 2005-006 Designation on Certain Property from Agriculture to Rural Residential Exception Area, and Declaring an Emergency. WHEREAS, Terry and Ann Duffin have proposed a Plan Amendment to Title 23, the Deschutes County Comprehensive Plan, to change the plan designation for certain property from Agriculture to Rural Residential Exception Area. The request proposed the County adopt an exception to Goal 3 (Agricultural Lands); and WHEREAS, Deschutes County Ordinance 2000-017 ordained that the Comprehensive Plan Map be a component of Title 23 and therefore, any amendment to the Plan Map is an amendment to Title 23; and WHEREAS, the Deschutes County Hearings Officer, after review conducted in accordance with applicable law, denied the proposed change to the County Comprehensive Plan; and WHEREAS, a de novo public hearing was held on August 25, 2004, after notice was given in accordance with applicable law, before the Board of County Commissioners; and WHEREAS, the Board of County Commissioners approved the change in plan designation from Agriculture to Rural Residential Exception Area through issuance of their Findings and Decision attached as Exhibit "A" now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. AMENDMENT. The Deschutes County Comprehensive Plan Map is hereby amended to change the plan designation of the subject property, described as the Northeast Quarter of the Southeast Quarter (NE 1/4 SE 1/4) of Section 4 in Township 17 South, Range 12 East, Willamette Meridian, and identified on the County Assessor's map 17-12-4 as tax lot 600, and which is depicted on the map set forth as Exhibit "B," and by this reference incorporated herein, from Agriculture to Rural Residential Exception Area. PAGE I OF 2 - ORDINANCE NO. 2005-006 (07/27/05) Section 2. FINDINGS. In support of this ordinance, the Board adopts its decision for file nos. PA-03- 4/ZC-03-2, attached hereto as Exhibit "A" and by this reference incorporated herein. 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 d of ALL—�/" 2005 61 0 Record of Adoption Vote Commissioner Yes No Abstained Tom DeWolf Dennis R. Luke Michael M. Daly ATTEST: 6"U_L &&-4-- Recording Secretary BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON TOM DE F, Chair 15ENNIS R. LUff, Co—mmiissioner PAGE 2 OF 2 - ORDINANCE NO. 2005-006 (07/27/05) j%iEVIEWED WECI LEG&! COUN.S FILE NUMBERS: APPLICANTS/ OWNERS: ATTORNEY: 0 ON OF DESCHUTES COUNTY COMMISSION PA -03-4 and ZC-03-2 Terry & Ann Duffin 64155 N Highway 97 Bend, Oregon 97701 Robert S. Lovlien REQUEST: The applicants are requesting approval of a goal exception, a plan amendment from Agriculture to Rural Residential Exception Area, and a zone change from EFU-TRB to MUA-10 for 40 acres of a 57.5 -acre parcel north of Bend. STAFF CONTACT: Matthew Martin, Associate Planner HEARING DATES: December 16, 2003, February 3, 2004 and August 25, 2004 RECORD CLOSED: February 24, 2004 I. APPLICABLE STANDARDS AND CRITERIA: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.16, Exclusive Farm Use Zones • Section 18.16.020, Uses Permitted Outright • Section 18.16.030, Conditional Uses Permitted – High Value and Nonhigh Value Farmland * Section 18.16.055, Land Divisions 2. Chapter 18.32, MUA-10, Multiple Use Agriculture Zone • Section 18.32.010, Purpose • Section 18.32.020, Uses Permitted Outright 3. Chapter 18.136, Amendments * Section 18.136.030, Rezoning Standards B. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan L Chapter 23.24, Rural Development Exhi�jt A I oj�Ll_ Section 23.24.020, Goals Page — 00.5 Duffm oi&n�nc� PA -034, ZC-03-2 14 DC' 2005-05 a 2. Chapter 23.52, Economy * Section 23.52.030, Policies 3. Chapter 23.60, Transportation * Section 23.60.010, Transportation 4. Chapter 23.68, Public Facilities * Section 23.68.020, Policies 5. Chapter 23.80 Natural Hazards * Section 23.80.030, Policies 6. Chapter 23.88, Agricultural Lands * Section 23.88.030, Zoning Policies 7. Chapter 23.96, Open Space, Areas of Special Concern, and Environmental Quality * Section 23.96.030, Policies C. Oregon Administrative Rules, Chapter 660 OAR Chapter 660 Division 4, Interpretation of Goal 2 Exception Process • OAR 660-04-005, Definitions • OAR 660-04-010, Application of the Goal 2 Exception Process to Certain Goals * OAR 660-04-00118, Planning and Zoning for Exception Areas *OAR 660-04-0025, Exception Requirements for Land Physically Developed to Other Uses * OAR 660-04-028, Exception Requirements for Land Irrevocably Committed to Other Uses 2. OAR Chapter 660 Division 12, Transportation Planning * OAR 660-12-060� Plan and Land Use Regulation Amendments FINDINGS OF FACT: A. Location: The subject property has an assigned address of 64155 N. Highway 97 and is located north of Bend. It consists of two tax lots owned by the applicants: Tax Lot 101 on Deschutes County Assessor's Map 17-12-3 (17.5 acres) and Tax Lot 600 on Map 17-12-4 Duffin Exhibit Of ;L PA -034, ZC-03-2 Page -.2-- Ordinance 2 (40 acres). B. Zoning and Plan Designation: The subject property has split plan designation and zoning. The westerly 40 acres (Tax Lot 600) is designated Agriculture on the Deschutes County Comprehensive Plan Map and is zoned Exclusive Farm Use— Tumalo/Redmond/Bend Subzone (EFU-TRB). The easterly 17.5 acres (Tax Lot 101) is designated Rural Residential Exception Area and is zoned Multiple Use Agriculture (MUA- 10). C. Site Description: The subject property consists of two tax lots owned by the applicants that comprise approximately 57.5 acres. Tax Lot 600 is 40 acres in size, square in shape, and lies west of Tax Lot 101. It has varied topography with rock outcroppings and vegetation consisting of juniper trees and native brush. Dirt roads traverse this tax lot. There is a pond and irrigated area located in the northeastern portion of the tax lot. Tax Lot 101 is 17.5 acres in size, roughly triangular in shape, and lies east of Tax Lot 6,00. It abuts Highway 97 on the east. It is developed with a single-family residence and a commercial dog kennel operated by the applicants. Both tax lots have access from U.S. Highway 97 via Fort Thompson Lane, a private road. The record indicates Tax Lots 10 1 and 600 together have 6 acres of irrigation. D. Soils: According to Natural Resources Conservation Service (NRCS) maps of the area, there are two soil units mapped on Tax Lot 600: 1. 38B, Deskamp-Gosney complex, 0 to 8 percent slopes . This soil complex is composed of 50 percent Deskamp soil and similar inclusions, 35 percent Gosney soil and similar inclusions, and 15 percent contrasting inclusions. The Deskamp soils are somewhat excessively drained with a rapid permeability and an available water capacity of about three inches. The Gosney soils are somewhat excessively drained with a rapid permeability and about one inch of available water capacity� The contrasting inclusions consist of Clovkamp soils in swales, soils that are shallower than 10 inches on ridges, and rock outcrop. The NRCS rates the production capabilities for these soils are 6E without irrigation and 3E with irrigation for the Deskamp soils and 7E without irrigation and 4E with irrigation for the Gosney soils. Approximately 75 percent of the site's soils are within this mapping unit. This soil complex is not considered high-value soil when irrigated. 2. 58C, Gosney—Rock Outcrop-Deskamp complex, 0 to 15 percent slopes. This soil complex is composed of 50 percent Gosney soil and similar inclusions, 25 percent Rock outcrop, 20 percent Deskamp soil and similar inclusions, and 5 percent contrasting inclusions. The Gosney soils are somewhat excessively drained with a rapid permeability and an available water capacity of one inch. The Deskamp soils are somewhat excessively drained with a rapid permeability and about 3 inches of available water capacity. The contrasting inclusions consist of Clovkamp soils in swales, soils that are shallower than 10 inches on rock outcrops. The NRCS rates the production capabilities for these soils are 6E without irrigation and 3E with irrigation for the Deskamp soils, 7E without irrigation and 4E with irrigation for the Gosney soils, and 8S for the Rock Duffm 14 PA -034, ZC-03-2 Exhibit 3 Page of a_r Ordinance -;-�6— ov 0 .0 W outcrops. Approximately 25 percent of the site's soils are within this mapping unit. This soil cornplex is not considered high-value soil when irrigated. F. Surrounding Zoning and Land Uses: To the east is Highway 97. Across Highway 97 to the east are parcels zoned MUA-10 and developed with rural residences. Parcels to the west and south are zoned MUA-10, range in size from 5 to 10 acres, and are developed with rural residences. Parcels to the north are zoned EFU-TRB. The abutting parcel to the north is 80 acres *in size, owned by Deschutes County, vacant and not engaged in farm use. Further to the north are other large parcels zoned EFU. To the northeast is a large parcel zoned Open Space -and Conservation (OS&C) that is bisected by I Highway 97. G. . Procedural History: The: record indicates that on March 5, 1973 the Deschutes County Planning Commission approved an expansion of a nonconforming use allowing the applicants' predecessor, Williain Champion, to establish on the subject property a 260 - spaced mobile home park to be called the "Anchorage Mobile Home Park" (NCU-73-94) on what is now Tax Lots 10 1 and 600. In August 1977, the Department of Environmental Quality and the Deschutes County Health Department. approved plans for a subsurface sewage disposal system for the mobile home park consisting of individual septic systems and drainfields. In October 1977, the County advised the Oregon Department of Commerce of the County's previous approval of the mobile home park. In November 1977 the Department of Commerce approved plans for a 175 -unit manufactured home park. The approved plan, a copy of which is included in the record, shows the general mobile home space and slieet layout and the location of septic systems and drainfields. The applicants' burden of proof states that pursuant to these approvals, Mr. Champion constructed 3 septic tanks, 24 drainfields, a well with a 30 horsepower pump, and an office building connected to one of the septic tanks and drainfields. He also cut in dirt roads. The burden of proof states Mr. Champion spent between $350,000 and $400,000 for these improvements. In early 1978, three owners of I properties adjacent to the subject property filed a civil action in Deschutes County Circuit Court seeking to enjoin the County from permitting Mr. Champion to construct a mobile home park on the ground that the County lacked authority to approve it in 1973 as an expansion of a nonconforming use. On March 2, 1978 the circuit court issued a decree permanently enjoining the County's issuance of construction permits for the mobile home park. A copy of the decree is included in the record. In November 1979 the subject property was zoned EFU. The mobile home park was not completed, and in 1983 Mr. Champion died. In November 1990 the applicants purchased the subject property for $120,000. on February 14, 2000, the applicants submitted to the County an application for a permit to place a manufactured home on the subject property pursuant to the previous mobile home park approval. The Staff Report states the application was not accepted by the County because mobile home parks are not allowed in the EFU Zone. County staff advised the applicants to apply for a verification that the mobile home park was a lawfully established nonconforming use. The applicants did not submit such an application and in late 2000 filed a civil complaint in Deschutes County Circuit Court seeking a declaration that they had a "vested right" to develop the subject property with Duffin Exhibit A PA -03-4, ZC-03-2 Page __q_ af 4 Ordinance the mobile home park. The record indicates the circuit court ruled against the applicants because the alleged nonconforming use had been interrupted or abandoned. At the public hearing the applicants' attorney stated neither he nor the applicants were aware of the 1978 injunction prior to filing the land use application and civil complaint in 2000. On August 12, 2003 the applicants submitted the subject plan amendment and zone change applications. The County. accepted these applications as complete on September 12, 2003. Because the applications include a request for a plan amendment, the ISO -day period for issuance of a final local land use decision under ORS 215.427 does not apply. A public hearing on the applications was scheduled for December 16, 2003. By letter dated December 12,.2003 the applicants requested a continuance of the public. hearing until late January or early February. Because the request for continuance was received after notice of the public hearing was published, the public hearing was held as scheduled on December 16, 2003. At that hearing, the Hearings Officer received a staff report, testimony and argument, and continued the hearing to February 3, 2004. At the continued public hearing, the Hearings Officer again received testimony and evidence, left the written evidentiary record open through February 17, 2004, and allowed the. applicants through February 24, 2004 to submit final argument. The record closed on February 24, 2004. Following the public hearings held December 16, 2003 and February 3, 2004, the Hearings Officer issued her Decision dated April 21, 2004, denying the Applicants' proposed Goal 3 exception, plan amendment from. agricultural to a rural residential exception area, and zone change from EFU/TRB to MUA-1 0. The applicants did not file an appeal. Pursuant to the DCC 22.28.030(C), the matter was referred to theBoard. without the necessity of filing an appeal. H. Proposal: The applicants are requesting approval of an exception to Goal 3, a plan amendment from Agriculture to Rural Residential Exception Area, and a zone change from EFU-TRB to MUA-10 for the 40 -acre Tax Lot 600 in order to divide the property into 10 -acre parcels for development with rural residences. Access would be from Highway 97 via Fort Thompson Lane. Public/Private Agency Comments: The Planning Division sent notice of the applicants' proposal to several public and private agencies and received responses from: the Deschutes County Building Division, Environmental Health Division, Assessor, Property Address Coordinator and Road Department; the Swalley Irrigation District; and the Oregon Department of Water Resources, Watermaster-District 11. These comments are set forth verbatim at page 4 of the Staff Report and/or are included in the record. The following agencies did not respond to the notice: the Oregon Department of Land Conservation and Development. Duffin Exhibit PA -03-4, ZC-03-2 Page Of 5 Ordinance J. Public Notice and Comments: The Planning Division mailed individual written notice of the applicant's proposal and the initial public hearing to the owners of record of all property located within 750 feet of the subject property. In addition, notice of the initial public hearing was published in the "Bend Bulletin" newspaper and the subject property was posted with a notice of proposed land use action sign. As of the date of this decision, the County had received no letters from the public. Four members of the public testified at the public hearings. They testified they did not object to the proposed plan amendment and zone change but do not want a mobile home park on the subject property. K. Lot of Record: The Staff Report states the subject property and the adjacent Tax Lot 101 owned by the -applicants were determined to be a single legal lot of record by a 1990 lot - of -record determination (1,R-90-136). 111. . CONCLUSIONS OF LAW: GOAL EXCEPTION A. Oregon Administrative Rules Chapter 660 Division 04, Interpretation of Goal 2 Exception Process FINDINGS: As discussed in the Findings of Fact above, the subject property is 57.5 acres in size and includes two tax lots — one 40 acres and one 17.5 acres in size. The 17.5 -acre Tax Lot 10 1 is zoned MUA- 10 and developed with a rural residence and commercial dog kennel operated by the applicants. It cannot be further divided, The 40 -acre Tax Lot 600 is designated Agriculture and zoned EFU-TRB. The applicants desire to divide Tax Lot 600 in order to create 10 -acre parcels for development writh rural residences. Because Tax Lot 600 is zoned EFU-TRB it cannot be subdivided into four lots. It also appears that Tax Lots 101 and 600 would not qualify for partitioning by either an irrigated or nonirrigated land division under Section 18.16.055(C) because they have irrigation but less than the minimum 23 acres required for a land division in the EFU-TRB Zone. The applicants are requesting approval to remove Tax Lot 600's agricultural designation and zoning. In order to do so, they must first take an exception to Goal 3, which requires the preservation and maintenance of agricultural lands for farm use. OAR 660-04-0018 identifies three types of exceptions to the goals: "reasons ... .. physically developed to other uses," and "irrevocably committed to other uses." The applicants are requesting an "irrevocably committed" exception for Tax Lot 600. OAR 660-04-0028 establishes the following standards for such an exception: 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 jis 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: Exhibit 14 Duffin Page Of PA -034, ZC-03-2 Ordinance 6 0 0 (a) A "committed exception" is an exception taken in accordance with ORS 197.732(l)(b), Goal 2, Part 11(b), and with the provisions of this rule. (b) For the purposes of this rule, an "exception area" is that area of land for which a "committed exception" is taken. (c) An "applicable goal" as used in this section, is a statewide planning goal or goal requirement that would apply to the exception area if an exception were not taken. The applicants' burden of proof states they believe Tax Lot 600 is "irrevocably committed" to non-farm uses for three reasons: 1) the presence on the property of the improvements installed in connection with the planned mobile home park; 2) the lack of productive agricultural soils on Tax Lot 600; and 3) the number of MUA- 10 parcels in the area surrounding Tax Lot 600.. Each of these reasons is discussed in the findings below. As described above, the prior owner of the subject property had installed 24 drainfields, three septic tanks, a well with a 30 horsepower pump, built an office building and cut in roads pursuant to the plans that were approved for the Anchorage Mobile Home Park. These drainfields, septic tanks and roads are still on the property. It is estimated that between $350,0004400,000 in construction costs were spent in attempting to construct the mobile home park itself. These expenses were all being done pursuant to plans that were approved by the Deschutes County Planning Department in 1973 as a nonconforming use and approved by the Department of Envirorunental Quality and the State Department of Commerce. The septic tanks and drainfields that were installed were of sufficient size to serve a mobile home park with 175 spaces. There is clearly evidence that the septic tanks and drainfields are still in existence on the property. The drainfields were installed on the property wherever there was any available soil and in between a significant number of outcroppings that exist on the property. There would have been a maximum cover of only one foot of topsoil over the septic tanks and drainfields. If the property were to be converted to any kind of agricultural use, all of the septic tanks and drainfields would have to be removed because if the ground was in any way tilled, those lines would be torn up. (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; FINDINGS: Tax Lots 101 and 600 are 57.5 acres in size and have 6 acres of irrigation water rights administered by the Swalley Irrigation District. The record indicates the applicants acquired these water rights in 1994. Two soil units are mapped on Tax Lot 600 — Soil Units 38B and 58C. The NRCS data in the record indicate both of these soil types have capability ratings of Class III or IV when irrigated and Class V1, VII or VIII when not irrigated. Therefore, the Duffin Exhibit _)4 PA -034, ZC-03-2 Page Cf 7 Ordinance X1005 -00(p 0 0 irrigated . soils and at least some of the nonirrigated soils on Tax Lot 600 are presumed suitable for the production of farm crops. and livestock under Oregon Administrative Rules (OAR). 660- 33-130. The applicants' burden of proof states William Champion constructed 3 septic tanks, 24 drainfields, a well, an office building, and roads on Tax Lots 10 1 and 600 in preparation for the development of a mobile home park. The record indicates the office no longer exists. An aerial photo included in the record shows the existing roads are dirt tracks and are not improved. Although the aerial photograph shows some areas near the center of Tax Lot 600 that appear to have disturbed ground, the septic tanks and drainfields are not visible in the photograph. It is clearfrom a site visit that the drainfields are still in existence on the subject property. As stated above, there would have been a maximum coverage of one foot of topsoil over all of these* drainfields. The drainfields were installed in the only areas where agriculture could have occurred. They would have to be removed before the property could be used for any kind of agricultural purposes. There is only 2.6 acres of irrigation water on the subject property. It would be prohibitively expensive to acquire any additional irrigation water for the property. Even if irrigation water were provided, most of the property that would be suitable for any type of agricultural use contains either septic tanks or drainfields that were installed for the proposed mobile home park. The Board finds that the Applicants have demonstrated that the subject property, Tax Lot 600, is irrevocably committed to nonfarm uses. The lack of irrigation water, the presence of the drainficids, and the significant number of rock outcroppings would preclude agricultural use of the property. (b) The characteristics of the adjacent lands; FINDINGS: As discussed in the Findings of Fact above, Tax Lot 600 abuts parcels zoned both MUA-10 and EFU-TRB. The lot sizes of adjacent parcels range from 5 to 80 acres. The record indicates the abutting MUA-10-2.Oned parcels are developed with rural residences and the abutting EFU-TRB-zoned parcel is vacant and not engaged in farm use. The majority of the abutting parcels are zoned MUA-10. The adjacent lands have similar soils, topography and vegetative cover as the proposed exception area. The pictures clearly indicate that the subject property is one of scattered rock outcroppings, juniper trees and scrub brush. The land is primarily dry with minimal water rights scattered throughout the area. There is little or no fanning. Applicants testified as to six acres of water rights that have been transferred to the subject property. However, those water rights are not used for fanning, but only for landscaping and to provide an area to train their dogs. There is no farming within one quarter mile of the proposed exception area. The Staff Report concluded that the area proposed for the exception is virtually the same as other MUA- 10 exception areas already established by the County. Although this standard expressly refers to "adjacent lands," the applicants' burden of proof and the Staff Report also include an analysis of the characteristics of all parcels located within a one- half -mile radius of the subject property. The record indicates that of the 90 tax lots included within the one-half mile radius, 17 are zoned EFU or OS&C, 71 are zoned MUA-10, and 2 are zoned Rural Industrial. All but one parcel 40 Duffin PA* -034, ZC-03-2 Exhibit 8 Page Of Ordinance A acres and larger in size are zoned EFU or OS&C. The one exception, the 40 -acre Tax Lot 502 on Map 17-12-4, is completely surrounded by smaller parcels no more that approximately 14 acres in size. Forty-six of the 71 MUA- I O -zoned tax lots have dwellings and 25 are vacant. Eleven of the 19 tax lots with zones other than MUA- 10 are in public ownership. The record indicates most of the land within a one -half -mile radius of Tax Lot 600 has soils, topography, vegetative cover and minimal irrigation similar to Tax Lot 600. Most of the land in this area — whether or not zoned EFU — is not engaged in productive farm use.' The Staff Report also states some tax lots within a one -half -mile radius have access via easements like Tax Lot 600. Finally, tax lots within the one -half -mile radius have domestic water from Avion Water Company and private wells. Based on these facts, the Board finds that Tax Lot 600 does resemble the characteristics of the MUA-10 tax lots within a one-half mile radius of the subject property. The maps indicate that the subject property is like a finger, being surrounded on three sides by MUA-10-zoned land. There is nothing to distinguish this land from other adjacent MUA- I O -zoned lands. (c) The relationship between the exception area and the lands adjacent to it; and FINDINGS: The Hearings Officer found.Tax Lot 600 is similar to the adjacent tax lots zoned MUA-10 and EFU considering topography, soil type, vegetation ' and irrigation. However, it is considerably larger than the adjacent MUA- I O -zone tax lots and similar in size to the EFU-zoned tax lots to the north, The computer-generated tax map included in the record indicates Tax Lot 600 is located at the southern end of a large area of EFU-zoned tax lots that are 40 acres or larger in size. As discussed above, the analysis of parcels within a one -half -mile radius of Tax Lot 600 indicates all but one parcel 40 acres and larger in size are zoned EFU or OS&C. The one exception, the 40 -acre Tax Lot 502 on Map 17-12-4, is completely surrounded by smaller parcels no more that approximately 14 acres in size. For these reasons, The Board finds the characteristics of Tax Lot 600 show a much closer relationship with adjacent MUA-10-zoned lands, as surrounded on three sides, than the adjacent EFU-zoned tax lots, which are primarily 'in public ownership. (d) The other relevant factors set forth in OAR 660-04-028(6). FINDINGS: Paragraph (6) establishes several additional factors to be considered, each of which is addressed in the findings below. (6) Findings of fact for a committed exception shall address the following factors: (a) Existing adjacent uses; FINDINGS: Adjacent uses in the area include rural residential development on parcels of varying sizes, the applicants' commercial dog kennel on Tax Lot 101, and vacant EFU-zoned land not engaged in farm use. For this reason, the Staff Reportconcludes, and The Board agrees, 1 The Staff Report states no tax lots within the one -half -mile radius area are receiving farm tax deferral and 45 of the 90 tax lots have I to 9 acres of irrigation. Duffin Exhibit _A PA -034, ZC-03-2 Page 9 Of 9 Ordinance 9005-00 redesignating the subject property to Rural Residential Exception Area would not change the rural character of the area and would have no impact on any farm use in the area. (b) Existing public facilities and services (water and sewer lines, etc.); FINDINGS: The record indicates that adjacent parcels developed with rural residential uses have electricity and telephone :service, domestic water and on-site sewage disposal, police services through the Deschutes C.ounty Sheriff and fire protection services through Bend Rural Fire Protection District #2. It reasonable to conclude that these services would also be available to the subject property. Access to the subject property is from Highway 97 via Fort Thompson Lane, a private road. The record includes a copy of an approach road permit issued to the applic . ants by the Oregon Department of Transportation (ODOT) for Highway 97 access. These public facilities and services appear to be adequate to support the additional rural residences that could be developed on Tax Lot 600 if it were partitioned. (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 i 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 near -by lands can the parcels be considered to be irrevocably committed. Resource and non -resource parcels created pursuant to the applicable goals shall not be used to justify a committed exception. For example, the presence of several parcels created for nonfarm dwellings or an intensive commercial agricultural operation under the provisions of an exclusive farm use zone cannot be used to justify a committed exception for land adjoining those parcels. (B) Existing parcel sizes and contiguous ownerships shall be considered together in relation to the land's actual use. For example, several contiguous undeveloped parcels (including parcels separated only by a road or highway) under one ownership shall be considered as one farm or forest operation. The mere fact that small parcels exist does not in itself constitute irrevocable commitment. Small parcels in separate ownerships are more likely to be irrevocably committed if the parcels are developed, clustered in a large jzroup or clustered around a road designed to serve these Darcels. Small varcels in Duffin Exhibit --t±— PA-034, ZC-03-2 Page /0 of 10 Ordinance 20-4 separate ownerships are not likely to be irrevocably committed if they stand alone amidst larzer farm or forest operations, or are buffered from such operations. (Emphasis added.) FINDINGS: Tax Lot 600 is 40 acres in size and is part of a 57.5 -acre legal lot that includes the adjacent Tax Lot 101 owned by the applicants. This tract has 6 acres of irrigation and is much larger than the adjacent MUA- I O -zoned parcels that range in size from 5 to 10 acres. It appears from this record that the existing exception area that includes the abutting MUA-10-zoned parcels was established when the County adopted its first zoning map. Tax Lot 600 is located at the southern end of a large area of EFU-zoned parcels similar in size. or larger than the subject property. It is inconceivable that the previous Board, which first zoned the property, believed that this property was farm land. This is based in part upon the decisions to allow the development of the Anchorage Mobile Home Park. During the rezoning process, a lot of property in Deschutes County was simply designated EFU because of the complexity of the project. This land would have probably been zoned MUA- 10 if everyone knew how complicated the process was going to become. This property is a unique parcel. It appears to be a finger jutting out from adjacent MUA-10-zoned properties. It has all of the characteristics of the MUA-10-zoned property that is adjacent to it. There is also the fact that there is a split zone with the Applicants' property, even though it is all considered one legal lot of record. The property is consistent with the MUA-10- zoned property surrounding it on three sides. Although the ground is similar, the property zoned EFU, which is to the north, is in public ownership and is also not in agricultural use or production. For the foregoing reasons, the Board concludes that the parcel sizes and ownership patterns in the area do support the conclusion that the subject property is irrevocably committed to non- agricultural uses. (d) Neighborhood and regional characteristics; FINDINGS: As discussed above, the subject property is located on the boundary between an exception area consisting of 5- to 10 -acre parcels zoned MUA-10 and an area of larger EFU_ zoned parcels. The record indicates that like the subject property and Tax Lot 101, the MUA-10 and EFU tax lots within a one -half -mile radius of the subject property have small amounts of irrigation. The Staff Report summarized a review of lands adjacent to the property, which were within a one-half mile radius. There were 90 parcels within the review area. 17 parcels are zoned EFU or OSNC (open space and conservation) and 71 parcels are zoned MUA-10. However, I I of the 19 lots zoned other than MUA- 10 within the area of review are owned by public entities (Deschutes County and the State of Oregon). The Board therefore finds that the subject property is similar to adjacent lands included within the larger exception area and that the subject property should be part of the exception area, rather than the resource area zoned EFU. (e) Natural or man-made features or other impediments separating the exception area from adjacent resource land. Such features or Duffin impediments include but I are not limited t(moft, WateRourses, utility PA -034, ZC-03-2 Page of 11 Ordinance Q�9� 0 0 lines, easements, or rights-of-way that effectively impede practicable resource use of all or part of the exception area; FINDINGS: There are no farm uses within one quarter mile of the subject property. The property zoned EFU to the north is in public ownership and is not in agricultural production. There is a limited amount of irrigation water that is available. Without irrigation, the property is not suitable foragricultural purposes. The fact that the property does not have irrigation water, is not adjacent to a significant source of irrigation water, . and the existence of the drainfields, all make it impracticable for resource use. Physical development according to OAR 660-004-0025; and FINDINGS: OAR 660-04-0025 states that to justify a ."physically developed" exception, the property must be physically developed "to the . extent that it is no longer available for uses allowed by the applicable goal." This rule goes on to state that the "exact nature and extent" of the physically developed areas "must be shown on a map or otherwise described." As discussed. above, the applicants' burden of proof merely states their predecessor William Champion installed 3 septic tanks, 24 drainfields and "roads." The record indicates the roads consist of dirt tracks. The existence of the drainfields that are installed in any area that would even be remotely suitable for agricultural development makes it impractical to use any, of the property for agricultural purposes. (g) Other relevant factors. FINDINGS: The Staff Report suggests the other relevant factor to be considered under this exception standard is the subject property's soils. Because Tax Lots 101 and 600 have irrigation, and the NRCS data in the record indicates the two soil types on the subject property are Class III and IV when irrigated and Class VI, VII or VII when not irrigated, at least some of the subject property is presumed suitable for fhrm use and therefore constitutes agricultural land. However, the fact that there is no available irrigation water and that the septic tanks and drainfields have been installed in any areas that have soil cover, the property is not suitable for agricultural purposes. (3) Whether uses or activities allowed by an applicable goal are impracticable as that term is used in ORS 197.732(l)(b), in Goal 2 Part II(b), and in this rule shall be determined through consideration of the factors set forth in this rule. Compliance with this rule shall constitute compliance with the requirements of Goal 2, Part II. It is the purpose of this rule to.permit irrevocably itted exceptions where justified so as to provide flexibility in the commi application of broad resource protection goals. It shall not be required that local governments demonstrate that every use allowed by the applicable goal is "impossible." For exceptions to Goals 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; Exhibit Duffin Page --L2�— of. PA -03-4, ZC-03-2 Ordinance 12 0 0 FINDINGS: As discussed in the findings above, the characteristics of Tax Lot 600 preclude its agricultural use. The subject property is impractical to be used for agricultural purposes. (4) A conclusion that an exception area is irrevocably committed shall be supported by findings of fact which address all applicable factors in section .(6) of this rule and by a statement of reasons explaining why the facts support the conclusions that uses allowed by the applicable goal are impracticable in the 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. FINDINGS: The Board finds the evidence in the record support a conclusion that the subject property is irrevocably committed to non-agricultural uses. Therefore, these standards are not applicable. (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. FINDINGS: The proposal's compliance with Section 6 of OAR 660-04-028 is addressed in the findings above. The record includes both an aerial photograph and a current tax map of the subject property and adjoining lands, therefore satisfying this standard. In addition, as set forth in the findings above, the record also includes NRCS soils data and an analysis of all land within a one -half -mile radius of the subject property. For the foregoing reasons, the Hearings Officer finds the applicants have not met their burden of proving the subject property is irrevocably committed to non-agricultural uses and therefore they have not justified an exception to Goal 3 for the subject property. Accordingly, I flnd I cannot approve an amendment to the subject property's plan designation or zoning. However, because I anticipate this decision will be appealed to the Board of County Commissioners, I include the following findings on the proposed plan amendment and zone change to assist the county. PLANAMENDMENT B. Title 23 of the Deschutes County code, the Deschutes County Co ensive Plan Exhibit - MW Duffin Page 13 of PA -034, ZC-03-2 Ordinance Atl� ^-eOV6 13 0 0 The applicants are seeking approval of an amendment to the comprehensive plan map to change the designation of Tax Lot 600 from Agriculture to Rural Residential Exception Area. The applicants' burden of proof and the Staff Report have identified a number of comprehensive plan provisions they believe are applicable to the proposed amendment. Each is discussed in the findings below. Chapter 23.24, Rural Development a. Section 23.24.020, Goals A. To preserve and enhance the. open.spaces, rural character, . scenic values and natural resources of the County. B. 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. FINDINGS: The Staff Report states, and the Boardconcurs, that the proposed plan amendment from Agriculture to Rural Residential Exception Area will not affect the open space, rural character, scenic values or natural resources of the County. As discussed in the findings above, under their current plan designations and zoning Tax Lots 10 1 and 600 likely are not eligible for land division or additional dwellings. If the proposed plan amendment were approved, Tax Lot 600 potentially could be divided into 4 lots. The addition of four new rural residential dwellings will not require unnecessary or expensive expansion of service boundaries since the record indicates facilities, services and road access are or can be made available. 2. Chapter 23.52, Economy a. Section 23.52.030, Policies 6. The County shall protect agricultural land to assure continued agricultural production and the benefits to tourism (see FINDINGS: This is an unusual piece of property for the reasons discussed above. This property is not agricultural lands. It has been irrevocably committed to non -resource uses. This should not be considered as a precedent for any other proposed zone change from EFU to NWA - 10. 3. Chapter 23.60, Transportation a. Duffin .. PA -03-4, ZC-03-2 14 Section 23.60.010, Transportation Exhibit page Z!Y Of –49L, Ordinance 2:QL-'f- 0 . 0 * * * The purpose of DCC 23.60 is to develop a transportation system that meets the needs of Deschutes County residents while also considering regional and state needs at the same time. This plan addresses a balanced transportation system that includes automobile, bicycle, rail, transit, air, pedestrian and pipelines. It reflects existing land use plans, policies and regulations that affect the transportation system. FINDINGS: The subject property has access to Highway 97 via Fort Thompson Lane, a private road over which the applicants have an access easement. The proposed plan amendment would allow Tax Lot 600 to be divided and developed with up to four dwellings. Any such development would be conditioned on Fort Thompson Lane being improved to the County's road standards for partitions under Title 17 of the Deschutes County Code. For these reasons, The Board finds the proposed plan amendment can be consistent with these policies. 4. Chapter 23.68, Public Facilities a. Section 23.68.020, Policies 1. Public facilities and services shall be provided at levels and in areas appropriate for such uses based upon the carrying capacity of the land, air and water, as well as the important distinction that must be made between urban - and ruraF services. In this way public services may guide development while remaining in concert with the public's needs. 3. Future development shall depend on the availability of adequate local services in close proximity to the proposed site. Higher densities may permit the construction of more adequate services than might otherwise be true. Cluster and planned development shall be encouraged. 9. New development shall not be located so as to overload existing or planned facilities, and developers or purchasers should be made aware of potentially inadequate power facilities in rural areas. FINDINGS: As discussed in the findings above, the Hearings Officer found Tax Lot 600 does or will have public facilities and services available to it — i.e... po lice and fire protection — and can be served by a private well and on-site sewage disposal systems. Surrounding parcels have electricity and telephone service. Access to Highway 97 is available via Fort Thompson Lane. The record includes a copy of an ODOT approach road permit issued to the applicants for Highway 97 access. For these reasons, The Board finds the proposed plan amendment is consistent with these policies. Duffin Exhibit A_ PA -03-4, ZC-03-2 Page 16 of AL 15 Ordinance 05-ng(a 5. Chapter 23.80, Natural Hazards a. Section 2' 3.80.030, Policies 13. For easy resident evacuation and ready access for flre and emergency equipment all new subdivision or other major land development shall provide at least two different ingress -egress routes. 16. All existing roads shall be maintained by either the appropriate public or private agency or by the development residents unless an adequate alternative route is provided so as to not deny access beyond the subdivision for firefighting equipment. FINDINGS: Tax Lot 600 has access to Highway 97 via Fort Thompson Lane, a private road over which the applicants have an access easement. The record includes a copy of an ODOT approach road permit issued to the applicants for Highway 97 access. This road would provide adequate access for fire fighting equipment if the road is improved to the County's road standards for partitions. Therefore, The Board finds the proposed plan amendment. can be consistent with these policies. 6. Chapter 23.88, Agricultural Lands 2. Section 23.88.030, Zoning Policies 1. All lands meeting the definition of agricultural lands shall be zoned Exclusive Farm Use, unless an exception to Statewide Goall 3 is obtained so that the zoning may be Multiple Use Agriculture or Rural Residential. 5. Zones and minimum parcels sizes shall be established to assure the preservation of the existing commercial agricultural enterprise of the area. -8. In recognition that irrigated acres per farm unit is the key variable identifying commercial agricultural enterprises in the County, the County shall use the median number of irrigated acres per farm unit in the area or subzone as its principal standard for defining what size of tract constitutes a farm parcel. As an alternative to median irrigated acres as a standard, an assessed farm value equal to that of the median irrigated acres shall be used as a standard for establishing Exhibit Duffin PA -034, ZC-03-6.2 Page _�� �of 06, 16 Ordinance OU form parcel size. The formula for the assessed farm value determination shall be as follows: the median number of irrigated acres per farm unit for the area or subzone x per acre farm use value of best irrigated land in subzone = dollar threshold for assessed land value alternative. 20. Farm and nonfarm uses in rural areas shall be consistent with the conservation of soil and water. FINDINGS: As discussed in the findings above and incorporated herein by reference, the Board finds the Applicants have met their burden of proving Tax Lot 600 is irrevocably committed to non-agricultural uses justifying an exception to Goal 3. 7. Chapter 23.96, Open Space, Areas of Special Concern, and Environmental Quality a. Section 23.96.030, Policies 10. As part of subdivision or other development review, the County shall consider the impact of the proposal on the air, water, scenic and natural resources of the County. Specific criteria for such review should be developed. Compatibility of the development with those resources shall be required as deemed appropriate at the time given the importance of those resources to the County while considering the public need for the proposed development. FINDINGS: The Staff Report states, and the Board agrees, that the Applicants' proposed plan amendment would have no impact on the air, water, scenic and natural resources of the County. The record indicates there are no historic or cultural resources on the subject site and it is not within a wildlife area. Therefore, The Board finds the proposed plan amendment is consistent with this policy. Fo I r the foregoing reasons, the Hearings Officer finds the applicants have failed to meet their burden of proving the proposed plan amendment is consistent with all applicable plan policies. ZONE CHAIVGE C. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.136, Amendments Exhibit Duffin Page 'of PA -034, ZC-03-2 Ordinance 2M -6-012(p 17 2. Section 18.136.030, Rezoning Standards The applicant for a quasi-judicial rezoning must establish that the public interest is best served by rezoning the property. Factors to be 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. FINDINGS: The proposal's consistency with the comprehensive plan is addressed in the foregoing fffidings. B. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone classification. FINDINGS: The purpose of MUA-10 Zone is set forth in Section 18.32.010 as follows: The purposes of the Multiple Use Agricultural Zone are to preserve the rural character of various areas of the county while permitting development consistent with that character and with the capacity of the natural resources of the area; to preserve and maintain agricultural lands not suited to full-time commercial farming for diversified or part-time agricultural uses; to conserve forest lands for forest uses; to conserve open spaces and protect natural and scenic resources; to maintain and improve the quality of the air, water and land resources of the county; to establish standards and procedures for the use of those lands designated unsuitable for intense development by the Comprehensive Plan, and to provide for an orderly and efficient transition from rural to urban land use. The Staff Report states, and the Board concurs, that proposed zone change to WA -10 would be consistent with the purposes of the WA -10 Zone. It would preserve the rural character of the surTounding area by maintaining low-density residential development. Natural resources on the property — i.e. native topography and vegetation — would be maintained to the extent they would not require modification for construction. The Board recognizes that the property has limited potential for agriculture because of the limited amount of irrigation water. 'Me Board finds allowing four dwellings on Tax Lot 600 would not change its limited potential for agriculture. C. That changing the zoning will presently serve the public health, safety and welfare considering the availability and efficiency of providing necessary public facilities and services. Impacts on surrounding land use associated with the change in zone must also be found to be consistent with the specific goals and policies contained within the Comprehensive Plan. FINDINGS: As discussed in the findings above, incorporated by reference helein, the Hearings Duffm Exhibit PA -034, ZC-03-2 Page Of 18 Ordinance 205-20 Officer has found new dwellings on Tax Lot 600 could be served by all necessary public facilities and services. The Board also concurs with staff that the impacts on surrounding land. uses from allowing up to four dwellings on Tax Lot 600 would be minimal inasmuch as most of the surrounding land is zoned MUA-10 and developed with rural residences, and the abutting EFU-zoned parcel is not engaged in fann use. 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. FINDINGS: The applicants argue the original EFU zoning of the subject property in 1979 was a mistake because of the County's 1973 approval of the "Anchorage Mobile Home Park" and the construction of some improvements (dirt roads, septic tanks, drainfields and a well) prior to 1979. The applicants also argue and The Board agrees that Tax Lot 600 should not have been zoned EFU because it was not engaged in farm us in 1979 and much of the surrounding area was recognized as a rural residential exception area. For the foregoing reasons, the Hearings Officer, finds the applicants have failed to meet their burden of proving the proposed zone change satisfies all applicable approval criteria. b. Section 18.136.030, Resolution of Intent to Rezone.. A. If from the facts presented and findings and the report and recommendations of the Hearing Officer, as required by this Section, the County Commission determines that the public health, safety, welfare and convenience will be best served by a proposed change of zone, the County Commission may indicate its general approval in principal of the proposed rezoning by the adoption of a "resolution of intent to rezone." This resolution shall include any conditions, stipulations or limitations which the County Commission may feel necessary to require in the public interest as a prerequisite to final action, including those provisions that the County Commission may feel necessary to prevent speculative holding of property after rezoning. Such a resolution shall not be used to justify "spot zoning" or to create unauthorized zoning categories by excluding uses otherwise permitted in the proposed zoning. B. The fulfillment of all conditions, stipulations and limitations contained in the resolution on the part of the applicant shall make such a resolution a binding commitment on the Board of County Commissioners. Upon completion of the compliance action by the applicant, the Board shall, by ordinance, effect such rezoning. The failure of the applicant to substantially meet any. or all conditions, stipulations or limitations contained in a resolution of intent, including any time limit placed in the resolution, shall render the resolution null and void Duffin Exhibit 4 PA -03-4, ZC-03-2 Page of 19 Ordinance 0 automatically and without notice, unless an extension is granted by the Board. FINDINGS: The Board finds this section is not applicable. D. OAR Chapter 660 Division 12, Transportation Planning 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) Liniffing 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, (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. (3) Determinations under subsections (1) and (2) of this section shall be coordinated with affected transportation facility and service providers and other affected local governments. Duffin Exhibit A PA -03-4, ZC-03-2 Page -__aa Of 00 (V 20 Ordinance A"Q (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 OAR 660.04.022 and 028. FINDINGS: As discussed in the findings above, incorporated by reference herein, Tax Lot 600 has access to Highway 97 via Fort Thompson Lane, a private road over which the applicants have an access easement. In addition, the record includes a copy of an ODOT approach road permit issued to the applicants for Highway 97 access. Any land division and subsequent residential development of Tax Lot 600 would require the improvement of Fort Thompson Lane to the County's road standards for partitions. Because the proposed plan amendment and zone change would result in the addition of only four dwellings, potentially generating only approximately 40 additional average daily vehicle trips onto Highway 97, The Board finds they would not significantly affect a transportation facility. IV. DECISION: Based upon the foregoing findings of fact and conclusions of law, the. Board hereby overturns the Decision of the Deschutes County Hearings Officer dated April 21, 2004 and hereby approves the Applicants' proposed Goal 3 exception, plan amendment from agricultural to rural residential exception area, and zone change from EFU/TRB to MUA- 10. 51� Dated this ��/ of (JbWkVi/,2005 BOARD OF COUNTY C MMISSIONERS TOM DeWOLF, CHAIfj ATTEST: Recording Secretary Duffin - ZC-03 -2 P A-03-4.1 21 Exhibit --A-�- - Page -2d— Of m4a:L Ordinance Legend = Agriculture (AG) Parcels Open Space & Conservation (OS&C) Railmad Rural Residential Exception Area (RREA) Subject Property I=Urb.n Gr.Mh B-nd.1y IN -11 — 1—fion Mp nddd dig hu —b— .. 0—h—Cd-y'. G.1s. c.. W 1. -- d rhis ­ . I is — — - 1� —hdtd—.� P— -- in - ft.. jno,d, d. si— ­ ­nyft ahis g—d— n— dd .1 .— .1 pl—d. N--rdy—n,did0--P�_Cd­—.d 1712040000600 Plan Amendment Change From AG to RREA PROPOSED COMPREHENSIVE PLAN MAP Exhibit B to Ordinance 2006-006 N W+E S 0 250 500 1.010 — Fee, BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON Tom DeWolf, Chair Michael M, Daly, Commissioner Dennis R. Luke, Commissioner ATTEST. Recording Secretary Dated this _ day of July, 2005 Effective Date: July _, 2005 �N M —