2005-975-Ordinance No. 2005-031 Recorded 8/3/2005REVIEWE�
LEGAL COUNSEL
REVIEWED
C&A /
CODE REVIEW COMMITTEE
DESCHUTES COUNTY OFFICIAL
NANCY BLANKENSHIP, COUNTY
COMMISSIONER$' JOURNAL
111111,111 11111111111
200 -91j11111111
RECORDS p
CLERK U 2005-975
08/03/2005 04:22:19 PM
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 Adopt an Exception
to Goal 3, To Change the Plan Designation for
Certain Property From Surface Mine to Rural
Residential Exception Area, and to Amend the
Mineral and Aggregate Resource hiventory for
Deschutes County and Declaring an Emergency.
ORDINANCE NO. 2005-031
WHEREAS, Eric Coats, Co -Trustee of the Joyce E. Coats Revocable Trust, has proposed a Goal
Exception to Goal 3 and a Plan Amendment to Title 23.120 of the Deschutes County Code (DCQ, Goal
Exception Statement, to redesignate certain property from Surface Mine to Rural Residential Exception Area,
and to amend the Mineral and Aggregate Resource Inventory for Deschutes County; and
WHEREAS, the subject property is listed as Surface Mining sites No. 305 and 306 on the County's
inventory of mineral and aggregate resource sites, as set forth in Exhibit "G" to Ordinance No. 90-025; and
WHEREAS, the Board of County Commissioners (Board) after reviewing all the evidence presented at
the public hearing, agrees with the findings of the Hearings Officer, and
WHEREAS, the Board, after review conducted in accordance with applicable law, approved the Goal
Exception to Goal 3, redesignation from Surface Mining to Rural Residential Exception area, and amendment to
the Mineral and Aggregate Resource Inventory list proposed amendment to the County Comprehensive Plan;
and,
"WHEREAS, Deschutes County Ordinance 2000-017 ordained the Plan Map to be a component of Title
23 and, therefore, any amendment to the Plan Map is an amendment to Title 23; now therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. ADDING. DCC Chapter 23.120.190, Joyce Coats Revocable Trust Johnson Road and
Tumalo Reservoir Road Properties, is added to read as shown in Exhibit "A" attached to this ordinance and by
reference incorporated herein, to adopt an exception statement for certain property as described in Exhibit "B."
Section 2. AMENDMENT. DCC Title 23, The Deschutes County Comprehensive Plan Map is hereby
amended to change the plan designation for certain property described in Exhibit "B" and depicted on the map
set forth as Exhibit "C," and by this reference incorporated herein, from Surface Mine to Rural Residential
Exception Area.
PAGE I OF 2 - ORDINANCE NO. 2005-031 (08/3/05) Document Reproduces Poorly
(Archived)
Section 3. AMENDMENT. DCC Chapter 23.100.70, Surface Mining, Goal 5 Inventory, is amended to
delete surface mining Sites No. 305 and 306 Erom the County's Goal 5 inventory of mineral and aggregate sites
as set forth in Exhibit "D," attached hereto and incorporated herein by this reference with new language
underlined and deletions shown in str-ikethfett .
Section 4. FINDINGS. The Board adopts as its findings in support of this decision, the Decision of
the Hearings Officer, attached hereto as Exhibit "E," and by this reference incorporated herein.
Section 5. EMERGENCY. This Ordinance being necessary for the immediate preservation of the
public peace, health and safety, an emergency is declared to exist, and this Ordinance takes effect on its passage.
DATED this -�(e day of 2005.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
TOM DEWOLF, Chair
Ml(�11AEL A DALY-, Co 6ssioner
- rx� "o:;,
DENNIS R. LUKE, Commissioner
Date of l't Reading: ?,—/Idayof /V-�f2005.
V -
Date of 2 d Reading: 31� day of AtQtk,,4—, 2005.
1 0 -
Record of Adoption Vote
Commissioner Yes No Abstained Excused
Dennis R. Luke
Tom DeWolf
Michael M. Daly
Effective date: dayof /4V4tk-Vh2005.
0
ATTEST:
(�� &&�/L
Recording Secretary
PAGE 2 OF 2 - ORDINANCE NO. 2005-031 (08/3/05)
EXH1BIT "A"
Chapter 23.120. GOAL EXCEPTION STATEMENT
23-120.010. Introduction.
23.120.020. Methodology.
23-120.030. Agricultural lands.
23.120.040. Forest lands.
23.120.050. Exceptions analysis.
23.120.060. Exception Area Plan.
23.120.070. Bend Municipal Airport Exceptions Statement.
23.120.080. La Pine UUC Boundary.
23.120.090. Spring River Rural Service Center.
23.120.100. Burgess Road and Highway 97.
23.120.110. Rural Industrial Zone.
23.120.120. Prineville Railway.
23.120.130. Resort Communities.
23.124.140. Barclay Meadows Business Park.
23.120.150. Sisters School District #6.
23.120.160. Sisters Organization of Activities and Recreation
and Sisters School District #6.
23.120.170. Oregon Water Wonderland Unit 2 Sewer District.
23.120.180. 2004 City of Bend Urban Growth Boundary Amendment (Juniper Ridge).
23.120.190. Joyce Coats Revocable Trust Johnson Road and Tumalo Reservoir Road Properties.
23.120.190. Joyce Coats Revocable Trust Johnson Road and Tumalo Reservoir Road Properties.
In conjunction with gpproval of PA-04-4/ZC-04-2, an "irrevocably committed" exception to Statewide
Plannina Goal 3, Agricultural Lands was taken to allow for the rezoning of Surface Mine Sites 306 and 307
from Surface Mining (SM) to Multiple Use Agriculture (MAIO) and change of coMprehensive plan
designation from Surface Mine (SM) to Rural Residential Excgption Area (RREA). Additionally, the
Coun1y determined that Surface Mine Site 306 is non -resource land. Reasons justifying nLhy the state policy
embodied in Goal 3 should not gpply in this situation are set forth in Exhibit "E" to Ordinance 2005-03 1,
which findings are incorporated herein. (Ord. 2005-03 1, § 1, 2005)
Page 1 of 1, Exhibit "A" to Ordinance 2005-031 (08/03/05)
DESCRUMON SBEET
Tax Lot 17-12-06 BO 00700 (Less the 9.69 acres zoned MUA 10)
Joyce E. Coats & Eric W. Coats
Co -Trustees of the Joyce E. Coats Revocable Trust U/A/D
A parcel of land located in the Southeast Quarter of the Northwest Quarter (SE 1/4
NW 114) of Section 6, Township 17 South, Range 12 East, of the Willamette Meridian,
Deschutes County, Oregon, described as follows:
That portion of the Southeast Quarter of the Northwest Quarter (SE 1/4 NWI/4) of
Section 6, Township 17 South, Range 12 East, of the Willamette Meridian, lying South of
Tumajo Reservoir Market Road, more particularly described as follows:
a
Commencing at the Southwest comer of the Southeast Quarter of the Northwest
Quarter (SE 114NW 114) of said Section 6; thence S 89* 51' 44" E along the South line of
the Southeast Quarter of the Northwest Quarter (SE 1/4NW 1/4) of Section 6, a distance of
450.00 feet to the true point of beginning; thence North, 950.96 feet to the southerly -
right-of-way line of Tumalo Reservoir Road, thence following the southerly right-of-way.
line of said road, the following courses:
73.86 feet along the arc of a non -tangent, 1170.00 foot radius curve, concave to
the South, the long chord of which bears S 87* 13' 56" E, 73.86 feet;
S 850 25' 24" E, 55.62 feet;
266.67 feet along the arc of a 355.00 foot radius curve, concave to the North, the
long chord of which bears N 73* 03' 24" E, 260.45 feet-,
N 510 32' 13" E, 176.68 feet;
201.11 feet along the arc of a 140.00 foot radius curve, concave to the South, the
long chord of which -bears S 87* 18' 39' E, 184.26 feet;
S 460 09' 32" E, 222.76 feet to the East line of the Southeast Quarter of the
Northwest Quarter (SE 1/411W 1/4) of Section 6;
thence leaving the southerly right-of-way line of Tumalo Reservoir Road, S 00*
20' 25" E, along the East line of the Southeast Quarter of the Northwest Quarter (SE 1/4
NW 114) of Section 6, a distance of 967.73 feet to the Southeast comer of the Southeast
Quarter of the Northwest Quarter (SE 114NW 114) of Section 6; thence N 89* 5 V 44" W,
along the South line of the Southeast Quarter of the Northwest Quarter (SE 1/4NW 1/4) of
Section 6, a distance of 867-18 feet to the true point of beginning.
Containing 20.41 acres more or less.
7
Exhibit
Jeff Kem & Assoc., hw. of -3
PROFESSIONAL LAND SURVEYORS Page I -
P.O. Box 1244, Bend, Oregon 97709 w (541) 389-4736 Ordinance ZOL; -
DESCRIMON SHEET
Tax Lot 17-12-06 CO 00100
Joyce E. Coats & Eric W. Coati
Co -Trustees of the Joyce E. Coats Revocable Trust U/A/D
A parcel of land located in the Northeast Quarter of the Southwest Quarter (NE 1/4
sW 114) of Section 6, Township 17 South, Range 12 East, of the Willamette Meridian,
Deschutes County, Oregon, described as follows:
That portion of the Northeast Quarter of the Southwest Quarter (NE -114 SW 114) Of
Section 6, Township 17 South, Range 12 East, of the Willamette Meridian, lying North of
Johnson Market Road, more particularly described as follows:
Beginning at the Northwest comer of the Northeast Quarter of the Southwest
Quarter (NE 114 SW 114 of said Section 6, thence S 89* 51' 44" E, along the North line of
the Northeast Quarter of the Southwest Quarter (NE 114 SW 114) of said Section 6, a
distance of 1317.18 feet to the Northeast comer of the Northeast Quarter of the
Southwest Quarter (NE 114 SW 114) of said Section 6; thence S 00* 20" 03' E, along the
East line of the Northeast Quarter of the Southwest Quarter (NE 114 SW 114) of said Section
6,a distance of 270.86 feet to the northerly right-of-way line of Johnson Market Road-,
thence along said northerly right-of-way line the following courses:
S 460 13' 23" W, 156.80 feet;
145.41 feet along the arc of a 3970.00 foot radius curve, concave to the Southeast,
the long chord of which bears S 45* 10' 25" W, 145.40 feet;
S 460 07' 28" W, 485.95 feet;
358.92 feet along the arc of a 1980.00 foot radius curve, concave to the Southeast,
the long chord of which bears S 380 55' 53" W, 358743 feet;
S 330 44' 18" W, 125.39 feet;
146.03 feet along the arc of a 470.00 foot radius curve concave to the Northwest,
the long chord of which bears S 420 38' 22" W-, 145.45 feet to the South line of the
Northeast Quarter of the Southwest Quarter (NE 114 SW 114) of said Section 6;
thence leaving the southerly right-of-way line of Johnson Market Road; N 890 56'
10" W, along the South line of the Northeast Quarter of the Southwest Quarter (NE 1/4
S W 1/4)of said Section 6, a distance of 363.87 feet to the Southwest comer of the - -
Northeast Quarter of the Southwest Quarter (NE 114 SW 1/4) of said Section 6; thence N.
000 17' 43" W, along the West line of the Northeast Quarter of the Southwest Quarter
(NE 114 SW 114) of said Section 6, a distance of 1323.54 feet to the true point of
beginning.
Containing 27.8 acres more or less.
E xhlbit
j eff Kern . & Assoc., Im Page f -3
PROFESSIONAL LAND SURVEYORS Ordinance
P.O. Box 1244, Bend, Oregon 97709 n (541) 389-4736
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Legend PROPOSED COMPREHENSIVE PLAN MAP
= Subject Property File No. PA -04-04
Comprehensive Plan
AG -Agriculture Exhibit C
OS&C - Open Space & Conservation to Ordinance 2006-031
RREA - Rural Residential Exception Area
SM - Surface Mining N
4
S
0 250 wo 1.01DO
F -t
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 August, 2005
Effective Date: August . 2005
0
RIDGEWOOD DR
TUMALO RESERV
RD
0
SM #306
0
171206B000700
0
Plan Amendment from Surface
Mine (SM) to Rural Residential
Exception Area (RREA)
SM #305
171206CO00100
Plan Amendment from Surface
Mine (SM) to Rural Resident�al
Exception Area (RREA)
Turnalo
State Park
z
0
Legend PROPOSED COMPREHENSIVE PLAN MAP
= Subject Property File No. PA -04-04
Comprehensive Plan
AG -Agriculture Exhibit C
OS&C - Open Space & Conservation to Ordinance 2006-031
RREA - Rural Residential Exception Area
SM - Surface Mining N
4
S
0 250 wo 1.01DO
F -t
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 August, 2005
Effective Date: August . 2005
EXHIBIT "D"
Chapter 23.100. SURFACE MINING
23.100.70. Goal 5 Inventory.
GnA I'% Inv&-ntnry — N4inprnll nnf] Acyar,,antp 4Zitpe
SITE
NO.
LEGAL DESCRIPTION
NAME
TYPE
QUANTITY*
QUALITY
ACCESS/LOCATION
246
151010-00-00205, 207, 300,
302,303
Tewalt
S&G
10,000
Good
Hwy 20
248
151012-00-00100
Cyrus
Cinders
30.2 M
Excellent
Cloverdale Road
249
151025-00-02502,2505
RL Coats
Rock
250,000
ODOT Specs
251
15121 !mDOmOI400,151214--
AO -00800
Cherry
S&G
125,000
Good
252
151200-00-04700, 04701
Thornburgh
Rock
2.5 M
Good
271
15103i�-00-00800
Deschutes County
S&G
2 M
Mixed
Harrington Loop Road
273
151117-00-00100
Deschutes County
S&G
75,000
Excellent
Fryrear Rd/Redmond-
Sisters
274
151117-00-00700
Deschutes County
S&G
Excellent
;Fryrear Road
275
151100-00-02400
Deschutes County
S&G
175,000
Good
Fryrear Landfill
277
151011-00-01100
Oregon State Hwy
S&G
100,000
ODOT Specs
278
151140 -AO -00901, 151211-
DO -01200
State of Oregon
S&G
18,000
ODOT Specs
U. 1
282
171000-00-00100
Crown Pacific
Cinders
100,000
Fair
283
171000-00-00100
Crown Paci fie
Cinders
50,000
Fair
288
171111-00-00700
'
Tumalo Irrigation
S&G
250,000
Good
292
171112-00-00900
RL Coats
S&G
326,000
ODOT Specs
293
17112-00-00500, 600, 700, 800
RL Coats
S&G
3 M
ODOT Specs
294,
171113-00-00817 —
Bend Aggregate
S&G
777,000
Excellent-
Kliepel Acres/Bend
296
171100-00-02702
Crown Pacific
Cinders
100,000
Excellent
Shcvlin ParkJohnson Rd
297
1 171123-00-00100 -
Crown Pacific
Cinders
60,000
johnson-Rd/Tumalo
303
171207-00-00300
Cascade Pumice
Pumice
750,000
Good
303
171207-00-00300
Cascade Pumice
S&G
10,000
Good
305
4-7-�
444,4W
OPOT spees,
-306
313
171433-00-00600
Deschutes County
S&G
100,000
Good
313
171433-00-00600, 120
Deschutes County
Storage
Dodds Road/Alfalfa
314
171332-00-01100
Deschutes County
Dirt
150,000
Good
315
140906--00-02 100
Stott —
Rock
93,454 tons
ODOT Specs
Highway 20
316
140900-00-00202
Black Butte Ranch
S&G
7 M
Good
317
140900-00-01300
Willamette Ind
Cinders
1.2 M
Good
322
141200-00-01801
Fred Gunzner
S&G
1.5 M
Mixed
Lower
Bridge/Terrebonne
322
141200-00-01801
Gunzner
Diatomite
500,000
Good
Lower
Bridge/Terrebonne
324
141200-00-00702
ODVA
S&G
490,000
Good
Lower
Bridge/Terrebonne
326
141236-00-00300, 301
US Bank Trust
S&G
1.5 M
Good
330
141328-00-00702, 703
Larry Davis
Cinders
50,000
Good
331
141329-00-00100, 103
EA Moore
Cinders
100,000
Good
332
141329-00-00102
RL Coats
Cinders
2 M
Good
Northwest
Way/Terrebonne
333
141329-00-00104
Robinson
Cinders
2.7 M
Good
335
141333-00-00890
Erwin
Cinders
100,000—
Excellent
Pershall Way/Redmond
336
141333-00-00400, 500
US Bank Trust
Cinders
4.5 M
Good
Cinder Butte/Redmond
339
141132-00-01500
Deschutes County
Dirt
200,000
Fill
Goodard Loop/Bend
341
161000-00-00106
Young & Morgan
S&G
I M
—Good
342
220900-00-00203
Crown Pacific
Cinders
200,000
Good
345
161000-00-01000
Crown Pacific
Cinders
50,000
Good
346
161000-00-01000
Crown Pacific
Cinders
50,000
Good
Page 1 of 3, Exhibit "D" to Ordinance 2005-031 (08/03/05)
EXHIBIT (6D99
Goal 5 Inventory - Mineral and Aggregate Sites
SITE
NO.
LEGAL DESCRIPTION
NAME
TYPE
QUANTITY-
QUALITY
ACCESS/LOCATION
347
161101-00-00300
Deschutes County
Dirt
10,000
Good
351
161112-00-01401, 1700, 2000
Gisler/Russell
Cinders
150,000
Good
Innes Mkt/Innes Butte
357
161136 -DO -00100, 161100-00-
10400,10300
Turnalo Irrigation
Cinders
I M
Johnson Road/Tumalo
357
16113 6 -DO -00 100, 161100-00-
10400,10300
Tumalo Irrigation
S&G
500,000
Good
357
16113 6 -DO -00 100, 161100-00-
10400,10300
Tumalo Irrigation
Pumice
500,000
Good
358
16123 1 -DO-0 I 100
Gisler
S&G
100,000
ODOT Specs
Hwy 20/Tumalo
361
161222 -:CO -02800
Oregon State Hwy
Cinders
700,000
Good
366
161230-00-00000
Oregon State Hwy
S&G
40,000
ODOT Specs
368
161220-00-00200
Bend Aggregate
S&G
570,000
Excellent
Twin Bridges/Fumalo
370
1612317DO-00400
Bend Aggregate
Plant Site
Storage
379
181100-00-01600
Oregon State Hwy
S&G
500,000
ODOT Specs
381
181125 -,CO -12600,181126-00-,.
01600
Pieratt,B s-..
X0
Cinders
50,000
Good
.390
181214-00-00500, 100
Deschutes, County
Dirt
2M
Landfill-,
391
181221-00-00200
Central OR
Pumice
Cinders
500,000
Good
392
181223-00-00300
Rose
Rock
10 M Est
Mixed
392
181223-1-00-00300
Dirt
7.5 M
Good
393
.181225-00-01400
-Rose
LT Contractors
Cinders
12.5 M
Good -
.Arnold Mk -t Rd/SE of
Bend
�394
J 81200-00-04400, 04411
'Windlink
Cinders
270,000
Coarse
Hwy 97/South of Bend
395
18120j_1010-04300
Oregon State Hwy
Cinders
100,000
Good,
400�:
181300-00-04501, 04502
Eric Coats
S&G
2.5 M,
ODOT Specs
,404
191400-00-00200
Moon -
S&G
1.3 M,
Good
404 :1,
191400-00,00200
Moon -,
Rock
800,000 - 2 M
Good.
iHwy-20/East, of Bend
405
191400-00-00600
Oregon State Hwy,
Aggregate
50,000
ODOT Specs
408
191600-00-01500
RL Coats
S&G
3M
Good
413
201500 -00-01400
Deschutes County
S&G
30,000
Good/Excellent
Hwy 20/East of Bend
414
201500-00-01500
Deschutes County
S&G
30,000
Good/Excellent
Hwy 20/East of Bend
415
201716-00-00700
Deschutes County
S&G
30,000
Good/Excellent
Hwy 20/East of Bend
416
201716-00-00200
Deschutes County
S&G
30,000
Good/Excellent
Hwy 20/East of Bend
417
201716-00-00900
Deschutes County
S&G
30,000
Good/Excellent
Hwy 20/East of Bend
418
201716-00-01000
Deschutes County
S&G
30,000
Good/Excellent
Hwy 20/East of Bend
419
201716-00-01300
Deschutes County
S&G
30,000
Good/Excellent
Hwy 20/East of Bend
421
212000-00-00900
RL Coats
S&G
500,000
Excellent
Hwy 20/Tumalo
423
211106 -CO -00700
Ray Rothbard
S&G
100,000
Good
426
211100-00-00702
La Pine Redi-Mix
S&G
I M
Good
427
211100-00-00701
Bill Bagley
S&G
40,000
Good
431
221100-00-00600
Russell
Cinders/
Rock
12 IVVI.2 M
Good
Finley Butte
432
221100-00-00500
State of Oregon
Cinders
160,000
Good
433
211300-00-00101
La Pine Pumice
Lump
Pumice
10M
Excellent
441
150903-00-00300
Willamette Ind
S&G
I I M
Good
442
150909-00-00400
Willamette Ind
S&G
6 M
Good
443
150917-00-00600
Willamette Ind
Rock
150,000
Fair
453
161209, 10-00-00600, 301
Robert Fullhart
S&G
704,000
ODOT Specs
459
141131-00-05200
Deschutes County
Cinders
50,000
Good
461
141300-00-01500, 1501, 1502,
1503, 1505
Nolan
S&G
350,000
Good
461
141200-00-01501, 1502, 1503,
1505, 1600
Franklin Nolan
1
Diatomite
1
2 M
1
Good
Page 2 of 3, Exhibit "D" to Ordinance 2005-031 (08/03/05)
EXHIBIT (61)"
Goal 5 Inventory — Mineral and Aggregate Sites
SITE
NO.
LEGAL DESCRIPTION
NAME
TYPE
QUANTITY-
QUALITY
ACCESS/LOCATION
465
141333-00-00900
Oregon State Hwy
Cinders
100,000
Good
466
141333-00-00600
Fred Elliott
Cinders
5.5 M
Good
467
141333-00-00601
Knorr Rock Co
Cinders
5 M
Good
469
141131-00-00100
Deschutes County
Cinders
2 M
Fair
475
151012-00-00600
Deschutes County
Cinders
200,000
Good
Cloverdale Road
482
151300-00-00103
Deschutes County
Dirt
2 M
Good
Negus Landfill
488
161230-00-00100, 600, 2000,
2100
Bend Aggregate
S&G
400,000
ODOT Specs
496
191400-00-00500
Taylor
S&G
1.8 M
Mixed
Hwy 20
498
—
191400-00-02200
Oregon State Hwy
S&G
200,000
ODOT Specs
499
191533-00-00200
Oregon State Hwy
S&G
50,000
ODOT Specs
500
191500-00-00099
Oregon State Hwy
S&G
130,000
ODOT Specs
501
191500-00-01600
Oregon State Hwy
S&G
50,000
ODOT Specs
503
191600-00-01300
Oregon State Hwy
S&G
200,000
0 OT S ecs
505
201600-00-00400
Oregon State Hwy
S&G
275,000
ODOT S cs
q
506,
201600-00-00600, 700,800
Oregon State Hwy_
S&G
36,000
cs
ODOT Specs
5,08.
201700-00-01000
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300,000
ODOT Specs
524
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Oregon State Hwy
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ODOT Specs
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Oregon State. Hwy
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quantity in cubic yaids unless noted
(Ord. 2005'031,,.Ord. 2bO.3-019 2003; Ord. 2002-005 § 1-,,2002, Ord. 2001-047 4, 20015 Ord.,200,1-7
038 § 2, 2001; Ord. 2001-027 § 1, 2001; Ord. 2000-017 § 1, 2000; Ord. 99-028, 1999; Ord. 99-019, 1999;
Ord. 96-076, 1996; Ord. 95-041, 1995; Ord. 94-050, 1994; Ord. 90-025, 1990; PL -20, 1979)
Page 3 of 3, Exhibit "D" to Ordinance 2005-031 (08/03/05)
FINDINGS AND RECOMIENDATION OF
DESCHUTES COUNTY HEARINGS OFFICER
FJOLE NUMBERS: PA-044.and ZC-04-2
APPLICANT: Eric Coats, Co -Trustee of the Joyce E. Coats Revocable Trust
63235 Skyline Ranch Road
Bend, Oregon 97701
PROPERTY OWNER: Joyce E. Coats Revocable Trust
63235 Skyline Ranch Road
Bend, Oregon 97701
ATTORNEY:
SURVEYOR.,
REQUEST:
STAFF CONTACT:
HEARING DATE:
Liz Fancher
644 NX Broadway Street
Bend, Oregon 97701
Jeff Kern
Jeff Kern & Associates, Inc.
P.O. Box 1244
Bend, Oregon 97709
3 4 8 -#-N
MAR
DESCVI�rra
aiuw
The applicant is requesting approval of a 8041 exception, a plan
amendment from Surface Mine to Rural Residential Exception
Area, and a zone change from Surface Mining to Multiple Use
Agricultural, for a 45 -acre, parcel located north of Bend.
Catharine White, Associate Planner
February 1, 2005
RECORD CLOSED: February 3, 2005
L APPLICABLE STANDARDS AND CRITERIA:
A. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan
Chapter 23.20, Comprehensive Planning Process
A. Section 23.20.010, Goals and Policies
2. Chapter 23.24, Rural Development
* Section 23.24.020, Goals
3. Chapter 23.52, Economy
Coats
PA-04-4/ZC-04-2
I
Exhibit C�'
Page / — of
Ordinance ZAQS--- 0121
* Section 23.52.030, Policies
4. Chapter 23.60, Transportation
* Section 23.60.010, Transportation
5. Chapter 23.68,. Public Facilities and Services
Section 23.6&020, Policies
6. Chapter 23.88, Agricultural Lands
Section 23.88.030, Zoning Policies
7. Chapter 23.96, Open Spaces, Areas of Special Concern, and Environmental
Quality
Section 23.96.030, Policies
S. Chapter 23.100, Surface Mining
* Section 23.100.060, Policies
R Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance,
Chapter 18.16, Exclusive Farm Use (EFU) Zones
• Section 1&16.055, Land Divisions
• Section 1&16.065, Subzones
2. . Chapter 18.32, MUA-10, Multiple Use Agriculture (MUA-10) Zone
* Section 18.32.010, Purpose
3. Chapter 18.52, Surface Mining (SM) Zone
* Section 18.52.200, Termination of the Surface -Mining Zoning and
Surrounding Surface Mining impact Area Combining Zone
4. Chapter 18.136, Amendments
* Section 18.136.020, Rezoning Requirements
C_ Oregon Administrative Rules
1. Chapter 660, Division 4, Interpretation of Goal 2 Exception Process
Coats
PA-044/ZC-04-2
Exhibit
page of
Ordinance --100�� 6:�-,(
• OAR 660-04-005, Derinitions
• OAR 660-04-010, Application of the Goal 2 Exception Process to Certain
Goals
• OAR 660-04-0018, Planning and Zoning for Exception Areas
• OAR 660-04-0025, Exception Requirements for Land Physically Developed
to Other Uses
�OAR 660-04-0028, Exception Requirements for Land Irrevocably
ommitted to Other Uses
2. Chapter 660, Division 12, Transportation Planning
* OAR 660-012-060, Plan & Land Use Regulation Amendments,
3. Chapter 660-015, Statewide Planning Goals and Guidelines
* OAR 660-015-0000, State -Wide Planning Goals and Guidelines
4. Chapter 660, Division 23
OAR 660-23-0180, Mineral and Aggregate Resources
l[L FINDINGS OF FACT:
A. Location: The subject property does not have an assigned address. It is identified as Tax
Lot 100 on Deschutes County Assessor's Map 17-12-06C and that portion of Tax Lot 7W
on Deschutes County Assessor's Map 17-12-06B zoned Surface Mining (SAO.,
I& Zoning and Plan Designation: Tax Lot 700 is zoned Surface Mining (SIA), Multiple
Use Agriculture (MUA-10), and Surface Mining Impact Area Combining (SMIA) Zones,
and -a portion of the tax lot located near the southeast corner is zoned Landscape
Management Combining Zone (LAP due to its proximity to the Deschutes River. This tax
lot is designated Surface Mining on the Deschutes County Comprehensive Plan map. Tax
Lot 100 is zoned SK SMIA, and LK and is also designated Surface Mining on the
comprehensive plan map.
C. Site Description: The Staff Report states the subject property is 45.94 acres M Sze,
consisting of 25.2 acres in Tax Lot 100 and 20.74 acres zoned SM in Tax Lot 700. The
portion of Tax Lot 700 zoned MUA-10 consists of about 9.6 acres.' The property is a
I The Staff Report states these acreage calculations were derived fi-om the Assessor's and Geographic
Information System (GIS) data. These figures difler slightly from the Wert and Associates soil survey
repor4 attached as Exhibit A to the application, which states the area proposed for a plan amendment and
zone change is 46.7 acres consisting of 21.51 acres in Tax Lot 700 and 25.20 acre in Tax Lot 100, with
9.17 acres of Tax Lot 700 zoned MUA-10. The Hearings Officer finds a determination of the waict
acreage is not critical to the fmdings required for approval of the proposed goal exception, plan
amendment and zone change. However. the applicant will be required to provide the county with a metes
and bounds descziption of the property subject to the goal exception, plan amendment and zone change.
Coats
PA-044/ZC-04-2
3
Exhibit
Page -.3 of 37 --
Ordinance
reclaimed surface mine identified as SM Sites 305 and 306 on the county's
comprehensive plan Goal 5 Inventory of Mineral and Aggregate Resources. The
topography of the subject property, depicted in an aerial photograph included in the
record as Exhibit J to the application, is variable due to previous excavation and
reclamation of the site. In general, the property has a bowl shape with the relatively level
reclaimed area at a lower elevation sloping gently upward to the north, west and south
boundaries of the property. Vegetation varies depending on the degree of soil
disturbance, but generally consists of juniper trees, native shrubs and grasses, and exotic
weeds. The undisturbed soils have more native vegetation. The subject property is vacant,
and abuts Tumalo Reservoir Road on the north and Johnson Road the east. The record
indicates the subject property has no irrigation water rights.
D. soils: The NRCS data in the record identifies four soil mapping units on the subject
property: Soil Units 98A, 101E, 128D, and 152A. Soil Units 98A and 152A am
considered high-value when iffigated. However, the applicant submitted a site-specific
soil survey prepared by Wert & Associates and included in the record as Exhibit A to the
application. This survey was based on an analysis of soil in 73 test pits and concluded the
subject property consists of a different complex of soils that doWt precisely fit the NRCS
definition for any particular soil unit. The Wert & Associates analysis also concluded that
largely due to the significant ground disturbance during mining and reclamation, the
subject property has soils that are either nonagricultural or have very poor agricultural
capability.
E. Surrounding Zoning and Land Use: The subject property is surrounded by a variety of
zoning districts and land uses on both public and private land. To the north of Tax Lot
700 are Tumalo Reservoir Road and a 7 -acre vacant uninigated parcel owned by
Deschutes County and zoned MUA-10. To the east is a vacant, 5 -acre private parcel
zoned MUA-10 for which this Hearings Officer previously granted conditional use
approval for a church (Jehovah's Vitnesses, CU -04-1). To the southeast are Johnson
Road and Tumalo State Park, managed by the Oregon Department of Parks and
Recreation and zoned MUA- 10. The park is located on both sides of the Deschutes River.
To the south is a 20 -acre private parcel zoned Exclusive Farm Uw
Tumalo/RedmondA3end Subzone (EFU-TRB) that is irrigated, engaged in fitrin use
consisting of raising horses, and includes a residence, barn, and outbufldings. To the west
is land developed with the Tumalo Rim Subdivision and zoned MUA-10. Lots in this
subdivision are developed with residences.
F. Procedural History: The applicant submitted these applications on March 1, 2004. By a
letter dated March 30, 2004, the county advised the applicant that the application was
incomplete, identified the missing information, and allowed the applicant through April
29, 2004 to submit the missing informatiort. By a letter dated April 30, 2004, the
applicant's attorney requested additional time to provide the missing information. The
county granted the applicant's request� and the missing information was submitted on
November 17, 2004. A staff report on the application was mailed on January 26, 2005.
A public hearing on the applicant's proposal was held on February 1, 2005. At the
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PA-044/ZC-04-2
4
�xhlblt
Pago __q of
Ordinance —7 -co
hearing, the Hearings Officer received testimony and evidence and left the written
evidentiary record open through February 3, 2005. The applicant waived his right to
submit final argument pursuant to ORS 197.763, and the record closed on February 3,
2005. Because the application is for a plan amendment, goal exception and related zone
change, the 150 -day period for issuance of a final local land use decision under ORS
215.427 does not apply to this application.
G. Proposal: The applicant is requesting approval of a goal exception to the Statewide
Planning Goal 3, Agricultural Lands, a plan amendment from Surface Mning to Rural
Residential Exception Area, and a zone change from SM to MUA-10 for the subject
property. The applicant's burden of proof states the applicant does not propose any
particular use for the subject property, but expects to develop it with a small residential
subdivision with five -acre lots.
EL Public/Private Agency Comments: The Planning Division sent notice of the applicant's
proposal to a number of public and private agencies and received responses from: the
Deschutes County Road Department, Property Address Coordinator, and Building Safety,
Division; the Bend Fire :Department; and the Oregon Department of Parks and
Recreation. These comments are set forth verbatim at pages 4-5 of the Staff Report
and/or are included in the record. The following agencies either had no comments on the
application. or did not respond to the request for comments: the Deschutes County
Assessor, the United States Forest Service (USFS); the Oregon Division of State Lands;
the Oregon Departments of Land Conservation and Development (DLCD), Water
Resources, Fish and Wildlife (ODFW), and Geology and Mneral Industries (DOGAM01);
Tumalo Irrigation District; Central Electric Cooperative; Pacific Power and Light; Qwest
Communications; and Avion Water Company
L Public Notice and Comments: The Planning Division mailed individual written notice
of the applicant's proposal and the public hearing to the owners of record of all property
located within 750 feet of the subject property. The record indicates this notice was
mailed to 45 property owners. In addition, notice of the public hearing was published in
the "Bend Bulletin7' newspaper, and the subject property was posted with a notice of
proposed land use action sign. As of the date the record in this matter closed, the county.
had received no letters from the public in response to these notices. One member of the
public testified at the public hearing
J. Lot of Record: The Staff Report states that in 1998 the county determined that the
subject property consists of two separate legal lots of record (LR -98-5).
JIL CONCLUSIONS OF LAW:
GOAL EXCEP77ON
A. Oregon Administrative Rules, Division 4, Interpretation of Goal 2 Exception
Process
coats
PA-04-4/ZC-04-2
EXhlblt
Pago =-�i— of 3-2-
Ord1hance L,
OAR 660-04-028, Exception Requirements for Land Irrevocably Committed
to Other Uses
(1) A local government may adopt an exception to a goal when the land
subject to the exception is irrevocably committed to uses ' not allowed
by the applicable goal because existing adjacent uses and other
relevant factors make uses allowed by the applicable goal
impracticable:
(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 laud 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.
FINDINGS: Statewide Land Use Planning Goal 3 is "to preserve and maintain agricultural
lands." The goal defines "agricultural lands" as follows:
Agricultural Land — in western Oregon is land of predominantly Class 1, 11, M and
IV soils and in eastern Oregon is land of predominantly Class I, II, M IV, V and VI
soils as identified in the Soil Capability Classification System of the United States
Soil Conservation Service, and other lands which are suitable for farm use taking
into consideration soil fertility, suitability for grazing, climatic conditions, existing
and future availability of water for farm irrigation purposes, existing land use
patterns, technological and energy inputs required, or accepted farming practices.
Lands in other classes which are necessary to permit farm practices to be
undertaken on adjacent or nearby lands, shall be included as agricultural land in
any event.
More detailed soil data to define agricultural land may be utilized by local
governments if such data permits achievement of this goal.
Agricultural land does not include land within acknowledged urban growth
boundaries or land within acknowledged exceptions to Goals 3 and 4.
The applicant is requesting an "irrevocably committed" exception to Goal 3 for Tax Lot 100
because although it has predominantly Class VI or better soils, it consists of a reclaimed surface
mine, the extraction from and reclamation of which have rendered it unsuitable for agriculture.
The applicant argues no goal exception is required for Tax Lot 700 because its soils do not meet
the definition of "agricultural land." The applicant bases this argument on the above -referenced
soil analysis prepared by Wert & Associates and included in the record as Exhibit A to the
coats
PA-044/ZC-04-2
6
5xhiblt rl,- -', �
page of 3: -Z-
Ordinanoe os - -3 L.
application, as well as a "Range Forage Inventory and Report" prepared by Gene Hickman and
included in the record as Exhibit 1) to the application.
The Wed & Associates survey was based on analyzing soil in 73 test pits. It concluded the
subject property consists of a different complex of soils than those identified as on the property
according to the NRCS data in the record. Moreover, the Wert & Associates analysis and the
Hickman report concluded that due to the significant ground disturbance during mining and
reclamation, the subject property has soils that are nonagricultut-9 — Le., consisting
predominantly of Class VII and VIII soils with poor agricultural.capability.
The Staff Report states the county's comprehensive plan does not require an exception for lands
that do not meet the definition of "agricultural land." Staff also states that Jon JinninA a
representative of the Department of Land Conservation and Development (DLCD), advised the
county that it is not necessary to protect "nonresource!' lands under Goal 3. In support of that
interpretation, 1�1r. Jinnings provided county staff with a report he authored entitled "Jefferson
County Nonresource. Lands Project" and included in the record. This report states:
"The term 'nonresource' is commonly used to describe rural lan& that are not
necessary to protect under statewide planning goals 3 (Agricultural Lands) ad 4
(Forest Lands) because of their exceedingly low potential for dw production of
farm commodifies andlor merchantable forest species Lands that fail to qua16
as either agricultural orforesdand can, presumably, host other uses that may not
otherwise be available. Rural residential development is barfar the most common
use of nonresource landt
Nonresource lands are different firom traditional rural residentol exception
area& Eweption areas are characterized by a pre-existing pattern of
parcefization and development. Nonresource areas are likely to have no
settlement patteni and be characterized by broad expanses of barren kindscape
An absence of settlement customarily indicates an absence ofpublicfacilides and
servicea
Yhe Oregon statewide planning program includes no obligation for counties to
identify nonresource lands and only a hanayul have chosen to do so.
* * * Property may he des�gnaled noffesource if itfails to sad* the defuddon of
agricultural land orforestland
* * * It is important to note that soil capability is not the sole determinant of
whether property is or Js not agricultural lwxi Clearly, property can be
predominantly Class P71 and MI soil and still qual�& as agricultural k-od * * * -
The Hearings Officer finds Mr. finniings' report does not constitute binding authority concerning
the proper interpretation of the statutes, goals and administrative rules governing the protection
of agricultural land. Nevertheless, I find it is persuasive authority for the proposition that Goal 3
does not apply to land that does not meet the definition of "agricultund land." I find the
Coats
PA-04-4fZC4)4-2
7
F�,,Xhlblt
Page Of -3,-7
Ordinance 2 6v 15 - �' , i .
determination of whether Tax Lot 700 falls within the definition of "'agricultural land" turns on:
(1) whether the soils on Tax Lot 700 are predominantly Class VII or VIR and (2) whether the
other characteristics of Tax Lot 700 exclude it from consideration as agricultural land. Each of
these factors is discussed separately in the findings below.
1. Soil Classification. As discussed above, the applicant submitted a soils analysis prepared by
Wert & Associates that analyzed soils in 73 pits on the subject property and concluded that these
soils do not match the soil units mapped for the property by the NRCS. The Hearings Officer is
aware that the NRCS soil maps are based on somewhat general analysis of the geology and land
forms and typically not on site-specific soil surveys. As a result� the soil units and their
boundaries identified on the NRCS maps may not be particularly accurate, even for land that has
not been disturbed. And where, as here, much of the subject property has been significantly
altered by surface mining and reclamation, I find it is much more likely tha4 as the Wert &
Associates analysis found, the remaining reclaimed soils may no longer bear any resemblance to
the soils that were present on the site before the disturbance. I have examined the Wert &
Associates analysis and find its author is highly qualified to render an opinion on the nature of
soils on the subject property� that the analysis is very thorough and detailed, and that it is based,
upon site-specific soils information. For these reasons, I find the Wert & Associates report
provides reliable and credible evidence from which I can find that Tax Lot 700 consists
predominantly of Class VII or VIII soils and/or nonagricultural soils.
2. other Characteristics. As noted above, the definition of "agricultural land" is not based solely
on soil classification, but also must take into account the following additional characteristics:
* * * soil fertility, suitability for grazing, climatic conditions, existing and future
availability of water for farm irrigation purposes, existing land use patterns,
technological and energy inputs required, or accepted farming practices.
Although the record indicates the subject property is located within the boundaries of the Tumalo
irrigation District, the property does not have irrigation water rights. There is no evidence in the,
record that irrigation water from surface water resources is available or could be delivered to the
subject property. And given the very poor quality soils, the Hearings Officer finds it is unlikely
the irrigation district would approve the transfer of water rights from productive farm soils to the
subject property. Moreover, the applicant asserts, and I concur� that obtaining irrigation water for
the subject property from groundwater sources would be very difficult given the current
mitigation measures required for groundwater withdrawal in the Deschutes Basin. The Hickman
"Range Forage Inventory and Report," based on an analysis of the same test pits analyzed by
Wert & Associates, concluded that "neither of the two parcels [Tax Lots 100 and the SM -zoned
portion of Tax Lot 700] is believed to be an economically feasible unit for supporting range
livestock grazing or other common local farm uses * * *." The Hearings Officer finds Gene
Hickman also is highly qualified to render an opinion about the agricultural capability of the
soils on the subject property, and that his report also is thorough, detailed, and based on site-
specific soils information. Therefore, I find the Hickman report provides reliable and credible
evidence from which I can find the soils on the subject property are not suitable for grazing.
As discussed in the Findings of Fact above, the area surrounding the subject property has a
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PA-044/ZC-04-2
8
of __�;2_
OrdinAftd _27,= �r7 3)
mixture of zoning districts and land uses, including a state park, rural residential lots, and an
2
irrigated EFU-zoned parcel engaged in farm use. The Hearings Officer finds there is nothing
about the existing land use pattern or accepted farming practices in the surrounding area
(livestock grazing) that would preclude the subject property from being employed in agriculture.
However, I find this factor does not outweigh the lack of irrigation and the significant soil
disturbance on the property resulting in the creation of nonagricultural soil&
For the foregoing reasons, the Hearings Officerfinds the portion of Tax Lot 700 zoned SM does
not constitute "agricultural land" as defined in Goal 3, is not subject to protection under Goal 3,
and therefore the applicant's proposed plan amendment from Surface Mining to Rural
Residential Exception Area and zone change from SM to WA -40 for the SM -zoned portion of
Tax Lot 700 does not require an exception to Goal 3. And even assuming an exception to Goal 3
is required for the SM -zoned portion of Tax Lot 700, for the reasons set forth in the findings
below concerning the goal exception for Tax Lot 100, 1 find a Goal 3 exception forthe SM -
zoned portion of Tax Lot 700 is justified.
(2) Whether land is irrevocably committed depends on the relationship bet*een
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: The record indicates Tax Lot 100 consists of approximately 25.2 acres and is a
reclaimed surface mining site. As discussed above, the subject property has no irrigation water
rights. In addition, there are no natural or manmade waterways on the tax lot. The topography is
bowl shaped with relatively level areas at the bottom and gently sloping areas on the south and
west. The Hickman report states the only native vegetation that remains on the property consists
of juniper trees and native shrubs and grasses. The remainder of the vegetation consists of non-
native species of grasses and weeds. As discussed above, the Wert & Associates analysis
concludes that most of Tax Lot 100 consists of heavfly disturbed soils that no longer resemble
the characteristics of Soil Unit 98A mapped on the property by the NRCS. The analysis describes
the disturbed soil as failing into two predominant soil complexes — "Complex A7 and "Complex
C" — described in detail as follows:
"Soil ConWirm A 0-5% Slope
This complex contains moderately deep sands (20-40 inches) and deep sands
(<40 inches). Yhe entire unit has been mined Approximately 10 to 30feet of
material have been removed Yhe moderately deep soil is most like the Deskamp
Series and the deep soil is like Clovkamp These soik are intermingled and too
difficult to separate. Both soils contain various amounts o
f gravel and no aluripan.
Both soils are Class 6 7he Wert soils report, Tabk I &A Complex A as
2 Ihe Staff Report notes that although the aerial photographs in the record show this fim is partially
irrigated, the Assessor's records do not show any irrigation water rights or farm tax deferred status for this
&= The record also indicates this farm was approved for a nonfarin dwelling in 1998 (CU -89-51).
coats
PA-044/ZC-04-2
9
Exhibit
Page --2- Of 1:�=-
Ordinance Zpo L; i ,
comprising 10. 71 acres of the 25.2 -acre property (42.4%).
sail complex C 0-15% Slope
Soil Complex C contains a variety of conditions. Ais is the area that was heaVilY
mined Much of the area has been scraped to bed-ock Other areas have gravel
spread over the bedrock There are areas of asphalt, reject materialfrom a rock
crusher, and boulder& Yhe LCC is Class 7 and 8. Yhe soils are generally gravely
material and sands less than 10 inches deep to either gravel or bedrock There is
no recognized soil series that fits these disturbed conaUdons. The Wert soik
report, Table 1, lists Complex C as comprising 5. 78 acres of the 25.2 -acre
property (23. OYQ. -
The Wert & Associates analysis found the soils on Tax Lot 100 consist of approximately 66
percent Class VI and 33 percent Classes VII and VIII, and concluded:
"Soil Complex.4 does quaft
.fyfor Class 6 soilk However, it should be pointed out
the soils in this complar are the remnants of a mining operatrom 7here is no
enriched topsoM Yhe unit is composed of sands that were of no value at the ftme
of mining. 7heirfertility levels are low. Organic matter levels are also very low.
Technically, they qual6for a Claw 6 because they will hold more than 2 -inches
of available water. To mahe them productive, there would have to bi irrigation
water, organk matter andfierdfizer added "
(b) The characteristics of the adjacent lands;
FINDINGS: As discussed above, lands adjacent to Tax Lot 100 have a variety of zo i
districts and land uses, including a state park, rural lots generally less than 2 acres in size that are
zoned MUA-10 and developed with residences, an irrigated EFU-zoned parcel engaged in farm
use, and an MUA-10 zoned parcel recently approved for a church The subject property is
bounded on the north by Tumalo Reservoir Road and on the south and southeast by Johnson
Road. The record indicates the operating farm is separated from the subject property by
topography, Johnson Road, and Tumalo State Park. The record also indicates that Tumalo State
Park also is separated from the subject property by Johnson Road, is bisected by the Deschutes
River, and offers both day recreation opportunities and overnight camping accommodation&
(c) The relationship between the exception area and the lands adjacent to
it; and
FINDWGS: The Staff Report states, and the Hearings Officer agrees, that the area surrounding
the subject property is dominated by Tumalo State Park and the Tumalo Rim subdivision,
although to some extent both of these developments are isolated by geography and roads from
the subject property. The record indicates Tumalo State Park attracts many visitors and can
generate a significant amount of vehicle and pedestrian traffic. The record also indicates some of
the lots in the Tumalo Rim Subdivision are located in close proximity to, and overlook, the
subject property. In light of this rather unusual land use pattern, staff concludes, and I agree, that
Coats
PA-04-4/ZC-04-2
10
Odd@ --/P , of -3
oedihaflde --LL-t C- --
the relationship between the subject property and adjacent lands is unique. During the period the
subject property was being mined and reclaimed, its proximity to these land uses undoubtedly
created significant conflicts. Although the applicant is not proposing a specific development, as
discussed in the findings above the applicant has indicated that if the requested plan amendment
and zone change are approved, the subject property likely would be developed with a f1ve,40t
rural residential subdivision, a land use much more in keeping with the existing land use pattern.
(d) The other relevant factors set forth in OAR 660-"028(6).
FMINGS: This administrative rule requires consideration of factors including: existing
adjacent uses, existing public facilities and services, Parrel size and ownership patteM
neighborhood and regional characteristics, natural or man-made features or impediments
separating the exception area from other resource land, and physical development. The Hearings
officer finds that with the exception of public facilities and services, aU of these factors have
been considered and addressed in the above findings. The subject property abuts and has access
from both Turnalo Reservoir Road and Johnson Road. The record indicates these roads are
classified by the county as rural collector roads designed to handle up to 9,000 vehicle trips per
day. in its comments on the applicant's proposaL the road department stated there are
approximately 1,200 vehicles per day using the segment of Johnson Road near the subject
property and 250 vehicles per day using the segment of Tumalo Reservoir Road near the subject
property. As discussed in the Findings of Fact above, the local public electric and telephone
companies did not respond to the county's request for comments on the applicant's proposal.
However, I find that because adjacent and nearby parcels have electric and telephone service, it
is reasonable to assume such services are available to the subject property. Similarly, I find that
the proximity of development to the subject property also indicates the potential suitability of the
subject property for on-site sewage disposal.
(3) Whether uses or activities allowed by an applicable goal art impracticable as
that term is used in ORS 197.732(1)(b), in Goal 2, rart H(b), and in this rule
shall be , determined through consideration of factors set forth In this rule.
Compliance with this rule shall constitute compliance with. the requirements
of Goal 2, Part IL It is the purpose of this rule to permit irrevocably
committed exceptions where justified so as to provide flexibility in the
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 am
impracticable:
(a) Farm use as defined in ORS 215.203;
FINDINGS: ORS 215.203(2Xa) defines fim use as:
* * * the current employment of land for the primary purpose of obtaining a
profit in money by raising, harvesting and selling crops or the feeding,
breeding, management and sale of, or the produce of, livestock, poultry, for -
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bearing animals or honeybees or for dairying and the sale of dairy products
or any other agricultural or horticultural use or animal husbandry or any
combination thereof. "Farm use" includes the preparation, storage and
disposal by marketing or otherwise of the products or by-products raised on
such land for human or animal use. "Farm use" also includes * the current
employment of land for the primary purpose of obtaining a profit in money
by stabling or training cquines including but not limited to providing riding
lessons, training clinics and schooling shows. "Farm use also includes the
propagation, cultivation, maintenance and harvesting of aquatic species and
bird and animal species to the extent allowed by the rides adopted by the
State Fish and Wildlife Commission. "Farm use" includes the on-site
construction and maintenance of equipment and facilities used for the
activities described in this subsection. "Farm use" does not include the use of
land subject to the provisions of ORS chapter 321, except land. used
exclusively for growing cultured Christmas trees as defined in subsection (3)
of this section or land described in ORS 321.267 (3) or 321.824 (3�
Based on the Wert & Associates soil analysis and the Hiclanan "Range and Forage inventory,"
the Hearings Officer finds the subject property is impracticable to farm. As discussed in the
findings above, although the NRCS data in the record indicate Tax Lot 100 has Class VI soils,
the site-specific soils analysis revealed that due to previous mining and reclamation the soils on
this tax lot are no longer suitable for agriculture, particularly considering the lack of irrigation
water. Moreover, the Hickman report concluded that livestock Swing on the subject property
would not be economically viable. For these reasons, I find farm use is impracticable on the
subject property
(4) A conclusion that an exception area is irrevocably committed shall be
supported by findings of fact which address all applicable factors of section
(6) of this rule and by a statement of reasons explaining why the facts
support the conclusion that uses allowed by the applicable goal are
impracticable in the exception area.
(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.
(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 rul& 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 applicant's burden of proof includes the following statement of reasons
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explaining why the factors support the conclusion that uses allowed by Goal 3 are impracticable
on Tax Lot 100:
"Yhe primary reasons are that 1he disturbed soth on Tax Lot 100 are not
sufficien* productive to support farm use and that the property is located in an
existing exceptions area where the commencement of agricultural um would
create likely conflicts. The soils on Tax Lot 100 are far lower in productivityfor
range land use than the nonagricultural lands of Tax Lot 700, the onlypolential
farm use that might be conducted on the property.
In addition, the record includes two aerial photographs attached to the applicant's burden of
proof as Exhibits I and J. Exhibit I was taken in 2000 and Exhibit J was taken in 2004 and
includes superimposed topographic information. The applicant's burden of proof also includes
copies of county tax lot maps (Exhibits K through Q) that illustrate the relationship between Tax
Lot 100 and surrounding land. The Hearings Officer finds this statement and supportirig evidence
are sufficient to satisfy the requirements of subsections (4), (5) and (7) of this section.
(6) Findings of fact for a committed exception shall address the following
factors:
(a) Existing adjacent uses;
FINDINGS: As discussed above, the uses adjacent to Tax Lot 100 include the remainder of the
subject property — Tax Lot 700 — and public and private lands developed with a state park, rural
residences and a farm, as well as a vacant parcel recently approved for establishment of a church.
The subject property abuts Tumalo Reservoir Road and Johnson Road. The Staff Report states,
and the Hearings Officer concurs, that with the exception of the EFU-zoned parcel engaged in
farm use, the existing uses adjacent to Tax Lot 700 are irrevocably committed to non-agricultural
uses.
(b) Existing public facilities and services (water and sewer lines, etc.);
FINDINGS: As discussed in the findings above, the Hearings Officer has found them public
facilities and services are available in the area, including electricity, telephone, and on-site
sewage disposal. Comments 6n the applicant's proposal from the Bend Fire Department state the
subject property is located within the boundaries of Bend Rural Fire Protection District #2 and
therefore has fire protection. Because the property is located outside the Bend city limits, police
protection would be provided by the Deschutes County Sheriff. The subject property including
Tax Lot 700 abuts and has access from both Tumalo Reservoir Road and Johnson Road which
the record indicates are designated rural collector roads maintained by the county. I concur with
the applicant that Johnson Road separates Tax Lot 100 from the nearby EFU-zoned fim to the
extent they cannot effectively be combined for farm use. However, I agree with staWs
conclusion that there are no existing on-site public facilities and services that would render Tax
Lot 100 irrevocably committed to non-agricultural uses.
(c) Parcel size and ownership patterns of the exception area and adjacent
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lands:
(A) Consideration of parcel size and ownership patterns under
subsection (6)(c) of this rule shall include an analysis of how
the existing development pattern came about and whether
findings against the Goals were made at the time of
partitioning or subdivision. Past land divisions made without
application of the Goals do not in themselves demonstrate
irrevocable commitment of the exception area. Only if
development (e.g. physical improvements such as roads and
underground facilities) on the resulting parcils or other factors
make unsuitable their resource use or the resource use of
nearby lands can the parcels be considered to be irrevocably
committed. Resource and 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 parcel&
(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 V the
parcels are developed, clustered in a large group or clustered
around a road designed to serve these parcels. Small parcels in
separate ownerships are not likely to be irrevocably committed
if they stand along amidst larger farm or forest operations, or
are buffered from such operations.
FINDINGS: As discussed above, Tax lot 100 consists of approximately 25.20 acres.
Surrounding parcels consist of-
Tumalo State Park to the southeast, a large parcel in public 'ownership located on both sides
of the Deschutes River and geographically isolated from Tax Lot 100 by Johnson Road and
the Deschutes River
Tax Lot 400, a private EFU-zoned parcel in farm use to the south, part of a larger, 61 -acre
tract in common ownership and geographically isolated from Tax Lot 100 by Johnson Road
* Tumalo Rim subdivision to the west, comprised of lots generally less than 2 acres in size as
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well as common areas, and geographically isolated from Tax Lot 100 by topography. The
Hearings Officer is aware this subdivision has been in existence for at least two decades.
However, the Staff Report states that this subdivision was included in the county's
acknowledged comprehensive plan in 1992 as a rural residential exception area through
Ordinance 92-060.
Tax Lot 700 to the north, a reclaimed surface mine and part of the tract that includes Tax Lot
100.
e Tax Lot 705 to the east, approved by this Hearings Officer for establishment of a church.
The Hearings Officer finds that with the exception of Tax Lot 705, all of the land swounding
Tax Lot 100 is irrevocably committed to nonagricultural use. And as discussed above, I have
found that due to the geographic isolation of Tax Lot 705 from Tax Lot 100, and the lack of
productive agricultural sofls on Tax Lot 100, it would not be practicable to combine these two
tax lots for fium use.
(d) . Neighborhood and regional characteristics;
FINDINGS: As discussed in the findings above, the neighborhood surrounding Tax Lot 100 is.
characterized by a broad mixture of zoning districts and uses, including rural residences, a large
public park a reclaimed surface mine, an approved church, a parcel in farm use, the Deschutes
River, and two rural collector roads. Further to the east across the Deschutes River are the
Tumalo unincorporated community which consists of residential, commercial, office, and school
uses, additional SM -zoned land, U.S. Highway 20, and a large industrial use consisting of the
Hap Taylor and Sons construction company headquarters on the highway. Further to the west on
the other side of the Tumalo Rim Subdivision are larger parcels zoned EFU and engaged in farm
use consisting primarily of livestock grazing and irrigated hay production. The applicant's
burden of proof states, and the Hearings Officer concurs, that his proposal to rezone Tax Lots
100 and 700 to NWA -10 is consistent with the characteristics of the neighborhood and larger.
Tumalo region. As discussed in the Findings of Fact above, the western part of Tax Lot 700
already is zoned MUA-10.
(e) Natural or man-made features or other impediments separating the
exception area from adjacent resource land. Such features or
impediments include but are not limited to roads, watercourses, utility
lines, easements, or rights-of-way that effectively impede practicable
resource use of all or part of the exception area;
FINDINGS: As discussed above, the only adjacent resource land is Tax Lot 400, the parcel to
the south that is part of a larger tract engaged in farm use consisting of livestock raising. Tax Lot
400 is separated from Tax Lot 100 by Johnson Road and existing topography. The Hearings
officer has found these factors make it impracticable for Tax Lot 100 or the entire subject
property to be combined with Tax Lot 400 for agricultural use.
(f) ]Physical development according to OAR 660-004-0025; and
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FINDINGS: OAR 660-004-0025 describes "physical development" as follows:
(1) A local government may adopt an exception to a goal when the land subject
to the exception is physically developed to the extent that it is no longer
available for uses allowed by the applicable goaL
(2) Whether land has been physically developed with uses not allowed by an
applicable Goal, will depend on the situation at the site of the exception. The
exact nature and extent of the areas found to be physically developed shall be
clearly set forth in the justification for the exception. The specific aren(s)
must be shown on a map or otherwise described and keyed to the
appropriate findings of fact. The findings of fact shall identify the extent and
location of the existing physical development on the land and can include
information on structures, roads, sewer and water facilities, and utility
facilities. Uses allowed by the applicable goal(s) to which an exception is
being taken shall not be used to justify a physically developed exception.
The applicant's burden of proof describes Tax Lot 100 and the entire subjea property as
"physically developed" as a surface mine because the previous surface mining activity "has
disturbed soils to the point that they are unable to produce sufficient forage to support
agricultural uses — even lessforage than is produced on lands that are nonagricultural lands "
The burden of proof also notes the adjacent Tumalo Rim Subdivision and Tumalo State Park are
committed to nonresource use because of existing physical development. The Hearings Officer
concurs. OAR does not define "physically developed." I find both the Wert, & Associates soil
analysis and the Hickman inventory clearly demonstrate the subject property's historical use as a
surface mine has resulted in the depletion of the property's productive soils, rending them
unsuitable for agriculture.
(g) Other relevant factom
FINDINGS: The applicant's burden of proof identifies other relevant factors making Tax Lot
100 and the rest of the subject property irrevocably committed to nonresource use as the
disturbed soil s and natural vegetation on Tax Lot 100, the lack of available irrigation water, and
the fact that the only other likely use of Tax Lot 100 — a non-farin dwelling — would not result
achieving the goal of Goal 3 by placing the property in farm use.
For the foregoing reasons, the Hearings Officer finds Tax Lot 100 is subject to the protection of
Goal 3 because it has soils that are Class VI or better. However, I find Tax Lot 100 is irrevocably
committed to non -resource use because the poor condition of its soils due to previous mining and
reclamation, the lack of available irrigation water, the tax lot's geographic isolation from
adjacent resource land, and the commitment of other surrounding land to non -resource uses,
make it impracticable to undertake farm use on this property. Consequently, I recommend that
the Deschutes County Board of Commissioners (hereafter "board") approve an exception to Goal
3 for Tax Lot 100, and for Tax Lot 700 to the extent a goal exception is required for that tax lot
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PL4NAAM.NDMEW
R Deschutes County Comprehensive Plan
Chapter 23.20, Comprehensive Planning Process
A. Section 23.20.010, Goals and Policies
A. Introduction
The alternative ch osen for growth in Deschutes County was
one which emphasized accommodating the anticipated growth
of the area primarily in the urban areas, with some rural
development taking place in the Rural Service Centers and in
existing subdivisions. This new pattern would then provide
much greater efficiency in the provision of public services and
foster savings in energy, particularly in transportation. The
development pattern would also protect scarce resources, while
permitting compatible improvements.
B. Rural Development
DCC 23.20.040(B), Rural Development, serves as the basis for
the rest of the plan. * * * -
L Chapter 23.24, Rural Development
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 appficant requests approval of a plan amendment from Surface Mine to Rural
Residential Exception Area for both Tax Lots 100 and 700. Approval of the plan amendment
would allow the subject property to be developed as a small rural residential subdivision
consistent with the proposed NWA -10 Zone. Because all of Tax lot 100 and a portion of Tax Lot
700 are located in the LM Zone due to their proximity to the Deschutes River, any development
on such lots within the LM zone would be subject to individual site plan review to ensure the
protection of the scenic values of the river. Therefore, the Hearings Officer finds the proposed
plan amendment would not adversely affect open space, scenic values or natural resources of the
area. Because of the 10 -acre minimum lot size in the proposed MUA-10 Zone, the approximately
45 -acre subject property could be developed with a maximum of four to five lots, depending on
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the actual acreage.
Because the subject property is adjacent to the Tumalo Rim Subdivision, which has lots served
by electricity, telephone, on-site sewage disposal, and fire and emergency services, and because
the subject property abuts and has access from Tumalo Reservoir Road and Johnson Road — both
county -maintained rural collector roads — the Hearings Officer finds redesignating the subject
property to MUA-10 for ultimate rural residential development will minimize public costs fbr
facilities and services and preserve the rural character of the surrounding area.
For the foregoing reasons, the Hearings Officer finds the proposed plan amendment is consistent
with this section.
3. Chapter 23.52, Economy
a. Section 23.52.030, Policies
6. Ile County shall protect agricultural land to assure continued
agricultural production and the benerks to tourism.
FINDINGS: As discussed in detail in the findings above concerning the proposal's compliance
with the administrative rules governing goal exceptions, incorporated by reference herein, the
Hearings Officer has found the condition of the subject property warrants an exception to God 3.
Specifically, I have found the previous mining and reclamation activity, combined with the lack
of available irrigation water and the property's geographic isolation from the nearest EFU-zoned
land, have rendered the subject property unsuitable for agriculture. The Wert & Associates soils
analysis and the Hickman inventory both conclude that neither Tax Lot 100 nor 700 can be used
productively or economically for livestock grazing. In addition, as also discussed above, the
applicant argues, and I concur, that this policy is not applicable to Tax Lot 700 because it does
not meet the definition of "agricultural land." For these reasons, I find it is not necessary for the
county to protect Tax Lots 100 and 700 for agricultural use. Therefore, I find the proposed plan
amendment is consistent with this policy.
4. Chapter.23.60, Transportation
a. Section 23.60.010, Transportation
* * * The -purpose of DCC 23.60 is to develop a transportation system
that meets the needs of Deschutes County residents while abo
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: Both Tax Lots 100 and 700 abut and have access from existing pav4 county -
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maintained rural collector roads designed to handle up to 9,000 daily vehicle trips. In his
February 27, 2004 comments on the applicant's proposaL Gary Judd of the road department
estimated each new dwelling unit generates 9.57 trips per week day based upon predictions fi-om.
the Institute of Transportation Engineers Trip Generation Manual. Therefore, if the subject
property were re -zoned to MUA-10 and developed with 4 to 5 rural residences, it would generate
between 40 and 50 trips per day. The record includes a copy of a traffic study dated May 11,
2004 and prepared by Ferguson & Associates for the Jehovah's Witnesses church approved for
the adjacent tax lot (CU -04-1). This study demonstrates that these two rural collectorroads have
significant reserve capacity. Therefore, the Hearings Officer finds they have the capacity to
handle the minimal additional traffic that would be generated by MUA-10-density residential
development of the subject property..
5. Chapter 23.68, Public Facilities
a. Section 23.68.020, Policies
General
A. 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 wdl.as
the important distinction that must be made between
urban and rural services. In this way public services
may guide development while remaining in concert with
the public's needs.
C. Future development shall depend on the availability of
adequate local services in dose 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.
2. Utilities
b. 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 above, public facilities and services currently exist in the area
surrounding the subject property, including electricity, telephone, on-site sewage disposal, and
fire- and police protection. The record indicates the adjacent Tumalo Rim Subdivision is served
by a community water system. The applicant's burden of proof states, and the Hearings Officer
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finds it reasonably to assume, that future rural residential lots on the subject property can be
served by individual wells. In addition, as discussed above, both tax lots abut and have access
from county -maintained rural collector roads designed to handle large amounts of traffic. For the
reasons, I find the applicant's proposal is consistentwith 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
Goal 3 is obtained so that the zoning may be Multiple Use
Agriculture or Rural Residential.
3. Zones and minimum parcel sizes shall be established to assure
the preservation of the existing commercial agricultural
enterprise of the area.
3. In recognition that irrigated acres per farm units 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 far 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 farm 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 far 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.
FINDDiGS: As discussed above, the applicant argues, and the Hearings Officer has found, that
Tax Lot 700 is not "agricultural land" as that term is defined in Goal 3, and therefore does not
require an exception to Goal 3 for the proposed plan amendment to Rural Residential Exception
Area. However, because Tax Lot 100 does meet the definition of agricultural land, the applicant
has requested, and.I have recommended approval ot an exception to Goal 3 for that tax lot.
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Tbe subject property does not have any irrigation water rights and does not meet the minimum
lot size of 23 irrigated acres for farm parcels in the EFU-TRB Subzone under Section
18.16.065(D), or the 80 -acre noninigated minimum lot size in the EFU Zone under Section
18.16.055. As a result, the Hearings Officer finds approval of the proposed plan amendment and
subsequent rezoning of the subject property to MUA-10 wiU not be contrary to Policy 3.
Additionally, the subject property is a reclaimed nine site and not an existing commercial
agricultural enterprise.
With respect to Policy 8, because the subject property does not have irrigation water rights, and
there is nothing in the record to suggest such water rights are available to the property, the
Hearings Officer finds the property is not suitable for commercial farm use. Moreover, because
the subject property is not currently zoned EFU, it does not have an assessed farm value, and
therefore I concur with staTs conclusion that the assessed farm value test is not applicable.
Finally, Policy 20 requires farm and nonfarm uses in rural areas to be consistent with the
conservation of soil and water. Because the soils on the subject property have been significantly
disturbed and the property does not have irrigation water rights, the Hearings Officer finds the
proposed plan amendment is not inconsistent with this policy. I concur with the applicant that
given the poor quality of the soils on the subject property, application of irrigation water to the
property would be an unwise use of water and could result in the "dewatering" of other lands
suitable for agriculture.
For the foregoing reasons, the Hearings Officer finds the proposed plan amendment is consistent
with the applicable agricultural lands policies.
7. Chapter 23.96, Open Space, Areas of Special Concern, and Environmental
. Quality
a, Section 23.%.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 pubfic need for
the proposed development
FINDINGS: The Staff Report states, and the Hearings Officer concurs, that this plan policy does
not apply to the applicant's proposed plan amendment because the applicant is not seeking
subdivision approval at this time.
For the foregoing reasons, the Hearings Officer finds the applicant's proposed plan amendment
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is consistent with all applicable plan policies, and therefore recommends that the board approve
C. Oregon Administrative Rules
OAR 660, Division 12, Transportation Planning Role
SL 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 a
transportation facility shall assure that allowed land uses are
consistent with the identified function, capacity, and levej of
service of the facility. This shall be accomplished by either.
(a) Limiting allowed land uses to be consistent with the
planned function, capacity and level of service of the.
transportation facility;
(b) Amending the TSP to provide transportation facilities
adequate to support the proposed land uses consistent
with the requirements of this division; or
(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.
FINDINGS: The Hearings Officer finds this rule is applicable to the applicant's proposal
because it involves an amendment to an acknowledged plan. The record indicates surface mining
activities have ceased on the site� and therefore traffic generated by such activities also has
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ceased. The applicant is not proposing any particular development of the subject property at this
time. Therefore, I find the proposed plan amendment, in and of itself, will not significantly affect
a transportation facility. However, as discussed above, the applicant has indicated his intention to
develop the property with a small rural residential subdivision including 4 or 5.1 ots. As also
discussed in the findings above, I have found the minimal additional traffic that would be
generated by 4 or 5 new residential lots will not exceed the capacity of the two affected streets —
Tumalo Reservoir Road and Johnson Road — since they both are designated rural collector roads
maintained by the county and designed to handle significant amounts of traffic. For these
reasons, I find the applicant's proposal is consistent with the Transportation Planning Rule..
2. OAR 660, Division 15, Statewideflanning Goals and Guidelines
FINDINGS: The Hearings Officer makes the following findings concerning the proposal's
compliance with the applicable statewide planning goals.
Goal 1, Citizen Involvement The Planning Division provided notice of the proposed exception
to Goal 3, plan amendment and zone change to the public through individual notice to affected
property owners, posting of the subject property with a notice of proposed land use action sign,
and publication of notice of the public hearing in the "Bend Bulletin" newspaper. In addition, at
least two public hearings will be held on the proposed plan amendment — one before the
Hearings Officer and one before the board.
Goal 2, Land Use Planning. Goals, policies and processes related to surface mining applications
are included in the comprehensive plan, Title 18 of the Deschutes County Code, and OAR 660,
Division 23. The application of these provisions to the applicant's proposal is addressed
throughout this decision.
Goal 3, Agricultural Lands. The proposal's compliance with the provisions of the Oregon
Administrative Rules governing exceptions to Goal 3 is addressed in detail in the findings above.
The Hearings Officer has found that Tax Lot 700 is not subject to Goal 3, and that in any event,
an exception to Goal 3 is justified for both Tax Lots 100 and 700.
Goal 4, Forest Lands. The Hearings Officer finds this goal does not apply to the applicant's
proposal because the subject property does not include any lands zoned or used for forest uses.
Goal 5, Open Spaces, Scenic and Mstoric Areas and Natural Resources. The applicant's
proposal would remove the subject property from the county's Goal 5 Inventory of Significant
Mneral and Aggregate Resources. However, for the reasons set forth in detail in the findings
above, the Hearings Officer has found a significant mineral and aggregate resource no longer
exists on the subject property.
Goal 6, Air, Water and Land Resources Quality. The record indicates all surface mining and
reclamation activities on the subject property have ceased. As a result, any impacts from such
activities on air and water quality also have ceased. The Hearings Officer finds rezoning the
subject property from SM to MUA-10 will not impact the quality of the air, water, and land
resources.
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Goal 7, Areas Subject to Natural Disasters and Hazards. The Hearings Officer finds this goal
is not applicable to the applicant's proposal because the subject property is not located in a
known natural disaster or hazard area.
Goal 8, Recreational Needs. The Hearings Officer finds the applicant's proposal will not have
an effect on recreational needs.
Goal 9, Economy of the State. The Hearings Officer finds this goal is intended to assure
adequate opportunities throughout the state for a variety of economic activities. Because the
mineral and aggregate resources on the subject property have been depleted, there is no longer a
significant resource on the site to be mined. Therefore, the applicant's proposal will not
adversely impact economic activities.
Goal 10, Housing. Because the applicant is not proposing a residential development at this time,
and because the subject property has not been zoned for residential development, the Hearings
Officer finds this goal is not applicable to the applicant's proposal.
Goal 11, Public Facilities and Services. The Hearings Officer finds the applicant's proposecl
plan amendment and zone change will have no effect on the provision of public facilities and
services to the subject site.
Goal 12, Transportation. As discussed in the findings above, the Hearings Officer has found
the applicant's proposal satisfies the Transportation Planning Rule which implements this goal.
Goal 13, Energy Conservation. The Hearings Officer finds that because surface mining and
reclamation activities have ceased on the subject property and the applicant does not propose any
particular use of the reclaimed land at this time, the applicant's proposal will not have any effect
on energy use or conservation.
Goal 14, Urbanization. The Hearings Officer finds this goal is not applicable to the applicant's
proposal because it does not affect property within an urban growth boundary and does not
promote the urbanization of rural land.
Goals 15 through 19. The Hearings Officer finds these goals, which address river, ocean, and
estuarine resources, are not applicable to the applicant"s proposal because the subject property is
not located in or adjacent to any such areas or resources.
ZONE CMINGE
C. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.136, Amendments
a. Section 18.136.010, Amendments
DCC Title 18 may be amended as set forth in DCC M136. The
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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 shaU be subject to
applicable procedures of DCC Title 22.
FINDINGS: The record indicates the applicant submitted an application for the proposed quasi-
judicial zone change on a county application form, accompanied by the required application fee.
b. Section 18.136.020, Rezonhig 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 an.
A. That the change conforms with the Comprehensive Plan, and
the change is consistent with the Plan's introductory statement
and goals.
FINDINGS: As discussed in the findings above, the subject property currently is designated
Surface Mining on the county's comprehensive plam map. The applicant has requested, and the
Hearings Officer has recommended approval oC a plan amendment for the subject property from
Surface Nfining to Rural Residential Exception Area. The proposed rezoning from SM to MUA-
10 would be consistent with this plan designation. I further find the plans goals and policies do
not constitute mandatory approval criteria for the proposed zone change, but rather are
implemented through the zoning ordinance. Therefore, if the proposed zone change is consistent
with the applicable provisions of the zoning ordinance it also will be consistent with the plan. As
discussed in the findings below, I have found the proposed zone change from SM to MUA-10
satisfies all applicable approval criteria.
B. That the change in classification for the subject property is
consistent with the purpose and intent of the proposed zone
classification.
FINDING: The applicant is requesting approval of a zone change from SM to MUA-10. Section
18.32.010 sets forth the purpose of the MUA-10 Zone 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 or 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
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and cfficient transition from rural to urban land use,
The Hearings Officer finds the proposed zone change is consistent with the purpose of the MUA-
10 Zone because, as discussed in the findings below, incorporated by reference herein, the
mineral and aggregate resources have been completely mined and the subject property has been
reclaimed. In addition, as discussed in the Findings of Fact above, the western portion of Tax Lot
700 already is zoned MUA-.10. And although this application does not include a specific
development proposal, the applicant has indicated his intent to develop the property with a small
rural residential subdivision at the density permitted in the MUA-10 Zone. As discussed in the
findings above, I have found such development will be consistent with the character of the
surTounding area and can be served by adequate public facilities and services. Therefore, I find
the applicant has demonstrated the proposed zone change satisfies this approval criterion.
C. That changing, the zoning will presently serve the p ublic
health, safety and welfare considering the following factors:
1. The availability and cfficiency of providing necessary
public services and facilities.
FINDINGS: As discussed in the findings above, incorporated by reference herein, the Hearings
Officer has found that necessary public services and facilities exist in the surrounding area and
are available to the subject property.
2. The impacts on surrounding land use will be consistent
with the specific goals and policies contained within the
Comprehensive Plam
FINDING: As discussed in the findings above, incorporated by reference herein, the Hearings
Officer has found the proposed plan amendment from SM to Rural Residential Exception Area
will be consistent with the character of and uses on surrounding land which consist of a rural
residential subdivision, a state park a farm, and an approved church. For this reason, I find
rezoning the subject property to MUA-10 will not adversely impact surrounding property. I have
found that rural residential development will have significantly less impact on surrounding
property than did the previous surface mining and reclamation activities on the subject property.
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 Hearings Officer finds the subject property's original SM zoning was not a
mistake. The applicant argues the proposed zone change from SM to MUA-10 for the subject
property is justified by a change in circumstances consisting of the completion of mining and
reclamation of the property. As discussed in detail in the findings below, incorporated by
reference herein, I have found the applicant has demonstrated SM Sites 305 and 306 have been
completely mined and reclaimed and that there no longer exists a significant mineral and
aggregate resource on the subject property. In addition, as discussed in detail in the findings
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above, this mining and reclamation activity has rendered the subject property unsuitable for
agricultural use due to the depletion and disturbance of productive soils. For these reasons, I find
the applicant has demonstrated the proposed zone change is justified by a change of
circumstance.
For the foregoing reasons, the Hearings Officer finds the applicant has met his burden of proving
the proposed zone change from SM to MUA-10 satisfies all applicable approval criteria.
2. Chapter 18.52, Surface Mining Zone (SM)
a. Section 18.52.200, Termination of the Surface Mining Zoning and
Surrounding Surface Mining Impact Area Combining Zone
A. When a surface mining site has been fully or partially mined,
and the operator demonstrates that a significant nsource no
longer exists on the site, and that the site has been reclaimed in
accordance with the reclamation plan approved by DOGAAG
or the reclamation provisions of this title, the property shall be
rezoned to the subsequent use zone identified in the surface
mining element of the Comprehensive Plan.
B. Concurrent with such rezoning, any surface mining impact
area combining zone which surrounds the rezoned surface
mining site shall be removed. Rezoning shall be subject to
chapter 18.136 and all other applicable sections of this tide, the
Comprebensiv e Plan and Deschutes County Code Tide 22, the
Uniform Development Procedures Ordinance.
FINDINGS: The subject property consists of SM sites 305 and 306 listed on the county's Goal 5
Inventory of Significant Mineral and Aggregate Resources. The inventory indicates that at the
time Site 305 was included, it had 150,000 cubic yards of sand and gravel meeting the standards
established by the Oregon Department of Transportation (ODOT). The inventory includes Site
306 but does not specify the quantity or quality of the mineral and aggregate resource on that
site. However, the record indicates that the two sites were treated as a single surface mining site
in documents relating to mining permits, annual reports, inspections, and mining operations, as
well as the county's Goal 5 "ESEE" (Economic, Social, Environmental and Energy) analysis for
the subject property. Therefore, the Hearings Officer finds it is reasonable to assume the resource
quantity and quality listed for Site 305 also encompasses Site 306. The ESEE analysis did not
identify a subsequent zone for Sites 305 and 306.
Subsection (A) requires the applicant to demonstrate the following in order for the property to be
rezoned:
that the she has been fully or partially mined;
2. that a significant resource no longer exists on the site; and
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3. that the site has been reclaimed in accordance with the DOGAM-approved reclamation
plan.
Each of these requirements is addressed separately in the findings below.
1. Site Has Been Fully or Partially Mined
The applicant placed in the record a copy of an application for a Surfitce Mining Permit with
Limited Exemptions submitted by Robert L. Coats on December 12, 1974. The applicant's
burden of proof summarizes the application as follows:
"Page 2 of the application states that the proposed mining operation would affect
approximately 14 acres of the site. Yhe maximum depth of the mine would be 20
feet. Approximately 1-10jeet of that depth would be overburden Based on those
almensions, the total quantity of mineral resources availablefor mining mnounted
to approximately 339, 000 cubicyard& A Itached hereto as Fxhibit T -and made a
part of this Application are copies of DOGAW Annual Report and Renewal
Applicadonsfor the years 1975-1996 Each renewal lists the volume of resources
mined during the previous year. Yhe total volume listed in these reports iunoui&
to approximately 345,600 cubic yands.
The amount described in this application is more than double the quantity of 150,000 cubic yards
identified in the county's inventory. The Hearings Officer is aware that the resource quantities
listed in the county's mineral and aggregate inventory often were based on rough estimates
provided by the site owner or other general sources. Therefore, I find the information included in
the applicant's DOGANff annual reports represents the most accurate information concerning the
quantity of mineral and aggregate resource on the site. The summary in the burden of proof
indicates 345,600 cubic yards of material were extracted from Sites 305 and 306 between 1975
and 1996 when the site was closed. I have reviewed the DOGANH documents included in the
record and concur with the applicant's summary that, at the very least, over 339,000 cubic yards
of material was extracted. Therefore, I find the applicant has demonstrated Sites 305 and 306
have been fully mined.
2. A Significant Resource No Longer Exists on the Site
In addition to the evidence concerning the extracted resource described in the findings above, the
applicant submitted into the record as Exhibit C to the burden of proof a memorandum from the
applicant's surveyor describing a memorandum dated Nlarch 17, 1980 and written by Paul F.
Lawson, as follows:
'3&. Lawson was a State of Oregon employee. He visned the site at the request of
R. L Coats to reviewproposalsfor rechinatiom Yhe memo states inpart. At dw
ftme, there is practically no part of the surface which has not been affected by
surface mining actmhes, and there are perhaps two or three small areas in which
there remains usable rock He wishes to mine out these areas, which almost
certainly total no more than five acres total, and perhaps lem . .' The Annual
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Report and Renewal Application for 1980 states that approximately 3, 000 cubic
yards were mined in that year.
However, the Annual Report and Renewal Application dated 517181 contains a
remark by RL Coals that slates.- 7 thought (the) Pit was exhausled Of rock but
test drilling indicates between 400, 000 to 500, 000 cu. yds. of rock yet " Duping
that year, approximately 92, 000 cubic yards of rock were mined
Each year from 1982 to 1993 various amounts of rock from 6, 000 to 10, 000:
cubic yards were mined In 1994, approximately 100, 000 cubic yards were mined
At that time, the resource was apparently completely extracted Subsequent
operations were confined to reclamation activihea
Based on an examination and analysis of the above referenced record% it appears
that while some of the estimates of resource material available may have been
inaccurate or unduly optirnistic, every effort was made to find mad identify and
mine all of the available resources on the site."
The Staff Report correctly notes that the term "significant resource is not defined in Title IS or
the comprehensive plan. However, in a previous decision approving a post -acknowledgment plan
amendment CTAPA") and zone change from SM to Forest for a reclaimed surface mine (Stou,,
pA-gs-12/ZC-98-6), this Hearings Officer made the following findings:
"Subsection OAR 660-023-0180(3)(a) establishes standards for deferinining
whether a site is 'significanit I Subsection (3) (a) provides in perlinentpart-
(3) An aggregate resource shall be considered significant of adequate
information regarding the quantity, quality, and location of the resource
demonstrates that the site meets any one of the criteria in subsections (a)
through (c) of this section,
(a) A representative set of samples of aggregate material in the
deposit on the site meets Oregon DepariMent of Transportation
(OD07) specifications for base rock for air degradation,
abrasiop; and sodium suffiate soundness, and the estimated
amount of material is more than 2, 000, 000 tons in the Willamette
Valley, or 100, 000 tons outside the Frillamette Malky;
(b) The material meets local government standards establishing a
lower threshold for significance, than subsection (a) of this
section; or
(c) 77je aggregate site is on an inventory of significant aggregate
sites in an acknowledged plan on Ike applicable date of this
rule "
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lidg@ -Z-j- , Of
Ordihanto
The Hearings Officer found that the applicant only needs to meet one of the three options for the
site to be considered significant. As discussed in the findings above, Sites 305 and 306 are
included in the county's inventory of significant mineral and aggregate sites. In addition, the
county's inventory states the resource on Site 305 met ODOT's specifications. Ilus, one or both
sites satisfy at least one of these. criteria for "significance." In the Slott decision I held that
applying criteria (c) to preclude moving a reclaimed surface mining site from the county's
inventory:
". . . would create a 'Catch-22'where, as here, the applicant is seeking to remove
a site from the inventory as no longer ls�gnificant. ' Consequently, I find the
s4nificant' stwidard in paragrcph (c) should not be applied to PAPAs
requesting removal of a sitefrom an acknowledged inventory."
The Hearings Officer adheres to that finding here, and finds the appHcant's proposed plan
amendment and zone change constitute a "PAPA7 which would amend a plan provision
concerning a Goal 5 resource list, and therefore is subject to the provisions of OAR 660,
Division 23 to the extent they reasonably can be applied to a decision to remove a site from.the
adopted inventory. Based on the inclusion of Sites 305 and 306 on the county's inventory of
significant mineral and aggregate resources, the notation on the inventory that the resource on
Site 305 that the resource met ODOT's specifications, and the evidence described above the
resource described in the inventory properly was attributed to both Sites 305 and 306, 1 find the
resource on the subject property was "significant" for purpose of this analysis.
As discussed above, the evidence submitted by the applicant indicates that approximately
345,600 cubic yards of material was actually excavated from the subject property. In addition,
the Wert & Associates soils analysis indicates the soils on the subject property consist
predominantly of previously mined, disturbed soils. Based on this evidence, the Hearings Officer
finds a significant mineral and aggregate resource no Ionger exists on the subject property. .
3. Site Reclamation
The record includes a March 4, 2004 memorandum from Gary Lynch, DOGAM[ Assistant
Director, closing the DOGAMI file as a result of completion of the required revegetation. The
record also includes a memorandum dated March 4, 2004, from Ben Mundie, DOGAAff
reclamationist, stating mi pertinent part that:
"[A]// reclamation requirements have been meet fs7c] 7he file should be closed
and the Performance Bond released."
The applicant also submitted a November 3, 2003 letter from Mr. Mundie stating:
"Reclamation of the Lower Pit has been accomplished in accorJance with dw
operating and reclamation plan onfile with DOGAW -
Based on this evidence, as well as the Wert & Associates soil analysis, the Hearings Officer finds
the applicant has demonstrated the subject property has been reclaimed in accordance with
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DOGAMI's requirements.
With respect to Paragraph (B) of this section, the Hearings Officer finds that if the board follows
my recommendation that the subject property be rezoned from SM to MUA-10, the surrounding
SMIA Zone also will be removed.
IV. CONCLUSIONARY FTNDINGS:
The applicant has requested approval of an exception to Goal 3, a plan amendment from Surface
Mining to Rural Residential Exception Area, and a zone change from SM to MUA-10, for a
mined and reclaimed surface mine consisting of Tax Lot 100 on Assessor's Map 17-12-06C and
that portion of Tax Lot 700 on Assessor's Map 17-12-06B zoned SM. The Hearings Officer has
found that no exception to Goal 3 is required for Tax Lot 700 because it does not consist of
agricultural land subject to protection under Goal 3. 1 also have found that in any event the
applicant has demonstrated an exception to Goal 3 is warranted for both Tax Lot 700 and the
portion of Tax Lot 100 zoned SM because the subject property has been irrevocably committed
to non -resource use since previous mining and reclamation activity has rendered the soils on the
subject property so unproductive that the property no longer can be considered agricultural land.
I have found the applicant has met his burden of proving the proposed plan amendment from
Surface Mining to Rural Residential Exception Area and zone change from SM to MUA-10 are
justified because:
1. there no longer is a significant mineral and aggregate resource on the subject property;
2. the property is not suitable for agriculture. by itself or in combination with nearby EFU-zoned
property; and
3. the proposed Rural Residential Exception Area plan designation and MUA-10 zoning for the
subject property are consistent with the character of the surrounding area.
V. DECISION:
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby
RECOMAaNDS THAT THE DESCHUTES COUNTY BOARD OF COMMISIONERS
AYPROVE the proposed exception to Goal 3, plan amendment from Surface Mining to Rural
Residential Exception Area, and zone change from Surface Mining to Multiple Use Agricultural
for Tax Lot 100 on Deschutes County Assessoes Map 17-12-06C and that portion of Tax Lot
700 on Deschutes County Assessor's Map 17-12-06B zoned Surface Mining (SM), SUBJECT
TO THE FOLLOWING CONDITION OF APrROVAIL-
Prior to the hearing before the Deschutes County Board of Commissioners to consider
approval of the proposed . goal exception, plan amendment and zone chanIM the
applicant/owner shall submit to the Planning Division a metes and bounds description o&
and surveyed acreage calculation for, the property subject to the plan amendment and
zone change.
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Ordinanco
Dated this 34 day of May, 2005.
Mailed Us Jfiffdav of May, 2005.
Karen R Green, Hearings Officer
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