2008-29-Ordinance No. 2008-003 Recorded 1/11/2008REVIEWED NANCY UBLANKENSHIP, COUNTY CLERK DS Q 2008 -29
COMMISSIONERS' JOURNAL
LEGAL COUNSEL IIIIIIIIIIIIIIIIIIIIIIIIIIIIII Ol/11I2O48 03;08;19 PM
2008 -29
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Title 18, the Deschutes County
Zoning Map, to Change the Zone Designation for * ORDINANCE NO. 2008 -003
Certain Property From Exclusive Farm Use Alfalfa
Subzone to Exclusive Farm Use Tumalo /Redmond /Bend
Subzone and Declaring an Emergency
WHEREAS, Randall Reid applied for a zone change to Title 18, Deschutes County Zoning Map, to
rezone certain property from Exclusive Farm Use Alfalfa Subzone Exclusive Farm Use Tumalo /Redmond /Bend
Subzone; and
WHEREAS, a public hearing was held on September 10, 2007 before the Deschutes County Hearings
Officer after notice was give in accordance with applicable law and approved the zone change as described in
Exhibit "C"; and
WHEREAS, the Board of County Commissioners ( "Board ") conducted a public hearing on January 7,
2008 and approved the zone change necessary to change the zone; now therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. AMENDMENT. DCC Title 18, Zoning Map, is amended to change the zone designation
for certain property described in Exhibit "A" hereby and depicted on the map set forth as Exhibit `B ", attached
and by this reference incorporated herein, from Exclusive Farm Use Alfalfa Subzone to Exclusive Farm Use
Tumalo/Redmond /Bend Subzone.
Section 2. FINDINGS. The Board adopts the Hearings Officer findings, adopted as Exhibit "C" to
Ordinance 2008 -03 and incorporated herein by this reference, as its findings to support this Ordinance.
///
PAGE 1 OF 2 - ORDINANCE NO. 2008-003 (01/7/08)
Section 2. 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 ' day of q0W,VAAtj1, 2008
ATTEST:
63"),� &Aalt-
Recording Secretary
Date of 1st Reading: � - - day of
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
;r
ENNIS R. LUKE, Chair
TAMMY ffiVKfY, Vice r
Date of 2nd Reading: day of 2008
Record of Adoption ote
Commissioner Yes No Abstained Excused
Dennis R. Luke
Tammy Baney
Michael M. Daly
Effective date: day of 008.
ATTEST:
Recording Secretary
PAGE 2 OF 2 - ORDINANCE NO. 2008-003 (01/7/08)
EjeMLC{,�T
LEGAL DESCRIPTION
RANDY REID
TAX LOT 16 -12 No. 12300
A tract of land being the Southwest one- quarter of the Northwest one - quarter of
Section 25, Township 16 South, Range 12 East, W.M., Deschutes County, Oregon,
described as follows:
A portion of that certain tract of land as described in Volume 180, Page 0408,
Deschutes County Official Records, and shown as a portion of Parcel "B ", Minor
Land Partition MP -79 -166, CS01896, Deschutes County Surveyor's Office Records,
described as follows:
Commencing at the Northwest corner of Section 25, Township 16 South, Range 12
East, W.M.; thence S 00 °26114" E, along the West line of said section, a
distance of 1329.65 feet to the Northwest corner of the Southwest one - quarter of
the Northwest one - quarter of said section and the TRUE POINT OF BEGINNING;
thence leaving said line, along the North, East and South lines of said
Southwest one - quarter of the Northwest one - quarter, the following bearings and
distances: N 89 °31'59" E, 1326.24 feet; thence S 00 027'20" E, 1326.15 feet;
thence S 89 °22'55" W, 1326.67 feet to the Southwest corner of said Southwest
one - quarter of the Northwest one - quarter, located on said West line of Section
25; thence leaving said South line N 00 026'14" W, along said West line, 1329.65
feet to the point of beginning.
Containing 40.44 acres, more or less.
REGISTERED
PROFESSIONAL
LAND SURVEYOR
Prepared by Baxter Land Surveying, Inc. P.O. Box 7022
Bend, OR 97708 (541)- 382 -1962.
F-1I7'31 0'7
toots -oo3
PROPOSED ZONING MAP
Legend File No ZC -07 -5
Q Subject Property
EFUAL -Alfalfa Subzone
EFUTRB - Tumalo /Redmond /Bend Subzone
MUA10 - Multiple Use Agricultural
Exhibit "B"
to Ordinance 2008 -003
0 250 500 1,000
Feet
December OF 2007
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
Michael M. Daly, Chair
Dennis R. Luke, Vice Chair
Tammy Baney, Commissioner
ATTEST: Recording Secretary
Dated this day of January, 2008
Effective Date: January _, 2008
Community Development Department
t J Planning Division Building Safety Division Environmental Health Division
LL �a ^k
iaiI�1
117 NW Lafayette Avenue Bend Oregon 97701 -1925
(541)388 -6575 FAX(541)385 -1764
http : / /www.co.deschutes.or.us /cdd/
DECISION OF DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBER:
APPLICANT/
PROPERTY OWNER:
ZC -07 -5
Randall Reid
21598 Morrill Road
Bend, Oregon 97701
APPLICANT'S AGENT: Heidi Kennedy
KCS LLC
64180 Old Bend - Redmond Highway
Bend, Oregon 97701
APPLICANT'S
ATTORNEY: Liz Fancher
644 N.W. Broadway Street
Bend, Oregon 97701
REQUEST: The applicant requests approval of a zone change from EFU -AL to
EFU -TRB for a 40 -acre portion of a 73.58 -acre parcel located
northeast of McGrath Road east of Bend.
STAFF REVIEWER:
HEARING DATE:
Will Groves, Senior Planner
September 10, 2007
RECORD CLOSED: September 10, 2007
I. APPLICABLE STANDARDS AND CRITERIA:
A. Title 18 of the Deschutes County Code, County Zoning.
1. Chapter 18.12, Establishment of Zones
* Section 18.12.030, Zoning Map
2. Chapter 18.16, Exclusive Farm Use (EFU) Zones
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ZC -07 -5
Page 1 of 12
Quality Services Performed with Pride
• Section 18.16.010, Purpose
• Section 18.16.065, Subzones
3. Chapter 18.136, Amendments
* Section 18.136.020, Rezoning Standards
B. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan
1. Chapter 23.88, Agricultural Lands
• Section 23.88.010, Agricultural Lands
• Section 23.88.030, Zoning Policies
C. Oregon Administrative Rules, Chapter 660
1. Division 12, Transportation Planning
* OAR 660- 012 -0060, Plan and Land Use Regulation Amendments Division
2. Division 15, Statewide Planning Goals and Guidelines
II. FINDINGS OF FACT:
A. Location: The subject property is located at 21598 Morrill Drive, Bend. It is further identified
as Tax Lot 400 on Deschutes County Assessor's Map 16- 12 -26A and Tax Lot 12300 on
Deschutes County Assessor's Map 16- 12 -00.
B. Zoning and Plan Designation: The subject property is designated Agriculture and zoned
Exclusive Farm Use (EFU). Tax Lot 12300 is located in the Alfalfa Subzone (EFU -AL)
and Tax Lot 400 is located in the Tumalo/Bend/Redmond Subzone (EFU -TRB).
C. Site Description: The subject property is 73.58 acres in size and irregular in shape. The
eastern 40 acres of the parcel -- Tax Lot 12300 — is a 40 -acre square with relatively flat
topography and 13.76 acres of irrigation water on the western half. The remainder of the tax
lot is covered with juniper woodland. Tax Lot 400 is 33.15 acres in size, irregular in shape,
and has 22.54 acres of irrigation. Both tax lots are engaged in farm use consisting of cattle
grazing on irrigated pasture and dry land. The tax lots share a common boundary formed by
the boundary of Sections 25 and 26 in Township 16, Range 12.
D. Soils: The Natural Resources Conservation Service (NRCS) data in the record indicate
the subject property is composed of the following two soil units:
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ZC -07 -5
Page 2 of 12
57B — Gosney stony loam sand, 3 to 8 percent slopes: This soil covers approximately
40 percent of Tax Lot 12300 and is comprised of 85% Gosney soil and similar inclusions
and 15 percent contrasting inclusions. The Gosney soils are somewhat excessively
drained, with rapid permeability. Available water capacity is about 1 inch. The major use
for this soil type is livestock grazing. This soil type is rated 7e without irrigation and 4e
with irrigation.
59C — Gosney -Rock outcrop - Deskamp complex, dry, 0 to 15 percent slopes: This soil
covers approximately 60 percent of Tax Lot 12300. Generally, this soil classification is
comprised of 50% Gosney soil and similar inclusions, 25% rock outcrop, 20% Deskamp
soil and similar inclusions and 5% contrasting inclusions. Both the Deskamp and Gosney
soils are somewhat excessively drained, with rapid permeability. The Deskamp soils are
somewhat excessively drained, with rapid permeability. Available water capacity is about
3 inches. The major use for this soil type is livestock grazing and irrigated cropland. The
Gosney soils are rated 7e without irrigation and 4e with irrigation.
E. Surrounding Zoning and Land Uses: Land to the north, east and southeast of the
subject property is comprised of unirrigated and undeveloped juniper woodland zoned
EFU -AL, some of which is owned and managed by the Bureau of Land Management
(BLM).1 Land to south is zoned Multiple Use Agriculture (MUA -10) and developed with
the Boonesborough Subdivision consisting of large lots developed with dwellings. Land
to the west and northwest is zoned EFU -TRB and consists of small -scale farms with both
irrigated and dry land.
F. Procedural History: This application was submitted on June 28, 2007 and was accepted
by the county as complete on July 30, 2007. Therefore, the 150 -day period for issuance of
a final local land use decision under ORS 215.477 expires on December 27, 2007. A
public hearing on the application was held on September 10, 2007. At the hearing, the
Hearings Officer received testimony and evidence and closed the record. The applicant
waived the filing of final argument pursuant to ORS 197.763.
G. Proposal: The applicant requests approval of a zone change from EFU -AL to EFU -TRB
for Tax Lot 12300 so that it will have the same zoning as the adjacent Tax Lot 400.
Although the applicant has not submitted a development application, the record includes
a tentative partition plat dividing the subject property into two parcels. Parcel 1 would
have 20 acres and no irrigation, and Parcel 2 would have 53.58 acres and 36.3 acres of
irrigation. Because only 22.54 irrigated acres are located on the EFU -TRB zoned Tax Lot
400 and only 13.6 irrigated acres are located on the EFU -AL zoned Tax Lot 12300, their
present zoning and configuration would preclude partition approval. The requested zone
change would allow the applicant to apply for an irrigated land division in which the
irrigated parcel would meet the minimum irrigated acres required in each subzone — i.e.,
23- irrigated -acres in the EFU -TRB subzone and 36 acres in the EFU -AL subzone.
1 The aerial photo /zoning map included in the record as Hearing Exhibit 1 incorrectly shows Tax Lot
12300 and the land to the north, east and south as zoned Exclusive Farm Use -Horse Ridge Subzone
(EFU -HR).
Reid
ZC -07 -5
Page 3 of 12
H. 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 Assessor and Property Address Coordinator. These comments are set
forth at page 3 of the staff report and /or are included in the record. The following
agencies did not respond to the request for comments: the Deschutes County
Environmental Health Division, Road Department and Senior Transportation Planner;
and the Oregon Department of Water Resources, Watermaster- District 11.
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. In addition, notice of the public hearing
was published in the Bend "Bulletin" newspaper, and the subject property was posted
with a notice of proposed land use action sign. As of the date the record in this matter
closed, the county had received no letters in response to these notices. Only the
applicant's representatives appeared and testified at the public hearing.
J. Lot of Record: In 2006 the county issued a decision approving a lot line adjustment that
recognizes Tax Lots 400 and 12300 as a single legal lot of record (LL -06 -126).
III. CONCLUSIONS OF LAW:
A. 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 18.136. The
procedures for text or legislative map changes shall be as set forth in
DCC 22.12. A request by a property owner for a quasi - judicial map
amendment shall be accomplished by filing an application on forms
provided by the Planning Department and shall be subject to
applicable procedures of DCC Title 22.
FINDINGS: The applicant requests approval of a zone change from EFU -AL to EFU -TRB for
the portion of the subject property consisting of Tax Lot 12300. The applicant submitted an
application for a quasi-judicial zone change for the subject property on county land use
application forms. The Hearings Officer finds the proposed zone change is being reviewed
pursuant to the procedures in Title 22 of the county code.
b. Section 18.136.020, Rezoning Standards
The applicant for a quasi - judicial rezoning must establish that the
public interest is best served by rezoning the property. Factors to be
demonstrated by the applicant are:
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ZC -07 -5
Page 4 of 12
A. That the change conforms with the Comprehensive Plan, and
the change is consistent with the plan's introductory statement
and goals.
FINDINGS: In several previous decisions (e.g., Kimble, PA -07 -2, ZC- 07 -2), the Hearings
Officer has held the county's comprehensive plan is implemented through its zoning ordinance,
and therefore compliance with plan policies will be assured through compliance with the
applicable provisions of the zoning ordinance. I adhere to that holding here and find I need not
evaluate the applicant's proposal for conformance with specific plan policies.
B. That the change in classification for the subject property is
consistent with the purpose and intent of the proposed zone
classification.
FINDINGS: Section 18.16.010 sets forth the purpose of the EFU Zone as follows:
A. The purpose of the Exclusive Farm Use Zones is to preserve and maintain
agricultural lands and to serve as a sanctuary for farm use.
B. The purposes of this zone are served by the land use restrictions set forth in
the Comprehensive Plan and in DCC 18.16 and by the restrictions on private
civil actions and enforcement actions set forth in ORS 30.930 through 30.947.
The applicant proposes to retain the EFU zoning on Tax Lot 12300 but to change its subzone
from Alfalfa to Tumalo/Redmond/Bend. Therefore, technically the applicant's proposal is
consistent with the purposes of the EFU Zones. However, the EFU subzones establish distinct
requirements for land divisions and the preservation of agricultural lands within the subzone.
Therefore, I find it is necessary and appropriate to review the history and nature of the EFU
subzones in order to determine if the proposed change in subzone for Tax Lot 12300 will
continue to be consistent with the purposes of the EFU Zone — i.e., preserving and maintaining
agricultural lands and farm use within the subzone.
Section 23.88.010 of the comprehensive plan, Agricultural Lands, explains the creation of the
existing EFU subzones as follows:
Having a definition [of agricultural lands] was only the first step, as it was then
necessary to differentiate between the various types of agriculture to be found
locally and to identify the various areas they characterized. Members of the
Planning Staff, the Agricultural CAC [Citizens Advisory Committee] and the Overall
CAC identified seven types of agriculture and areas characterized by such
agriculture. These areas included * * * Irrigated Marginally Commercial Land,
located in the Alfalfa, Cloverdale and Terrebonne areas and characterized by
pasture and forage; * * * Marginal Farm Land — Undeveloped, located east of Bend
and near Redmond, Tumalo and Sisters and characterized by pasture and forage;
and Marginal Farm Land — Developed, located in the Bend, Plainview and Tumalo
areas and characterized by pasture and forage.
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ZC -07 -5
Page 5of12
As part of periodic review in 1992, the County conducted a study of commercial
agriculture in Deschutes County. The purpose of the study was to ensure that EFU
zone boundaries and standards for farm divisions and dwellings were consistent
with Goal 3 and relevant administrative rules. The results of the study are detailed
in the completion report dated June 1992, and are incorporated into the Resource
Element of the Comprehensive Plan. The study identified 7 agricultural subzones:
Lower Bridge, Sisters /Cloverdale, Tumalo/Redmond/Bend, Terrebonne, Alfalfa, La
Pine, and Horse Ridge East. For each subzone, standards were determined for
minimum parcel sizes for farm divisions. The standards are designed to protect the
commercial agriculture land base.
Section 23.88.030 establishes the following pertinent zoning policies:
3. Public lands meeting the criteria for EFU zoning shall be so zoned unless
some other resource (i.e., forest) or public use exists on the land.
4. No more than 25 percent of a given agricultural subzone shall be composed of
lands not of the same agricultural type. Any agricultural lands not zoned EFU
agriculture shall be identified in the County Exception Statement. Zoning
districts shall be at least 40 acres in size.
5. Zones and minimum parcel sizes shall be established to assure the
preservation of the existing commercial agricultural enterprise of the area.
6. For purposes of profiling the existing commercial agricultural enterprises of
the County, the County shall consider as one land unit all tracts in contiguous
ownership (including those parcels separated only by a road) zoned EFU.
9. Following from the June 1992 OSU Extension Service completion report
detailed in the resource element, the County has identified 7 subzones
representing distinct groupings of agricultural types. The County's EFU
zoning shall reflect those identified subzones, generally described as follows
and as more particularly detailed in the resource element of the
comprehensive plan:
Subzone
Profile
Lower Bride
Irrigated field crops,
hay and pasture
Sisters /Cloverdale
Irrigated alfalfa,
and some field crops
hay and pasture, wooded grazing
Terrebonne
Irrigated hay and
pasture
Tumalo /Redmond/
Irrigated pasture and some ha
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ZC -07 -5
Page 6 of 12
Bend
Gross Farm Income
Alfalfa
Irrigated hay and pasture
La Pine
Riparian meadows, grazing and meadow ha
Horse Ridge East
Rangeland grazing
The EFU subzones are described in Section 18.16.065 by the number of irrigated acres required
for farm divisions. The Alfalfa subzone requires a minimum of 36 irrigated acres, and the TRB
requires a minimum of 23 irrigated acres. The Agricultural Profile sheets for the subzones
describe the TRB subzone as characterized by "small scale, part-time, subsidized non-
commercial agriculture, some commercial llamas and horse breeding on small tracts," and the
Alfalfa subzone as characterized by "medium scale market agriculture." And as noted above,
under plan Policy 4 up to 25 percent of lands within in a subzone may consist of lands that do not
fit within the Agricultural Profile for that subzone. For this reason, staff questioned whether the
applicant had demonstrated that Tax Lot 12300 should be placed in the TRB subzone rather than
in the EFU -AL subzone, and recommended denial of the proposed zone change.
In response to staff s recommendation, the applicant argued in his September 10, 2007
submission that rezoning Tax Lot 12300 from EFU -AL to EFU -TRB would be consistent with
the characteristics of the EFU -TRB subzone because the applicant's farm operation on Tax Lots
400 and 12300 is a typical subsidized, small -scale farm. In support of his claim, the applicant
submitted the information and arguments discussed in the findings below.
1. Farm Income. The applicant submitted his profit and loss statements from his 2003 through
2006 tax returns for his existing cattle operation that showed the following income and
profit /loss:
Year
Gross Farm Income
Profit /Loss
2006
$ 8,311
- $15,667
2005
$13,272
- $11,210
2004
$10,916
-$ 8,289
2003
$ 9,073
- $12,147
In addition, the applicant argued his cattle operation fits squarely within the TRB subzone
Agricultural Profile because it shows that in 1992, 81 percent of farm tracts in that subzone
grossed less than $20,000 and 36 percent of the tracts grossed less than $10,000. The applicant
also submitted the following information comparing the applicant's gross farm income from
2003 through 2006 to its 1992 income value adjusted for inflation pursuant to the U.S. Bureau of
Labor Statistics inflation calculation formula:
Year
Gross Farm Income
1992 Value
2006
$ 8,311
$ 5,783.90
2005
$13,272
$ 9,534.37
2004
$10,916
$ 8,107.54
2003
$ 9,073
$ 6,918.16
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ZC -07 -5
Page 7 of 12
2. Soil Type. The applicant notes that both soil types found on the subject property have an
agricultural capability rating of Class VII when not irrigated, which by definition is not
"agricultural" soil. The aerial photo of the subject property included in the record shows the
majority of Tax Lot 12300 consists of juniper woodland that has not been cleared, cultivated or
irrigated, and likely would require a significant expenditure to put to productive farm use. The
applicant argues the unirrigated Class VII soils that predominate on Tax Lot 12300 are not the
type of soil that is typically used for the "medium scale market agriculture" that characterizes the
EFU -AL subzone.
3. Agriculture Plan Policy 4. As set forth in the findings above, the county's comprehensive plan
states the county identified several specific agricultural land types when it adopted its first
comprehensive plan in 1979 and zoned agricultural lands in 1980 as EFU -20, EFU -40, EFU -80
and EFU -320. Agricultural Land Type D was described as "irrigated marginally commercial
crop land" and was zoned EFF -40. Type F land was described as "marginal farmland,
undeveloped" and was zoned EFU -20. The applicant quotes the following descriptions of Type
D and Type F lands, respectively, from the 1979 comprehensive plan:
Type D
"This type of land, because of less favorable soil and climatic conditions, is not
able to raise as wide a variety of crops as Type C above, nor is the potential yield
as high. However, it can produce occasional row crops, grain, hay and pasture,
as well as livestock, on a generally self - sustaining basis, although somewhat
marginal at times. A mixture of lot sizes can be found throughout these areas and
while there are some large [apparent omission of word "lots "] the predominant
ownership and tax lot size is 40 acres. Land around Alfalfa, Cloverdale
Terrebonne are characteristic of this agricultural type. "
Type F
"This land will support agricultural production only if subsidized to some extent.
The lands are suitable for hay and pasture and more particularly, the raising of
livestock, particularly if access to public grazing land is available. Ownership
sizes cover a broad range but the most frequently occurring tax lot size is 40
acres, however, the mixture of sizes results in mean and median lot sizes of 20
acres or slightly larger. These areas are particularly susceptible to increasing
non farm development. Areas characteristic of this type of land are some parts of
Arnold (east of Bend), Redmond, Sisters and Tumalo "
The applicant asserts that as a general rule when the county updated its Agricultural Lands plan
and zoning ordinance provisions in 1992, Type D lands were included in the EFU -AL subzone
and Type F lands were included in the EFU -TRB subzone. The applicant argues Tax Lot 12300
does not fit within the Type D profile, and does fit within the Type F profile, because it cannot
produce row crops or grain, is suited for pasture and livestock grazing only, and cannot support
"generally self - sustaining" agriculture but requires some subsidy.
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ZC -07 -5
Page 8 of 12
The Hearings Officer finds Tax Lot 12300 has characteristics of both EFU -AL and EFU -TRB
lands. Its 40 -acre size makes it comparable to the typical parcel size in the EFU -AL subzone.
The NRCS data in the record show its soils can support crop production with irrigation. And Tax
Lot 12300 abuts large areas of EFU -AL zoned land to the north, east and south. However, these
abutting lands are predominantly comprised of large tracts of juniper woodland in public
ownership and not in farm use — the sort of lands referred to in the description of Type F lands
that could make the raising of livestock possible with "access to public grazing land." In
addition, the subject property abuts EFU -TRB zoned land on the west. And it is clear from the
income information submitted by the applicant that the typical farm use on the subject property —
livestock raising and hay production — requires a significant subsidy. Finally, the record indicates
much of the surrounding area to the south of Tax Lot 12300 has been developed with non -farm
uses such as the nearby Boonesborough Subdivision.
Considering all of these factors, the Hearings Officer finds Tax Lot 12300 is more like land in the
EFU -TRB subzone than land in the EFU -AL subzone. I am particularly persuaded of this fact by
the applicant's income and profit/loss figures which clearly indicate agriculture on this land must
be subsidized. Therefore, I find the applicant's proposed rezoning of Tax Lot 12300 from EFU -AL
to EFU -TRB would be consistent with the purpose of the EFU Zone because it would preserve
agricultural lands and farm uses in the EFU -TRB subzone.
C. That changing the zoning will presently serve the public health,
safety and welfare considering the following factors:
1. The availability and efficiency of providing necessary
public services and facilities.
FINDINGS: The Hearings Officer finds the proposed zone change, in and of itself, will have no
impact on public facilities and services. As discussed above, the record indicates that if the proposed
zone change is approved the applicant intends to seek approval of an irrigated land division that
would separate the unirrigated portion of Tax Lot 12300 from the irrigated portion of the tax lot and
from Tax Lot 400. Partition approval would allow the applicant to seek conditional use approval for
establishment of a nonfarm dwelling on the unirrigated lot. Impacts of such development on services
and facilities would be evaluated at the time of partition approval. For these reasons, I find the
applicant's proposal is consistent with this approval criterion.
2. The impacts on surrounding land use will be consistent
with the specific goals and policies contained within the
Comprehensive Plan.
FINDINGS: The applicant asserts the existing farm use on Tax Lots 400 and 12300 would not
be altered by approval of the proposed zone change because he would continue his cattle
operation on Tax Lot 400 and the irrigated portion of Tax Lot 12300. The record indicates the
type of farm use currently occurring on the subject property is the same as the farm use occurring
on adjacent and nearby lands zoned EFU -TRB. Therefore, I find the applicant's proposal is
consistent with this approval criterion.
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ZC -07 -5
Page 9 of 12
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 applicant does not argue there has been a change of circumstances since the
subject property was zoned EFU -AL. Rather, he argues the EFU -AL zoning was a mistake
because it was based on the location of the section line between Sections 25 and 26 in Township
16, Range 12, and not on site - specific factors such as soil type and capability classification,
ownership, and legal lot status. The applicant argues that had the county considered those factors
it would have zoned Tax Lot 12300 EFU -TRB to match the zoning of Tax Lot 400 owned by the
applicant and part of the same legal lot as Tax Lot 400. Staff agrees with the applicant, stating in
pertinent part in the staff report:
"Staff believes that the split zoning of this property was a mistake [footnote
omitted]. Ideally, zone boundaries should not divide legal lots of record or a
single use, in this case an irrigated field, unless that division represents the
boundary where some salient characteristic of the land or land use changes. Staff
believes that split zoning was assigned to this property because it was expeditious
to use the section line to divide the Alfalfa and Tumalo /Redmond /Bend subzones
when detailed information about this property and its use were not included in the
record for Ordinance 92 -063. "
The Hearings Officer agrees with the applicant's and staff s analysis and conclusions. I find the
applicant has demonstrated the EFU -AL zoning of Tax Lot 12300 was a mistake and therefore
the proposed zone change to EFU -TRB is justified and satisfies this approval criterion.
B. Oregon Administrative Rules, Chapter 660
1. Division 12, Transportation Planning
a. OAR 660 -12 -060, Plan and Land Use Regulation Amendments
(1) Where an amendment to a functional plan, an acknowledged
comprehensive plan, or a land use regulation would
significantly affect an existing or planned transportation
facility, the local government shall put in place measures as
provided in section (2) of this rule to assure that allowed land
uses are consistent with the identified function, capacity, and
performance standards (e.g. level of service, volume to capacity
ratio, etc.) of the facility. A plan or land use regulation
amendment significantly affects a transportation facility if it
would:
(a) Change the functional classification of an existing or
planned transportation facility (exclusive of correction
Reid
ZC -07 -5
Page 10 of 12
of map errors in an adopted plan);
(b) Change standards implementing a functional
classification system; or
(c) As measured at the end of the planning period
identified in the adopted transportation system plan:
(A) Allow land uses or levels of development that
would result in types or levels of travel or access
that are inconsistent with the functional
classification of an existing or planned
transportation facility;
(B) Reduce the performance of an existing or
planned transportation facility below the
minimum acceptable performance standard
identified in the TSP or comprehensive plan; or
(C) Worsen the performance of an existing or
planned transportation facility that is otherwise
projected to perform below the minimum
acceptable performance standard identified in
the TSP or comprehensive plan.
FINDINGS: The Hearings Officer finds the Transportation Planning Rule (TPR) is applicable to
the applicant's proposal because it involves a change to the county's zoning map which under
Section 18.12.030 is a part of the zoning ordinance, and therefore the application constitutes a
request to amend a land use regulation. The applicant argues, and I agree, that the proposed zone
change, in and of itself, will have no impact on transportation facilities. However, as discussed
above, the proposed zone change would facilitate an irrigated land division of the subject
property and establishment of a nonfarm dwelling on the unirrigated lot. I am aware the Institute
of Transportation Engineers (ITE) Trip Generation Manual predicts each single- family dwelling
will generate approximately 10 average daily vehicle trips (ADTs). I find the addition of this
minimal amount of additional traffic will not significantly affect nearby transportation facilities.
It will not change the functional classification of or standards applicable to nearby roads, nor will
it produce traffic inconsistent with those functional classifications or reduce the performance of
existing or planned transportation facilities. Therefore, I find the applicant's proposal is
consistent with the TPR.
2. Division 15, State -Wide Planning Goals and Guidelines
a. OAR 660 - 015 -000, State -Wide Planning Goals and Guidelines No. 1
Through No. 14
b. OAR 660 - 015 -005, State -Wide Planning Goal and Guideline No. 15
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C. OAR 660 - 015 -010, State -Wide Planning Goals and Guidelines No. 16
Through 19
FINDINGS: Staff and the applicant address the proposal's compliance with the statewide
planning goals and guidelines. However, in numerous previous zone change decisions (e.g., Pine
Forest (ZC- 06 -3)), the Hearings Officer has found the statewide goals and guidelines are not
directly applicable to zone changes because the county's comprehensive plan and zoning
ordinance have been acknowledged as consistent with the statewide goals. I adhere to that
holding here, and find the goals and guidelines do not apply to this zone change application.
IV. DECISION:
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby
APPROVES the applicant's proposed zone change for Tax Lot 12300 on Deschutes County
Assessor's Map 16 -12 from Exclusive Farm Use - Alfalfa Subzone to Exclusive Farm Use -
Tumalo/Redmond /Bend Subzone, SUBJECT TO THE FOLLOWING CONDITION OF
APPROVAL:
1. Prior to final approval of the zone change, the applicant shall provide to the Planning
Division a metes - and - bounds legal description of the area rezoned to EFU -TRB.
Dated this day of November, 2007.
Mailed this day of November, 2007.
Karen H. Green, Hearings Officer
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