2008-89-Ordinance No. 2008-001 Recorded 2/20/2008REVIEWED
LEGAL COUNSEL
I
DESCHUTES COUNTY OFFICIAL RECORDS CJ 7008'69
NANCY BLANKENSHIP, COUNTY CLERK
COMMISSIONERS' JOURNAL 02/20/2008 04;09:19 PM
II I I 1111111111111111111
Z -8B
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Title 23, the Deschutes *
County Comprehensive Plan, to Adopt an Exception * ORDINANCE NO. 2008-001
to Goal 3 and To Change the Plan Designation for
Certain Property From Agricultural to Rural
Residential Exception Area.
WHEREAS, Harris C and Nancy Kimble and CLR, Inc. proposed a Goal Exception to Goal 3
and a Plan Amendment to Title 23.120 of the Deschutes County Code (DCC), Goal Exception
Statement, to change the comprehensive plan designation of certain property originally designated
Agriculture from Surface Mine to Rural Residential Exception Area; and
WHEREAS, the Board of County Commissioners (Board) after reviewing all the evidence
presented at the public hearing on January 7, 2008, 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, changing the Plan designation from Surface Mine, SM to Rural
Residential Exception Area; and
WHEREAS, the subject property is listed as Surface Mining Site 294 on the County's
inventory of mineral and aggregate resource sites, as set forth in DCC 23.100.070; and
Section 1. ADDING. DCC Chapter 23.120.260, Harris C and Nancy Kimble and CLR, Inc.
property, is added to read as shown on Exhibit "A" attached to this ordinance and by reference
incorporated herein, to adopt an exception statement for certain property as described in Exhibit "B",
attached to this ordinance and by reference incorporated herein.
Section 2. AMENDMENT. DCC Title 23, the Deschutes County Comprehensive Plan
Map is hereby amended to change the plan designation for certain property originally designated
Agriculture described in Exhibit "B" and depicted on the map set forth as Exhibit "C," attached and by
this reference incorporated herein, from Surface Mine to Rural Residential Exception Area.
Section 3. AMENDMENT. DCC Chapter 23.100.070, Surface Mining, Goal 5 Inventory,
is amended to delete that part of Surface Mining Site 294 described on Exhibit "A" from the County's
Goal 5 inventory of mineral and aggregate sites as set forth on Exhibit "D," attached hereto and
incorporated herein by this reference with deletions shown in strilegffeugh text.
PAGE 1 OF 2 - ORDINANCE NO. 2008-001 (2/6/08)
Section 4. FINDINGS. The Board adopts as its findings in support of this ordinance,
its decision, Exhibit "E," attached and by this reference incorporated herein.
Dated this i of 008 BOARD OF COUNTY COMMISSIONERS
OF DESC S COUNTY, OREGON
gr-gw
DE IS R. LUKE, R
LIo`' V
TAMMY( ANEY) MELTON, VICE CHAIR
ATTEST:
fam.~ &kt"-
Recording Secretary
Date of 1" Reading: Zy-~ day of , 2008.
Date of 2nd Reading: 1, day o 008.
Record of Adoption Vote
MI M. &-y' CO ISSIONER
Commissioner Yes No Abstained Excused
Michael M. Daly ✓
Dennis R. Luke ✓
Tammy Baney
Effective date: day of , 2008.
ATTEST:
Affl~ 6~
Recording Secretary
PAGE 2 OF 2 - ORDINANCE NO. 2008-001 (2/6/08)
NOTE: * denotes sections of the county code not affected by this ordinance.
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.
23.120.200. Watson/Generations Development Inc.
23.120.210. Oregon Department of Transportation.
23.120.220. Conklin / Eady Property.
23.120.230. City of Sisters Property.
23.120.240. McKenize Meadows Property.
23.120.250. Bend Metro Park and Recreation District Properties
23.120.260. Harris and Nancy Kimble Property and Portion of CLR, Inc. Property
23.120.260. Harris and Nancy Kimble Property and Portion of CLR Inc Property AKA the Klippel
Pit Property.
In conjunction with approval of PA-07-2/ZC-07-2 an "irrevocably committed" exception to Statewide
Planning Goal 3, Agricultural Lands was taken to allow for the rezoning of all of Surface Mine Site 294
from Surface Mining (SM) to Rural Residential (RR-10) The interim plan designation of Surface Mine
(SM) was removed from the comprehensive plan map. The underlying plan designations were Agriculture
and Rural Residential Exceptions Area (RREA). The vast majority of Surface Mine Site 294 was
designated RREA. The plan designation of the part of the property designated Agriculture was changed so
that it would match the plan designation of the majority of the subject property and surrounding
development in the Klippel Road goal exception area. Additionally, the County determined that a part of
the area with an underlying plan designation of Agriculture is non-resource land. Reasons justifying why the
state policy embodied in Goal 3 should not apply in this situation are set forth in Exhibit "D" to Ordinance
2008-001, which fmdings are incorporated herein.
PAGE 1 OF 1, EXHIBIT "A" ORDINANCE NO. 2008-001 (2/6/08)
DESCRIPTION OF LANDS TO BE INCLUDED IN PLAN AMENDMENT AS
RURAL RESIDENTIAL EXCEPTION AREA
A parcel of land located in Section 13, Township 17 South, Range 11 East, Willamette
Meridian, Deschutes County, Oregon, being more particularly described as follows:
Deseription #1
Beginning at the. north quarter comer of said, Section 13; thence along .the nortli< dine of
-the northeast...quarEer of
sa a.* id'Section.13 South 89°47'50" East' dlstanee:4f }I1':45 fe'et•to
the True Point.of )Beginning of this description; thence continuing along ~~tdnortl jive.
South 8904750" East a, distance of 480.26 feet; thence leaving satcj ;r{arth lime South
00°03'25" West a distance of 648:84 feet; thence South 89*050" East a di;3tance of.
295.47. feet; thence South 00600'00" West a distance of 1.66.21 feet, th eiice.14orth
_89°4T50" West a distance of 490.52 feet; thence South 00°15'50" West a distance of
580.85 feet; thence North X84033'35 West a distance of 397.15 feet'to the north-south
centerline of said Section 13; the4ce along said'north-south centerline North 00605107"
East a distance of 1248.04 feet;: thence leaving said north-south centerline North
.45606114" East a distance of 157.56 feet to the True Point of Beginning, the terrriinus of
this description
Description #2
Beginning at the north quarter corner of said Section 13; thence along the north-south
centerline of said Section 13 South 00°05'07" West a distance of 2714.87 feet to the True
-Point of Beginning of this description; thence leaving said north-south centerline South
99°2'.12" East a distance of 58.61 feet to Tumalo Creek; thence along Tumalo Creek
of 41°11'03" West a distance of 3.34 feet and South 61041'31" West a distance of
at4.;3 feet; thence leaving Tumalo Creek North 00°05'07" East a distance of 33.06 feet to
the True Point of Beginning, the terminus of this description.
Subject to: All easements, restrictions and right-of-ways of record and those common
and apparent on the land.
SURVEYOR
V
OREGON
XLY`1% . 7
+
PATRICK GAGE COLE..
IZ
79157 L5
RENEWAL DATE. 12/31/07
PAGE 1 OF 1, EXHIBIT "B" ORDINANCE NO. 2008-001 (2-6-08)
t I
LANDS TO. BE DESIGNATED RREA
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PAGE 1 OF 1, EXHIBIT "C" ORDINANCE NO. 2009-001 (2-6-08) I ,'=roo•
11 :
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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
lanes Mkt/Innes Butte
357
161136-DO-00100, 161100-00-
10400, 10300
Tumalo Irrigation
Cinders
1 M
Johnson Road(rumalo
357
161136-DO-00100, 161100-00-
10400,10300
Tumalo Irrigation
S & G
500,000
Good
357
161136-DO-00100, 161100.00-
10400, 10300
Tumalo Irrigation
Pumice
500,000
Good
358
161231-DO-01100
Gisler
S & G
100,000
ODOT Specs
Hwy 20]Tumalo
361
161222-CO-02800
Oregon State H
Cinders
700,000
Good
366
161230-00-00000
Oregon State H
S & G
40,000
ODOT Specs
368
161220-00-00200
Bend Aggregate
S & G
570 000
Excellent
Twin Brid esn amalo
370
161231-DO-00400
Bend Aggregate
Plant Site
Storage
379
181100-00-01600
Ore on State H
S & G
500,000
ODOT Specs
381
181125-CO-12600, 181126-00-
01600
Pieratt Bros
Cinders
50,000
Good
390
181214-00-00500, 100
Deschutes County
Dirt
2 M
Landfill
391
181221-00-00200
Central OR
Pumice
Cinders
500,000
Good
392
181223-00-00300
Rose
Rock
10 M Eii
Mixed
392
181223-00-00300
Rose
Dirt
7.5 M
Good
393
181225-00-01400
LT Contractors
Cinders
12.5 M
Good
Arnold Mkt Rd/SE of
Bend
394
181200-00-04400, 04411
Windfinx
Cinders
270,000
Coarse
H 97/South of Bend
395
181200-00-04300
Oregon State H
Cinders
160,000
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
E 404
191400-00-00200
Moon
Rock
800,000 - 2 M
Good
Hwy 20/East of Bend
405
191400-00-00606
Oregon State H
A re ate
50,000
ODOT Specs
408
191600-00-01500
RL Coats
S & G
3 M
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
H 20/East of Bend
415
201716-00-00700
Deschutes County
S & G
30,000
Good/Excellent
H 20/East of Bend
416
201716-00-00200
Deschutes County
S & G
30,000
Good/Excellent
H 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
H 20/East of Bend
419
20171' 6-00--0I3CC
Deschutes Count
S & G
30,000
Good'Lxceilent
Hwy 20/1-dsi of Bend
421
212000-00-00900
RL Coats
S & G
500,000
Excellent
H 20/rumalo
423
211106-CO-00700
Ray Rothbanl
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
221 100-00-00600
Russell
Cinders/
Rock
12 M/1.2 M
Good
Finley Butte
432
221100-00-00500
State of Oregon
Cinders
160,000
Good
433
211300-00-00101
La Pine Pumice
Lump
Pumice
lo m
Excellent
441
150903-00-00300
Willamette Ind
S & G
11 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,
!503,1505
Nolan
S & G
350,000
Good
461
141200-00-01501, 1502, 1503,
1505,1600
Franklin Nolan
Diatomite
2 M
Good
PAGE 2 OF 3 EXIIIBIT "D" ORDINANCE 2008-001 (2-6-08)
Goal 5 Inventory - Mineral and Aggregate Sites
SITE
NO.
LEGAL DESCRIPTION NAME
TYRE
QUANTITY*
QUALITY
ACCESS/LOCATION
465
.141333-00-00900 Ore on State H
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 1411.3140100 Desc tes.coun
Cinders
2.M
Fair
475 151012-00-00600 Deschutes Coup
Cinders
200,000
Good
Cloverdale Road
482 151300-00-00103 Deschutes Coun
Dirt
2 M
Good
Negus Landfitl
488 161230-00-00100,600,2000, Bend Aggregate
2100
S & G
400,000
ODOT Specs
496 191400-00-00500 Taylor
::S & G
Lim..
Mixed
H 20
498 191400-00-02200 Oregon State H
S & Q
2 . 000:
QDOT S ecs
499 1.15 3-00-00200 "on, BtawIl
S & b
50 000
O DOT Specs
500 191500-00-00099 Oregon State Hwy_
$ 0:0
130,000
ODOT Specs
501 191500.00.01600 _Oregon State 'Hwy
S & G
50W
ODOT S ecs
503 191600400-01300 Oregon State -H
S& G
2
ODOT S Ms
565 201600 00-00400 Ore on Sttite.H ~
'S G
2-151100
ODOT Specs
506 201600-00-00600 700,800 ~ • on 96te H
~ A 0
8(,000
QDOT Specs
508 201700-00-01000 State of Oregon
S & G
10.0 0.00
ODOT Specs
515 201801-00-00100 Oregon State H
S & G
100 (100
ODOT Specs
522 211900-00 01000 Oregon State H
S & G
300,000
ODOT Specs
524 212000700-01900. Oregon State li
S & G
300 000
MOTS ecs
528 222110-00-00600 Ore on State H `
S & G
45000
ODOT S ecs
529 221100-00-00300 Or+e ort State HWY.
S & G
31 000
ODO1 S s "
533 222100-00-00800 Oregon State H
S & G
I m
ODOT Specs
541 141035-00-02000,21T, 2200, Cyrus
2300, 24Q0 2500, 260
Aggregate
528,000
Good
Inc Portions of TL
1800/1900
542 151001-00-02700 Swarens
Aggregate
80,000
Good
543 151013-00-00100 C s
Aggregate
1.1 M
Good
600. 191400-00-00700 Robinson
S & G
3.8 M
Good
H 20/East of Bend
601 211100-00-00700 La Pine Redi Mix
S & G
479 000
DE Secs
Paulina Lake Road
lluAnuly ID cuolc yards uruess noted
(Ord. 2005-031 § 3, 2005; Ord. 2003-019 § 1, 2003; Ord. 2002-005 § 1, 2002; Ord. 2001-047 § 4, 2001;
Ord. 2001-038 § 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 EXIHBIT "D" ORDINANCE 2008-001 (2-6-08) -
REVIEWED
LEGAL COUNSEL
FILE NUMBERS:
APPLICANT:
PROPERTY OWNERS:
DECISION OF DESCHUTES COUNTY
BOARD OF COUNTY COMMISSIONERS
PA-07-2 and ZC-07-2
Harris Kimble
63560 Johnson Market Road
Bend, Oregon 97701
Harris C. and Nancy Kimble
63560 Johnson Market Road
Bend, Oregon 97701
(Tax Lots 819, 820, 821, 822, 823, 824, 825, 826 and 827)
CLR, Inc.
703 NW Stonepine Drive
Bend OR 97701
(Tax Lot 817)
APPLICANT'S
ENGINEER: Hickman, Williams & Associations, Inc.
698 N.W. York Drive
Bend, Oregon 97701
APPLICANT'S
ATTORNEY: Liz Fancher
644 N.W. Broadway Street
Bend Oregon 97701
REQUEST: The applicant is requesting approval of a plan amendment from SM and
Agriculture to Rural Residential Exception Area, a goal exception to
Statewide Planning Goal 3, Agricultural Lands, and a zone change from
SM to RR-10, for ten tax lots totaling 158.95 acres and located between
Johnson Market Road and Tumalo Creek north of Buck Drive west of
Bend.
STAFF REVIEWER: Chris Bedsaul, Associate Planner
Page 1 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (2-6-08)
HEARING DATE: July 24, 2007
RECORD CLOSED: September 14, 2007
1. APPLICABLE STANDARDS AND CRITERIA:
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.52, Surface Mining (SM)
* Section 18.52.200, Termination of the Surface Mining Zoning and Surrounding
Surface Mining Combining Zone
2. Chapter 18.60, Rural Residential (RR-10)
* Section 18.60.010, Purpose
3. Chapter 18.136, Amendments
* Section 18.136.020, 010, Amendments
* Section 18.136.020, Rezoning Standards
B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.20, Review of Land Use Action Applications
* Section 22.20.040, Final Action in Land Use Actions
2. Chapter 22.24, Land Use Action Hearings
* Section 22.24.030, Notice of Hearing or Administrative Action
* Section 22.24.140, Continuances or Record Extensions
3. Chapter 22.28, Land Use Action Decisions
* Section 22.28.030, Decision on Plan Amendments and Zone Changes
C. Title 23, the Deschutes County Comprehensive Plan
1. Chapter 23.24, Rural Development
* Section 23.240.020, Goals
2. Chapter 23.60, Transportation
* Section 23.60.010, Transportation
Page 2 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (2-6-08)
2. Chapter 23.68, Public Facilities
* Section 23.68.020, Policies
3. Chapter 23.96, Open Space, Areas of Special Concern, and Environmental Quality
* Section 23.96.030, Policies
D. Oregon Administrative Rules (OAR) Chapter 660, Land Conservation and Development
Commission
1. Division 4, Interpretation of Goal 2 Exception Process
2. Division 5, Agricultural Lands
3. Division 6, Forest Lands
4. Division 12, Transportation Planning
5. Division 15, Statewide Planning Goals and Guidelines
6. Division 23, Procedures and Requirements For Complying With Goal 5
II. FINDINGS OF FACT:
A. Location: The Board adopts the Hearings Officer's findings except that the lots are identified
on Deschutes County Assessor's Map 17-11-13.
B. Zoning and Plan Designation: The subject property consists of the SM-zoned parts of the
following legal lots of record that have a mixture of zoning districts and plan designations as
follows:
• Tax Lot 817 - 13.69 acres (including Tax Lot 809)(Tax Lots 817 and 809 are one lot of
record), designated RREA, split-zoned SM and RR-10;
• Tax Lot 819 - 32.45 acres designated Agriculture and Rural Residential Exception Area
(RREA), zoned Surface Mining (SM);
• Tax Lot 820 - 9.03 acres designated Agriculture and RREA, zoned SM;
• Tax Lot 821 - 8.78 acres designated Agriculture and RREA, zoned SM;t
1 The zoning ordinance that zoned the subject property SM, Ordinance No. 90-029, included a tax assessor's map to shows
the subject property and that indicates that the area is being rezoned from SMR to SM. In fact, land zoned RR-10, as well
as land zoned SMR, was also rezoned. These RR-10-zoned areas include the north central 45% of Tax Lot 819, the
northwest corner of Tax Lot 820, the east part of Tax Lot 821 the west part of Tax Lot 822 adjacent to the part of this lot
that retained RR-10 zoning, areas along the west boundary of Tax Lot 823, the south and east parts of Tax Lot 824, Tax Lot
825, the north east part of Tax Lot 826, Tax Lot 827 That area is surrounded by a bold line. Some parts of Tax Lot 821
burdened by the easement for Klippel Road may be located outside of the SM zoning boundary. The quality of the map
used to rezone the property is poor so it is not clear whether the zoning boundary is intended to follow parcel boundaries or
the road easement. The County's LAVA system, however, shows the entire lot as being zoned SM. For the sake of clarity
Page 3 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (2-6-08)
• Tax Lot 822 - 24.01 acres (including Tax Lot 11401) designated RREA and split-zoned
RR-10 and SM;
• Tax Lot 823 - 44.95 acres designated RREA, zoned SM;
• Tax Lot 824 - 21.38 acres designated RREA, zoned SM;
• Tax Lot 825 -.68 acres designated RREA, zoned SM;
• Tax Lot 826 - 10.04 acres designated RREA, zoned SM; a small, .02 acre part of this
lot is designated Agriculture; and
• Tax Lot 827 --.96 acres designated RREA, zoned SM.
For Tax Lot 821, the zoning ordinance that zoned the subject property SM, Ordinance No. 90-
029, included a tax assessor's map showing the subject property and indicating that the area is
being rezoned from SMR to SM. In fact, land zoned RR-10, as well as land zoned SMR, was
also rezoned. These RR-10-zoned areas include the north central 45% of Tax Lot 819, the
northwest corner of Tax Lot 820, the east part of Tax Lot 821, the west part of Tax Lot 822
adjacent to the part of this lot that retained RR-10 zoning, areas along the west boundary of Tax
Lot 823, the south and east parts of Tax Lot 824, Tax Lot 825, the north east part of Tax Lot
826, Tax Lot 827 That area is surrounded by a bold line. Some parts of Tax Lot 821 are
burdened by the easement for Klippel Road may be located outside of the SM zoning boundary.
The quality of the map used to rezone the property is poor; thus it is not clear whether the
zoning boundary is intended to follow parcel boundaries or the road easement. The County's
LAVA system, however, shows the entire lot as being zoned SM. For the sake of clarity and to
make sure that the entire area is rezoned to have the same zoning, the entire lot is discussed as
having SM zoning and is included in the legal descriptions for the zone change from SM to RR-
10.
The SM zoning for all the lots is the result of much of the subject property's inclusion as SM
Site 294 on the county's Goal 5 inventory of significant mineral and aggregate sites. The
portions of the subject property located within one-quarter mile from Johnson Market Road and
Tumalo Creek are zoned Landscape Management (LM). And the entire subject property is
zoned Wildlife Area Combining Zone (WA) because of its location within the Tumalo Deer
Winter Range. The majority of the subject property, including all of the property zoned RR-10
and most of the property zoned SM, is designated Rural Residential Exception Area (RREA). A
small portion of the northeast quadrant of the subject property that is zoned SM is designated
Agriculture. A very small, .02 acre, part of Tax Lot 826 is also designated Agriculture.
C. Site Description: The Board adopts the Hearings Officer's findings but amends the
second paragraph to read "The record indicates some or all of these water rights are currently
leased for in-stream use."
D. Soils: According to the Natural Resource Conservation Service (NRCS) data in the record, the
majority of the subject property is comprised of the following four soil units:
and to make sure that the entire area is rezoned to have the same zoning, the entire lot is discussed as having SM zoning and
is included in the legal descriptions for the zone change from SM to RR-10.
Page 4 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (2-6-08)
1. Soil Unit 85A, Lundgren. This soil unit consists of deep, well-drained sandy loam soil
over gravel and sands from glacial out-wash. The size of the gravel varies from a few
inches to 5-feet in diameter. This soil unit is classified as Class VI soil with or without
irrigation.
2. Soil Unit 61C, Henkle-Fryrear-Lava flows. This soil complex typically contains a
majority of soils that are rated Class VII or worse, with or without irrigation.
3. Soil Unit 621), Henkle-Lava Flow-Fryrear complex. This soil unit consists of
shallow, gravelly soil over basalt lava flows. This soil unit is classified as Class VII.
4. Soil Unit 157C, Wanoga-Fremkle-Rock outcrop. This soil unit consists of well
drained sandy loam over cinders that range in size from 1" to 4" diameter. This soil unit
is classified as Class VI soil with or without irrigation. The rock outcrop part of this
soil complex is Class VIII.
The site-specific soils analysis shows the property is comprised of a variety of soil types
classified as Class VI, VII and VIII with or without irrigation. The site-specific soils analysis
submitted by the applicant refined the areas where soils that are a part of a complex are located.
For instance, it determined that the northeast part of the property mapped by NRCS as Soil Unit
157C is Soil Class 155C. The Soil Unit 155C soil unit is Class VI soil with or without
irrigation. Other, similar refinements were made for the other soil complexes found on the site.
The results of the soil survey are provided in the findings, below.
E. Surrounding Zoning and Land Uses: The subject property is surrounded by approximately
20 tax lots described as follows:
North: A little over one half of the subject property's north boundary adjoins two lots that are
zoned RR-10 and plan designated RREA. These lots are Tax Lot 809 owned by CLR, Inc. and
Tax Lot 1500 owned by The Joyce E. Coats Revocable Trust. The east part of the north
boundary of the subject property adjoins land zoned SM and planned for Surface Mining. The
land to the north of Tax Lot 817, the CLR, Inc. land included in the zone change, is zoned
EFU-TRB and designated Agriculture. Further to the north and northeast is land designated
Agriculture and zoned EFU-TRB. Land further to the northwest is designated Forest and zoned
F-2.
South: Abutting and surrounding land to the south is designated RREA and zoned RR-10 and
consists of the Klippel Acres Subdivision developed with single-family dwellings on lots
ranging in size from 2.5 to 10 acres.
East: Abutting land to the east consists of approximately 8 tax lots zoned designated RREA,
zoned RR-10, and developed with rural residences and in one or two cases with very small-
scale farming activity. In addition, the small portion of the subject property abutting Tumalo
Creek adjoins land across the creek that is within the Bend urban reserve area.
West: Abutting and surrounding land to the west is designated RREA, zoned RR-10, and
Page 5 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (2-6-08)
developed with rural residences, many of which are located within the Klippel Acres
Subdivision. Further to the west across Johnson Market Road is land zoned RR-10 and F-2.
F. Procedural History: The Board of County Commissioners ("Board") adopts the Hearings
Officer's findings and adds that this comprehensive plan amendment does involve a goal
exception for land designated farm or forest use. No appeal of the Hearings Officer's decision
was filed by a party of interest or a review was not initiated by the Board for PA07-2 and ZC07-2.
Therefore, DCC 22.28.030(C) requires that the Board conduct a de novo public hearing. The
Board conducted a de novo public hearing on January 7, 2008.
• G. Proposal: The Board adopts the Hearings Officer's findings.
H. Public Agency Comments: The Board adopts the Hearings Officer's findings.
I. Public Notice and Comments: The Board adopts the Hearings Officer's findings and adds that
notice of the hearing before the Board was published in the The Bulletin and sent to those that
appeared in person or in writing before the Hearings Officer.
J. Lot of Record: The Board adopts the Hearings Officer's findings.
III. CONCLUSIONS OF LAW:
PROCEDURES
Notice
A. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.24, Land Use Action Hearings
a. Section 22.24.030, Notice of Hearing or Administrative Action
A. Individual Mailed Notice
1. Except as otherwise provided for herein, notice of a land use
application shall be mailed at least 20 days prior to the
hearing for those matters set for hearing * * Written notice
shall be sent by mail to the following persons:
* * *
b. Owners of record of property as shown on the most
recent property tax assessment roll of property
located:
* * *
Page 6 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (2-6-08)
2. Within 250 feet of the property that is the
subject of the notice where the subject property
is outside an urban growth boundary and not
within a farm or forest zone, except where
greater notice is required under DCC
22.24.030(A)(4).
B. Posted Notice
1. Notice of a land use application for which prior notice
procedures are chosen shall be posted on the subject property
for at least 10 continuous days prior to any date set for
receipt of comments. Such notice shall, where practicable, be
visible from any adjacent public way.
C. Published Notice
In addition to notice by mail and posting, notice of an initial hearing
shall be published in a newspaper of general circulation in the
County at least 20 days prior to the hearing.
Continuance and Record Extension
b. Section 22.24.140, Continuances or Record Extensions
A. Grounds
1. Prior to the date set for an initial hearing, an applicant shall
receive a continuance upon any request. * * *
2. Any party is entitled to a continuance of the initial
evidentiary hearing or to have the record left open in such a
proceeding in the following instances:
a. Where additional documents or evidence are
submitted by any party; or
b. Upon a party's request made prior to the close of the
hearing for time to present additional 'evidence or
testimony. * * *
3. The grant of a continuance or record extension in any other
circumstances shall be at the discretion of the Hearings
Officer.
Page 7 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (2-6-08)
FINDINGS: The Board adopts the Hearings Officer's findings and adds that any notice irregularities
for the Hearings Officer proceedings are harmless error in that all parties have another opportunity to
present testimony before the Board without the necessity of an appeal.
Process for Approval of Plan Amendment and Zone Change
2. Chapter 22.28, Land Use Action Decisions
C. Section 22.28.030, Decision on Plan Amendments and Zone Changes
B. In considering all quasi-judicial zone changes and those quasi-
judicial plan amendments on which the Hearings Officer has
authority to make a decision, the Board of County Commissioners
shall, in the absence of an appeal or review initiated by the Board,
adopt the Hearings Officer's decision. No argument or further
testimony will be taken by the Board.
C. Plan amendments and zone changes requiring an exception to the
goals concerning lands designated for forest or agricultural use shall
be heard de novo before the Board of County Commissioners
without the necessity of filing an appeal, regardless of the
determination of the Hearings Officer or Planning Commission.
Such hearing before the Board shall otherwise be subject to the same
procedures as an appeal to the Board made under DCC Title 22.
D. Notwithstanding DCC 22.28.03(C), when a plan amendment subject
to a DCC 22.28.030(C) hearing before the Board of County
Commissioners has been consolidated for hearing before the
Hearings Officer with a zone change or other permit application not
requiring a hearing before the board under DCC 22.28.030(C), any
party wishing to obtain review of the Hearings Officer's decision on
any of those other applications shall file an appeal. The plan
amendment shall be heard by the board consolidated with the appeal
of those other applications.
FINDINGS: The Board adopts the Hearings Officer's finding and adds that the Board heard this
matter on January 7, 2008.
PLANAMENDMENT
FINDINGS:
The Board adopts the Hearings Officer's finding and adds that the very small part of Tax Lot 826
adjacent to Tumalo Creek (.02 acres) that is designated Agriculture. Furthermore, the Board amends
Page 8 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (2-6-08)
the third sentence of paragraph 2 to read, "However, most of the subject property also was zoned SMR
to reflect its surface mining history. The rest of the subject property was zoned RR-10."
COMPREHENSIVE PLAN GOALS AND POLICIES
B. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan
1. Chapter 23.24, Rural Development
a. Section 23.24.020, Goals
1. To preserve and enhance the open spaces, rural character, scenic
values and natural resources of the County.
FINDINGS: The Board adopts the Hearings Officer's findings.
2. To guide the location and design of rural development so as to
minimize the public costs of facilities and services, to avoid
unnecessary expansion of service boundaries, and to preserve and
enhance the safety and viability of rural land uses.
FINDINGS: The Board adopts the Hearings Officer's findings.
3. To provide for the possible long-term expansion of urban areas
while protecting the distinction between urban (urbanizing) land
and rural lands.
FINDINGS: The Board adopts the Hearings Officer's findings.
2. 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 also considering regional and
state needs at the same time. This plan addresses a balanced transportation
system that includes automobile, bicycle, rail, transit, air, pedestrian and
pipelines. It reflects existing land use plans, policies and regulations that
affect the transportation system.
FINDINGS: The Board adopts the Hearings Officer's findings.
3. Chapter 23.68, Public Facilities
Page 9 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (2-6-08)
a. Section 23.68.020, Policies
1. Public facilities and services shall be provided at levels and in areas
appropriate for such uses based upon the carrying capacity of the
land, air and water, as well as the important distinction that must be
made between urban and rural services. In this way public services
may guide development while remaining in concert with the public's
needs.
2. Future development shall depend on the availability of adequate
local services in close proximity to the proposed site. Higher
densities may permit the construction of more adequate services
than might otherwise be true. Cluster and planned development
shall be encouraged.
3. 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.
9. New development shall not be located so as to overload existing or
planned facilities, and developers or purchasers should be made
aware of potentially inadequate power facilities in rural areas.
FINDINGS: The Board adopts the Hearings Officer's findings.
4. Chapter 23.96, Open Space, Areas of Special Concern, and Environmental Quality
a. Section 23.96.030, Policies
10. As part of subdivision or other development review, the County shall
consider the impact of the proposal on the air, water, scenic and
natural resources of the County. Specific criteria for such review
should be developed. Compatibility of the development with those
resources shall be required as deemed appropriate at the time given
the importance of those resources to the County while considering
the public need for the proposed development.
FINDINGS: The Board adopts the Hearings Officer's findings.
STATEWIDE GOALS AND ADMINISTRATIVE RULES
Page 10 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (2-6-08)
AEriculture to RREA
Agricultural Lands
FINDINGS: The Board adopts the Hearings Officer's findings but amends the paragraph to say "(2)
the portion of the Agri culture-designated land that does qualify as "agricultural land" based on soil
classification nevertheless is unsuitable for farm use because the soils are unproductive, and the land it
is too small in size, isolated and too far removed to be put to productive farm use in conjunction with
nearby EFU-zoned land.
C. Oregon Administrative Rules (OAR) Chapter 660, Land Conservation and Development
Commission
1. Division 15, State-wide Planning Goals and Guidelines
a. OAR 660-015-0000(3), Agricultural Lands
GOAL 3
To preserve and maintain agricultural lands.
Agricultural lands shall be preserved and maintained for farm use,
consistent with existing and future needs for agricultural products, forest
and open space and with the state's agricultural land use policy expressed
in ORS 215.243 and 215.700.
DEFINITIONS
Agricultural Land * * * In eastern Oregon is land of predominantly
Class I, II, III, 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 or 4.
(Emphasis added.)
Page 11 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (2-6-08)
2. Division 33, Agricultural Land
a. OAR 660-033-0030, Agricultural Land
(1) All land defined as "agricultural land" in OAR 660-033-0020(1)
shall be inventoried as agricultural land.
FINDINGS: The threshold question is whether the Agriculture-designated portion of the subject
property qualifies as "agricultural land" under Goal 3 and OAR 660-033-0020(1). According to
Exhibits "A" and "B" to Ordinance No. 92-060, 17.52 acres of the following lots are Agriculture-
designated land. According to soils information provided by the applicant's soils expert, the subject
property was comprised of the following acreage and soil classifications:
Lot
Size of Area
% of Soil Tyne VII-VIII
Tax Lot 819 (part)
Tax Lot 820 (part)
Tax Lot 821 (most)
Tax Lot 826
1.50 acres
7.40 acres
8.50 acres
.02 acres
None
None
61 % of entire parcel2
100%
This evidence shows that 8.9 acres of the subject property designated Agriculture (in Tax Lots 819 and
820) included Class VI or better soils and therefore constituted "agricultural lands," and 8.52 acres of
the subject property (in Tax Lots 821 and 826) are predominantly or exclusively Class VII and VIII
soils and, therefore, did not constitute "agricultural lands."
(2) When a jurisdiction determines the predominant soil capability
classification of a lot or parcel it need only look to the land within
the lot or parcel being inventoried. However, whether land is
"suitable for farm use" requires an inquiry into factors beyond the
mere identification of scientific soil classifications. The factors are
listed in the definition of agricultural land set forth at OAR 660-033-
0020(1)(a)(B). This inquiry requires the consideration of conditions
existing outside the lot or parcel being inventoried. Even if a lot or
parcel is not predominantly Class I-IV soils or suitable for farm use,
Goal 3 nonetheless defines as agricultural "lands in other classes
which are necessary to permit farm practices to be undertaken on
adiacent or nearby lands." A determination that a lot or parcel is
not agricultural land requires findings supported by substantial
evidence that addresses each of the factors set forth in OAR 660-033-
0020(1). (Emphasis added.)
• FINDINGS:
2 A small part of Tax Lot 821, the easternmost part of the panhandle, is designated RREA. The soil study analyzed the soil
of the entire tax lot and found that 61% of the tax lot was comprised of soil rated Class VII. The soil in the panhandle area
is rated Class VI. When it is excluded from the part of the property designated "Agriculture" by the plan map, the overall
percentage of the lot that is designated Agriculture that is Class VII soil increases above 61%.
Page 12 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (2-6-08)
The Board adopts the Hearings Officer's findings and adds to the bulleted list that the eastern part of
Tax Lot 821 is designated RREA.
(3) Goal 3 attaches no significance to the ownership of a lot or parcel
when determining whether it is agricultural land. Nearby or
adjacent land, regardless of ownership, shall be examined to the
extent that a lot or parcel is either "suitable for farm use" or
"necessary to permit farm practices to be undertaken on adjacent or
nearby lands" outside the lot or parcel.
FINDINGS: Tax Lot 821 adjoins land designated RREA and, in small part, Agriculture and zoned
RR-10 on the east that is not own by the applicant. Tax Lot 821 adjoins land designated Agriculture
and zoned SM on the north (part of Tax Lots 819 and 820) owned by the applicant and for portions of
which the applicant has requested approval of an exception to Goal 3. The west boundary of Tax Lot
821 adjoins a part of Tax Lot 819 owned by the applicant that is designated RREA and zoned SM.
The record indicates, and the Hearings Officer's site visit observations confirmed, that one or two
parcels east of the subject property could be considered "hobby farms" with small areas of cultivated
pasture. However, the owners of these parcels have not offered to utilize the portions of Tax Lots 819,
820 and 821 in conjunction with their "farm use." the Board finds that the Agriculture-designated
portions of the subject property and the hobby farms in the area are both too small to be put to
productive farm use alone or in conjunction with one another. Therefore, for these reasons, and for the
reasons set forth in the goal exception findings below, the Board finds that the portions of Tax Lots
819, 820 and 821 designated Agriculture are not necessary to permit farm practices on the rest of the
subject property or other surrounding property owned by others.
(4) When inventoried land satisfies the definition requirements of both
agricultural land and forest land, an exception is not required to
show why one resource designation is chosen over another. The plan
need only document the factors that were used to select an
agricultural, forest, agricultural/forest, or other appropriate
designation.
FINDINGS: The Board finds this criterion is not applicable because the soil capability classifications
for the Agriculture-designated portions of Tax Lots 821 and 826 and for Tax Lot 821 in its entirety do
not satisfy the definition of agricultural land (Class VII and VIII), and the Board agrees with the
Hearings Officer that the Class VI soils on the remainder of Tax Lot 821 and Tax Lots 819 and 820 do
not qualify as "forest land."
(5) Notwithstanding the definition of "farm use" in ORS 215.203(2)(a),
profitability or gross farm income shall not be considered in
determining whether land is agricultural land or whether Goal 3,
"Agricultural Land," is applicable.
FINDINGS: The Board finds that because the subject property is not engaged in farm use, has not
been engaged in farm use since it was zoned SM, and is predominantly designated RREA, there is no
Page 13 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (2-6-08)
basis from which to determine whether or not it could be profitably put to farm use. However, for the
reasons discussed in the findings above and below, the Board finds the Agriculture-designated portions
of the subject property simply cannot be put to productive farm use alone or in conjunction with other
lands designated or zoned for agriculture, and therefore profitability and gross income considerations
are not relevant.
The quoted section of the administrative rule, OAR 660-033-0030 (5), has been held to be invalid by
the Oregon Supreme Court in the case of Wetherell v. Douglas County, 342 Or 666, 160 P3d 614
(2007). It determined that gross income and profitability are relevant considerations in determining
whether land is "Agricultural Land," as defined by Goal 3. The Supreme Court held that "farm use" is
an activity conducted by a person who intends to make a profit in money by undertaking the activity.
Thus, profitability and gross income are relevant considerations. In this case, a prudent farmer would
not acquire the land and put it to farm use with an expectation of making a profit in money from the
endeavor.
(6) More detailed data on soil capability than is contained in the U.S.
Natural Resources Conservation Service (MRCS) soil maps and soil
surveys may be used to define agricultural land. However, the more
detailed soils data shall be related to the U.S. Natural Resources
Conservation Service (MRCS) land capability classification system.
FINDINGS: In support of its applications, the applicant submitted a report entitled "Soil Survey of
Harris Kimble Property" dated December 2006 and prepared by Steve Wert, a certified soil scientist
with Wert and Associates, Inc. The study indicates the Kimble part of the subject property is
comprised of three major soils types, described as follow:
1. Soil Unit 85A, Lundgren. The Board adopts the Hearings Officer's findings and adds that this soil is
found on 38% or 58.51 acres of the Kimble part of the subject property.
2. Soil Unit 62D, Henkle-Lava Flow. The Board adopts the Hearings Officer's findings and adds that
this soil is found on 9% or 13.60 acres of the Kimble part of the subject property.
3. Soil Unit 155C, Wanoga. The Board adopts the Hearings Officer's findings and adds that this soil is
found on 6% or 8.66 acres of the Kimble part of the subject property.
Mr. Wert also identified six other soils on the subject property: (1) Lundgren-sand phase; (2) surface
mined; (3) steep side slopes; (4) unnamed soil; (5) pond bottom; and (6) road. According to the soils
map attached to Mr. Wert's soils analysis, he found that 19 percent of the subject property owned by
Mr. Kimble consists of Class VII or VIII soils. Based on his detailed soils analysis for the portion of
the subject property designated Agriculture, Mr. Wert found that much of this area is comprised of
Class VII soils. The applicant argues, and the Board agrees, that based on Mr. Wert's site-specific soils
analysis the majority of soils on Tax Lot 821 and all of the Agri culture-designated portion of Tax Lot
826 do not constitute "agricultural land." The rest of the area designated Agriculture contains Class VI
soils that are not high value when irrigated and requires approval of a goal exception, as discussed
below.
Page 14 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (2-6-08)
Exception to Goal 3
3. Division 4, Interpretation of Goal 2 Exception Process
a. OAR 660-004-0010, Application of the Goal 2 Exception Process to Certain
Goals
(1) * * * The exceptions process is generally applicable to all or part of
those statewide goals which prescribe or restrict certain uses of
resource land or limit the provision of certain public facilities and
services. These statewide goals include but are not limited to:
(a) Goal 3 "Agricultural Lands;" * *
* * *
FINDINGS: The applicant is seeking approval of an exception to Goal 3 for the portions of Tax Lots
819, 820 and 821 designated Agriculture that constitute "agricultural land." As shown in the table set
forth on page 14 above, approximately 8.9 acres on these three tax lots are comprised of soils classified
as Class VI or better. The applicant has also asked that the County map the nonagricultural lands in
the exception area to make it clear that these lands are no longer designated Agriculture or to include a
designation on the comprehensive plan map that the nonagricultural lands are no longer designated
Agriculture.
b. OAR 660-004-0018, Planning and Zoning for Exception Areas
(1) Purpose. This rule explains the requirements for adoption of plan
and zone designations for exceptions. Exceptions to one goal or a
portion of one goal do not relieve a jurisdiction from remaining goal
requirements and do not authorize uses, densities, public facilities
and services, or activities other than those recognized or justified by
the applicable exception. Physically developed or irrevocably
committed exceptions under OAR 660-004-0025 and 660-004-0028
are intended to recognize and allow continuation of existing types of
development in the exception area. Adoption of plan and zoning
provisions that would allow changes in existing types of uses,
densities, or services requires the application of the standards
outline in this rule.
FINDINGS: The applicant is requesting an exception to Goal 3 for that part of the subject property
that was not included in the exception areas mapped in 1979 and 1992 on the basis that this area is
irrevocably committed to rural residential use and because part of the area consists of land that is not
agricultural land..
Page 15 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (2-6-08)
(2) For "physically developed" and "irrevocably committed" exceptions
to the goals, plan and zone designations shall authorize a single
numeric minimum lot size and shall limit uses, density, and public
facilities and services to those:
(a) That are the same as the existing land uses on the exception
site;
FINDINGS: The Board adopts the Hearings Officer's findings.
(b) That meet the following requirements:
(A) The rural uses, density, and public facilities and
services will maintain the land as "Rural Land" as
defined by the goals and are consistent with all other
applicable Goal requirements; and
FINDINGS: The Board adopts the Hearings Officer's findings.
(B) The rural uses, density, and public facilities and
services will not commit adjacent or nearby resource
land to nonresource use as defined in OAR 660-004-
0028; and
FINDINGS:The Board adopts the Hearings Officer's findings but amends a portion of the section as
follows:
The record indicates the closest EFU-zoned land is located north of the portion of Tax Lot 817 located
in Section 13, on Tax Lot 800, Assessor's Map 17-11-12. However, there are two intervening RR-10
zoned tax lots - Tax Lots 809 and 1500 - that would provide a buffer between rural residences on the
subject property and farm use on Tax Lot 800. Finally, the record indicates the closest forest-zone land
touches the northwest corner of the portion of Tax Lot 817 in Section 13. The RREA-designated Tax
Lots 809, 817, 819 (part in W '/2 of Section 13), 822 and 1500 all separate the part of the property
designated Agriculture from the forest zone. The applicant argues, and the Board agrees, that approval
of the proposed goal exception will not commit this land to nonresource uses because most of the F-2
zoned land is located on the west side of Johnson Market Road, and there is an RR-10 zoned parcel
developed with a residence and RR-10 zoned lots suited for development with residences located
between the Agricultural-designated part of the subject property and Johnson Market Road. For these
reasons, the Board finds the proposed goal exception is consistent with this criterion.
(C) The rural uses, density, and public facilities and
services are compatible with adjacent or nearby
resource uses;
FINDINGS: The Board adopts the Hearings Officer's findings.
(c) For which the uses, density, and public facilities and services
are consistent with OAR 660-022-0030, "Planning and Zoning
Page 16 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (2-6-08)
of Unincorporated Communities," if applicable; or
FINDINGS: The Board adopts the Hearings Officer's findings.
(d) That are industrial development uses, and accessory uses
subordinate to the industrial development, in buildings of any
size and type, provided the exceptions area was planned and
zoned for industrial use on January 1, 2004, subject to the
territorial limits and other requirements of ORS 197.713 and
197.714.
FINDINGS: The Board adopts the Hearings Officer's findings.
(3) Uses, density, and public facilities and services not meeting section
(2) of this rule may be approved only under provisions for a reasons
exception as outlined in Section (4) of this rule and OAR 660-004-
0020 through 660-004-0022.
FINDINGS: The Board adopts the Hearings Officer's findings.
(4) "Reasons" Exceptions:
FINDINGS: The Board adopts the Hearings Officer's findings.
b. OAR 660-004-00159 Inclusion as Part of the Plan
FINDINGS: The Board adopts the Hearings Officer's findings.
C. OAR 660-004-0028, 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:
FINDINGS: The Board adopts the Hearings Officer's findings.
(a) A "committed exception" is an exception taken in accordance
with ORS 197.732(1)(b), Goal 2, Part II(b), and with the
provisions of this rule:
Page 17 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (2-6-08)
FINDINGS: The Board adopts the Hearings Officer's findings.
(b) For the purposes of this rule, an "exception area' is that area
of land for which a "committed exception" is taken;
FINDINGS: The Board adopts the Hearings Officer's findings.
(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: The Board adopts the Hearings Officer's findings.
(2) Whether land is irrevocably committed depends on the relationship
between the exception area and the lands adjacent to it. The findings
for a committed exception therefore must address the following:
FINDINGS: As discussed in the findings above, there is one area on the subject property designated
Agriculture for which the applicant is requesting an exception to Goal 3 and for which an exception is
required by State law. This is an area that is approximately 8.9 acres in size located on Tax Lots 819
and 820. The applicant's burden of proof notes that both of these areas are part of legal lots of record
that already are, in part, included in the existing RREA. The applicant is also requesting the goal
exception include the Agriculture-designated parts of Tax Lot 826 and Tax Lot 821 that consist of land
that is not "agricultural land" within the larger RREA to avoid confusion in the future and to reflect the
character and development in the surrounding area.
(a) The characteristics of the exception area;
(b) The characteristics of the adjacent lands;
(c) The relationship between the exception area and the lands
adjacent to it; and
FINDINGS: The small portion of Tax Lot 826 subject to the proposed goal exception is a strip of land
located between Tumalo Creek and the eastern boundary of the existing RREA, essential consisting of
rimrock within Tumalo Creek Canyon. The applicant's burden of proof notes this land may in fact
have been included in the RREA but may have inadvertently not been included in the RREA map.
The portions of Tax Lots 819, 820 and 821 subject to the proposed goal exception consist of part of the
reclaimed SM Site 294 and each lot is, in part, located in the existing RREA. As discussed above, Tax
Lot 819 already is developed with a single-family dwelling. And as discussed in detail in the findings
above, these areas include poor quality Class VI soils or Class VII and VIII (non-agricultural) soils. In
addition, the record indicates Klippel Road is located adjacent to or on Tax Lots 819, 820 and 821. The
lands adjacent to the portions of these tax lots subject to the proposed goal exception are designated
RREA, zoned RR-10 or SM, are smaller than the 10-acre minimum lot size in the RR-10 Zone and
have been, or are eligible to be, developed with rural residences.
Page 18 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (2-6-08)
(d) The other relevant factors set forth in OAR 660-004-0028(6).
FINDINGS: The factors of OAR 660-004-0028(6) are addressed in the findings below.
(3) Whether uses or activities allowed by an applicable goal are
impracticable as that term is used in ORS 197.732(1)(b), in Goal 2,
Part II(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 II. 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 and
4, local governments are required to demonstrate that only the
following uses or activities are impracticable:
(a) Farm use as defined in ORS 215.203:
FINDINGS: The Board adopts the Hearings Officer's findings.
(b) Propagation or harvesting of a forest product as specified in
OAR 660-033-0120; and
(c) Forest operations or forest practices as specified in OAR 660-
006-0025(2)(a).
FINDINGS: The Board adopts the Hearings Officer's findings.
(6) Findings for a committed exception shall address the following
factors:
(a) Existing adjacent uses;
FINDINGS: The Board adopts the Hearings Officer's findings.
(b) Existing public facilities and services (water and sewer lines,
etc.):
FINDINGS: The Board adopts the Hearings Officer's findings.
(c) Parcel size and ownership patterns of the exception area and
adjacent lands:
(A) Consideration of parcel size and ownership patterns
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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 or partitioning or subdivision. Past
land decisions made without application of the Goals
do not in themselves demonstrate irrevocable
commitment of the exception area. Only if
development (e.g., physical improvements such as
roads and underground facilities) on the resulting
parcels or other factors make unsuitable their
resource use or the resource use of nearby lands can
the parcels be considered to be irrevocably committed.
Resource and nonresource parcels created pursuant to
the applicable goals shall not be used to justify a
committed exception. For example, the presence of
several parcels created for nonfarm dwellings or an
intensive commercial agricultural operation under the
provisions of an exclusive farm use zone cannot be
used to justify a committed exception for land
adjoining those parcels;
FINDINGS: The Board adopts the Hearings Officer's findings.
(B) Existing parcel sizes and contiguous ownerships shall
be considered together in relation to the land's actual
size. For example, several contiguous undeveloped
parcels (including parcels separated only by a road or
highway) under one ownership shall be considered as
one farm or forest operation. The mere fact that small
parcels exist does not in itself constitute irrevocable
commitment. Small parcels in separate ownerships
are more likely to be irrevocably committed if the
parcels are developed, clustered in a large 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 alone
amongst larger farm or forest operations, or are
buffered from such operations.
FINDINGS: The Board adopts the Hearings Officer's findings except that the Board finds that Tax
Lot 819 is owned by Harris and Nancy Kimble rather than by Harris Kimble only.
(d) Neighborhood and regional characteristics;
FINDINGS: The Board adopts the Hearings Officer's findings.
Page 20 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (2-6-08)
(e) Natural and 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: The Board adopts the Hearings Officer's findings.
(f) Physical development according to OAR 660-004-0025; and
FINDINGS: OAR 660-004-0025 authorizes "physically developed" goal exceptions for circumstances
in which land has been physically developed with structures, roads, sewer and water facilities and
utility facilities. The applicant has not requested a "physically developed" goal exception, but correctly
notes that physical development is a factor to be considered for an "irrevocably committed" goal
exception. The record indicates the only development on the part of the subject property designated
Agriculture consists of an existing single-family dwelling on Tax Lot 819, one private road - Klippel
Road and a surface mine on a significant portion of the property. The applicant argues, and the
Board agrees, that while these developments standing alone do not justify the proposed goal exception,
they provide support for the applicant's proposal in conjunction with the other factors discussed in
these findings that indicate the subject property is irrevocably committed to nonresource i.e., rural
residential use.
(g) Other relevant factors.
FINDINGS: The Board adopts the Hearings Officer's findings.
Forest Lands
4. Division 6, Forest Lands
a. OAR 660-15-0000(4), Forest Lands
FINDINGS: Goal 4 provides as follows:
To conserve forest lands by maintaining the forest land base and to protect the state's
forest economy by making possible economically efficient forest practices that assure the
continuous growing and harvesting of forest tree species as the leading use on forest land
consistent with sound management of soil, air, water, and fish and wildlife resources and
to provide for recreational opportunities and agriculture.
Forest lands are those lands acknowledged as forest lands as of the date of adoption of
this goal amendment. Where a plan is not acknowledged or a plan amendment involving
forest lands is proposed, forest land shall include lands which are suitable for commercial
forest uses including adjacent or nearby lands which are necessary to permit forest
Page 21 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (2-6-08)
operations or practices and other forested lands that maintain soil, air, water and fish and
wildlife resources.
b. OAR 660-06-001, Purpose
(1) The purpose of the Forest Lands Goal is to conserve forest lands and
to carry out the legislative policy of ORS 215.700.
(2) To accomplish the purpose of conserving forest lands, the governing
body shall:
(a) Designate forest lands on the comprehensive plan map as
forest lands consistent with Goal 4 and OAR Chapter 660,
Division 6;
(b) Zone forest lands for uses allowed pursuant to OAR Chapter
660, Division 6 on designated forest lands; and
(c) Adopt plan policies consistent with OAR Chapter 660,
Division 6.
(3) This rule provides for a balance between the application of Goal 3
"Agricultural Lands" and Goal 4 "Forest Lands," because of the
extent of lands that may be designated as either agricultural or
forest land.
FINDINGS: The Board adopts the Hearings Officer's findings.
Surface Mining Lands
5. Division 23, Procedures and Requirements for Complying with Goal 5
a. OAR 660-023-010, Definitions
As used in this division, unless the context requires otherwise:
(5) "PAPA" is a "post-acknowledgement plan amendment." The term
encompasses actions taken in accordance with ORS 197.610 through
197.625, including amendments to an acknowledged comprehensive
plan or land use regulation and the adoption of any new plan or land
use regulation. The term does not include periodic review actions
taken in accordance with ORS 197.628 through 197.650.
FINDINGS: The Board adopts the Hearings Officer's findings.
Page 22 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (2-6-08)
Transportation
6. Division 12, Transportation
a. OAR 660-15-0000(12), Transportation
FINDINGS: The Board adopts the Hearings Officer's findings.
Compliance with Other Statewide Goals
Goal 1, Citizen Involvement. The Board adopts the Hearings Officer's findings.
Goal 2, Land Use Planning. The Board adopts the Hearings Officer's findings.
Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. The Board adopts the
Hearings Officer's findings.
Goal 6, Air, Water and Land Resources Quality. The Board adopts the Hearings Officer's findings.
Goal 7, Areas Subject to Natural Disasters and Hazards. The Board adopts the Hearings Officer's
findings.
Goal 8, Recreational Needs. The Board adopts the Hearings Officer's findings.
Goal 9, Economy of the State. The Board adopts the Hearings Officer's findings.
Goal 10, Housing. The Board adopts the Hearings Officer's findings.
Goal 11, Public Facilities and Services. The Board adopts the Hearings Officer's findings.
Goal 13, Energy Conservation. The Board adopts the Hearings Officer's findings.
Goal 14, Urbanization. The Board adopts the Hearings Officer's findings.
Goals 15 through 19. The Board adopts the Hearings Officer's findings.
ZONE CHANGE
D. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
FINDINGS: The Board adopts the Hearings Officer's findings.
1. Chapter 18.52, Surface Mining Zone (SM)
Page 23 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (2-6-08)
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 resource no longer
exists on the site, and that the site has been reclaimed in accordance
with the reclamation plan approved by DOGAMI 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 title, the Comprehensive Plan and
Deschutes County Code Title 22, the Uniform Development
Procedures Ordinance.
FINDINGS: The Board adopts the Hearings Officer's findings.
2. 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 Board adopts the Hearings Officer's findings.
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:
A. That the change conforms with the Comprehensive Plan, and the
change is consistent with the plan's introductory statement and
goals.
FINDINGS: The Board adopts the Hearings Officer's findings.
Page 24 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (2-6-08)
B. That the change in classification for the subject property is
consistent with the purpose and intent of the proposed zone
classification.
FINDINGS: The Board adopts the Hearings Officer's findings.
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 Board adopts the Hearings Officer's findings.
2. The impacts on surrounding land use will be consistent with
the specific goals and policies contained within the
Comprehensive Plan.
FINDINGS: The Board adopts the Hearings Officer's findings.
1. Not Compatible with Character ofArea. The Board adopts the Hearings Officer's findings.
2. Impacts on Wildlife. The Board adopts the Hearings Officer's findings.
3. Street System Impacts. The Board adopts the Hearings Officer's findings.
4. Impact on Wells. The Board adopts the Hearings Officer's findings.
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 Board adopts the Hearings Officer's findings.
IV. DECISION:
Based upon the foregoing Findings of Fact and Conclusions of Law, the Board hereby APPROVES the
applicant's proposed plan amendment from Agriculture and Surface Mining to Rural Residential
Exception Area and proposed zone change from SM to RR-10
Page 25 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (2-6-08)
