2016-9-Ordinance No. 2016-001 Recorded 1/19/2016 J DESCHUTES COUNTY OFFICIAL RECORDS C 2016,9
REVIEWED
NANCY BLANKENSHIP, COUNTY CLERK v
ryi/ COMMISSIONERS' JOURNAL 01/19/2016 08:11:42 AM
LEGAL COUNSEL III IiuIIIIIIIIIIIIIII
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Deschutes County Code,
Title 23, and Amending Deschutes County * ORDINANCE NO. 2016-001
Comprehensive Plan, Sections 5.10 and 5.12,to
Adopt an Exception to Goal 14 and to Change the
Plan Designation for Certain Property From
Agriculture to Rural Industrial.
WHEREAS, Anthony Aceti proposed an "irrevocably committed" exception tion to Goal 14 and a Plan
Amendment to Deschutes County Code ("DCC"), Section 23.01.010, Introduction, and Deschutes County
Comprehensive Plan, Section 5.10, Goal Exception Statements, and Section 5.12, Legislative History,to change
the comprehensive plan designation of certain property from Agriculture to Rural Industrial; and
WHEREAS, after notice was given in accordance with applicable law, public hearings were held on
June 16, 2015 and July 14, 2015 before the Deschutes County Hearings Officer, and on October 1, 2015 the
Hearings Officer recommended approval of the exception to Goal 14, and a Plan Amendment; and
WHEREAS, after notice was given in accordance with applicable law, a de novo public hearing was
held on November 23, 2015 before the Board of County Commissioners("Board") ; and
WHEREAS, the Board, after review conducted in accordance with applicable law, approved the goal
exception to Goal 14 to change the comprehensive plan designation from Agriculture to Rural Industrial; now
therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCIIUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. AMENDMENT. DCC Section 23.01.010, Introduction, is amended to read as described in
Exhibit"A" attached and incorporated by reference herein, with new language underlined.
Section 2. AMENDMENT. Deschutes County Comprehensive Plan Section 5.10, Goal Exception
Statements, is amended to read as described in Exhibit "B," attached and incorporated by reference herein with
new language underlined.
Section 3. AMENDMENT. Deschutes County Comprehensive Plan Section 5.12, Legislative History,
is amended to read as described in Exhibit "C," attached and incorporated by reference herein with new
language underlined.
Section 4. AMENDMENT. The Deschutes County Comprehensive Plan Map, is amended to change
the plan designation for certain property described in Exhibit "D" and depicted on the map set forth as Exhibit
"E,"with both exhibits attached and incorporated by reference herein, from Agriculture to Rural Industrial.
Section 5. FINDINGS. The Board adopts as it findings in support of this Ordinance, the Decision of
the Hearings Officer, Exhibit"F," and incorporated by reference herein.
PAGE 1 OF 2-ORDINANCE NO,2016-001
///
Dated this (9 of . , 2016 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ALAN UNGER, CHAIR
ki
TAMMY BAIOVICER
ATTEST: ^^JJ
([20-04,“;
Recording Secretary ANTHONY DEBONE, COMMISSIONER
?„j y--
Date of 1st Reading: ` day of ,2011.
Date of 2nd Reading: Gv --day of 2016.
Record of Adoption Vote
Commissioner Yes No Abstained Excused
Alan Unger y
Tammy Baney _
Anthony DeBone
Effective date: day of ,2016.
ATTEST:
1 (.44 (r6" "
Recording Secretary
PAGE 2 OF 2-ORDINANCE NO.2016-001
Chapter 23.01 COMPREHENSIVE PLAN
Chapter 23.01 COMPREHENSIVE PLAN
23.01.010. Introduction.
A. The Deschutes County Comprehensive Plan, adopted by the Board in Ordinance 2011-003
and found on the Deschutes County Community Development Department website, is incorporated
by reference herein.
B. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2011-027, are incorporated by reference herein.
C. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2012-005, are incorporated by reference herein.
D. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2012-012, are incorporated by reference herein.
E. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2012-016, are incorporated by reference herein.
F. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2013-002, are incorporated by reference herein.
G. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2013-009, are incorporated by reference herein.
H. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2013-012, are incorporated by reference herein.
1. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2013-007, are incorporated by reference herein.
J. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-005, are incorporated by reference herein.
K. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-006, are incorporated by reference herein.
L. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-012, are incorporated by reference herein.
M. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-021, are incorporated by reference herein.
N. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-027, are incorporated by reference herein.
O. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2015-021, are incorporated by reference herein.
P. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2015-029, are incorporated by reference herein.
Q. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2015-018, are incorporated by reference herein.
R. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2015-010, are incorporated by reference herein.
S. -_ "I'he Deschutes County Comprehensive Plan amendments, added by the Bond in Ordinance
2016-001, are incorporated by reference herein.
(Ord. 2016-001 §1, 201 6; Ord. 2015-010 §1, 2015; Ord. 2015-018 § 1, 2015; Ord. 2015-029 § 1, 2015;
Ord. 2015-021 § 1, 2015; Ord. 2014-027 § 1, 2014; Ord. 2014-021 §1, 2014; Ord. 2014-12 §1, 2014;
PAGE 1 OF 2- EXHIBIT A TO ORDINANCE 2016-001
Ord. 2014-006 §2, 2014; Ord. 2014-005 §2, 2014; Ord. 2013-012 §2, 2013; Ord. 2013-009 §2, 2013;
Ord. 2013-007 §1, 2013; Ord. 2013-002 §1, 2013; Ord. 2013-001 §1, 2013; Ord. 2012-016 §1, 2012;
Ord. 2012-013 §1, 2012; Ord. 2012-005 §1, 2012; Ord. 2011-027 §l through 12, 2011; Ord. 2011-
1 017 repealed; Ord.2011-003 §3, 2011)
Click here to be directed to the Comprehensive Plan (http://www.deschutes.org/compplan)
PAGE 2 OF 2- EXHIBIT A TO ORDINANCE 2016-001
Sect%ow 5.10 c oaf EXcepti,o1A, Stotemeints
Background
The purpose of this section is to identify the lands where Deschutes County demonstrated an
exception to meeting the requirements of the Statewide Planning Goals. The intent of goal
exceptions is to allow some flexibility in rural areas under strictly defined circumstances. Goal
exceptions are defined and regulated by Statewide Planning Goal 2 and Oregon Administrative
Rule 660-004 (excerpt below).
660-004-0000(2)An exception is a decision to exclude certain land from the requirements of
one or more applicable statewide goals in accordance with the process specified in Goal 2,
Part II, Exceptions. The documentation for an exception must be set forth in a local
government's comprehensive plan. Such documentation must support a conclusion that the
standards for an exception have been met.
Statewide Planning Goals with Deschutes County Exceptions
• Goal 3 Agricultural Lands
• Goal 4 Forest Lands
• Goal I I Public Facilities and Services
• Goal 14 Urbanization
Three types of exceptions are permitted by Oregon Administrative Rule 660-004
• Irrevocably committed
• Physically developed
• Reasons
The summary below identifies approved goal exceptions and identifies the adopting ordinance
for those interested in further information. The ordinances listed are incorporated by reference
into this Plan.
1979 Exceptions
Comprehensive Plan entire County—PL 20- 1979
During the preparation of the 1979 Comprehensive Plan it was apparent that many rural lands
had already received substantial development and were committed to non-resource uses. Areas
were examined and identified where Goal 3 and 4 exceptions were taken. At this time
exceptions to Goals I I and 14 were not required.
The total area excepted was 41,556 acres. These lands were residentially developed,
committed to development or needed for rural service centers.
Additional Exceptions
Bend Municipal Airport—Ordinances 80-203, 1980 and 80-222, 1 980
The Bend Municipal Airport received an exception to Goal 3 to allow for the necessary and
expected use of airport property.
La Pine UUC Boundary— Ordinance 98-001, 1998
Exceptions to Goals 3, I I and 14 were taken to allow lands to be included in the La Pine UUC
boundary and planned and zoned for commercial use.
DESCHUTES COUNTY COMPREHENSIVE PLAN-201 1
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.I 1 GOAL 5 ADOPTED ORDINANCES
PAGE I OF 3-EXHIBIT"B"TO ORDINANCE 2016-001
Spring River Rural Service Center— Ordinances 90-009, 1990; 90-010, 1990; 96-022, 1996; 96-045„
1996
A reasons exception was taken to Goal 14 to allow the establishment of the Spring River Rural
Service Center on residentially designated lands.
Burgess Road and Highway 97--Ordinance 97-060, 1997
An exception was taken to Goal 4 to allow for road improvements.
Rural Industrial Zone --Ordinances 2010-030, 2010; 2009-007, 2009
Two separate ordinances for rural industrial uses. The 2009 exception included an irrevocably
exception to Goal 3 and a reasons exception to Goal 14 with a Limited Use
committed a tian P
p
Combining Zone for storage, crushing, processing, sale and distribution of minerals. The 2010
exception took a reasons exception to Goal 14 with a Limited Use Combing Zone for storage,
crushing, processing, sale and distribution of minerals.
Prineville Railway—Ordinance 98-0I 7
An exception was taken to Goal 3 to accommodate the relocation of the Redmond Railway
Depot and the use of the site for an historic structure to be utilized in conjunction with the
Crooked River Dinner Train operations.
Resort Communities—Ordinance 2001-047, 2001
An exception was taken to Goal 4 for Black Butte Ranch and Inn of the 76' Mountain/Widgi
Creek during the designation of those communities as Resort Communities under OAR 660-
22.
Barclay Meadows Business Park--Ordinance 2003-11, 2003
A reasons exception was taken to Goal 3 to include certain property within the Sisters Urban
Growth Boundary.
Sisters School District# 6— Ordinance 2003-11, 2003
A reasons exception was taken to Goal 3 to include certain property within the Sisters Urban
Growth Boundary.
Sisters Organization of Activities and Recreation and Sisters School District#6 -- Ordinance 2003-017,
2003
A reasons exception was taken to Goal 4 to include certain property within the Sisters Urban
Growth Boundary.
Oregon Water Wonderland Unit 2 Sewer District— Ordinances 2010-015, 2010;2003-015, 2003
A reasons exception was taken to Goals 4 and I I to allow uses approved by the Board of
County Commissioners in PA-02-5 and ZC-02-3 as amended by PA-09-4.
City of Bend Urban Growth Boundary Amendment (Juniper Ridge) —Ordinance 97-060. 1997
An exception was taken to Goal 3 to allow an amendment of the Bend Urban Growth
Boundary to incorporate 5 13 acres for industrial uses.
Joyce Coats Revocable Trust Johnson Road and Tumalo Reservoir Road Properties— Ordinance 2005-
015, 2005
An irrevocably committed exception was taken to Goal 3 to allow a change of comprehensive
plan designation from Surface Mining to Rural Residential Exception Area and zoning from
Surface Mining to Multiple Use Agriculture for Surface Mine Sites 306 and 307.
T
DESCHUTES COUNTY
2 Y COMPREHENSIVE PLAN-2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12LEGISLATIVE HISTORY
PAGE 2 OF 3-EXHIBIT"B"TO ORDINANCE 2016-001
Watson/Generation Development inc— Ordinance 2005-015
An exception was taken to Goal 3 to include a portion of agricultural property.
Oregon Department of Transportation—Ordinance 2005-019, 2005
An exception was taken to Goal 3 to include a portion of agricultural property.
Conklin/Eady Property--Ordinance 2005-035, 2005
An exception was taken to Goal 3 to include a portion of agricultural property.
City of Sisters Property— Ordinance 2005-037, 2005
An exception was taken to Goal 4 to include a portion of forest property.
McKenzie Meadows Property--Ordinance 2005-039, 2005
An exception was taken to Goal 4 to include a portion of forest property.
Bend Metro Park and Recreation District Properties Ordinance 2006-025
A reasons exception was taken to Goal 3 to include a portion of agricultural property.
Harris and Nancy Kimble Property and Portion of CLR, Inc Property A.K.A. the Klippel Pit Property—
Ordinance 2008-001, 2008
An irrevocably committed exception was taken to Goal 3 to allow reclassification and zoning
from Surface Mine to Rural Residential Exception Area and Rural Residential I 0 acre for
Surface Mine Site 294.
Sunriver Service District, Sunriver Fire Department—Ordinance 2014-02I, 2014
A reasons exception was taken to Goal 4 to include a portion of forest property. To ensure
that the uses in the Sunriver Utility District Zone on the approximate 4.28 acre site of Tax Lot
102 on Deschutes County Assessor's Map 19-11-00 are limited in nature and scope to those
justifying the exception to Goal 4 for the site, the Sunriver Forest (SUF) zoning on the subject
site shall be subject to a Limited Use Combining Zone, which will limit the uses on the subject
site to a fire training facility and access road for the Sunriver Service District and Sunriver Fire
Department.
Frances Ramsey Trust Property—Ordinance 2014.027, 2014
An "irrevocably committed" exception was taken to Goal 14 to allow for reclassification and
rezoning from agricultural property to Rural Industrial for a 2.65 acre portion of a parcel zoned
EFU/RI.
Anthony Aceti— Ordinance 2015-027. 2015
An. I rrevocably committed"exception was taken to 14 to allow] )L reckissification and rezoning
tarn ggricutturalproperiey to Rurol.lndustrial for,.21.59aNes.ofap~arcel zoned MAI. The parcels
are identified as 16-12-26C. 201 and I6-12-27D, 104.
DESCHUTES COUNT., ...
TY COMPREHENSIVE PLAN--20 I I 3
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.1 1 GOAL 5 ADOPTED ORDINANCES
PAGE 3 OF 3—EXHIBIT"B"TO ORDINANCE 2016-001
Sect1,00, 5.12 Les i,sLati,Ve H-Lstor�
Background
This section contains the legislative history of this Comprehensive Plan.
Table 5.1 1.1 Comprehensive Plan Ordinance History
Ordinance Date Adopted/ Chapter/Section Amendment
Effective
All, except
Transportation, Tumalo
and Terrebonne
2011-003 8-10-1 1/I 1-9-I I Community Plans, Comprehensive Plan update
Deschutes Junction,
Destination Resorts and
ordinances adopted in
2011
2.5, 2.6, 3.4, 3.10, 3.5, Housekeeping amendments to
2011-027 10-31-1 I/I I-9-1 I 4.6, 5.
3, 5.
8, 5.I I, ensure a smooth transition to
23.40A, 23.40B, the updated Plan
23.40.065, 23.01.010
23.60, 23.64 (repealed), Updated Transportation
2012-005 8-20-12/11-19-12 3.7 (revised), Appendix C System Plan
(added)
2012-012 8-20-12/8-20-12 4.1, 4.2 La Pine Urban Growth
Boundary
Housekeeping amendments to
2012-016 12-3-12/3-4-13 3.9 Destination Resort Chapter
Central Oregon Regional
2013-002 1-7-13/1-7-13 4.2 Large-lot Employment Land
Need Analysis
Comprehensive Plan Map
Amendment, changing
2013-009 2-6-13/5-8-13 1.3 designation of certain
property from Agriculture to
Rural Residential Exception
Area
Comprehensive Plan Map
Amendment, including certain
2013-012 5-8-13/8-6-13 23.01.010 property within City of Bend
Urban Growth Boundary
Newberry Country: A
y Countr y Plan
2013-007 5-29-13/8-27-13 3.10, 3.11 for Southern Deschutes
County
DESCHUTES COUNTY COMPREHENSIVE PLAN-20 I I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.I I GOAL 5 ADOPTED ORDINANCES
PAGE 1 OF 2-EXHIBIT C TO ORDINANCE 2016-001
Ordinance Date Adapted/ Chapter/Section Amendment
Effective
Comprehensive Plan Map
Amendment, including certain
2013-016 10-21-13/10-21-13 23.01.010 property within City of Sisters
Urban Growth Boundary
Comprehensive Plan Map
2014-005 2-26-14/2-26-14 23.01.010
Amendment, including certain
property within City of Bend
Urban Growth Boundary
2014-012 4-2-14/7-1-14 3.10, 3 1 1 __......_ �__._.. Housekeeping amendments to
Title 23
Comprehensive Plan Map
Amendment, changing
designation of certain
2014-021 8-27-14/11-25-14 23.01.010, 5.10 property from Sunriver Urban
Unincorporated Community
Forest to Sunriver Urban
Unincorporated Community
Utility
Comprehensive Plan Map
Amendment, changing
2014-027 12-15-14/3-31-15 23.01.010, 5.10 designation of certain
property from Agriculture to
Rural Industrial
Comprehensive Plan Map
Amendment, changing
2015-021 11-9-15/2-22-16 23.01.010 designation of certain
property from Agriculture to
Surface Mining.
Comprehensive Plan Map
Amendment, changing
2015-029 1 1-23-15/1 1-30-15 23.01.010 designation of certain
property from Tumalo
Residential 5-Acre Minimum
to Tumalo Industrial
Comprehensive Plan Map
Amendment, changing
2016-002 12-2 I-15/x-x-16 2101.010 designation of certain
---__._ property_ ronL Agriculture to
Rural Industrial (exception
area)
2 DESCHUTES COUNTY COMPREHENSIVE PLAN-2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.1 2LEGISLATIVE HISTORY
PAGE 2 OF 2-EXHIBIT C TO ORDINANCE 2016-001
LEGAL DESCRIPTIONS
TAX LOTS 16-12-26-C-00201 & 16-12-27-0-00104
A parcel of land located in the Southwest one-quarter of Section 26 and the Southeast one-quarter of
Section 27, Township 16 South,Range 12 East of the Willamette Meridian, Deschutes County, Oregon,
more fully described as follows:
TAX LOTS 16-12-26-C-00201:
Commencing at a brass disk at the 1/4 corner between said Sections 26 and 27; thence along the east-west
centerline of said Section 27,North 89°49'46"West 20.00 feet; thence leaving said east-west centerline,
South 00°03'15"East,parallel to and 20 feet westerly of the line common to said Sections 26 and 27, .
40.35 feet to a point on the southerly line of the 15:00 foot dedication to the southerly 30.00 foot right-of:
way of Tumalo Road per Deed No. 98-29504, and the Point of Beginning for this description; thence
along said 15-foot dedication line, 67.90 feet along the arc of a 12818.89 foot radius curve right(the long
chord of which bears South 89°35'07" East 67.90 feet); thence South 89°26'01"East 997.75 feet to the
westerly right-of-way of the Dalles-California Highway per Deed recorded March 22, 1991, in Book 231,
Page 81,Deschutes County Records; thence leaving said 15-foot dedication line and along said westerly
right-of-way, South 37°03'52"East 23.10 feet,said point being 85.00 feet from the centerline of said
Dalles-California Highway; thence continuing along said 85-foot right-of-way line, South 26°22.'14"
West 1419.88 feet to a point on the south line of the property described in Deed No. 97-45542; thence
leaving said 85-foot right-of-way line and.along said south line, South 89°56'45" West 447.62 feet to the
southwest corner of said 97-45542 property, said point lying 20.00 feet westerly of the line common to
Sections 26 and 27; thence leaving said south line,North 00°03'15"West 130134 feet to the point of
beginning;
EXCEPTING THEREFROM: the new alignment of Tumalo Road per Deed No. 98-32048, further
modified for turn lanes per Deed No. 2001-22023, fully described as follows:
Commencing at a brass disk at the.1/4 corner between said Sections 26 and 27; thence along the east-west
centerline of said Section 27,North 89°49'46"West 20.00 feet; thence leaving said east-west centerline,
South 00°03'15"East,parallel to and 20 feet westerly of the line common to said Sections 26 and 27,
357.34 feet to the northerly right-of-way of the new road alignment, and the Point of Beginning for this
description; thence leaving said parallel line and along the new right-of-way line,South 59°39'01"East
50.46 feet; thence South 62°39'40"East 442.65 feet; thence South 63°56'22"East 250.70 feet; thence
South 59°39'01"East 95.51 feet to the westerly 85 foot right-of-way line of the Dalles-California
Highway; thence_leaving said new road right-of-way and along said westerly 85 foot right-of-way line,
South 26°22'14" West 170.41 feet to the southerly right-of-way line of the new road; thence leaving said
westerly 85 foot right-of-way line and along said southerly right-of-way line, North 59°39'01" West
107.34 feet; thence North 55'21'40" West 250.70 feet; thence North 56°38'22" West 442.65 feet,said
point Iying 20.00 feet westerly of the line common to Sections 26 and 27; thence North 00'03'15"East
99.71 feet to the point of beginning.
Net area for this property is 20.46 acres.
October 14, 2015 2015186-.Desc.doc
Prepared by Baxter Land Surveying, Inc.
P.O. Box 7022, Bend, OR 97708 (541) 382-1962 rn
PAGE 1 OF 3 - EXHIBIT "D" TO ORDINANCE 2016-001
TAX LOTS 16-.12-27-J)-00104:
That portion of Deed No. 97-40139 described as"Parcel 3," further modified by the excepting of Tract 1
and Tract.2 of Deed No. 98-32049, and more fully described as follows:
Beginning at the Point of Beginning for the previous description of TAX LOT 16-12-27-C- 00201, said
point being on the southerly 45 foot right-of-way of Tumalo Road and lying 20.00 feet westerly of the
line common to Sections 26 and 27; thence along said 20 foot westerly line, North 00°03'15" West 5.00
feet to a point on a 40.00 foot right-of-way of Tumalo Road,per said 98-32049 Deed; thence leaving said
20 foot line, 31.74 feet along the arc of a 12823.89 foot radius curve left(the long chord of which hears
North 89°48'29"West 31.74 feet); thence North 89°52'44" West 26.42 feet; thence 219.07 feet along the
arc of a 210.00 foot radius curve left (the long chord of which bears South 60°14'07"West 209.27 feet);
thence South 30°20'59" West 40.03 feet; thence 47.12 feet along the arc of a 30.00 foot radius curve left
(the long chord of which bears South 14°39'01"East 42.43 feet); thence South 59°39'01"East 145.00
feet; thence South 60°51'23"East 142.53 feet to a point lying 20.00 feet westerly of the line common to
said Sections 26 and 27; thence North 00'03'15"West 317.00 feet to the point of beginning for this
description;
Contains 1.30 acres.
Note: All corners are marked with monuments per recorded survey No. CS 14491 by Michael Berry.
REGISTERED
PROFESSIONAL
LAND SURVEYOR
OREGON
JULY 26,1969
JAMES D. PERRY
2407
RENEWS 12-31-2016
October 14, 2015 2015186-Desc.doc
Prepared by Baxter Land Surveying, Inc.
P.O. Box 7022, Bend, OR 97708 (541) 382-1962 "
a „, _
PAGE 2 OF 3 — EXHIBIT "D" TO ORDINANCE 2016-001
EXHIBIT MAP
TAX LOTS 16.12---26—C-00201
AND 16- 12-27—D-00104
Located in the SW1/4 Sec. 26 and the SE1/4 Sec. 27,
T. 16S., R. 12E., W.M.,
DESCHUTES COUNTY, OREGON
TRACT 1
27126 BRASS DISK AT 1/4 CPR.
DEED 98-32049 I
20.00 - —30" R/W T — — CENTERLINE TUMALO ROAD (NICHOLS MARKET ROAD)
. 1331u .._ ..� - - _— _-
LI C2 \ C1
/ �3 589 26'01"E 99775
■
15" R/W DEDICATION 53703'52"E
1 DEED No. 98-29504
23.10'
1 /
TAX LOT 104 CURVE TABLE _ /
C4 AREA. 1.30 ACRES CURVE DELTA LENGTH RADIUS CHORD /
'1'S . CI _ 0'18'13" 67.90 12818.89 S8935'07"E 67.90
7•:9' C2 0"08'31" 31.74 12823.89 N89'49 29"W 31.74 / /
0p C3 59'46'13" 219.07 210.00 560'14'07"W 209.27
`560 I C4 9000'00" 47.12 30.00 - 51439'01"E 42.43 / S /
� ' 8 ,
/4?S}3e S59'39'01"E / /
50.46 LINE TABLE / I 9p"/
TRACT 2 1 LINE LENGTH BEARING y�
DEED 98-32049 ^aa'i `.� DEED 2001-22023 L 1 26.42 N89 52'44"W ^y/ /
L2 40.03 53020'59"W_
4'6. / / /
DEED 2001--22023 N 4g4 / /
A . �� `�6S / / /
I A. � , Ro 4' 2
X44 qp •s�s /
I 4/ :a> '. /
I 98. . '�s_ /^,^ / /
3?048 X90,` /A /
{ SS
9
I z TAX LOT 201 /.1.- q^� ..0 //
GROSS AREA: 22.88 ACRES ?`Sp Q/ /
I NEW ROAD: 2.42 ACRES p NS9Ty, ^/ / �4' /
1 TAX LOT 201 /p)3 B v� /
l u NET AREA: 20.46 ACRES 4 /OP /
y/ /
11.42 ACRES NORTH OF'NEW ROAD
Ig W 9.04 ACRES SOUTH OF NEW ROAD / P.Y
1 / w /
1 / /
I / /
I ,� / /1 REGISTERED
1 / / / PROFESSIONAL
LAND SURVEYOR
h-20.00' / /
1 / / / ,ot-P"LA "MA
I i / / OREGON
ULY 26, 1989
�� -- -- / / JAMES D. PERRY
589 56'45"W 447.62 , 2 4 0 7
/ / RENEWS 12-31-2016
PREPARED BY BAXTER LAND SURVEYING, INC. P.O. BOX 7022 BEND, OR 97708
20370 EMPIRE AVE. SUITE C-3, BEND OR 97701 (5410 382--1962 )
PAGE 3 OF 3 — EXHIBIT "D" TO ORDINANCE 2016-001 !�
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Legend PROPOSED PLAN AMENDMENT
BOARD OF COUNTY COMMISSIONERS
Anthony J.Aceti OF DESC-HUTES COUNTY,OREGON
, u b'j ect Property
21235 Tumalo Place, Bend
Alan}err,Chan
Subject..,4
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to Ordinance 2016-001
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Effective Date:4 0016 RC-Rural Commercial
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A Planning Division Building Safety Division Environmental Health Division 41 I
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117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/cdd/
DECISION OF THE DESCHUTES COUNTY HEARING OFFICER
FILE NUMBERS: 247-14-000456-ZC, 247-14-000457-PA
APPLICANT/OWNER: Anthony J. Aceti
21235 Tomato Place
Bend, OR 97701
APPLICANT'S Pat Kliewer
REPRESENTATIVE: 60465 Sunride Drive
Bend, OR 97702
REQUEST: The applicant requests approval of a plan amendment and zone
I change from Exclusive Farm Use to Rural Industrial, and a goal
exception, for a 21.59-acre site located at Deschutes Junction
north of Bend.
STAFF REVIEWER: Paul Blikstad, Senior Planner
HEARING DATE: July 14, 2015
6:30 p.m.
Barnes and Sawyer Rooms of the Deschutes Services Building
1300 N.W. Wall
Bend, OR 97701
RECORD CLOSED: July 14, 2015
I. APPLICABLE STANDARDS AND CRITERIA:
Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
Chapter 18.136, Amendments
Section 18.136.020, Rezoning Standards
Chapter 18.100, Rural Industrial Zone
Title 22 of the Deschutes County Code, the Development Procedures Ordinance
Chapter 22.20, Review of Land Use Action Applications
Chapter 22.24, Land Use Action Hearings
x Section 22.24.140, Continuances and Record Extensions
Title 23 of the Deschutes County Code, the Year 2000 Comprehensive Plan
Chapter 2, Resource Management r
Quality Services Performed with.Pride
EXHIBIT "F" TO ORDINANCE 2016-001 (81 Pages)
* Section 2.2,Agricultural Lands Policies
Chapter 3, Rural Growth
* Section 3.7, Transportation System Plan
Oregon Administrative Rules (OAR) Chapter 660, Land Conservation and Development
Commission
Division 4, Interpretation of Goal 2 Exception Process
*OAR 660-004-0010, Application of the Goal 2 Exception Process to Certain
Goals
*OAR 660-004-0018, Planning and Zoning for Exception Areas
*OAR 660-004-0020, Goal 2, Part II (c), Exception Requirements
*OAR 660-004-0022, Reasons Necessary to Justify An Exception Under Goal 2,
Part II (c)
*OAR 660-004-0028, Exception Requirements for Land Irrevocably Committed to
Other Uses
Division 12, Transportation Planning Rule
*OAR 660-012-0060, Plan and Land Use Regulation Amendments
Division 14, Application of the Statewide Planning Goals to Newly Incorporated Cities,
Annexation, and Urban Development on Rural Lands
* OAR 660-014-0040, Establishment of New Urban Development on
Undeveloped Rural Lands
Division 15, Statewide Planning Goals and Guidelines
Division 33, Agricultural Land
*OAR 660-033-0010, Purpose
*OAR 660-033-0020, Definitions
*OAR 660-033-0030, Identifying Agricultural Land
Oregon Revised Statutes, ORS Chapter 215, County Planning
ORS 215.010, Definitions
II. FINDINGS OF FACT:
A. Location: The subject property is located at 21235 Tumalo Place, Bend, and is further
identified as Tax Lot 201 on Deschutes County Assessor's Map 16-12-26C, and Tax Lot
104 on Assessor's Map 16-12-27D. The property is located at the intersection of
Highway 97 and Tumalo Road in the area commonly known as Deschutes Junction.
B. Zoning and Plan Designation: Tax Lots 201 and 104 are zoned Exclusive Farm Use-
Tumalo/Redmond/Bend Subzone (EFU—TRB) and are designated Agriculture under the
Deschutes County Comprehensive Plan. The property also is located within a
Landscape Management Combining (LM) Zone because of its proximity to Highway 97.
C. Site Description: The entire subject property — Tax Lots 201 and 104 combined -- are
approximately 21.59 acres in size. The on-off ramps to southbound Highway 97 form the
north boundary of the subject property. The property is bordered by Highway 97 on the
east (the right of way is fenced along the Aceti property) and Tumalo Road bisects the
portion of the property identified as Tax Lot 201. The section line between Sections 26
and 27 forms the western property line. Tumalo Road constitutes the access from
Highway 97 to the community of Tumalo. Highway 97 is a four-lane divided highway
that runs north-south and is maintained by the Oregon Department of Transportation
(ODOT). The west half of the Deschutes Junction Highway 97 overpass crosses the
247-14-000456-ZC/457-PA Page 2 of 81
subject property_ The approach to the overpass on the property is approximately 800
feet long and tapers from 93 feet wide at the west end to 170 feet wide at the east end of
the property. The perimeter of the property is fenced with metal fence posts and three
strands of barbed wire. The Applicant presented photographic and video evidence of
damage to the fencing due to destruction by vehicles crashing through it, particularly at
the northern property line that is adjacent to the on/off ramps to Highway 97 on Tumalo
Place and in the approach to the overpass. The County has fenced both sides of the
right-of-way for the approach to the overpass on the property with metal agricultural
fence posts and three-strand barbed wire. Some culverts divert precipitation from the
roadway to the subject property.
The Tumalo Road approach to Highway 97 crosses the subject property and is owned
by Deschutes County. A 16x16 foot tunnel was constructed during the Deschutes
Junction Overpass project to allow vehicles and livestock to move directly between the
northern and southern portions of the property without crossing the overpass approach.
Three 40-foot by 120-foot long asphaltic concrete entry roads into the subject property
were constructed by the County when the roads were realigned and the overpass was
constructed. One is on each side of the approach to the overpass and the third is on the
north property line. Each entrance has a dedicated turn lane to aid entrances from
Tumalo Place and Tumalo Road.
Tax Lot 104 was created when the overpass was constructed and was declared remnant
land. TL 104 is adjacent to TL 201 to the west, and is situated to the north of Tumalo
Road, Tumalo Place forms the northern border of the property. The property is generally
level, and has an existing large warehouse building and gravel parking areas on three
sides of the building. There is also a loading bay on the west end of the building. The
site is accessed from existing driveways off of Tumalo Place and Tumalo Road.
The Burden of Proof states, among other things, that there is sparse stubble left from a
failed hay crop 15 years ago that spots the land. The land is relatively level and cleared
of native vegetation. Minor variation in elevation is present at the northeast corner which
rises about four feet and is dotted by juniper trees and native shrubs. There is a
concrete pad for displaying farm equipment for sale on the top of the rise. South of the
display pad, near the eastern boundary of the property is an irregular, rocky excavation
and crevasses left from a failed effort to create an irrigation water retention pond in the
northwest corner of the property. Gravel has been spread for truck back-up and turn-
around for the loading docks on the west side of the storage building. Noise from truck
and automobile traffic on the adjoining roads and highways is nearly constant, as further
evidenced in the video submitted by the applicant at the hearing.
D. Soils: According to the most recent National Resource Conservation Service (NRCS)
Web Soil Survey data, the subject property consists of three soil units:
36A Deskamp loamy sand, 0-3% Slopes.The NRCS data shows 85 percent of this soil
unit consists of Deskamp soils, and 15 percent consists of contrasting inclusions. The
Deskamp soils have a land capability classification of Class III with irrigation and Class
VI without irrigation_
38B, Deskamp-Gosney Complex, 0-8% Slopes. The NRCS data shows 50 percent of
this soil unit consists of Deskamp soils, 35 percent consists of Gosney soils, and 15
percent consists of contrasting inclusions. The Deskamp soils have a land capability
247-14-000456-ZC/457-PA Page 3 of 81
classification of Class III with irrigation and Class VI without irrigation. The Gosney soils
have a capability rating of Class VII with or without irrigation.
58C, Gosney-Rock outcrop-Deskamp complex, 0 to 15 % Slopes. The NRCS data
shows 50 percent of the soil unit consists of Gosney and similar soils, 25 percent Rock
outcrop, 20% Deskamp and similar soils, and 5 percent contrasting inclusions. The
Gosney and Deskamp soils have the capability classifications as stated above. The
Rock outcrop is Class VIII.
As discussed in detail in the findings below, the applicant submitted a more detailed soil
study of the subject property conducted by Roger Borine (hereafter "Borine study"). The
Borine study concluded the subject property is predominantly non-agricultural soils,
Class VII and VIII. There are 19.71 acres of Swalley Irrigation District water rights on the
property. A
s set.forth in the Burden of Proof, about 20% of the property is covered with
nearly flat, above-ground volcanic rock flows. p p Y
The remainder of the land has about 4-8
inches of volcanic soils.
E. Surrounding Zoning and Land Uses: Zoning in the area is generally residential (RR-
10 and MUA-10) to the north with farm use (EFU-TRB) to the south and west. Northeast
of the subject property is an approximately 2-acre Rural Commercial zone (RC)
developed with a building/landscaping supply business. East of Highway 97 and beyond
a strip of EFUTRB zoned land, is approximately 60 acres zoned Rural Industrial (RI).
Property to the south (161226C000200) is zoned EFU-TRB and is developed with a rural
residence. To the southwest (1612270001100) is an undeveloped parcel in farm tax
deferral and assessed as having 26 acres of irrigation rights. To the west
(1612270000100) is the Three Sisters,Adventist School. Property to the north and
northwest is zoned MUA-10 and is vacant or developed with single family dwellings.
Property to the northeast is Rural Commercial (RC) and is developed with a
building/landscaping supply business.
Across Highway 97 to the east and beyond the EFU zoned strip of land adjacent to the
Highway, are RI zoned lands developed with Willamette Graystone, a concrete products
manufacturing facility and a second business site, (formerly United Pipe) on the west
side of Graystone Lane, is vacant. Farther to the east is the Burlington Northern-Santa
Fe (BNSF) railroad tracks. Across Highway 97 to the southeast is land zoned RI and
used for mineral processing,
There are no active agricultural uses adjoining the subject property. One agricultural use
in the vicinity is a recreational cattle cutting ranch called the "Used Cow Lot," east of
Highway 97, one-half mile northeast of the subject site. There are no agricultural uses
within one mile north of the property. Within one-half mile west of the property, two 20-
acre parcels are in pasture and occasionally have a few head of horses. There are 4 10-
acre parcels along Half Mile Lane and some properties south of Tumalo Road (.5 to 5
acres in size) that may be characterized as "hobby farms" with a few head of horses,
sheep, cattle, alpacas or llamas. None of these properties are to grow crops and instead
only consist of irrigated pasture. The largest parcel, zoned MUA-10, is 20 acres in size
and is currently being subdivided into 20 homesites.
The total number of platted lots, rural and urban density subdivisions, is 1,252, as of the
date of the subject applications.
247-14-000456-ZC/457-PA Page 4 of 81
Deschutes County Assessor's Tax Map 161226C includes the applicant's largest parcel.
The tax map includes approximately 150 acres, plus acreage devoted to roadways.
According to page 68 of the Burden of Proof:
The Applicant's largest parcel is in this tax map. 57,58 acres in this tax
map are zoned EFU. Of them, the subject property contains 20.26 fallow
or unfarmable acres that are not agricultural soils. 4-R Equipment owns a
26.85 acre parcel that is undeveloped and unimproved sagebrush land.
The remaining EFU acreage is used for roads, rental homes, and a
mobile home park. Only one acre in this tax map is used for pasture.
18.60 acres are used for roadways. 27.50 acres are used by Burlington
Northern Railroad. The remaining zone is Rural Industrial. 53.84 acres
are zoned and used for rural industrial uses.
See Figure 22, Detailed Table of Surrounding Uses, by Tax Lots, pages 74-132 of the
Burden of Proof.
F. Land Use History: The subject property has been part of the following land use
applications:
• LR-89-148, Lot of Record determination for tax lot 201 (included two other tax lots).
• RN-91-11, Road name change from Nichols Market Road to Tumalo Road (affected
all of Nichols Market Road).
• LM-95-63, Landscape Management Review for a barn.
• CU-96-45, Replace the intersection of Deschutes Market Road and Tumalo Road
with a grade separated interchange (Deschutes County was the applicant).
• CU-97-72/SP-97-49, Conditional Use Permit and Site Plan for commercial uses in
conjunction with farm use.
• LL-99-19, Property Line Adjustment for the property
• MC-99-1, Modification to CU-97-72/SP-97-49 to include the word processing in the
approval and expand the hours of operation and daily truck-trailer operations.
• MC-02-12, Modify CU-97-72/SP-97-49 to expand the commercial activity in
conjunction with farm use. This application was denied.
• MC-07-5, Modify CU-97-72/SP-97-49 to expand commercial uses at the site.
Currently, TL 104 is vacant and used for storage and parking. TL 201 is occupied by a
100x200 foot barn that houses a hay sales business and hay press (compressor)
operation, constructed in 1995. In 1999, the building was expanded to add a 12x80 foot
office/shop and a 50x50 foot loading dock. The building includes 23,460 square feet and
can store 70 truckloads of hay(2,100 tons). It is used to store, process and sell bales of
hay, agricultural crops and seed, and to manufacture, protect, service and repair farm
equipment and vehicles. The building also includes a combination asphalt concrete and
concrete floor with a concrete loading dock on the western side of the building. An
associated shop allows repair and fabrication of farm equipment and vehicles, and
operation of the business takes place out of the office space.
The Applicant's Burden of Proof states at page 27 that the Hay Depot is operated from
the northwestern portion of the property and the remainder of the land is sitting fallow.
Currently, the Hay Depot business is at a low point due to the recent recession. Hay
prices have dropped due to low demand and as a result of the increase in the purchase
247-14-000456-ZC/457-PA Page 5 of 81
and sale of traditional livestock ranching properties for views, open spaces and
recreational activities since 2000, reducing the number of customers for hay. Hobby
farmers also have been forced out of the livestock business by the recession, further
reducing demand for hay each year since 2008. The storage building is currently used
to store farm products, hay and seed and machinery. Seven acres are leased to the
Bonneville Power Administration (BPA) for storage of supplies to maintain and upgrade
high voltage transmission lines in the region.
The approvals in 1997 granted to the Applicant by the County included approval to
construct an additional 100x200 foot building on the property. However, the overpass
was constructed by the County across the site for the second building shortly thereafter
in 1998. The second building could not be re-sited on the north portion of the property
due to the proximity to the overpass and the new setbacks required on each side of the
new overpass itself. The Applicant and the County entered into an agreement pursuant
to which the County agreed the second building can be constructed anywhere on the
existing property provided it meets required setbacks.
In 1998, Aceti sold and traded land to the County and to ODOT for Tumalo Place and
the new on and off ramps to Highway 97 and for the new Deschutes Junction Overpass
Project that crossed his land on a diagonal. Aceti granted a 40-foot wide easement
along the west side of the property for ingress and egress to the property southwest of
his and a 20-foot wide easement to Avion for the north-south length of his property. He
also donated 15 feet of property along the northern boundary of TL 201 (approximately
1,000 feet long) to Deschutes County for the purpose of widening Tumalo Place right-of-
way so that the left-hand turn lane onto his property could be constructed. Exhibit 21 to
Burden of Proof_
G. Procedural History: The applications for a plan amendment, zone change and goal
exception were originally submitted on December 31, 2014. The applicant, by letter
dated January 5, 2015, requested that the timeline for the applications be tolled for eight
(8) weeks, to allow the applicant to make some additions to the applications. By the
letter dated March 31, 2015, the applicant requested that the review on the applications
proceed. The revised applications were accepted by the county as complete on April 30,
2015.
Because the request involves a plan amendment, under Section 22.20.040(D) the
applications are not subject to the 150-day period for issuance of a final local land use
decision under ORS 215.427. The initial public hearing on the applications was held on
June 16, 2015 and was continued to July 14, 2015.
H. Proposal: The applicant requests approval of a plan amendment and zone change from
Agriculture and EFU-TRB, to Exception Area and Rural Industrial, respectively, for 21.59
acres. The applicant has requested both a reasons and irrevocably committed
exception to Statewide Planning Goal 14, Urbanization. The application does not
include a development proposal.
Public/Private Agency Comments: The Planning Division mailed notice to several
agencies and received comments from the Deschutes County Transportation Planner,
Oregon Department of Transportation and Swalley Irrigation District. These public
agency comments are set forth in the findings below. The following agencies responded
with "no comments"to the application: Redmond Airport and Avion Water Company_
247-14-000456-ZC/457-PA Page 6 of 81
The following agencies did not respond to the notice: Bend Fire Department, Central
Oregon Irrigation District, Deschutes County Environmental Soils Division, County
Assessor's Office, County Road Department, Central Electric Cooperative, Pacific Power
and Light, Centurylink, Oregon Department of Land Conservation and Development
J, Public Notice and Comments: The Planning Division mailed individual written notice of
the applicant's proposal to the owners of record of the surrounding property owners
within 750 feet of the subject property, at least 20 days prior to the initial public hearing
on June 16, 2015. The public hearing was opened on June 16, 2015 and officially
continued to July 14, 2015 at the applicant's request. Notice of the initial public hearing
was also published in the Bend "Bulletin" newspaper, and the subject property was
posted with a notice of proposed land use action sign.
The following written comments were received:
• Ron Robinson, Jr., 4R Equipment in support of the application
• Harry S.R. and Bev Fagen in support of the application
• Carl Juhl in support of the application, discussing why the subject property is not
suitable for grazing of livestock due to issues with irrigation of the small parcel
and disruptive noise from traffic on Highway 97 and Tumalo Road
• Judd Weirbach in support of the application, discussing why the subject property
consists of poor soils and is not "farmable" due to is small size and irregular
shape and bisection by the Highway 97 overpass project
• Steve Mulkey in support of the application discussing why the subject property is
not farmable due to poor soils, size, shape and condition of the land, impact of
vehicular traffic and because it would be a waste of valuable water resources
• Lesley Bangert in support of the application because of the impact of the
overpass project on the property and the surrounding industrial/commercial
businesses and lack of farming activity on adjacent properties
• Ed Galazzo in support of the application due to adjacent RI uses, noise from the
highway, access to the property to accommodate large vehicles, and the difficulty
in farming on the existing soils and considering issues associated with using an
irrigation system % mile away and potential danger to livestock due to vehicles
running into fences surrounding the subject property
• Jack Holt in support of the application due to surrounding industrial and
commercial uses
• Central Oregon Landwatch in opposition to the application on the basis that the
subject property consists of agricultural land, has a past farm use, is suitable for
grazing, has irrigation rights, is predominantly composed of land in capability
classes I-IV, and neighboring lands are in agricultural use
• The State Department of Land Conservation and Development submitted written
comments concerning the fact that the County does not have plan policies to
guide rezoning resource to nonresource zones, commenting on the difference
between the soils report and NRCS mapping and noting that even if irrigation
rights may have been transferred, such a fact would not render the property non-
irrigated.
247-14-000456-ZC/457-PA Page 7 of 81
At the public hearing, there was no testimony in opposition to the applications. The
following persons testified in support of the applications, in addition to testimony
presented by the applicant and the applicant's representatives:
• Rod Fraley
• Jim Lawrence
• Dean Pattijean
K. Lot of Record: The record indicates that the two tax lots (16-12-26C, 201 and 16-12-
27D, 104) together constitute one legal lot of record.
111, CONCLUSIONS OF LAW:
PLAN AMENDMENT AND ZONE CHANGE
County Code Standards
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 a quasi-judicial map amendment and properly submitted
applications for a plan amendment, zone change and goal exception. The applications are
reviewed under the procedures of Title 22 of the Deschutes County Code. This criterion is met.
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: In previous decisions, the Hearings Officer has found this paragraph establishes
two requirements: (1) that the zone change conforms with the plan; and (2) that it is consistent
with the plan's introductory statement and the plan's goals. I agree with and adhere to this
finding of other Hearings Officers in previous decisions. I find that each of these requirements is
met, as discussed below.
247-14-000456-ZC/457-PA Page 8 of 81
1. Conformance with Comprehensive Plan. The applicants request approval of a plan
amendment to change the Comprehensive Plan designation of the subject property from
Agriculture to Rural Industrial. The proposed rezoning from EFU-TRB to RI will be required to
be consistent with its proposed new plan designation.
2. Consistency with the Plan's Introductory Statement and Goals. In previous decisions,
the Hearings Officer has made the following findings concerning this requirement:
"Comprehensive plan statements, goals and policies typically are not intended to,
and do not, constitute mandatory approval criteria for quasi-judicial land use
permit applications. Save Our Skyline v. City of Bend, 48 Or LUBA 192 (2004).
There, LUBA held:
As intervenor correctly points out, local and statutory requirements that land use
decisions be consistent with the comprehensive plan do not mean that all parts of
the comprehensive plan necessarily are approval standards. [Citations omitted.]
Local governments and this Board have frequently considered the text and
context of cited pads of the comprehensive plan and concluded that the alleged
comprehensive plan standard was not an applicable approval standard.
[Citations omitted.] Even if the comprehensive plan includes provisions that can
operate as approval standards, those standards are not necessarily relevant to
all quasi-judicial land use permit applications. [Citation omitted.] Moreover, even
if a plan provision is a relevant standard that must be considered, the plan
provision might not constitute a separate mandatory approval criterion, in the
sense that it must be separately satisfied, along with any other mandatory
approval criteria, before the application can be approved. Instead, that plan
provision, even if it constitutes a relevant standard, may represent a required
consideration that must be balanced with other relevant considerations. [Citations
omitted.]'
LUBA went on to hold in Save Our Skyline that it is appropriate to 'consider first whether
the comprehensive plan itself expressly assigns a particular role to some or all of the
plan's goals and policies.' Section 23.08.020 of the county's comprehensive plan
provides as follows:
The purpose of the Comprehensive Plan for Deschutes County is not to provide a site=
specific identification of the appropriate land uses which may take place on a particular
piece of land but rather it is to consider the significant factors which affect or are affected
by development in the County and provide a general guide to the various decisions
which must be made to promote the greatest efficiency and equity possible, while
managing the continuing growth and change of the area. Part of that process is
identification of an appropriate land use plan, which is then interpreted to make
decisions about specific sites (most often in zoning and subdivision administration) but
the plan must also consider the sociological, economic and environmental
consequences of various actions and provide guidelines and policies for activities which
may have effects beyond physical changes of the land. (Emphasis added.)
The Hearings Officer previously found that the above-underscored language strongly
suggests the county's plan statements, goals and policies are not intended to establish
approval standards for quasi-judicial land use permit applications.
247-14-000456-ZC/457-PA Page 9 of 81
In Bothman v. City of Eugene, 51 Or LUBA 426 (2006), LUBA found it appropriate also
to review the language of specific plan policies to determine whether and to what extent
they may in fact establish decisional standards. The policies at issue in that case
included those ranging from aspirational statements to planning directives to the city to
policies with language providing 'guidance for decision-making' with respect to specific
rezoning proposals. In Bothman LUBA concluded the planning commission erred in not
considering in a zone change proceeding a plan policy requiring the city to (r]ecognize
the existing general office and commercial uses located * * * [in the geographic area
including the subject property] and discourage future rezonings of these properties.'
LUBA held that:
`* * * even where a plan provision might not constitute an independently
applicable mandatory approval criterion, it may nonetheless represent a relevant
and necessary consideration that must be reviewed and balanced with other
relevant considerations, pursuant to ordinance provisions that require * *
consistency with applicable plan provisions.'(Emphasis added.)
The county's comprehensive plan includes a large number of goals and policies. The
applicant's burden of proof addresses goals for rural development, economy,
transportation, public facilities, recreation, energy, natural hazards, destination resorts,
open spaces, fish and wildlife, and forest lands. The Hearings Officer finds these goals
are aspirational in nature and therefore are not intended to create decision standards for
the proposed zone change."
Hearings Officer Karen Green adhered to these findings in the Powell/Ramsey decision (file
nos. PA-14-2/ZC-14-2), and found the above-referenced introductory statements and goals are
not approval criteria for the proposed plan amendment and zone change. This Hearings Officer
also adheres to the above findings herein. Nevertheless, depending upon their language, some
plan provisions may require "consideration" even if they are not applicable approval criteria.
Save Our Skyline v. City of Bend, 48 Or LUBA 192, 209 (2004). I find that the following plan
goals and policies require such consideration.
Chapter 2, Resource Management
Section 2.2, Agricultural Lands Policies
Goal 1, Preserve and maintain agricultural lands and the agricultural
industry.
FINDINGS: The Hearings Officer found in the Powell/Ramsey decision, and I agree in this
Decision, that this is an aspirational goal and not an approval criterion. Nonetheless, I find that
the subject property does not constitute "agricultural land" as defined in Goal 3, OAR 660-033-
0020(1) for the reasons set forth in this Finding and as discussed in more detail in the findings
below.
The applicant addressed the soil productivity on pages 137-138 of their burden of proof
statement and in a July 13, 2015 submittal from Mr. Borine, CPSC, CPSS, PWS, of Sage West,
LLC. An Agricultural Soils Capability Assessment, dated May 8, 2012 is attached as Exhibit 14
to the Burden of Proof. The Borine study determined that the subject property is approximately
80% class ViI and VIII soils (17.2 acres), and 20% class III-VI soils (4.3 acres) and therefore not
predominantly Agricultural Land. The study further shows that, together with the LCC soil
247-14-000456-ZC/457-PA Page 10 of 81
ratings as non-agricultural soils, the determination of suitability for farm use of the subject
property is "generally unsuitable" based upon low fertility, limited soil depth for cultivation and
ability to store and hold water, lack of forage production for livestock grazing, limited length of
growing season and high levels of energy input with limited outcome. Specifically, Mr. Borine
found that organic matter for these sites is "extremely low to non-measurable and clay content is
less than five percent, resulting in a very low Cation Exchange Capacity (CEC); the higher the
CEC the better." He also determined the 'soil is unsuitable for cultivation due to limited and
inconsistent soil depth throughout." Suitability for grazing is limited by cold climate and soil
temperatures that delay growth of forage and shorten the growing season, restricted depth limit,
past land alterations and rock outcrop. Mr. Borine concluded, among other things, "This parcel
requires technology and energy inputs over and above that considered accepted farming
practices in this region. Excessive fertilization and soil amendments; very frequent irrigation
applications pumped from a pond with limited availability; and marginal climatic conditions
restrict cropping alternatives."
Mr. Borine explained his methodology, in part, at page 3 of the Borine study:
Prior to the initial field visit the property boundaries, soil maps and
interpretations, geology maps, aerial photos and satellite imagery were
reviewed. The initial site visit included an overview and inventory of the
landforms, soils, vegetation and land uses on the site. Following the
initial on-site investigation an overview of landscapes and soils for an
extended off-site area was completed. Soil mapping units, their
composition and extent, which occur on the subject property, were
observed on the ground and remotely throughout their extent on the
landscape.
The Soil Survey of Upper Deschutes River Area„ Oregon, including parts
of Deschutes, Jefferson, and Klamath Counties was mapped at two levels
of intensity. At the less detailed level (Order 3), map units are mainly
complexes. The average size of delineations for most management
purposes was 160 acres. At the more detailed level(Order 2), map units
are mainly consociations and complexes. The average size of
delineations for purposes of management was 40 acres and the minimum
size was 5 acres. Most of the land mapped at the more detailed level is
used as irrigated and non-irrigated cropland. Inclusions of contrasting
soils or miscellaneous areas are described in the map unit if they are a
significant component of the unit. The NRCS soil survey (Order 2 and 3)
at the landscape level was reviewed and determined to be predominately
accurate. The soil/landscaping relationships were accurate. Soil
boundary placements were general. At this Order 2 and 3 level of
mapping, miscellaneous land types were not mapped or identified as
inclusions. In addition, original placement of soil boundary lines by field
soil scientists on aerial photos are often modified and straightened during
the map digitizing process.
The three NRCS soil mapping units occurring in this study area were
reviewed at the landscape level throughout their extent. All have
contrasting inclusions listed in their map unit descriptions that may
exceed the size of this study area. The initial on-site inventory showed a
high percentage of contrasting shallow soils and miscellaneous areas in
247-14-000455-ZC/457-PA Page 11 of 81
the 36A-Deskamp loamy sand, 0-3% slopes map unit. This map unit is
approximately 76% of the study area If this area is predominately
shallow and very shallow soils and miscellaneous areas the study area
may be predominately non-agricultural soils.
* * *
An Order 1 soil survey is prudent to accurately define soils, mapping
units, and miscellaneous areas and accurately locate their boundaries.
Methods to investigate the soil included the use of shovel, auger, probe
and backhoe. Point observations and transects were used to identify soil
characteristics, map unit composition and accurately locate soil
boundaries. In addition, two sites were sampled for laboratory analysis of
nutrient levels and cation exchange capacity.
Mr. Bovine's findings in the Borine study include the following:
Prior to 1960 this area was highly modified from natural conditions.
Shallow soil and rock outcroppings in the higher landscape position were
removed and leveled and moderately deep soils were used as fill and
overburden for rocky areas. This activity resulted in concave depressions
now having shallow and moderately deep soils, and convex areas having
shallow and very shallow soils with some rock outcrops. The area was
then smoothed, planted to grass and sprinkler irrigated with a wheel-line
system (See 1960 BM/aerial photo in attachments).
The initial inventory and study identified the Deskamp and Gosney series.
in unit 388 a very shallow contrasting inclusion was described and
identified as a potential major component at an Order 1 level. It is not
referenced as a contrasting inclusion in unit 36A. For clarity the very
shallow contrasting soil will be referenced as Zeta soil for this study only
and is a non-correlated soil series name. The miscellaneous areas Urban
Land was also identified as a potential major component at an Order 1
level. It lacks soil and supports little or no vegetation. It is mostly
agricultural buildings, land modifications for staging, equipment
movement, parking, crop storage, pond development and areas of fill
material.
***
The average AWC is 0.12 inches/inch for a loamy sand texture and is
typical for Gosney soils on this property (Web Soil Survey— Soil Survey
of Upper Deschutes River Area, Oregon). A soil seventeen (17) inches
deep with no rock fragments will hold 2 inches of available water. Soils
less than 17 inches deep in this study area whether irrigated or non-
irrigated are LCC 7. in this report the soils referenced as Gosney are 10-
16 inches deep and LCC 7; and the Gosney, deep phase is 16-20 inches
deep and is LCC 6, The Gosney's official typical pedon is 14 inches deep
to basalt and the series ranges from 10 to 20 inches deep.
The Borine study separated this study area into four mapping units that distinguish lands in LCC
III-VI from those in LCC VIi-Vlll. This soil mapping at an Order 1 level accurately delineates the
247-14-000456-ZC/457-PA Page 12 of 81
following mapping units. Tables 2 and 3 of the study shows that Deskamp loamy sand, 0-3%
slopes have an LCC rating 6 non-irrigated and 3 irrigated. It comprises 8% (1.7 acres) of TL
201 and is not present on TL 104. Gosney, deep-Deskamp complex 0-8% slopes have an LCC
rating VI non-irrigated; the Gosney deep soils also have an LCC rating VI irrigated, while the
Deskamp soils have an LCC rating III irrigated. It comprises 13% (2.6 acres) of TL 201 and is
not present on TL 104. Gosney-Zeta complex, 0-3% slopes have an LCC rating VII non-
irrigated and VII irrigated. It comprises 59% of the subject property (12.7 acres). Finally, the
Urban Land soils have an LCC rating of VIII non-irrigated and VIII irrigated. It comprises 21% of
the subject property (4.5 acres).
According to the Borine study, the applicant has enrolled 19.71 acres of water rights for tax lot
201 in the Oregon Water Resources Department's Instream Leasing Program. According to
Oregon Water Resources Department, the water rights have been leased on and off for
approximately 10 years. Swalley Irrigation District explained in a May 29, 2015 email to staff:
About 5 years ago Swalley changed it's [sic] instream-leasing policy from
allowing this practice every year to only allowing it once every 5 years so
that if a water user had not irrigated in 4 years they had the option to in-
stream lease rather than use the water in the 5th year. State water law
requires that irrigation water be used fully (beneficial use) once every five
years or it is forfeited. In stream leasing is considered beneficial use.
Swalley Irrigation District further confirmed that Mr. Aceti has instream leased his Swalley ID
water as follows: Year 2000 — 4.5 acres, 2001 - 6.4 acre, 2005 — 19.71 acres, 2007 -r 19.71
acres, 2013 - 19.71 acres. Swalley Irrigation District disagreed with Mr. Aceti's statement in his
burden of proof that "the construction of the Swalley hydroelectric facility .... adversely affected
applicant's in-stream leasing of irrigation water," clarifying in its May 29, 2015 email to staff that
the new instream-leasing policy was tightened as a result of its main canal piping project (not
the hydroelectric facility built in 2010) and a reduction in Swalley's water right from 125 cfs to 81
cfs.
As set forth in Exhibit 1A, submitted by the applicant at the hearing and dated July 8, 2015, the
applicant is in the process of reducing the number of acres of irrigation water at Swalley's
request. There have been a number of significant changes to the water delivery system for the
subject parcel, as set forth in Exhibit 1A, summarized as follows:
• The Acetis purchased the property in '1995 from Bruce and Gary Barrett. Mr. Aceti did
not receive an easement or written agreement to irrigate the property. When Aceti tried
and failed to raise a crop in 1995, he thereafter saved his water right by keeping the
irrigation water in the Deschutes River through an in-stream lease of his water_
• The 1995 Barrett-Aceti deed contains a misleading reference to a water easement
because several of Barretts parcels that were not conveyed to Aceti are also described
in it. The easement itself does not refer to Aceti's property.
• The chain of title for the property traces back from Aceti to Barrett to Lawrence to
Waltons and then to the original homesteader, James Low, who made homestead entry
at The DaIles on December 3, 1903.
• Charles B. Swalley and G.W. Swalley filed in 1892 for Deschutes River water to irrigate
their ranches north of Bend near Deschutes Junction. The water would be diverted from
the Deschutes River near Bend. The project was funded by selling shares. James Low
247-14-000456-ZC/457-PA Page 13 of 81
owned 3 shares of the capital stock of the Deschutes Irrigation and Rec. Co carrying
water sufficient to reclaim his tract.
• A canal was built over three decades, which reached 13 miles long. By 1933, 6.638
acres were irrigated. At some unknown date, the Swalley lateral called the Deschutes
Lateral that ran north from the main canal to Benjamin and James Low's homesteads
along the rock spine and Half Mile Lane was dug. From Minnie Low's ditch, called the
Low Lateral, water was delivered by gravity in September 1912. Minnie Low was the ex-
wife of Benjamin Low. Today, all of Minnie Low's property is subdivided into Whispering
Pines First Addition.
• By 1931, the Deschutes Lateral ran north from the Swalley Canal at a point just west of
the current hydropower plant to a "Y" at the southwest corner of James Low's
homestead. The open ditch also flowed east across the rock spine and into a now
abandoned irrigation pond that is today next to Highway 97.
• In 1933, Low sold the State of Oregon 6.73 acres in a strip of land 100 feet wide to
construct the new The Dalles-California Highway. Wooden pipes were put under the
highway to allow for irrigation water to flow between the Pilot Butte Canal that crossed
Low's land to the farmable land on its western edge. None of Low's land was served by
the Pilot Butte Canal
• Sometime before 1947, a larger pond on the west side of the highway and southeast of
the rock spine was constructed and water flowed by gravity from the Swalley Irrigation
Canal. It flowed north to a point near Half Mile Land and turned east and ran across the
peak of the rock spine and then downhill to his pond. It was pumped to irrigate Low's
field.
• James Low's former homestead was broken into smaller parcels in multiple ownerships
by 1967..
• The Barretts acquired the property in 1967 from the Lawrences and thereafter
purchased several other parcels in the area, eventually owning 120 acres of
homesteader James Low's original 160 acres.
• In 1986, Barretts sold the land west of the subject property to the Western Conference
Association of Seventh Day Adventists, an Oregon Corporation for the Three Peaks
School.
• In February 1991, the Barretts sold 1.18 acre to ODOT to widen Highway 97 to four
lanes. 24.02 acres remained in the subject property. The widening project cut through a
shared irrigation pond, reducing it by 75% and making it inoperable. ODOT paid to have
a new ditch and pond dug along Half Mile Lane on TL 1100. However, when Aceti
purchased the property from Barretts in 1995, he did not receive any easement or right
to use TL 1100 or 1200 or the equipment for delivery of irrigation water to the subject
property.
• In 2003, Mr. Aceti attempted to build a new irrigation pond near the high point of his
property. Photographic evidence in the record shows that crews using heavy equipment
to dig it, hit solid rock between the surface and four feet down. The bulldozers dug
about eight inches until they hit a solid lava flow slab. The soil was scraped and pushed
up to form the brim of the pond and Aceti imported bentonite to make the base
impermeable. The shattered lava flow could not be sealed and the process was
abandoned.
• In 2006, the Barretts sold TL 1100 (30 acres) to a group affiliated with the Three Peaks
School, Rymilaka LLC. They do not farm the land and have plans to use it to expand the
outdoor and athletic facilities for the school. It has not been farmed since 2005.
• The irrigation pond and irrigation ditch on Half Mile Lane created in 1992 have not been
filled for most or all of the last ten years. It is currently dry and no irrigation water is
247-14-000456-ZC/457-PA Page 14 of 81
flowing from the Deschutes Lateral into the new pond. Water in the pond is backflow
from overfilling the Twigg pond with the older ditch. Rymilaka LLC owns the pond and
the pump in the pumpline and the 1/4 mile long mainline irrigation pipes.
• In order for Aceti to irrigate his land from the pond, he would need to obtain a written
agreement with the landowners, install a new electrical panel, a new pump and '/4 mile of
new mainline pumps across the Rymilaka LLC property and the Lawrence property to
his property. Given the unfarmable shallow soil and rock discovered after his 1995
purchase, Mr. Aceti determined not to pursue the matter further.
• Swalley has no water easement to TL 104. The easement to deliver water to TL 201 is
actually to the irrigation pond on a different parcel Aceti has never owned and that is
south of a rock ridge.
• TL 104, a 1.32 acre parcel, was created when Tumalo Road and Deschutes Market
Road were realigned and the Highway 97 overpass was constructed by a joint project of
Deschutes County and ODOT. It was deeded by the Western Oregon Conference
Association of Seventh-Day Adventist to ODOT in 1997. ODOT deemed it to be a
"remnant" at the completion of the transportation project and granted it to Mr. Aceti on
July 6, 1998, as part of the settlement for the financial losses Aceti incurred as a result of
the project and for the taking of several acres of his land for the new transportation
facilities.
Swalley Irrigation District sent a letter to Mr. Aceti, dated January 14, 2013 (Exhibit 12 to
Burden of Proof), which confirmed that Aceti has not used his Swalley water right for many
years other than participating in the Deschutes River Conservancy In-Stream Leasing Program.
The letter states that, "[w]hen you wish to use your water it will be delivered from Gate # 0040
on the Swalley Deschutes Lateral, then enter the private ditch system on the Eastslope
investments parcel to the southwest of you. How the water then reaches your parcel is a
private matter between yourself and Eastslope investments."
In a May 29, 2015 email from Central Oregon Irrigation District to Paul Blikstad, COID
confirmed that the subject property is not within COID boundaries.
Aerial photos from 1953, 1959, 1972, 1980, 1994, and 1996 show the subject property receiving
irrigation. Aerial photographs in 2000 and 2003 only show the southern portion of the tract as
receiving irrigation. Aerial photographs in 2005, 2006, 2010, 2011, 2012 and 2014 show the
subject property as non-irrigated and not growing crops. The applicant did receive a conditional
use permit and site plan approval (CU-97-72/SP97-49) that states, among other things that "the
record indicates the applicant currently grows hay on approximately 21 of 23 acres on the
subject property." However, the bypass was constructed the following year and the applicant
has not engaged in agricultural use of the property since that time due in part to bisection of the
property. In 2002, the applicant requested a modification of condition (MC-02-12) of CU-97-
72/SP97-49, to expand the existing commercial activity to include the sale of field crops,
nursery, landscaping and horticultural products, and holding special promotion and fund raising
events. The applicant proposed converting the entire portion of the subject property north of
Tumalo Road off-ramp to commercial activity. On page 11 of the Hearings Officer decision
denying the request, it states, "while the soils on the northern irrigated area are less deep and
productive than the soils on the southern irrigated area, nevertheless they are in hay
production." Mr. Aceti produced evidence that, before he could obtain a building permit for the
approved CUP and site plan, the County and ODOT took three acres of his property for
construction of the new overpass and new Tumalo Place, bisecting the property and further
increasing the difficulties experienced by Mr. Aceti in irrigating his property and growing crops.
247-14-000456-7-C/457-PA Page 15 of 81
He also presented evidence that the conditions of approval of the CUP require him to grow hay
on the property, which he has been unable to do since 1998.
In 1998, Tumalo Road was constructed, bisecting the property. ODOT and the county took
three acres in the middle of the Aceti property for construction of a new overpass and
realignment of Tumalo and Deschutes Market Road. The project also realigned the on and off
ramps to the highway. Mr. Aceti submitted information that irrigation and hay farming on site
became impossible as a result. Exhibit 1A, submitted at the public hearing stated, among other
things:
After the overpass was constructed and the traffic system was changed,
he could not farm even a meager crop of hay on site. He couldn't get
irrigation water to the site and even if he could, the overpass made any
hand line sprinkler system layout impractical. Other options such as
attempting to dig a new pond in the northeast corner or to dig a well were
explored without success When one looks at the rock and shallow non-
resource soils, the small parcel size, the overpass bisecting the property
and heavy noisy traffic, it makes sense to find a different more
appropriate use for the land.
Ex. 1A at page 24. Pages 35 and 39 of the Burden of Proof further state that the first owner of
the property, James R. Low sold 6.73 acres of the property to ODOT when the route of The
Dalles-California Highway was surveyed diagonally through his homestead. When constructed,
it severed his connection to the Pilot Butte Irrigation Canal on the east side of the highway and
separated most of his land from the water in the canal. Wooden irrigation pipes were buried
under the roadway to serve his land and to fill the irrigation pond, just below his house that was
on the lava spine at the western edge of the highway. Because the site was a regional
transportation hub, successive owners lost the use of land for the construction and widening of
roads.
According to page 41 of the Burden of Proof, Lester and Jennie Walton were the first owners to
break up the 160-acre homestead parcel when they sold a 25.2 acre parcel to Carroll and Mary
D. Lawrence in 1967. The Lawrences resold the parcel to the Barretts 5 weeks later after
determining it was nearly worthless farmland and cost more to farm than any income that could
be derived from it. The Barretts sold the parcel to Anthony Aceti for $196,480. Mr. Aceti is a
second-generation hay farmer and hay broker from Christmas Valley. He determined that the
proximity of the property to Highways 20 and 97 made it ideal for his business.
As set forth at page 59 of the Burden of Proof, According to OSU Extension Agent Mylen Bohle,
it takes 200-250 acres of productive, regularly-shaped, irrigated farmland to break even on
producing hay crops in Deschutes County at today's prices if the farmer can rent equipment or
purchase used equipment. It takes 3,500 to 6,000 acres of hay to make enough profit to
support a family. Some or all of the following expenses may be involved: (1) hay professionals
to cut and sell hay locally; (2) leasing the land to an expert farmer to produce hay; (3) custom
baling at $45-75 per ton; (4) fuel and farm machinery and truck prices for driving tractors and
sprayers to driving trucks haling the hay containers. In addition, there are many steps required
for preparing a local parcel to produce a crop, which further adds to the cost (removal of native
brush, fertilizing, sterilizing soil, removal of rocks, plowing and tilling soil, planting seeds,
irrigation system, prevention of noxious weeds, harvesting, baling and shipping).
247-14-000456-ZC/457-PA Page 16 of 81
Substantial evidence in the record supports a finding that the subject property does not
constitute "agricultural land." The soils study is adequate for determining whether the subject
property consists of predominantly Class VII and VIII soils and whether it is unsuitable for farm
use, considering profitability and factors in the Goal 3 administrative rule, as set forth in the
findings below. The property is unsuitable for farm use considering, among other things,
difficulties associated with irrigating the property (lack of easement to access the irrigation
pond/ditch constructed pursuant to a settlement between Barrett and ODOT), the surrounding
road network, impacts of nearby heavy traffic and transportation, impacts on the subject
property of the expansion of Highway 97, the bisection of the property with the construction of
Tumalo Road, surrounding commercial and industrial uses, the lack of surrounding farm uses,
and the relatively small size of the parcel, which impacts economies of scale.
Policy 2.2.2, Exclusive Farm Use sub-zones shall remain as described in
the 1992 Farm Study shown in the table below, unless adequate legal
findings for amending the sub-zones are adopted or an individual parcel is
rezoned as allowed by Policy 2.2.3.
FINDINGS: The Hearings Officer found in the Powell/Ramsey decision, and I agree in this
Decision, that this policy is directed at the county rather than at an individual applicant. In any
case, the applicant is not requesting an amendment to the subzone (EFU-TRB) that applies to
the subject property.
Policy 2.2.3, Allow comprehensive plan and zoning map amendments for
individual EFU parcels as allowed by State Statute, Oregon Administrative
Rules and this Comprehensive Plan.
FINDINGS: The Hearings Officer found in Powell/Ramsey, and I agree in this Decision, that this
policy is directed at the county rather than an individual applicant. In any event, the applicant
has requested a quasi-judicial plan amendment and zone change to remove the EFU
designation and zoning from the subject property and has submitted information to establish the
subject property is not "Agricultural Land" subject to Goal 3. The applicant's proposal is
authorized by policies in the comprehensive plan and is permitted under state law.
Policy 2.2.4, Develop comprehensive policy criteria and code to provide
clarity on when and how EFU parcels can be converted to other
designations.
FINDINGS: The Hearings Officer found in Powell/Ramsey, and I agree in this Decision, that this
policy is directed at the county rather than at an individual applicant. Hearings Officer Green
stated in Powell/Ramsey that "In any event, in my decision in NNP (PA-13-1, ZC-13-1) I held
any failure on the county's part to adopt comprehensive plan policies and code provisions
describing the circumstances under which EFU-zoned land may be converted to a non-resource
designation and zoning does not preclude the county from considering quasi-judicial plan
amendment and zone change applications to remove EFU zoning. I adhere to that holding
here." This Hearings Officer agrees with such determination; I find that until such time as the
County establishes policy criteria and code on how EFU parcels can be converted to other
designations, the current legal framework can be used and must be addressed.
Policy 2.2.13, Identify and retain accurately designated agricultural lands.
247-14-000456-ZC/457-PA Page 17 of 81
FINDINGS: The Hearings Officer found in Powell/Ramsey and I agree in this Decision, that this
policy is directed at the county rather than the applicant. Nonetheless, substantial evidence in
the record supports a finding that the property consists of predominantly Class VII and VIII soils
and is unsuitable for farm use considering profitability and factors in the Goal 3 administrative
rule. Accordingly, as set forth in the findings herein, the subject property does not constitute
"Agricultural Land."
Section 2.5, Water Resource Policies
2.5.24, Ensure water impacts are reviewed and, if necessary, addressed for
significant land uses or developments.
FINDINGS: The Hearings Officer found in Powell/Ramsey, and I agree in this Decision, that this
policy is directed at the County. Hearings Officer Green stated in the Powell/Ramsey decision:
"Nevertheless, in my decision in NNP I held it is not clear from this plan language what "water
impacts" require review -- impacts to water supplies from use or consumption on the subject
property, or impacts to off-site water resources from development on the subject property. As a
result, I addressed both issues in that decision, and I do so here as well." This Hearings Officer
likewise addresses both issues as set forth below.
I find that it is premature to review "water impacts" because the applicant has not proposed any
particular land use or development. Any subsequent applications for development of the
subject property would be reviewed under the County's land use regulations which include
consideration of a variety of on-and off-site impacts.
The applicant's requested zone change to RI would allow a variety of land uses on the subject
property. As discussed in the Findings of Fact above, some of the land near the subject
property is zoned RI and developed with industrial uses. The record supports a determination
that similar development likely would occur on the subject property if it were re-designated and
rezoned to RI. Moreover, in light of existing uses in the surrounding area, and the fact that Avion
Water Company provides water service in the Deschutes Junction area, the record supports a
determination that future development of the subject property with uses permitted in the RI Zone
will have water service.
The subject property has 19.71 acres of irrigation water rights and therefore the proposed plan
amendment and zone change will result in the loss or transfer of water rights unless it is
possible to bring some irrigated water to the land for other allowed beneficial uses, such as
irrigated landscaping. In its comments on the applicant's proposal, Swalley Irrigation District
stated that the applicant will need to work with the District to discuss any development on top of
irrigated ground. The Applicant has not grown a crop on the subject property or effectively used
his water right since the overpass was constructed in 1998. I find that any water impacts with
respect to irrigation water rights can be addressed in a condition of approval, set forth below.
This criterion is met.
Rural Economy
Goal 1, Maintain a stable and sustainable rural economy, compatible with rural
lifestyles and a healthy environment.
Policy 3.4.23, To assure that urban uses are not permitted on rural
industrial lands, land use regulations in the Rural Industrial zones shall
247-14-000456-ZC/457-PA Page 18 of 81
ensure that the uses allowed are less intensive than those allowed for
unincorporated communities in OAR 660-22 or any successors.
Policy 3.4.27, Land use regulations shall ensure that new uses authorized
within the Rural Industrial sites do not adversely affect agricultural and
forest uses in the surrounding area. (Emphasis added.)
FINDINGS: The Hearings Officer found in Powell/Ramsey, and I agree in this Decision, that
these policies are directed at the County and not at individual applications and are inapplicable
to the applicant. In any case, the applicant's proposal does not change the land use regulations
in the RI Zone.
Policy 3.4.28, New industrial uses shall be limited in size to a maximum
floor area of 7,500 square feet per use within a building, except for the
primary processing of raw materials produced in rural areas, for which
•
there is no floor area per use limitation.
Policy 3.4.31, Residential and industrial uses shall be served by DEQ
approved on-site sewage disposal systems.
Policy 3.4.32, Residential and industrial uses shall be served by on-site
wells or public water systems.
FINDINGS: The Hearings Officer found in Powell/Ramsey, and I agree in this Decision, that
these policies apply to quasi-judicial applications and are inapplicable to the applicant for the
proposed rezone and plan amendment. The Hearings Officer agrees with Staff's notation that
these policies are codified in Chapter 18.100 governing the RI Zone and are implemented
through those provisions. The applicant's proposal does not change the land use regulations in
the RI Zone.
Section 3.7, Transportation System Plan
Executive Summary
Arterial and Collector Road Plan
Goal 4
4. Establish a transportation system, supportive of a geographically
distributed and diversified economic base, while also providing a
safe, efficient network for residential mobility and tourism.
Policies
4.1 Deschutes County shall:
a. Consider the road network to be the most important and
valuable component of the transportation system.
4.3 Deschutes County shall make transportation decisions with
consideration of land use impacts, including put not limited to,
adjacent land use patterns, both existing and planned, and their
designated uses and densities.
247-14-000456-ZC/457-PA Page 19 of 81
4.4 Deschutes County shall consider roadway function, classification
and capacity as criteria for plan map amendments and zone
changes. This shall assure that proposed land uses do not exceed
the planned capacity of the transportation system. (Emphasis added.)
FINDINGS: The Hearings Officer found in Powell/Ramsey, and I agree in this Decision, that the
above-underscored language indicates these plan policies provide direction to the county but do
not create approval criteria for a quasi-judicial plan amendment and zone change. This
Hearings Officer agrees with such determination. Accordingly, the criteria are not applicable to
review of the subject applications.
Under DCC 17.16.115.C.4.c, the proposal will create more than 200 trips per day or require a
zone change. Accordingly, the applicant was required to and did submit a transportation impact
analysis ("TIA"), dated March, 2015 and prepared by Sage Engineering Associates, which is
included in the record as Exhibit 28 to the applicant's burden of proof. Six intersections were
analyzed in the TIA using ODOT methodologies and standards for the highway intersections
and County standards for the other intersections. Trip generation was based on "worst case
scenario" because no development is proposed. This includes division of the subject property
into 20 lots with proposed buildings at the maximum size of 7,500 square feet in the RI zone.
Examples of permitted uses under DCC 18.100.010 include contractor/building materials
businesses, plumbing, electrical, roofing, siding contractors, welding, sheet metal or machine
shop, veterinary clinic. The study area includes property frontage, road connections and
impacted intersections. Study years (with and without the project) include background (2015),
five years (2020) and twenty years (2035). Analysis period is the weekday P.M. peak hour_
The TIA includes volume and distribution of traffic generated by the development, existing
nearby land uses, safety issues and study of all access points. Existing driveways onto Tumalo
Place and Tumalo Road will be used to serve the proposed development
Among other things the TIA analyzed existing conditions, crash data, driveway sight distance,
existing traffic volumes (and adjustments), background traffic, site generated traffic, adjustments
to trip generation, driveways directional distribution, trip assignment and distribution, future
traffic, peak hour factor, capacity analysis, standards and mitigations, and the transportation
planning rule ("TPR"). The TIA concluded that by 2035, both with and without the project, the
intersection of Tumalo Road/Tumalo Place will operate at a level of service ("LOS") F for SE
movements. The minimum standard for approach delay is LOS D.
Both the County Transportation Planner and ODOT submitted the following written comments
with respect to traffic and transportation impacts of the proposed rezone and plan amendment:
Staff from County Planning, the Road Department, and the applicant's traffic engineer
have met several times regarding the proposed land uses to include a traffic impact
analysis (TIA) for the proposed zone change and plan amendment from Exclusive Farm
Use (EFU) to Rural Industrial (RI). The TIA is for the approximately 22 acres on the
northwest and southwest quadrants of the US97/Tumalo Road/Deschutes Market Road
interchange. We all agreed upon the relevant intersections to be analyzed, the land uses
and trip generation rates, and trip distribution. The resulting TIA was to satisfy both the
Deschutes County Code (DCC) for traffic studies at DCC 18.116.310 and the
Transportation Planning Rule (TPR) at Oregon Administrative Rule (OAR) 660-012-0060.
247-14-000456-ZC/457-PA Page 20 of 81
Issue with submitted TIA and TPR compliance
The March 2015 TIA, which is Exhibit 28 in the burden of proof, indicates all
intersections will meet the County's mobility standard Level of Service (LOS) D in 2035,
save for the exception of Tumalo Road/Tumalo Place, which will be LOS F with or
without the project. The Deschutes County Transportation System Plan (TSP) did not
show any failure of this intersection in the plan's horizon year of 2030 and thus no
improvements are listed for Tumalo Road/Tumalo Place in the TSP.
The failure of the Tumalo Road/Tumalo Place intersection in 2035 makes the plan
amendment/zone change significant under the TPR at OAR 660-012-0060(1)(B) or (C).
The TIA lists no mitigation by the applicant, but does suggest on Page 9 monitoring the
intersection or the construction of a roundabout, which would make the intersection
function at LOS A.
Neither a roundabout, nor any other improvement, is listed in the TSP's Table 5.3.1
"County Road and Highway Projects," the County's Capital Improvements Program
(CIP), nor ODOT's Statewide Transportation Improvement Program (STIP). Thus, the
TIA does not comply with the TPR at OAR 660-012-0060(4). Additionally, the TIA in its
worksheet for the Tumalo Road/Tumalo Place intersection in 2035 demonstrates the
intersection while LOS F with or without the projects, has more delay and queuing with
the project. Specifically, the approach delay is 87.6 seconds per vehicle without the
project and 129.1 seconds with the project, an increase in delay of 47%. Similarly, the
number of vehicles in the southbound queue increases from 13.31 to 16.53 or 24%.
Solution
The TIA in its worksheet for Tumalo Road/Tumalo Place in 2035 with and without the
project shows while the intersection functions at LOS F in either case, a southbound
right turn lane (SBRTL) will improve operations of the north leg of the intersection.
Specifically, the approach delay decreases from 87.6 seconds per vehicle to 78.3
seconds, a decrease of 10.62%. Similarly, the number of vehicles in the southbound
queue decreases from 13.31 to 11.77, a decrease of 11.6%. A turn lane is a fairly small
scale improvement and one that typically does not rise to a level requiring an
amendment to either the TSP or County CIP.
The applicant can comply with the TPR with either of these conditions of approval:
• Fund or construct a southbound right turn lane at Tumalo Road/Tumalo Place.
• Record a Transportation Demand Management (TDM) Program that will require
industrial uses to begin or end their shifts outside of the 4-6 p.m. peak hours.
The above alternatives, coupled with the options allowed under TPR at OAR 660-012-
0060(11) for industrial uses, would mean the TIA and the land use application could be
found to be consistent with the TPR and to have provided sufficient mitigation.
Oregon Department of Transportation:
Thank you for the opportunity to comment on this proposed land use action. ODOT has
no adverse comments on the proposal. We do, however, want to clarify that there are
no planned capacity improvements to the Deschutes Junction interchange.
247-14-000456-ZC/457-PA Page 21 of 81
The controlling transportation plan for US 97 in this area is the Deschutes County
Transportation System Plan (TSP) which was adopted in 2012. The TSP has a horizon
year of 2030 and showed no need for capacity improvements to the interchange. This is,
with the projected 2030 traffic volumes, the Deschutes Junction interchange will continue
to operate acceptably and well within ODOT mobility standards.
The applicant's burden of proof identifies "Changes in Circumstances" and #23 of page
53 states that ODOT and the County "are circulating designs and discussing a diamond
interchange at Deschutes Junction..." and on page 58 shows a primitive line-drawing
sketch with a diamond interchange imposed over the existing interchange. The
accompanying text calls it "ODOT's long-term plan." Again, there is no long term to
replace or upgrade the existing interchange at Deschutes Junction. The current
interchange is projected to operate acceptably through the year 2030. As stated in the
Deschutes County TSP (pg 144):
"The agency has no plans to upgrade the facility at this time as the interchange is
sufficient for the rural uses allowed under the zoning. ODOT has emphasized its
desire to extend a raised median from the current one. The initial extension of
the raised median would be north to Gift Road as well as south for an
undetermined distance. The agency recognizes the out of direction travel that
would result and thus has stated the current raised median would not be
extended until a frontage road was in place on the west side of.US 97."
As stated in the TSP, ODOT and County looked at providing a frontage road on the west side of
US 97 between Gift and Tumalo Roads. In response to a question about how the frontage road
would operate if the interchange was upgraded to an urban design, ODOT provided the sketch
drawing discussed above. It should be noted that the existing interchange was specifically
designed to serve rural land uses and is fully expected to operate as designed into the
foreseeable future.
Staff initially stated in the Staff Report that, because the County Transportation Planner
determined the TIA does not comply with the TPR at OAR 660-012-0060(4), the applicant must
propose a resolution of this issue. In response, the applicant submitted a Traffic Management
Plan ("TMP"), dated June 8, 2015, which states that, as part of any development of the property,
the developer shall:
1. Create a system of access easements that connect the three driveways with any lots
created by partitioning or subdividing of the land.
2. Work with Commute Options to assist in preparing a two year start-up Transportation
Demand Management program (TDM). The program will include:
A. Conducting workshops and training on TDM alternatives;
B. Provide posters and brochures promoting smart commuting choices;
C. A plan to have employees from on-site businesses have staggered start and
end work hours.
3. Prepare an internal Traffic Control Plan (in accordance with the MUTCD), that includes:
A. Directional signing to Redmond, Bend, Tumalo at each intersection;
B. Time-restrictive (4 PM — 6 PM) "NO LEFT TURN" sign at the driveway onto
Tumalo Place;
C. Bridge undercrossing shall be signed "ONE LANE ROAD";
247-14-000456-ZC/457-PA Page 22 of 81
D. Prepare a site map, with the aid of DCPWD, showing the location of traffic
control devices.
4. Have the Deschutes County Transportation Planner approve Traffic Management Plan.
The Hearings Officer finds that these components of the TMP satisfy OAR 660-012-0060(4) for
this rezone and Goal exception application and will be included as a condition of approval of the
applications. Review by the County Transportation Planner will be required for each and every
proposed development of the property in the future. Such specific proposals may be
conditioned or denied on the basis of failure to meet applicable traffic/transportation criteria if
warranted by the terms of such proposals.
Section 3.10, Area Specific Policies
Deschutes Junction
Policy 3.10.11, Maximize protection of the rural character of neighborhoods
in the Deschutes Junction area while recognizing the intended
development of properties designated for commercial, industrial and
agricultural uses. (Emphasis added.)
FINDINGS: The Hearings Officer found in Powell/Ramsey, and I agree in this Decision, that this
policy is directed at the county and not intended to be an approval criterion for quasi-judicial
plan amendment and zone change applications for land in the Deschutes Junction area.
Nevertheless, substantial evidence in the record shows that Deschutes Junction has had an
extensive, well-developed transportation system of county and state highways and roads that
have resulted in non-agricultural development. This is supported by evidence of 1,756 tax lots
within a 2.5 mile radius of the subject property, including 1,250 urban sized lots, 60.4 acres of
land zoned and used for Rural Industrial and other commercial uses_ The road and highway
network, the State Highway interchange and the railroad tracks and spurs are dominant features
of the Deschutes Junction area. The record shows that there are more roads coming into
Deschutes Junction than any other part of the county. According to Tim Berg, County GIS
System Analyst, there are 121.9 acres of RI zoned land in Deschutes County, nearly 50% of
which is located within Deschutes Junction. The record shows that the subject property, in
particular, is more impacted by the road/highway development in Deschutes Junction than any
other adjacent or adjoining property given its bisection in 1998 for construction of Tumalo Road
and the Highway 97 overpass. Based on this fact, I find that potential industrial development of
the subject property will not negatively impact any remaining "rural character" of Deschutes
Junction because the remaining rural uses are to the south and northwest of the property and
more distant from the impacts of highway, overpass and road system. Arterial roads
surrounding the property, including its bisection by the overpass project, connect rural,
commercial and industrial existing uses that constitute the "core" of Deschutes Junction with the
subject property itself. Rural neighborhoods to the northwest of the property are located at
enough of a distance from the highway/road interchange to be protected from any impact of
commercial/industrial development of the property. I find that approval of the requested
applications will protect any remaining rural character of neighborhoods in the Deschutes
Junction area, while recognizing the intended development of properties designated for
commercial, industrial and agricultural uses.
Policy 110.12, Review cumulative impacts of future development and
future traffic improvements in the Deschutes Junction area in a manner
consistent with Deschutes County traffic study requirements at 17.16.115,
247-14-000456-ZC/457-PA Page 23 of 81
the Oregon Highway Plan, access management standards of OAR Chapter
734, Division 51, and OAR Chapter 660, Division 12, the Transportation
Planning Rule(TPR). (Emphasis added.)
Policy 3.10.13, Support safe and efficient travel around Deschutes
Junction, including a frontage road extending north from Tumalo Road on
the west side of Highway 97. (Emphasis added.)
FINDINGS: The Hearings Officer found in Powell/Ramsey, and I agree in this Decision, that the
above-underscored language in these policies indicates they are directed at the county rather
than establishing approval criteria for quasi-judicial plan amendment and zone change
applications.
As discussed in the findings above, staff initially stated that, because the County Transportation
Planner determined the TIA does not comply with the TPR at OAR 660-012-0060(4), the
applicant must propose a resolution of this issue. In response, the applicant submitted a TMP,
dated June 8, 2015, which requires among other things, a TDM program requiring staggered
start and end work hours and a Traffic Control Plan that prohibits southbound turning
movements from Tumalo Road onto Tumalo Place during the 4-6 p.m. peak hours, addressing
the concerns set forth by the County Transportation Planner in his comments on the proposal
and TIA. As set forth above, the components of the TMP satisfy OAR 660-01.2-0060(4) for this
rezone and Goal exception application and will be included as a condition of approval of the
applications.
B. That the change in classification for the subject property is
consistent with the purpose and intent of the proposed zone
classification.
FINDINGS: The comprehensive plan has the following language for the rural industrial zone:
Rural Industrial
The Rural Industrial plan designation applies to specific exception areas located outside
unincorporated communities and urban growth boundaries. The Rural Industrial plan
designation brings these areas into compliance with state rules by adopting zoning to
ensure they remain rural and that uses allowed are less intensive than those allowed in
unincorporated communities as defined in OAR 660-022.
Section 18.100.010 states the purpose of the RI Zone is:
.. to encourage employment opportunities in rural areas and to promote the
appropriate economic development of rural service centers which are rapidly becoming
urbanized and soon to be full-service incorporated cities, while protecting the existing
rural character of the area as well as preserving or enhancing the air, water and land
resources of the area."
I find that the Applicant's proposed plan amendment and zone change from EFU-TRB to RI
would create employment opportunities in rural areas in general and in the Deschutes Junction
area in particular. The "rural character" is described in the findings above and the zone change
is consistent with the current character of the US Highway 97 interchange and surrounding rural
industrial uses surrounding the subject property. There are more than 4,000 people living in the
247-14-000456-ZC/457-PA Page 24 of 81
Deschutes Junction area who largely commute to Redmond or Bend. Some could seek
employment in the new RI zone, meeting goals for fewer miles traveled to work and enhancing
air quality and reducing fuel usage. The provisions of the RI Zone, as well as any mitigation or
other requirements imposed in the subsequent conditional use permit and/or site plan approval
criteria applied to future development proposals in the RI Zone are designed to minimize
adverse impacts on air and water quality and other land uses in the area. This criterion is met.
Policy 3.4.23 To assure that urban uses are not permitted on rural industrial
lands, land use regulations in the Rural Industrial zones shall ensure that the uses
allowed are less intensive than those allowed for unincorporated communities in
OAR 660-022 or any successor.
Policy 3.4.27 Land use regulations shall ensure that new uses authorized within
the Rural Industrial sites do not adversely affect agricultural and forest uses in the
surrounding area.
FINDINGS: The applicant's proposed plan amendment and zone change from EFU to RI is
subject to DCC Chapter 18.100, including 18.100.030, Use Limitations and 18.100.040
Dimensional Standards, which are intended to protect the surrounding area from intense
industrial uses. I find that the proposed plan amendment and zone change will be consistent
with the intent and purpose of the RI zone for the reasons set forth in the findings below.
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 record shows that necessary public facilities and services are available to serve
future industrial development on the subject property. The property receives fire protection from
the Deschutes County Rural Fire District No. 2 through the City of Bend Fire Department. No
comments from the Fire Department were submitted on the applicant's proposal. The property
receives police protection from the Deschutes County Sheriff. The applicant submitted into the
record a letter from Pacific Power indicating that they can provide electrical service and a letter
from Avion Water Company indicating they can provide water service to the Deschutes Junction
area. Any future development at the site will require a septic system for sewage treatment.
As discussed in the findings above, staff initially stated that, because the County Transportation
Planner determined the TIA does not comply with the TPR at OAR 660-012-0060(4), the
applicant must propose a resolution of this issue. In response, the applicant submitted a TMP,
dated June 8, 2015, which requires among other things, a TDM program requiring staggered
start and end work hours and a Traffic Control Plan that prohibits southbound turning
movements from Tumalo Road onto Tumalo Place during the 4-6 p.m. peak hours, addressing
the concerns set forth by the County Transportation Planner in his comments on the proposal
and TIA. As set forth above, the components of the TMP satisfy OAR 660-012-0060(4) for this
rezone and Goal exception application and will be included as a condition of approval of the
applications.
2. The impacts on surrounding land use will be
consistent with the specific goals and policies
contained within the Comprehensive Plan.
247-14000456,1C/457-PA Page 25 of 81
FINDINGS: The proposal's compliance with the relevant comprehensive plan goals and policies
is addressed in the findings above, specifically Policy 3.10.11, "Maximize_protection of the rural
character of neighborhoods in the Deschutes Junction area while recognizing the intended
development of•properties designated for commercial, industrial and agricultural uses." For the
reasons discussed in the Findings above, I find that this criterion is met.
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:
1. Mistake. I find that the original EFU zoning of the subject property was not a mistake at the
time of its original designation. The property's EFU designation and zoning were appropriate in
light of the soil data available to the county in the late 1970s when the comprehensive plan and
map were adopted.
2. Change in Circumstances. Substantial evidence was submitted with the application and at
the public hearing showing changes in circumstances that have occurred since the property was
originally zoned EFU-TRB by the County. The applicant listed certain changes of
circumstances that have taken place in the last 15 years alone, from 1990 to the present, on
page 47-53 of the burden of proof:
1. The average parcel size within a mile of the subject property has been reduced
from 80 acres to 5 acres.
2.; Deschutes County GIS Analyst Programmer Tim Berg states, "In the Deschutes
Junction Vicinity are 1,756 platted lots; 339 buildable lots which was a 20%
rnty there p lots;
increase in two years; 9 lots built out for industrial and commercial uses; 1,417
residential built out lots; and there are five different zones in the vicinity." More
residential lots and rural subdivisions with lots to less than 1/4 acre in size are
within two miles.
3. The adjacent parcel 161226C000107 was rezoned RI in 2014.
4. A portion of Nichols Market Road, now called Tumalo Place, has been realigned
and reconstructed as on and off ramps to the south-bound US Highway 97. Its
realignment required the "taking" of land from the Applicant, reducing his parcel
size and adding traffic adjacent to his property. The southern right-of-way of
Tumalo Place forms the northern property line of the Applicant's property. The
Applicant's property was "dog-eared" at the south-bound on-ramp.
5. Aceti's Hay Depot business is the last commercial agricultural business that
provides the primary income for the owner in the vicinity. Due to changes in the
hay market, the reduction in livestock being raised in the country and the
reduction in parcel sizes throughout the area, the business is no longer viable.
The area is shifting to a tourism/retirement based business.
247-14-000456-ZC/457-PA Page 26 of 81
6. The Deschutes Junction US Highway 97 Overpass western approach was
constructed across the Applicant's land, bisecting it into two irregularly shaped
portions, that made irrigation impossible and farming more difficult.
7. No longer can anyone see across the overpass approach from one side of the
parcel to the other.
8. The land has not been irrigated since the overpass was constructed and cut
through the established irrigation system.
9. The overpass construction reduced the parcel size and thereby removed the
owner's ability to qualify for a farm dwelling.
10. Three paved dedicated turn lanes and three 120 foot long driveways that
accommodate hay trucks were constructed into the parcel from the new roads.
One entrance is from Tumalo Place and two entrances from Tumalo Road.
11, To partially address the lack of connectivity between the newly created northern
and southern portions of the parcel, a 16 x 16 foot concrete tunnel was designed
and constructed through the underpass approach for trucks, farm vehicles and
livestock.
12. On January 22, 2001, an "unrestricted use easement," water line easement and
an underground utility easement were granted by Deschutes County to Aceti in
perpetuity for future development.
13. Aceti paid for a new 12-inch diameter Avian domestic water line to be brought
from Tumalo Place through his land to the southern boundary line. He installed
two fire hydrants, one in each portion of the parcel.
14.. Tax lot 161227D000104 was created with remnant land at the end of the on and
off ramp and overpass construction. It was deeded to the Applicant as a partial
settlement for land lost to the new road right-of-ways. The lot allows for turn
around and backing space to trucks to use his loading docks on the storage
building.
15. The 1991 widening of US Highway 97 from two to four lanes took land from the
subject parcel. It cut off the historic source of irrigation water from the Pilot Butte
Canal and took 2/3 of the historic irrigation pond.
16. Aceti in 2003 attempted to build a new irrigation pond near the high point on his
property. Using heavy equipment to dig it, the crews hit solid rock between the
surface and four feet down. The attempt failed. During that process, the
bulldozers dug about eight inches until they hit a solid lava flow slab. The meager
soil was scraped and pushed up to form the brim of the pond, in order to create
some depth to it. The applicant imported bentonite (an absorptive clay used as a
sealant or filler) to make the base impermeable. But the shattered lava flow
could not be sealed, and the process was abandoned.
17. The new overpass, the new south-bound on and off ramps to US Highway 97
and the reconfiguration of Tumalo Road, Deschutes Market Road and Pleasant
247-14-000456-ZC/457-PA Page 27 of 81
Ridge Road and the changes in the irrigation water access points have resulted
in an unfarmable property because of its lack of irrigation water, location, size,
configuration and soils.
In 1996 ODOT requested mitigation for the loss of the irrigation system and
secured a proposal from Thompson Pump and Irrigation_
16. Aceti purchased and installed a water pump to draw water from the irrigation
pond on Half Mile Road, filled with Swalley Irrigation System water. With
cooperation from the owners of tax lot 161227D001100, the Applicant shared the
water pipes on the neighboring property. However, the current owners who are
associated with the Seventy Day Adventist Church do not farm and do not use
the irrigation system. They plan to use the 30 acres for recreational uses for the
present school on the adjacent property, tax Iot161227D000100. Even with all
the money spent and the effort made, due to the overpass, it is infeasible to
irrigate the northern portion and therefore grow a crop on the northern portion of
this property.
19. Rural and urban density residential subdivisions and commercial and industrial
development in the area have resulted in a parcel that is nearly impossible to
farm and irrevocably committed to urbanization. That action began with the
platting of Centralo in 1911 and continues today. No parcel within a half mile of
the subject site is being commercially farmed today.
20. The new Swalley Hydroelectric plant is south of Deschutes Junction, on the west
side of US Highway 97. When the Applicant tried unsuccessfully to use his 19
acres of irrigation water rights, he put the water back into the Deschutes River
through the Deschutes River Conservancy's In-Stream leasing program. His
annual Swalley Irrigation District bill dropped from $1,000 per year to $300 per
year. However, Swalley then piped much of its canal and constructed a
hydroelectric plant upstream from the subject property. Swalley rescinded his
annual in-stream lease because the irrigation water was needed to turn the
turbine. His bill returned to $1,000 annually, even though he is not using the
water and agreed to in-stream leasing. Swalley's new in-stream leasing policies
only allow Aceti to lease the water to the Deschutes River Conservancy's in-
stream leasing program once every five years, but the $1,000 per year
assessment fees continue, even though he is not using the water.
21. Commercial, industrial, wholesale, and retail businesses now surround the
property on its northern and eastern side and a school on the western side. No
one farms the 4 acre parcel with a rental house on the ridge at the southern end
of his property.
22. ODOT and the County have been discussing and circulating designs to eliminate
the unsafe intersection of US Highway 97 and Gift Road. The current proposed
solution is to eliminate the intersection entirely and direct traffic to a new road
paralleling the west side of the highway south to Tumalo Place, ending at the
northern property line of the subject property.
247-14-000456-ZC/457-PA Page 28 of 81
23. ODOT and the County are circulating designs and discussing a diamond
interchange at Deschutes Junction that will either be on the Applicant's property
or just north of it.
24. The following table summarizes changes to the subject property and adjacent
property since 1991.1
25. On November 6, 1997 Hearings Officer Karen Green signed a conditional
approval of a conditional use permit for the subject parcel. Many of her 3.5
pages of conditions were urban in nature, adding to the urbanization of the
parcel. They interfered with the ability of the Applicant to farm, took land out of
the farm, and increased overhead so much that the hay farming operation
became infeasible. The Applicant made many fire safety improvements. Many
of them such as the "fire apparatus access roads" took more land out of farming.
The most expensive was that he paid to bring the 12-inch diameter Avion water
line from Tumalo Place into the property and the ditch was dug through the rock
and the pipe was put in for the entire length of the property, north to south. This
created a twenty-foot wide easement that could not be farmed or developed.
Then he paid to install two fire hydrants surrounded by bollards, one on the
northern portion and one on the southern end of the parcel. At that time, there
only was one parcel, 161226C000201. The smaller parcel of remnant land from
the road projects had not been created. How many farms in Deschutes County
have 12-inch domestic water lines or two fire hydrants on them? Home many
farmers have been required to make these urban types of improvements on EFU
zoned land in order to sell hay?
The listed changes in circumstances are summarized in Figure 19 at pages 54-57 of the Burden
of Proof. In addition, Exhibit 1A, dated July 8, 2015, summarizes the changes to the water
delivery system and irrigation difficulties associated with the subject property, as detailed in the
findings above. The Applicant also submitted video evidence at the hearing which showed,
among other things, the surrounding property uses, including commercial, industrial and
residential, the impact of the proximity to Highway 97 on the subject property, the bisection of
the subject property by the overpass project, damage to the fence surrounding the property by
traffic, noise from adjacent highway and other high intensity uses. Finally, the new site-specific
soils data for the subject property (Exhibit 14 to the Burden of Proof) is a significant change of
circumstances justifying the proposed plan amendment and zone change, given that the
property is comprised predominantly of Class VII and Class VIII soils that are unsuitable for farm
use.
Staff noted, and I agree that statements regarding the alleged impact of the construction of the
Swalley hydroelectric facility on the applicant's in-stream leasing of irrigation water are
misplaced, as noted in the findings above. Also, Swalley does not get their water from COlD's
Pilot Butte Canal. Finally, Swalley has indicated that they do not acquire or administer any
private easements for water delivery, so there is no "Swalley easement." However, as detailed
changes in circumstances concerning the findings above, there are significant g g the water
delivery system and irrigation to the subject property that have occurred since the property was
originally zoned EFU-TRB, as detailed in Exhibit 1A, dated July 7, 2015.
1 The applicant's table was not included in the Staff Report.
247-14-000456-ZC/457-PA Page 29 of 81
In ZC-01-1, the Hearings Officer found that, "...any change in circumstance justifying a zone
change must be to the subject property or other property in the vicinity and not to the property
owner's circumstances or needs." I find that the following general circumstances have changed
with respect to the subject property and/or to other property in the vicinity since 1990 and are
not representative of a change in the property owner's circumstances or needs:
• The reduction of the number of acres in the applicant's parcel due to road projects.
• The reduction in the average parcel size within 1 mile of the subject property from 80
acres to 5 acres
• The reconfiguration of the parcel into two distinct, irregularly shaped portions that are
difficult, expensive, and nearly impossible to farm and irrigate.
• The construction of the Deschutes Junction overpass across the subject property
which resulted in lack of irrigation water, and adverse changes in location, size,
configuration and soils rendering the property un-farmable.
• The fact that the ODOT Highway 97 widening project In February 1991, cut through
a shared irrigation pond, reducing it by 75% and making it inoperable.
• The fact that the land has not been irrigated since the overpass was constructed and
cut through the established irrigation system
• The re-routing of commuter traffic onto roads around the subject property.
• The construction and realignment of Tumalo Place, Tumalo Road, Deschutes Market
Road and Pleasant Ridge Road around the property.
• The rezone of some of the adjacent United Pipe property and some of Robinson's
property to RI.
• The continuous subdivision, platting and replatting of new residential lots in the
vicinity and the fact that no parcel within '/2 mile of the subject property is being
commercially farmed today
• The fact that commercial, industrial, wholesale and retail businesses now surround
the property on its northern and eastern side, and a school is on the western side,
and the fact that no one farms the 4-acre parcel developed with a rental house at the
southern end of the property
• The fact that Mr. Aceti did not receive an easement or written agreement to irrigate
the property when he purchased the property; despite the fact that ODOT paid in
1991 to have a new ditch and pond dug along Half Mile Lane on TL 1100, Mr. Aceti
did not receive any easement or right to use TL 1100 or 1200 or the equipment for
delivery of irrigation water to the subject property.
For all the foregoing reasons, the Applicant has established the public interest is best
served by rezoning the property under the criteria set forth in DCC 18.136. The criteria
are met.
Statewide Land Use Planning Goals
B. Oregon Administrative Rules, Chapter 660, Land Conservation and Development
Commission
1. Division 15, Statewide Planning Goals and Guidelines
247-14-000456-ZC/457-PA Page 30 of 81
FINDINGS:
Goal 1, Citizen Involvement. The Planning Division provided notice of the proposed plan
amendment and zone change to the public through individual mailed notices to nearby property
owners, publication of notice in the Bend "Bulletin" newspaper, and posting of the subject
property with a notice of proposed land use action sign. In addition, a public hearing will be held
before the Hearings Officer on the proposal, and a public hearing on the proposal will also be
held by the Deschutes County Board of Commissioners ("Board"), per DCC 22.28.030(C), The
proposal is consistent with Goal 1.
Goal 2, Land Use Planning. Goals, policies and processes related to plan amendment and
zone change applications are included in the county's comprehensive plan and land use
regulations in Titles 18 and 22 of the Deschutes County Code and have been applied to the
review of these applications. The proposal is consistent with Goal 2.
Goal 3, Agricultural Lands. Goal 3 is "[t]o preserve and maintain agricultural lands." As LUBA
has explained in various cases including DLCD v. Klamath County, 16 Or LUBA 817, 820 (1998)
and Wetherall v. Douglas County, LUBA No. 2006-122 (October 9, 2006), a county can follow one
of two paths to support a decision to allow non-resource use of land previously designated and
zoned for farm use. One option is to take an exception to Statewide Planning Goal 3. The other
is to adopt findings which demonstrate that the land does not qualify as agricultural under the
applicable statewide planning goal. The latter path has been selected as the preferred procedure
which is a option permitted by state law, As discussed in the findings above, the subject property
does not constitute "agricultural land" because it is comprised predominantly of Class VII and
VIII soils that are not suitable for farm use. The proposal is consistent with Goal 3.
Goal 4, Forest Lands. I find that this goal is not applicable because the subject property does
not include any lands that are zoned for, or that support, forest uses.
Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. I find that this
goal is not applicable because the record indicates there are no identified Goal 5 resources on
the subject property.
Goal 6, Air, Water and Land Resources Quality. I find that the applicant's proposal to rezone
the property from EFU-TRB to RI, in and of itself, will not impact the quality of the air, water, and
land resources of the county. Any future RI Zone development of the property would be subject
to local, state, and federal regulations protecting these resources. The proposal is consistent
with Goal 6.
Goal 7, Areas Subject to Natural Disasters and Hazards. I find that this goal is not
applicable because the subject property is not located in a known natural disaster or hazard
area.
Goal 8, Recreational Needs. I find that this goal is not applicable because the proposed plan
amendment and zone change do not affect recreational needs, and no specific development of
the property is proposed.
Goal 9, Economy of the State. This goal is to provide adequate opportunities throughout the
state for a variety of economic activities. I find that the proposed plan amendment and zone
change is consistent with this goal because it will provide opportunities for economic
247-14-000456-ZC/457-PA Page 31 of 81
development in the county in general, and in the Deschutes Junction area in particular, by
allowing the currently undeveloped and unused property to be put to a more productive use.
Goal 10, Housing. I find that this goal is not applicable because the proposed plan amendment
and zone change will not affect existing or needed housing.
Goal 11, Public Facilities and Services. This goal requires planning for public services,
including public services in rural areas, and generally has been held to prohibit extension of
urban services such as sewer and water to rural lands outside urban growth boundaries. I find
that this goal is not applicable to the applicant's proposal because it will not result in the
extension of urban services to rural areas. As discussed in the findings above, public facilities
and services necessary for development of the subject property in accordance with the RI Zone
are available and will be adequate.
Goal 12, Transportation. As discussed in the findings above, staff initially stated that, because
the County Transportation Planner determined the TIA does not comply with the TPR at OAR
660-012-0060(4), the applicant must propose a resolution of this issue. In response, the
applicant submitted a TMP, dated June 8, 2015, which requires among other things, a TDM
program requiring staggered start and end work hours and a Traffic Control Plan that prohibits
southbound turning movements from Tumalo Road onto Tumalo Place during the 4-6 p.m. peak
hours, addressing the concerns set forth by the County Transportation Planner in his comments
on the proposal and TIA. As set forth above, the components of the TMP satisfy OAR 660-012-
0060(4) for this rezone and Goal exception application and will be included as a condition of
approval of the applications. Accordingly, the Applicant's proposal is consistent with Goal 12.
Goal 13, Energy Conservation. I find that the applicant's proposed plan amendment and zone
change, in and of themselves, will have no effect on energy use or conservation since no
specific development has been proposed in conjunction with the subject applications. In any
case, providing additional economic opportunities on the subject property may decrease vehicle
trips for persons working in the Deschutes Junction area, therefore conserving energy. The
proposal is consistent with Goal 13.
Goal 14, Urbanization. Goal 14 is "[t]o provide for an orderly and efficient transition from rural
to urban land use." I find that the subject property is "nonresource land" based on the fact that it
is not Agricultural Land subject to Goal 3, but the proposed plan amendment and zone change
is subject to Goal 14. This is because it could result in the "urbanization" of the subject site by
allowing development with RI Zone uses that are more "urban" in nature including both retail
and service uses. For this reason, an exception to Goal 14 is required for the proposed plan
amendment and zone change. As discussed in detail in the findings below, the applicant has
demonstrated the proposal qualifies for an "irrevocably committed" exception to Goal 14.
Goals 15 through 19. These goals, which address river, ocean, and estuarine resources, are
not applicable because the subject property is not located in or adjacent to any such areas or
resources.
I find that the applicant's proposal is consistent with all applicable statewide planning goals
except Goal 14; this criterion is met with an exception to Goal 14, as set forth in the findings
below.
Transportation Planning Rule
247-14-000456-ZC/457-PA Page 32 of 81
2. Division 12, Transportation Planning Rule
a. OAR 660-012-0060, Plan and Land Use Regulation Amendments.
(1) If an amendment to a functional plan, an acknowledged
comprehensive plan, or a land use regulation (including a
zoning map) would significantly affect an existing or planned
transportation facility, then the local government must put in
place measures as provided in section (2) of this rule, unless
the amendment is allowed under section (3), (9) or (10) of this
rule. 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
of map errors in an adopted plan;
FINDINGS: The applicant is not asking the County to change the functional
classification of an existing or planned transportation facility. Therefore, this criterion is
met
(b) Change standards implementing a functional
classification system; or
FINDINGS: The applicant is not asking the County to standards that implement a
functional classification system. Therefore, this criterion is met.
(c) Result in any of the effects listed in paragraphs (A)
through (C) of this subsection based on projected
conditions measured at the end of the planning period
identified in the adopted TSP. As part of evaluating
projected conditions, the amount of traffic projected to
be generated within the area of the amendment may be
reduced if the amendment includes an enforceable,
ongoing requirement that would demonstrably limit
traffic generation, including, but not limited to,
transportation demand management. This reduction
may diminish or completely eliminate the significant
effect of the amendment.
(A) Types or levels of travel or access that are
inconsistent with the functional classification of
an existing or planned transportation facility;
(B) Degrade the performance of an existing or
planned transportation facility such that it
would not meet the performance standards
identified in the TSP or comprehensive plan; or
(C) Degrade the performance of an existing or
planned transportation facility that is otherwise
247-14-000456-ZC/457-PA Page 33 of 81
projected to not meet the performance
standards identified in the TSP or
comprehensive plan.
FINDINGS: In March 2015, Gary Judd, PE, of Sage Engineering and Associates, completed a
Traffic Impact Analysis (TIA)for the applications (Exhibit 28 to Burden of Proof). As discussed
in the findings above, staff initially stated that, because the County Transportation Planner
determined the TIA does not comply with the TPR at OAR 660-012-0060(4), the applicant must
propose a resolution of this issue. In response, the applicant submitted a TMP, dated June 8,
2015, which requires among other things, a TDM program requiring staggered start and end
work hours and a Traffic Control Plan that prohibits southbound turning movements from
Tumalo Road onto Tumalo Place during the 4-6 p.m. peak hours, addressing the concerns set
forth by the County Transportation Planner in his comments on the proposal and TIA. As set
forth above, the components of the TMP satisfy OAR 660-012-0060(4) for this rezone and Goal
exception application and will be included as a condition of approval of the applications. In
addition, the TIA states that the three existing driveways with dedicated turn lanes designed for
truck traffic that provide safe access into and out of the property from Tumalo Road and Tumalo
Place and the tunnel under the overpass approach that allows vehicles to move between the
southern and northern portions of the property, each serve to reduce traffic impacts around the
site. In addition to the TDM program that will address the LOS "F" conditions predicted to exist
at Tumalo Road and Tumalo Place—with or without the proposed rezone-these existing
transportation improvements result in options to enter and exit the property and thereby reduce
impacts to the intersection at Tumalo Place and Tumalo Road.
(2) If a local government determines that there would be a
significant effect, then the local government must ensure that
allowed land uses are consistent with the identified function,
capacity, and performance standards of the facility measured
at the end of the planning period identified in the adopted
TSP through one or a combination of the remedies listed in
(a) through (e) below, unless the amendment meets the
balancing test in subsection (2)(e) of this section or qualifies
for partial mitigation in section (11) of this rule. A local
government using subsection (2)(e), section (3), section (10)
or section (11) to approve an amendment recognizes that
additional motor vehicle traffic congestion may result and
that other facility providers would not be expected to provide
additional capacity for motor vehicles in response to this
congestion.
(a) Adopting measures that demonstrate allowed land
uses are consistent with the planned function,
capacity, and performance standards of the
transportation facility.
(b) Amending the TSP or comprehensive plan to provide
transportation facilities, improvements or services
adequate to support the proposed land uses
consistent with the requirements of this division; such
amendments shall include a funding plan or
mechanism consistent with section (4) or include an
247-14-000456-ZC/457-PA Page 34 of 81
amendment to the transportation finance plan so that
the facility, improvement, or service will be provided
by the end of the planning period.
(c) Amending the TSP to modify the planned function,
capacity or performance standards of the
transportation facility.
(d) Providing other measures as a condition of
development or through a development agreement or
similar funding method, including, but not limited to,
transportation system management measures or
minor transportation improvements. Local
governments shall, as part of the amendment, specify
when measures or improvements provided pursuant to
this subsection will be provided.
(e) Providing improvements that would benefit modes
other than the significantly affected mode,
improvements to facilities other than the significantly
affected facility, or improvements at other locations, if
the provider of the significantly affected facility
provides a written statement that the system-wide
benefits are sufficient to balance the significant effect,
even though the improvements would not result in
consistency for all performance standards.
(3) Notwithstanding sections (1) and (2) of this rule, a local
government may approve an amendment that would
significantly affect an existing transportation facility without
assuring that the allowed land uses are consistent with the
function, capacity and performance standards of the facility
where:
(a) In the absence of the amendment, planned
transportation facilities, improvements and services as
set forth in section (4) of this rule would not be
adequate to achieve consistency with the identified
function, capacity or performance standard for that
facility by the end of the planning period identified in
the adopted TSP;
(b) Development resulting from the amendment will, at a
minimum, mitigate the impacts of the amendment in a
manner that avoids further degradation to the
performance of the facility by the time of the
development through one or a combination of
transportation improvements or measures;
(c) The amendment does not involve property located in
an interchange area as defined in paragraph (4)(d)(C);
and
247-14-000456-ZC/457-PA Page 35 of 81
(d) For affected state highways, ODOT provides a written
statement that the proposed funding and timing for the
identified mitigation improvements or measures are, at
a minimum, sufficient to avoid further degradation to
the performance of the affected state highway.
However, if a local government provides the
appropriate ODOT regional office with written notice of
a proposed amendment in a manner that provides
ODOT reasonable opportunity to submit a written
statement into the record of the local government
proceeding, and ODOT does not provide a written
statement, then the local government may proceed
with applying subsections (a) through (c) of this
section.
FINDINGS: I find that the TPR is applicable to the applicant's proposal because it requests an
amendment to an acknowledged plan. The zone change will have an adverse effect on the
identified function, capacity and performance standards of the transportation facilities in the
impact area, specifically, the intersection of Tumalo Road and Tumalo Place, which is projected
to operate at LOS "F" in the year 2035, with or without the proposed rezone. As discussed in
the findings above, the applicant submitted a traffic study dated March 2015 and a TMP dated
June 8, 2015 which requires among other things, a TOM program requiring staggered start and
end work hours and a Traffic Control Plan that prohibits southbound turning movements from
Tumalo Road onto Tumalo Place during the 4-6 p.m. peak hours, addressing the concerns set
forth by the County Transportation Planner in his comments on the proposal and TIA. As set
forth above, the components of the TMP satisfy OAR 660-012-0060(4) for this rezone and Goal
exception application and will be included as a condition of approval of the applications.
(4) Determinations under sections (1)-(3) of this rule shall be
coordinated with affected transportation facility and service
providers and other affected local governments.
FINDINGS: As discussed in the findings above, the Planning Division sent written notice of the
applicant's proposal to a number of public and private agencies, including the City of Bend Fire
Department, the county road department and ODOT. I find that this notice provided adequate
opportunity for coordination with affected transportation and service providers and local
governments.
For the foregoing reasons, the application complies with the TPR, as conditioned in the
conditions of approval below.
Agricultural Land
3. Division 33, Agricultural Land
247-14-000456-ZCt457-PA Page 36 of 81
FINDINGS: The applicant requests approval of a plan amendment and zone change for the
subject property. The applicant submits, and I agree that the subject property does not
constitute "agricultural land" requiring protection under Goal 3 and therefore no exception to that
goal is required for the reasons set forth in the findings herein. The standards and procedures
for identifying and inventorying agricultural land are found in OAR Chapter 660, Division 33,
discussed in the findings below.
a. OAR 660-033-0010, Purpose
The purpose of this division is to preserve and maintain agricultural
lands as defined by Goal 3 for farm use, and to implement ORS
215.203 through 215.327 and 215.438 through 215.459 and 215.700
through 215.799.
•
FINDINGS: Goal 3 defines "agricultural land" in relevant part as follows:
Agricultural Land — * * * in eastern Oregon is land of predominantly Class 1111, Ill,
IV, V and VI soils as identified in the Soil Capability Classification System of the
U.S. Natural Resourced 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 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. (Emphasis added.)
b. OAR 660-033-0020, Definitions
For purposes of this division, the definitions in ORS 197.015, the
Statewide Planning Goals, and OAR chapter 660 shall apply. In
addition, the following definitions shall apply:
FINDINGS: This rule defines "agricultural land" by essentially the same terminology used in the
language of Goal 3, and describes it as consisting of:
• land that is predominantly Class I-VI soils (in Eastern Oregon) without a goal exception;
• land that is p redominantly Class VII and VIII soils and that is "suitable for farm use"
considering the factors set forth in OAR 660-033-0020(1)(a)(B) of this rule;
• land that is necessary to permit farm practices on adjacent or nearby agricultural lands;
and
• Class VII and VIII land that is adjacent to or intermingled with Class I-VI land within a
farm unit.
247-14-000456-ZC/457-PA Page 37 of 81
The applicant submits and I agree that the subject property does not constitute "agricultural
land" under any of these categories, each of which is discussed in the findings below.
Predominantly Class 1-V1 Soils
(1) (a)" Agricultural Land" as defined in Goal 3 includes:
(A) Lands classified by the U.S. Natural Resources
Conservation Service (NRCS) as predominantly Class
I-IV soils in Western Oregon and 1-VI soils in Eastern
Oregon;
FINDINGS:
Appropriate Unit of Land. In the Hearings Officer's decision in NNP (PA-13-1, ZC-13-1), the
"predominant soils" prong of the agricultural land definition cannot be applied until an
appropriate unit of land is selected to determine whether Class 1-VI soils are predominant within
that unit of land based on the decision of the Land Use Board of Appeals (LUBA) in Wetherell v.
Douglas County, 50 Or LUBA 71 (2005). I agree with and apply this approach. The Hearings
Officer finds that the entire 21.59-acre subject property is the appropriate unit of land because it
is two tax lots under single ownership which will be used together, The northern portion of the
subject property is physically separated from the nearest EFU-zoned parcels by roads. They are
under single ownership. Neither parcel is comprised of Agricultural Land.
Predominant Soils. The NRCS soils maps for the subject property show it is composed of
three soil units: 36A, Deskamp loamy sand, 0 to 3% slopes; 38B, Deskamp-Gosney complex, 0-
8% Slopes, and 58C, Gosney-Rock outcrop-Deskamp complex, 0 to 15% slopes. The Deskamp
soils are designated Class III when irrigated and Class VI without irrigation. The Gosney soils
are designated Class VII with or without irrigation, and the Rock Outcrop is Class VIII. The
NRCS data shows the subject property is predominantly Class 1-VI soils with irrigation and
therefore "agricultural land." As noted in the Findings above, the applicant submitted a site-
specific "Agricultural Soils Capability Assessment" of the subject property — the Borine study.
This study is dated May 8, 2012, was prepared by Roger Borine of Sage West, LLC, and is
included in the record as.Exhibit 14 to the applicant's original burden of proof.
The record indicates that in January of 2013, the Department of Land Conservation and
Development (DLCD) certified the study pursuant to OAR 660-033-0030 and 0045, by an
electronic mail message from Katherine Daniels of DLCD to Deschutes County Community
Development Director Nick Lelack. Mr. Borine's submission and the certification document are
included in the record as part of Exhibits 14 and 15 to the applicant's original burden of proof.
DLCD's certification states in relevant part:
"The department has reviewed the attached certified soils assessment prepared
by a professional soil classifier under OAR 660-033-0030 and 0045, along with
the submittal, release and report requirement forms. A completeness check
indicates that the soils assessment is consistent with reporting requirements.
Please note the wide variation in NRCS and consultant-reported soil capability
classifications. The county may make its own determination as to the accuracy
and acceptability of the soils assessment."
247-14-000456-ZC/457-PA Page 38 of 81
The Borine study identified different soils units on the subject property than are identified on the
NRCS maps. However, Mr. Borine conducted an on-site investigation to provide a more detailed
soil analysis and mapping. His methodology is described at page four of the soil study in
relevant part as follows:
"An Order 1 soil survey is prudent to accurately define soils, mapping units, and
miscellaneous areas and accurately locate their boundaries. Methods to investigate the
soil included the use of shovel, auger, probe and backhoe. Point observations and
transects were used to identify soil characteristics, map unit composition and accurately
located soil boundaries. In addition, two sites were sampled for laboratory analysis of
nutrient levels and cation exchange capacity.
W * *
Prior to 1960 this area was highly modified from natural conditions. Shallow soil and
rock outcroppings in the higher landscape position were removed and leveled and
moderate deep soils were used as fill and overburden for rocky areas. This activity
resulted in concave depressions now having shallow and moderately deep soils and
convex areas having shallow and very shallow soils with some rock outcrops. There
area was then smoothed, planted to grass and sprinkler irrigated with a wheel line
system.
In 1995 the land was purchased by the present owner. Agricultural buildings, land
modifications for staging, equipment movement, parking, crop storage, and a pond
development have been constructed. in 1997 a portion of land was purchased by the
State of Oregon for a highway overpass. This overpass diagonally bisected tax lot 201.
The overpass impedes the efficient design and operation of wheel or pivot irrigation
systems. Since construction of the overpass, the land has been idle. Tax lot 201 has
irrigation water rights for 19.71 acres and has been enrolled in the Oregon Water
Resources Department's lnstream Leasing Program.
The initial inventory and study identified the Deskamp and Gosney series. In unit 38B a
very shallow contrasting inclusion was described and identified as a potential major
component at an Order 1 level. it is not referenced as a contrasting inclusion in unit
36A. For clarity the very shallow contrasting soil will be referenced as Zeta soil for this
study only and is a non-correlated soil series name. The miscellaneous area Urban
Land was also identified as a potential major component at an Order 1 level. It lacks soil
and supports little or no vegetation. it is mostly agricultural buildings, land modifications
for staging, equipment movement, parking, crop storage, pond development and areas
of fill material.
* * *
In this study area the soil depth and available water capacity (AWC) were the primary
criteria for designing soil mapping units. AWC is the volume of water that should be
available to plants in a soil holding water at full potential. When roots are excluded by
bedrock this is considered the effective soil depth for plant growth_ The Oregon LCC
guide rates soils having an AWC less than 2 inches at LCC 7 when irrigated or non-
irrigated and soils less than 10 inches deep as LCC 7_"
247-14-000456-ZC/457-PA Page 39 of 81
This study area was separated into four mapping units that distinguish lands in LCC 3-6
from those in LCC 7-8. This soil mapping at an Order 1 level accurately delineates the
following mapping units.
0-3% This— Deskamp loamy sand, 0-3% slopes: This mapping unit is on lava plains. Soils are
volcanic ash over basalt. Slopes are 0 to 3%. The Deskamp and similar soils are 85
percent and dissimilar soils are 15 percent. The Deskamp soil is loamy sand and
gravelly loamy sand, 20 to 40 inches deep over basalt.
B— Gosney, deep-Deskamp complex, 0-8% slopes: This mapping unit is on lava plains.
Soils are volcanic ash over basalt, Slopes are 0 to 8%. The Gosney, deep phase and
similar soils are 65 percent and Deskamp is 25 percent. The Gosney, deep phase is
loamy sand, 16 to 20 inches deep over basalt. The Deskamp soil is loamy sand, 20 to
40 inches deep over basalt.
C— Gosney-Zeta complex, 0-34% slopes: This mapping unit is on lava plains. Soils are
volcanic ash over basalt. Slopes are 0-3%. The Gosney and similar soils are 70
percent and Zeta soils are 25 percent. The Gosney soil is loamy sand, 10 to 16 inches
deep over basalt. The Zeta soil is loamy sand, 2-10 inches deep over basalt.
D - Urban Land: This miscellaneous area has essentially no soil and supports little or
no vegetation. It is mostly agricultural buildings, land modifications for equipment
movement, parking, crop storage, pond development and areas of fill material.
Table 2 of the Borine study, set forth below, shows that of the 21.6 acres comprising the subject
property only 4.3 acres (20%) consist of Soil Unit 36A, and the remaining 80% of the subject
property consists of Urban Land(already developed with the warehouse use), and the Gosney-
Zeta complex. As seen in Table 2, Mr. Borine concluded that the majority of the soils on the
subject property are Class VII or VIII soils and therefore predominantly non-agricultural soils.
Mr. Borine concluded soils on the subject property are Classes 6, 7 or 8 without irrigation and
classes 3, 6, 7 and 8 when irrigated. 8% of the soils are Class 3 when irrigated and 59% are
Class 7 when irrigated. 21% of the soils are Class 8 when irrigated. Therefore, about 90% of
the soils are non-agricultural soils.
c:1 'i 'i
A Deskamp Deskamp 85 6 3 - 1.7 8 1.7 8
loamy
sand 0 to
3%slopes
B Gosney, Gosney, 65 6 6 - 2.6 13 2.6 12
deep deep
Deskamp Deskamp 25 6 3
complex,
0 to 8%
slopes
C Gosney- Gosney ; 70 7 7 0.2 15 12.6 62 12,' 59
Zeta Zeta 25 7 7 8
complex,
247-14-000456-ZC/457-PA Page 40 of 81
0-3%
slo es _
D Urban 95 8 8 1.1 85 3.4 17 4.5 21
Land
On page 8, Borine concludes that, The inventory and analysis of this parcel T16S,R12E,
Section 26, tax lot 201 and Section 27, tax lot 104 determined that approximately 80% (17.2
acres) is Land Capability Class 7 and 8 soils, and 20% (4.3 acres) is Land Capability Class 3-6
soils. The parcel as defined is not predominantly Agricultural Land." (emphasis in original).
Substantial evidence in the record supports a finding that the property is not Agricultural Land
as it consists of predominantly Class VII and VIII soils and is further unsuitable for farm use
considering profitability and factors in the Goal 3 administrative rule, including, among other
things, difficulties associated with irrigating the property, impacts of nearby heavy traffic and
transportation, the bisection of the property with the construction of Tumalo Road, surrounding
commercial and industrial uses, and the relatively small size of the parcel.
(B) Land in other soil classes that is suitable for farm use
as defined in ORS 215.203(2)(a), 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;
and accepted farming practices; and
FINDINGS: The applicant's soil study shows the subject property is predominantly Class VII and
VIII soils. The Hearings Officer noted in the Powell/Ramsey decision, and I agree with the
statement that DLCD's administrative rules define Class VII and VIII soils as having very severe
limitations that make them unsuited for cultivation. Thus, the next question under this
administrative rule is whether the Class VII and VIII soils on the subject property nevertheless
constitute "agricultural land" based on the factors listed in this paragraph. For the following
reasons, I find that the answer to the question is"no."
Soil Fertility. The Borine study states the following with respect to soil fertility:
"Organic matter for these sites is extremely low to non-measurable and clay content is
less than five percent, resulting in a very low Cation Exchange Capacity (CEC); the
higher the CEC the better. The CEC is important because it provides a reservoir of
v phosphorus,
nutrients for plant uptake. Both sample sites have low levels of nitrogen, p p horus
,
potassium, and sulfur. High levels of fertilization are required for grass crop to be
produced. Without an ability of the soil to attract and absorb nutrients (low CEC) they
are readily leached out of the soil by irrigation and precipitation thus becoming
unavailable for plant use and lost into the surface and ground water. Presently, the pH
(acidity/basicity) of soils is adequate, but soils with a low CEC can quickly be reduced by
additions of nitrogen and sulfur fertilizers, also making nutrients unavailable to plants.
To maintain a minimum level of essential nutrients for proper crop growth continual
applications of very high rates of fertilizer and soil amendments are required. Without
these yearly inputs, soils are non-productive and infertile."
Soil Depth. The Borine study states the following:
247-14-000456-ZC/457-PA Page 41 of 81
"More than 60% of soil on this parcel is 2 to16 inches deep. Typical depth for cultivation
is 6-8 inches deep. This soil is unsuitable for cultivation due to limited and inconsistent
soil depth throughout. The AWC is very low due to shallow depths and sandy soil.
Evapotranspiration in summer months exceed the ability of the soil to hold adequate
moisture for plant growth. Frequent irrigations, irrigation water management techniques,
and inconsistent flow of irrigation water cannot meet crop requirements."
Suitability for Grazing. The Borine study states the following with respect to the subject
property's suitability for grazing:
"Landscape and soil characteristics determine the suitability for grazing livestock.
Limitations that are recognized on this site include the cold climate and soil temperatures
that delay growth of forage and shorten the growing season. Reestablishment of the
native vegetation is likely impossible due to the pumice ash surface layer, and past land
alterations; restricted depth limits seeding only to drought tolerant species, and rock
outcrop limits the areas suitable for grazing."
Climatic Conditions. The Borine study states the following with respect to the subject
property's climatic conditions:
"This parcel is located very close to the Bend Weather Station. Climatic data is available
from 1) AgriMet BEWO (2003-present) and 2) Bend Weather Station (1971-2000). The
Soil Survey of the Upper Deschutes River Area, OR cites the Bend Weather Station for
analysis. Pertinent conditions for this parcel using this weather station data show that 5
years in 10 the freeze (killing frost — 28 degrees F) dates are later than June 7th and
earlier than September 16th with the growing season of 91 days, and growing degree
days are 3,264, Average annual precipitation is 11.7 inches at 3,600 ft. elevation. The
Madras area, also in central Oregon, will be used for comparison as it is known to
produce a variety of field crops successfully.
The Madras Weather Station dates show that 5 years in 10 the freeze dates are later
than May 6`h and earlier than October 12Th with the growing season of 184 days, and
growing degree days of3,911. Average annual precipitation is 11.4 inches at 2,400 ft.
elevation. The comparison of data shows the Madras area that is known to successfully
produce a large variety of field crops has greater than 60 days with less chance of
having a killing frost, has twice the growing season, and 120% greater number of
growing degree days as the Bend weather station and this parcel. Climatic conditions
that exist on this parcel greatly restrict production of most field crops. Grass for pasture
and hay is the only crop climatically that can be grown successfully_"
Existing and Future Availability of Water for Farm irrigation Purposes. The applicant
submitted the following to address this standard:
"As previously stated, the subject property has some rights to the water conveyed by the
Pilot Butte Canal that date back to the 1904 homesteader James R. Low. in 1991 when
US Highway 97 was widened to four lanes, steel pipes under the highway from the Pilot
Butte Canal were removed. There is no longer a lateral, pipe or ditch onto his property.
No neighbor who is irrigating their property shares a delivery system with the Applicant.
An agreement between COLD and the Swalley District allows the owner to use Swalley
water, if it can be delivered to his property. If that could happen, it would be nearly
impossible to configure a piping system to irrigate the northern portion of this land, north
247-14-000456-ZC/457-PA Page 42 of 81
of the Deschutes Junction Overpass. The smaller constrained angled portion south of
the overpass is also very difficult to irrigate, as the previous owner, Bruce Barrett has
testified to the County.2 Efforts to dig a water storage pond on site have failed (See
letter of Thompson Pump and Irrigation, Figure 17, page 51). Drilling a well is cost
prohibitive and logistically difficult because you have to remove the water rights from the
Swalley Irrigation District which would reduce the water going through the hydropower
turbine, apply for new rights under the state's jurisdiction of groundwater allocation,
among other issues. Even if using irrigation water was feasible, the subject property's
soils are too poor to justify irrigating them."
Existing Land Use Patterns. The applicant submitted the following to address this standard:
"As discussed thoroughly and in detail in the Surrounding Uses Section of this
application, the subject property is surrounded with non-agricultural uses and is already
committed to urbanization. On the western property line are roads and the Seventh Day
Adventist Christian School. The school is located on 15.42 landscaped acres (Tax Lot
161227D000100). The two parcels to the south of the school, and southwest of the
subject parcels, including a 30.45 acre parcel and a 7.60 acre parcel are owned by a
subsidiary to the Seventh Day Adventist Church and are held for future educational or
recreational uses (Tax Lots 1100 and 1300). Directly north of the subject sites are lots
used for industrial, retail and commercial uses. Immediate east of the subject site are
many parcels zoned Rural Industrial. Directly south of the subject site is a pie-shaped
lot of 4.15 acres that is also difficult to farm and is not farmed and is used as a
residential rental. The nearest parcel of 20 acres or more, off Half Mile Lane, is farmed
for personal pasture for horses. The owner intends to subdivide it. The next largest
parcel is pasture is over a half mile away on the other side of the highway.
As the Borine study notes, the majority of the subject property is either already
developed with the storage barn, three associated driveways, parking and turnaround
areas, or it is too poor a soil to cultivate."
The record shows that commercial agricultural uses in the vicinity of the subject property are
limited.
Technological and Energy Inputs Required. The applicant states the following in the burden
of proof:
"Borine's report says that excessive technological and energy inputs — including heavy
use of fertilizer and soil amendments and frequent irrigation--- would be required to make
the soils on the subject property somewhat productive, given the soil's very poor quality,
and they are likely to fail, as efforts to farm it in the past 110 years have failed."
Accepted Farming Practices. The applicant states the following in the burden of proof
statement:
"It is not an accepted farm practice in Central Oregon to irrigate and cultivate poor
quality Class VIi and VIII soils — particularly where, as here, those soils are adjacent to
rural industrial uses, urban density residential neighborhoods that complain about dust
2 Staff is not sure where this testimony occurred, as it does not appear to be a part of these applications.
247-14-000456-ZC/457-PA Page 43 of 81
and chemicals and to high traffic counts on the surrounding roads and highways.
Irrigating rock is not productive.
Substantial evidence in the record shows that the subject property does not constitute
"agricultural land" under the Goal 3 administrative rule factors first because it is comprised of
Classes VI and VII soils, and second, based on a consideration each of following factors,
addressed by the Borine report: 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, and accepted farming practices.
(C) Land that is necessary to permit farm practices to be
undertaken on adjacent or nearby agricultural lands.
FINDINGS: The burden of proof states the following to address this standard:
"As discussed on the Findings of Fact above, most of the subject property and
surrounding lands are engaged in rural industrial, educational, commercial, or nonfarm
uses. The record indicates that to the east of Graystone Lane is Willamette Graystone, a
concrete products manufacturing facility. North of Deschutes Pleasant Ridge Road is
land zoned EFU-TRB but is developed with a quasi-commercial park and gift/antique
shop called "The Funny Farm." To the south of Deschutes Market Road is land zoned
RI and used for pumice processing, and farther south is publically owned and
undeveloped land along both sides of US Highway 97. immediately to the west are the
Three Sisters Adventist School and 30 acres of associated educational properties and
•
other rural and urban density residences in subdivisions platted before Senate Bill 100
was contemplated. Along Half Mile Lane, west of the school land are a handful of 3 to
20 acre hobby farms that will not be affected by this rezone. West of Highway 97 and
north of Tumalo Road is a building/landscaping supply business on land zoned RC.
Some owners of parcels located over a half mile away to the northeast across US
Highway 97, are engaged in recreational, non-commercial farm uses. The subject
property is not land necessary to permit farm practices to be undertaken on those lands
because none of those farm uses is dependent upon the subject property, nor close to
it."
The Hearings Officer finds that the subject property is not land necessary to permit farm
practices to be undertaken on adjacent or nearby lands because none of the identified farm
uses on those lands is dependent upon the subject property.
(b) Land in capability classes other than I-IV/I-VI that is adjacent
to or intermingled with lands in capability classes l-IV/I-VI
within a farm unit, shall be inventoried as agricultural lands
even though this land may not be cropped or grazed.
FINDINGS: The applicant states in the burden of proof the following to address this standard:
"As discussed in the findings above, the Borine study found in Table 3 that 80% of the
subject property consists of Class 7 and 8 soils, and that the soils on the subject site are
not adjacent to or intermingled with the higher capability soils. in addition, the property
is neither a farm unit itself nor part of a larger farm use. None of the adjacent property is
farmed."
247-14-000456-ZC/457-PA Page 44 of 81
The Hearings Officer finds that the subject property is predominantly class VII and VIII soils and
would not be considered a farm unit itself nor part of a larger farm unit based on the poor soils
and the fact that none of the adjacent property is farmed.
(c) "Agricultural Land" does not include land within
acknowledged urban growth boundaries or land within
acknowledged exception areas for Goals 3 or 4.
FINDINGS: The Hearings Officer finds that the subject property is not within an acknowledged
urban growth boundary (UGB) or acknowledged exception area.
b. OAR 660-033-0030, Identifying Agricultural Land
(1) All land defined as "agricultural land" in OAR 660-033-0020(1)
shall be inventoried as agricultural land.
FINDINGS: The Hearings Officer finds that the applicant has shown through the Borine study
that the subject property is predominantly Class VII and VIII soils. The findings above address
the sub-factors in OAR 660-033-0020(1).
(2) When a jurisdiction determines that 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 listed in the definition of
agricultural land set forth at OAR 660-033-0020(1)(a)(8). 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-VI soils or suitable from
farm use, Goal 3 nonetheless defines as agricultural "lands in
other classes which are necessary to permit farm practices to
be undertaken on or adjacent nearby lands." A determination
adjacent Y
that a lot or parcel is not agricultural land requires findings
supported by substantial evidence that addresses each of the
factors set forth in 660-033-0020(1).
FINDINGS: The Hearings Officer finds that the Borine study shows the subject property is
predominantly non-agricultural land based on the soil's capability classification. The findings
above address the additional factors under OAR 660-033-0020(1), none of which support a
determination that the subject property is "agricultural land." Further, as set forth in detail
above, substantial evidence in the record shows that the conditions existing outside the subject
property on surrounding properties support a determination that the subject property is not
needed to permit farm practices to be undertaken on adjacent or nearby lands.
(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
247-14-000456-ZC/457-PA Page 45 of 81
undertaken on adjacent or nearby lands" outside the lot or
parcel.
FINDINGS: As stated in foregoing findings, property located at 64835 Hwy 97, tax lot 16-12-
27D 1100 is zoned EFU and presently receiving farm deferral. It is proximate to the applicant's
property at the southwest corner. The subject property is not necessary for any farm use to
occur on adjacent or nearby lands, including tax lot 1100 above. Additionally, as stated in
foregoing findings, the Borine study concluded that the subject property is 80% class VII and
VIII soils.
(5) (a) More detailed data on soil capability that in contained in
the USDA Natural Resources Conservation Service (NRCS)
soil maps and soil surveys may be used to define agricultural
land. However, the more detailed soils data shall be related to
the NRCS land capability classification system.
(b) If a person concludes that more detailed soils information
that that contained in the Internet soil survey of soil data and
information produced by the National Cooperative Soil
Survey operated by the NRCS of the USDA as of January 2,
2012, would assist a county to make a better determination of
whether land qualifies as agricultural land, the person must
request that the department arrange for an assessment of the
capability of the land by a professional soil classifier who is
chosen by the person, using the process described in OAR
660-033-0045.
FINDINGS: The applicant submitted the Borine study discussed in the foregoing findings. The
record indicates this study was reviewed and certified by DLCD in accordance with the process
in.OAR 660-033-0045 and the NRCS land capability classification system. I find that the Borine
study is credible based on Mr. Borine's qualifications and the methodology and detailed analysis
in the study.
(c) This section and OAR 660-033-0045 apply to:
(A) A change to the designation of land planned
and zoned for exclusive farm use, forest use or
mixed farm-forest use to a non-resource plan
designation and zone on the basis that such
land is not agricultural land;
FINDINGS: The applicant proposes a change in plan designation from farm use to a non-
resource use (Rural Industrial Zone). The Borine study was reviewed and certified by DLCD.
(d) This section and OAR 660-033-0045 implement Oregon
Laws 2010, chapter 44, section 1, effective on October
1, 2011. After this date, only those soils assessments
certified by the department under section (9) of this
rule may be considered by local governments in land
use proceedings described in subsection (c) of this
section. However, a local government may consider
247-14-000456-ZC/457-PA Page 46 of 81
soils assessments that have been completed and
submitted prior to October 1, 2011.
(e) This section and OAR 660-033-0045 authorize a person
to obtain additional information for use in the
determination of whether land qualifies as agricultural
land, but do not otherwise affect the process by which
a county determines whether land qualifies as
agricultural land as defined by Goal 3 and 660-033-
0020.
FINDINGS: As indicated in foregoing findings, the Borine study was reviewed and certified by
DLCD pursuant to OAR 660-033-0045.
Based on the foregoing findings and conclusions, the Hearings Officer finds that the applicant
has demonstrated that the subject property does not constitute "agricultural land" as defined in
Goal 3 and OAR 660-033-0020. Accordingly, I find that no exception to Goal 3 is required for
the applicant's proposed plan amendment and zone change from EFU to RI.
GOAL EXCEPTIONS
4. Division 4, Interpretation of Goal 2 Exception Process
a. OAR 660-004-0005, Definitions. For the purpose of this division, the
definitions in ORS 197.015 and the Statewide Planning Goals shall apply. In
addition, the following definitions shall apply:
(1) An "Exception" is a comprehensive plan provision, including an
amendment to an acknowledged comprehensive plan, that:
(a) Is applicable to specific properties or situations and does not
establish a planning or zoning policy of general applicability;
(b) Does not comply with some or all goal requirements applicable
to the subject properties or situations; and
(c) Complies with ORS 197.732(2), the provisions of this division
and, if applicable, the provisions of OAR 660-011-0060, 660-012-
0070, 660-014-0030 or 660-014-0040.
(2) "Resource Land" is land subject to one or more of the statewide goals
listed in OAR 660-004-0010(1)(a)through (g) except subsections (c) and (d).
(3) "Nonresource Land" is land not subject to any of the statewide goals
listed in OAR 660-004-0010(1)(a) through (g) except subsections (c) and (d).
Nothing in these definitions is meant to imply that other goals, particularly
Goal 5, do not apply to nonresource land.
FINDINGS; Notwithstanding the finding that the subject property is not"Agricultural Land,"
based on the Borine study, the subject property is "resource land," given its current designation
as EFU-TRB, in accordance with the Hearings Officer's decision in ZC-14-2/PA-14-2. I find that
the application is subject to Goal 14 (OAR 660-004-0010(a)(d)) and thus requires a Goal 14
Exception.
247-14-000456-ZC/457-PA Page 47 of 81
b. OAR 660-004-0010, Application of the Goal 2 Exception Process to
Certain Goals
(1) The exceptions process is not applicable to Statewide Goal 1
"Citizen Involvement" and Goal 2 "Land Use Planning." 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:
GOAL 3
(a) Goal 3 "Agricultural Lands"; however, an exception to
Goal 3 "Agricultural Lands" is not required for any of
the farm or nonfarm uses permitted in an Exclusive
Farm Use Zone under ORS Chapter 215 and OAR
chapter 660 division 033, "Agricultural Lands"
FINDINGS: The subject property is zoned EFU-TRB. Notwithstanding the finding that the
subject property is not "Agricultural Land," based on the Borine study, the subject property is
"resource land," given its current designation as EFU-TRB, in accordance with the Hearings
Officer's decision in ZC-14-2/PA-14-2. The applicant has requested a plan amendment and
zone change from EFU to RI. As discussed in detail in the findings above, an exception to Goal
3 is not required for the proposed plan amendment and zone change because the Borine study
demonstrates the subject property does not constitute "agricultural land."
GOAD 4(OAR 660-004-00101
(d). Goal 14 "Urbanization" as provided for in the
applicable paragraph (1)(c)(A), (B), (C) or (D) of this
rule:
* * *
(D) For an exception to Goal 14 to allow urban
development on rural lands, a local government
must follow the applicable requirements of OAR
660-014-0030 or 660-014-0040, in conjunction
with applicable requirements of this division:
FINDINGS: As discussed in the findings above, Goal 14 is:
To provide for an orderly and efficient transition from rural to urban land use, to
accommodate urban population and urban employment inside urban growth
boundaries, to ensure efficient use of land, and to provide for livable
communities.
The Statewide Planning Goals define "rural land" as:
Land outside urban growth boundaries that is:
247-14-000456-ZC/457-PA Page 48 of 81
(a) Non-urban agricultural, forest or open space,
(b) Suitable for sparse settlement, small farms or acreage homesites with no or
minimal public services, and not suitable, necessary or intended for urban use, or
(c) In an unincorporated community.
The subject property is currently zoned Exclusive Farm Use, which is by definition agricultural
land (non-urban). The applicant has requested both a reasons and irrevocably committed
exception to Goal 14, Urbanization, for the proposed plan amendment and zone change.
In Shaffer v. Jackson County, 17 Or LUBA 922 (1989), LUBA held that industrial uses are not
inherently urban in nature, and "whether a particular industrial use of rural land is urban or rural
requires a case-by-case determination, based on factors identified in the case law." Id., at 931.
In 1000 Friends of Oregon v. LCDC (Curry County). 301 Or 447, 724 P2d 268 (1986), the
Supreme Court identified three factors to be considered in determining whether a use is "urban"
or"rural" for purposes of a Goal 14 exception:
(a)the size of the area in relationship to the developed use (density);
(b) its proximity to an acknowledged UGB and whether the proposed use is likely to become a
magnet attracting people from outside the rural area;, and
(c) the types and levels of services which must be provided to it.
In Oregon Shores Conservation Coalition v. Coos County, 55 Or LUBA 545 (2008), LUBA held
the court intended the Curry County factors to be analyzed together rather than in isolation.
The applicant addressed the above factors on pages 170-171 of the burden of proof as follows:
"With respect to the first Curry County factor, as discussed in the findings above, the
subject parcels are 1.33 and 20.26 acres in size. The subject site is surrounded on the
east by large parcels zoned Ri and developed with rural industrial uses. For these
reasons, the size of the subject property is relatively small compared to the developed
industrial uses in the immediate vicinity.
With respect to the second factor, the subject site is located a considerable distance
from the nearest UGB's, approximately 3.25 miles north of the Bend UGB and
approximately 6.25 miles south of the Redmond UGB. The types of potential uses
allowed by DCC 18.100.010, Uses Permitted Outright in the RI Zone, are inappropriate
for an urban area and emphasize storing and processing natural resources or that serve
the rural landowners. Some allowed businesses may attract a few customers outside
the Deschutes Junction area. On the other hand, some low intensity businesses such
as a veterinary clinic for large animals could be located within the Bend and Redmond
UGB's. Therefore, alternatives may exist in the UGB and residents of Bend and
Redmond might not choose to travel to the subject site to do business, resulting in the
subject property serving residents of the surrounding rural area or regionally. Many of
the businesses simply process materials on site and deliver finished products to
customers in the region.
247-14-000456-ZC/457-PA Page 49 of 81
With respect to the third factor, the subject property will be served by an existing rural
fire protection district and the county sheriff and by Avion, a private water company that
serves rural and suburban uses in the Bend area. Sewage disposal will be provided by
appropriate on-site septic systems designed and engineered for the specific users on the
subject property. Bend's municipal water and sewer systems do not extend north of the
UGB, and in light of the distance between the UGB and the subject property it is unlikely
either of these systems would be extended to serve the subject site.
Considering the three Curry County factors, the proposed uses in the applicant's traffic
study could be considered "urban" in nature. However, the developable land in the
subject site's small size, relatively large distance from the nearest UGB's, and unique
location and setting, suggest uses on the subject site may be more likely to serve rural
residents in the Deschutes Junction area. Therefore, it is appropriate to require an
exception to Goal 14 for the uses identified in the traffic study so that the proposed
"reasons"match the proposed uses, and so that reasonable and necessary development
limitations can be established as part of the goal exception to assure the subject site is
not developed with "urban"uses. The Applicant welcomes the County's view on the best
way to develop the site to meet all criteria.
Details regarding potential future development of the subject property were set forth at page 168
of the Burden of Proof, wherein the applicant stated that the proposed use is rural in nature,
rather than urban, and will not require urban services:
1. No buildings will be built on 1.32 acres of TL 104
2. One acre of the northern portion of TL 201 will continue to be used for the existing
storage building, parking and access
3. The remainder of the northern portion of TL 201 has 8.13 acres of developable land
4. The southern portion of TL 201 has 6.28 acres of developable land
5. The total number of developable acres, not including setbacks, minimum building
distances, landscaping and space for parking and roads is 14.41 acres
6. The northern and southern portions of TL 201 will be planned separately
7. The developable land portions are irregularly shaped
8. There are two completed and dedicated turn lanes and paved driveways into the
northern portion of IL 201 and one completed and dedicated turn lane and paved
driveway into the southern portion. All three turn lanes were designed to handle 90-
foot trucks
9. Allowable uses under RI zoning include low-intensity uses
10. The applicant is proposing 20 businesses on the 21.56 acres of land
11. A 12-inch Avion water pipe was purchased and installed for the entire length of the
property
12. Two fire hydrants are already in place
13. Pacific Power electricity is already on site
14. There is no need for any urban facilities or utilities
15. Wastewater and sewage will be handled on site through an engineered and
appropriate disposal system
16. The applicant has considered and analyzed a collection of maximum 7,500 square
foot buildings, each serving a reasonable outright permitted use
17. The applicant proposes to eliminate the opportunity for a business that is involved
with pulp and paper manufacturing to be located on the subject property; otherwise,
approval for any and/or all uses permitted outright, as set forth in DCC 18.100.010,
could be requested by the applicant or his successor in the future
247-14-000456-ZG/457-PA Page 50 of 81
With respect to the first Curry County factor, I find that the size of the subject parcel, 21.59
acres, in relation to the existing approximately 60 acres of RI-zoned property in Deschutes
Junction, constitutes a relatively large addition to the RI zone in this area. Accordingly, this
factor supports a determination that the use is "urban," rather than rural.
With respect to the second factor, the record indicates the subject site is located a considerable
distance from the nearest UGBs -- approximately 3 miles north of the Bend UGB and
approximately 6 miles south of the Redmond UGB. Because no specific development is
this time, it is not
possible to definitively determine the extent to which customers
proposed at this p Y
from nearby cities could be attracted to the subject property. Nonetheless, I find it is reasonable
to conclude that RI development of the subject property is likely to attract customers from
nearby urban areas based on adjacent RI uses in the Deschutes Junction area, the proximity of
the subject property to Highway 97, Highway 20 and other road networks. Accordingly, this
factor also supports a determination that the use is "urban" rather than rural_
With respect to the third factor, the record indicates the subject property will be served by an
existing rural fire protection district and the county sheriff, and by a private water company that
serves rural and suburban uses in the Bend area. Sewage disposal would be provided by on-
site septic systems. Bend's municipal water and sewer systems do not extend north of the
UGB, and in light of the distance between the UGB and the subject property, it is unlikely either
of these systems would be extended to serve the subject site. Accordingly, under this factor,
the use would qualify as "rural," rather than urban.
Considering the three Curry County factors, the Hearings Officer finds that potential uses of the
subject property may be "urban" in nature if it is rezoned from EFU-TRB to RI. I find that it is
appropriate to require an exception to Goal 14 to determine if the proposed "reasons" match the
potential uses, and so that development limitations may be established as part of the goal
exception to assure the subject site is not developed with "urban" uses. I note that such a goal
exception was required by the Hearings Officer in ZC-14-2.
The applicant submitted evidence and argument supporting both a "reasons" and an
"irrevocably committed" exception. Compliance with the requirements for those exceptions to
Goal 14 is addressed in the findings below.
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
and 660-014-0030 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 outlined in this rule.
247-14-000456-ZC/457-PA Page 51 of 81
FINDINGS: I find that this application concerns "adoption of plan and zoning provisions that
would allow changes in existing types of uses, densities or services,"which requires application
of the standards outlined in this rule.
(2) For "physically developed" and "irrevocably committed"
exceptions to goals, residential plan and zone designations shall
authorize a single numeric minimum lot size and all plan and zone
designations 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;
(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;
(B) The rural uses, density, and public facilities and
services will not commit adjacent or nearby resource
land to uses not allowed by the applicable goal as
described in OAR 660-004-0028; and
(C) The rural uses, density, and public facilities and
services are compatible with adjacent or nearby
resource uses;
(c) For uses in unincorporated communities, the uses are
consistent with OAR 660-022-0030, "Planning and Zoning of
Unincorporated Communities", if the county chooses to
designate the community under the applicable provisions of
OAR chapter 660, division 22; and
(d) For industrial development uses and accessory uses
subordinate to the industrial development, the industrial uses
may occur in buildings of any size and type provided the
exception 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: I find that because the applications do not involve a residential plan and zone
designation, these criteria do not apply.
(3) Uses, density, and public facilities and services not meeting
section (2) of this rule may be approved on rural land only
under provisions for a reasons exception as outlined in
section (4) of this rule and applicable requirements of OAR
660-004-0020 through 660-004-0022, 660-011-0060 with regard
to sewer service on rural lands, OAR 660-012-0070 with
regard to transportation improvements on rural land, or OAR
660-014-0030 or 660-014-0040 with regard to urban
development on rural land.
247-14-000456-ZC/457-PA Page 52 of 81
FINDINGS: The applicable criteria are set forth in OAR 660-014-0030 or OAR 660-014-0040
because the proposal is for a zone change that would allow "urban development on rural land."
Compliance with these criteria are set forth in the findings below.
"REASONS"EXCEPTION
The applicant relies on the history, changes in circumstances and surrounding uses as evidence
supporting both a "reasons" and "irrevocably committed" exception. The Hearings Officer finds
that many of the "reasons" criteria below require an analysis of the "use". The applicant has
provided a "worst case" development scenario for these purposes because there is no proposed
use at this time. Thus, I must assume that any of the suite of outright and conditional use in the
RI zone could be developed on the property, subject to the requirements of that zone, site plan
review (DCC 18.124), and conditional use criteria where applicable. There is no minimum lot
size in the zone that would constrain the ultimate development density of the site. Following the
Hearings Officer's reasoning in ZC-14-2/PA-14-2, I find that the property is not eligible for a
"reasons" exception without a clearly defined use as discussed in the findings below.
(4) "Reasons" Exceptions:
(a) When a local government takes an exception under the
"Reasons" section of ORS 197.732(1)(c) and OAR 660-
004-0020 through 660-004-0022, plan and zone
designations must limit the uses, density, public
facilities and services, and activities to only those that
are justified in the exception;
FINDINGS: The applicant requests a "reasons" exception to Goal 14 to allow the subject site to
be rezoned to RI. This criterion requires that the RI zoning, if approved through a "reasons"
exception, must limit the uses, density, public facilities and services, and activities to only those
that are justified in the exception. As discussed in the findings above, for purposes of
demonstrating compliance with the TPR, the applicant's revised traffic study identified the "worst
case scenario" for industrial development on the subject site to include equal amounts of space
(7,500 square feet each)for the following uses: 9 contractors or building materials businesses; 5
plumbing, electrical, roofing or siding contractors; 5 welding, sheet metal or machine shops; 1
veterinary clinic. No new public services or facilities are proposed, beyond the extension of
electric, phone and water services to any new proposed lots.
The applicant has not proposed to limit the allowed uses on the subject property, except for the
pulp and paper manufacturing use. This means that all but one of the outright or conditional
uses in the RI zone could be potentially developed on the property. There is no limit on the
uses, density, and activities, other than to exclude the pulp and paper manufacturing use listed
under DCC 18.100.020(H). Therefore, I find that this criterion is not met.
(b) When a local government changes the types or
intensities of uses or public facilities and services
within an area approved as a "Reasons" exception, a
new "Reasons" exception is required;
FINDINGS: I find that this criterion is not applicable because the subject property is not located
in a previously approved "reasons" exception area.
247-14-000456-ZC1457-PA Page 53 of 81
c. OAR 660-004-020, Goal 2, Part II(c), Exception Requirements:
(1) If a jurisdiction determines there are reasons consistent with
OAR 660-04-022 to use resource lands for uses not allowed
by the applicable Goal, the justification shall be set forth in
the comprehensive plan as an exception.
FINDINGS: The proposal's compliance with OAR 660-04-022 is discussed in the findings below.
(2) The four standards of Goal 2 Part II(c) required to be
addressed when taking an exception to a Goal are:
(a) "Reasons justify why the state policy embodied in the
applicable goals should not apply": The exception
shall set forth the facts and assumptions used as the
basis for determining that a state policy embodied in a
goal should not apply to specific properties or
situations including the amount of land for the use
being planned and why the use requires a location on
resource land:
FINDINGS: The Hearings Officer found in Powell/Ramsey, and I agree in this Decision, that to
comply with this administrative rule, the applicant must demonstrate or explain: (1) the basis for
determining that state policy embodied in the applicable goals should not apply; (2) the amount
of land that is required for the use being planned; and (3) why the use requires a location on
resource land. Each of these factors is addressed separately in the findings below:
1. Basis for Determining State Policy Embodied in the Goals Should Not Apply.
The state policy embodied in Goal 14, Urbanization, includes providing an orderly transition
from rural to urban uses and assuring efficient use of the land. The subject property is
considered "rural" because it is not located within a UGB or an Urban Unincorporated Area.
The applicant is correct that the property is adjacent to and surrounded by existing industrial
and commercial operations, as well as 1,756 platted residential lots, 339 buildable lots (a 20%
increase in 2 years), 9 lots for build-out for industrial and commercial uses and 1,417 residential
built-out lots. There are five different zones in the vicinity. As discussed in the findings above,
the non-agricultural soils on the subject property, lack of irrigation water easement, bisection of
the property by the overpass and proximity to Highway 97 make its use for agriculture
inefficient. Moreover, the existence of adjacent commercial and industrial uses, as well as
Highway 97, on-off ramps to the Highway from Tumalo Place, and the Tumalo Road/Highway
97 overpass, which connects the subject property to the east-west corridor that becomes
Deschutes Market Road to the east of Highway 97 make any use of the subject property for
other rural uses impracticable. The positioning of the property at the center of this
transportation hub results in negative impacts with respect to safety, noise, traffic and fumes_
The Applicant is proposing 20 businesses on his 21.56 acres of land, less than one business
per acre. The applicant further addresses this standard on pages 173-174 of the burden of
proof_ The last paragraph addressing this standard states:
247-14-000456-ZC/457-PA Page 54 of 81
If the proposed plan amendment and zone change to RI are approved, the Applicant
intends to develop the subject property with some attractive, generously-spaced,
landscaped, compatible uses allowed in the RI zone and some existing neighborhood
uses similar to the Whistlestop Nursery, Willamette Graystone, United Pipe, the
business manufacturing wood products just north of the applicant's land, and farm
equipment and agricultural products storage. Because of the unique nature and location
of the subject site, and its 3.25 and 6.26 miles distance from the Bend and Redmond
UGB's, and the use limitations required for a goal exception, such development is not
likely to result in a disorderly transition from rural to urban development, and therefore
the state policy embodied in Goal 14 should not apply."
I find that the state policy embodied in Goal 14 applies and that the proposed rezone (and
potential uses allowed outright and conditionally) will ensure more efficient use of the land than
under current circumstances, particularly given that the property has not been farmed since
construction of the overpass project and is largely in a fallow, undeveloped state. I further find
that the proposed rezone will provide for an orderly transition from rural to urban development,
considering the existing transportation "hub" nature of Deschutes Junction, the bisection of the
subject property by Tumalo Road and the overpass, which connects the subject property to rural
commercial and rural industrial properties to the east of Highway 97, and the other adjacent
surrounding commercial and industrial uses.
2. The Amount of Land Required for the Use Being Planned.
The applicant addressed this standard on page 174 of the burden of proof as follows:
"The Applicant is proposing that 14.41 acres of the 21.56 acre subject site could be
developed with a wide range of industrial uses. However, the applicant's traffic study
identified a "worst case"development scenario to demonstrate compliance with the TPR
that would include 7,500 square feet each for 20 light rural industrial uses, including nine
(9) contractor's or building materials and other construction-related businesses; five (5)
plumbing, electrical, roof, siding contractors; five (5) welding, sheet metal or machine
shop businesses; and one (1) veterinary clinic. That proposal leaves generous acreage
for internal roads, landscaping, outside storage of goods, parking and maneuvering of
vehicles. The land for the proposed uses is more than adequate, but is not excessive_
The Hearing Officer in ZC-14-2/PA-14-2 used that applicant's "worst-case" scenario, generated
for traffic analysis purposes, to find that the amount of land was adequate for the use being
planned. I must assume that any of the list of outright and conditional use in the RI zone could
be developed on the property3, subject to the requirements of that zone, site plan review (DCC
18.124), and conditional use criteria where applicable. Moreover, there is no minimum lot size
in the zone. However, there is no reason on this record to conclude that the amount of land for
the potentially proposed uses will be inadequate.
3. Why the Use Requires a Location on Resource Land.
The applicant addressed this standard on page 174 of the burden of proof as follows:
3 Except the pulp and paper manufacturing use.
247-14-000456-Z0457-PA Page 55 of 81
"As discussed in the findings above, the Borine study finds that the subject property
does not constitute agricultural land because it consists entirely of Class VIi and VIII
soils. Based on the soil study the subject property is not "resource land." However,
because the zoning of the subject property presently EFU-TRB it is in a resource zone
and the applicant must address this factor. The Applicant did not need the Borine
Report to know that the land is not capable of producing a crop of hay. He is a lifelong,
second generation hay farmer, an expert hay farmer and hay broker, providing custom
hay farming to others who do not have that skill. He has not been able to grow a crop on
the land since he bought it in 1995 The last attempt was over 15 years ago, before the
overpass was constructed, and it was not worth harvesting.
The subject property and surrounding area are developed with educational, industrial
and commercial uses that surround the property and transportation facilities that
surround and cross the subject site. No agricultural operations are nearby. For these
reasons it is appropriate to include the subject site in the existing RI designation and
zoning because of its unique location, changes in circumstances, and characteristics.
See Sections 15 and 15"
The Hearing Officer, in ZC-14-2/PA-14-2, found that:
"As discussed in the findings above, the Hearings Officer has found that based on the
Borine study the subject property does not constitute agricultural land because it
consists entirely of Class VII and VIII soils. Based on the soil study the applicant argues
the subject property is not "resource land." However, the staff report states, and I agree,
that because the subject property presently is zoned EFU-TRB it is resource land and
the applicant must address this factor."
Notwithstanding the finding that the subject property is not "Agricultural Land," based on the
Borine study, the subject property is "resource land,"given its current designation as EFU-TRB.
The Hearing Officer in ZC-14-2/PA-14-2 also found that:
"The subject property and surrounding area are developed with industrial and
quasi-commercial uses that virtually surround the subject site. For these reasons
the applicant argues it is appropriate to include the subject site in the existing RI
designation and zoning because of its unique location and characteristics, and so
that it can be used in conjunction with the remainder of the subject property.
While the Hearings Officer can't argue with that logic, I find it is not sufficient to
demonstrate the proposed uses identified in the applicant's revised traffic study,
or other uses permitted in the RI Zone, require a location on resource land."
The applicant has made a similar argument in this case. Similarly here, the applicant has not
demonstrated the proposed uses permitted in the RI zone require a location on resource land.
This criterion is not met.
(b) Areas which do not require a new exception cannot
reasonably accommodate the use:
FINDINGS: The applicant addressed this standard on pages 175-176 of the burden of proof
statement. Paragraphs 4-6 for the applicant's response to this standard states:
247-14-000456-ZC/457-PA Page 56 of 81
"The Applicant is not proposing a specific use or a number of specific uses of the
property. When the zone change and plan amendment is approved, the full list of uses
allowed in the rural industrial zone could be allowed, subject to subsequent site plan
review. An in-depth, parcel by parcel analysis of all non-resource or urban lands in the
county that could possibly accommodate each allowed use, when each future business
is looking for a site that could be developed or redeveloped, or could be rezoned, and
would be for lease or for sale at any given time for each and every one of those uses is
impossible to do. Factors out of our control include the price any owner may ask for the
properties, whether or not a particular owner would ask for a rezone or lot consolidation,
whether or not a city council would actually rezone or consolidate the urban lots or if a
certain parcel would remain available at the time it is needed by a future use. Another
reason this criterion is not effective or realistic in reaching the desired statewide land use
goals is that many rural industrial uses do not belong in the urban areas and are
incompatible with them, and therefore locating them there creates many other problems
with urban planning, safety and livability.
The County GIS staff Tim Berg did a study of non-resource lands zoned in the county for
the Applicant and reported that 121.90 acres are already zoned RI. The majority, 60.4
acres of Ri, is located at Deschutes Junction. The other RI parcels include 13.4 acres at
the auto wrecking yard north of Bend along the east side of US Highway 97, 12.7 acres
owned by Vick Russell Construction in a country Ri holding zone inside the city limits of
La Pine, and 35.4 acres of federally-owned military land adjacent to Robert's Field
(Redmond Airport) east of Redmond.
The non-resource land under Deschutes County jurisdiction that could accommodate
uses allowed in the RI zone must be already zoned RI. Those 121.9 acres cannot
accommodate the list of allowed rural industrial uses because: (1) there is limited land in
the county zoned RI; (2) other RI-zoned land either is fully developed or is located near
La Pine which is 30 miles away, (3) is federally owned and outside Deschutes Junction,
or (4) there is no other adequate transportation system and overpass over 97 near the
other areas that would make industrial trucks entering and exiting the highway safe.
The subject property is uniquely suited for this rezone and can reasonably accommodate
the use. it is adjacent to the other 60.4 acres of RI zoned lands located at Deschutes
Junction and the parcels zoned RI will be contiguous."
Following the Hearings Officer's findings in ZC-14-2/PA-14-2, I find that the applicant cannot
limit its review under this factor to land currently zoned RI inasmuch as other land zoned for
industrial use within the Bend and Redmond UGBs may be available and therefore should be
included in the analysis. The applicant has not proposed to preclude any uses from the suite of
outright and conditional uses in the RI zone that could be developed on the property (except the
pulp and paper manufacturing use. However, the applicant failed to provide a regional (Bend,
Tumalo, and Redmond) availability analysis for each outright and conditional use in the RI zone.
Further, although the applicant argued that the uses allowed in the RI zone are not compatible
in urban areas, due to alleged impacts on urban planning, safety and livability primarily due to
large trucks accessing the site, I find that many of the uses allowed outright or conditionally in
the RI zone may be, and have been sited within 'UGBs including, but not limited to
kennel/veterinary clinic, building materials businesses, medical marijuana dispensaries, mini-
storage, wireless telecommunications facilities, and electrical substations. See DCC
18.100.010 (uses allowed outright); DCC 18.100.020 (conditional uses). The record does not
247-14-000456-ZC/457-PA Page 57 of 81
support a finding that areas which do not require a new exception cannot reasonably
accommodate the use. This criterion is not met.
(A) The exception shall indicate on a map or
otherwise describe the location of possible
alternative areas considered for the use, which
do not require a new exception. The area for
which the exception is taken shall be identified;
(B) To show why the particular site is justified, it is
necessary to discuss why other areas which do
not require a new exception cannot reasonably
accommodate the proposed use. Economic
factors can be considered along with other
relevant factors in determining that the use
cannot reasonably be accommodated in other
areas. Under the alternative factor the following
questions shall be addressed:
(I) Can the proposed use be reasonably
accommodated on nonresource land that
would not require an exception,
including increasing the density of uses
on nonresource land? If not, why not?
(ii) Can the proposed use be reasonably
accommodated on resource land that is
already irrevocably committed to
nonresource uses, not allowed by the
applicable Goal, including resource land
in existing rural centers, or by increasing
the density of uses on committed lands?
If not, why not?
(iii) Can the proposed use be reasonably
accommodated inside an urban growth
boundary? If not, why not?
FINDINGS: Although the applicant has not provided a map, he has otherwise described the
location of other RI-zoned properties and alternative areas available for RI uses (13.4 acres at
the auto wrecking yard north of Bend along Highway 97, 12.7 acres owned by Vic Russell
Construction in a county holding zone inside the city of La Pine and 35.4 acres of federal
military land adjacent to Robert's Field east of Redmond. The applicant states the following for
these three RI-zoned areas:
"The alternatives are not unused, are not available and suggesting that they be used for
future RI uses does not solve the problem at hand, that of defining a compatible and
appropriate zone among the non-resource zoning options in the county, and of
determining the appropriate use for the subject non-resource property, that cannot be
farmed."
The applicant presented evidence that alternative sites for potential RI uses within the County
are not unused and not available, thus demonstrating that the potential uses cannot be
247-14-000456-ZC/457-PA Page 58 of 81
accommodated on existing RI-zoned property. No person introduced testimony or other
evidence that the proposed use can be reasonably accommodated on nonresource land that
would not require an exception, or on resource land that is already irrevocably committed to
nonresource uses. However, the applicant failed to adequately address the criteria in
subsections (ii) and (iii) above. Specifically, there is no evidence that the potential uses cannot
be located on other resource land irrevocably committed to nonresource uses, not allowed by the
applicable Goal, including resource land in existing rural centers, or by increasing the density of
uses on committed lands. As discussed in the findings above, the applicant has not shown that
any use allowed outright or conditionally in the RI zone cannot be reasonably accommodated
inside an urban growth boundary. These criteria are not met.
(iv) Can the proposed use be reasonably
accommodated without the provision of
a proposed public facility or service? If
not,why not?
FINDINGS: I find that this factor is not applicable because no public facilities or services are
proposed.
(C) The alternative areas standard can be met by a
broad review of similar types of areas rather
than a review of specific alternative sites.
Initially, a local government adopting an
exception need assess only whether those
similar types of areas in the vicinity could not
reasonably accommodate the proposed use.
Site specific comparisons are not required of a
local government taking an exception, unless
another party to the local proceeding can
describe why there are specific sites that can
more reasonably accommodate the proposed •
use. A detailed evaluation of specific alternative
sites is thus not required unless such sites are
specifically described with facts to support to
support the assertion that the sites are more
reasonable by another party during the local
exceptions proceeding.
FINDINGS: As noted in the findings above, the applicant reviewed specific alternative RI sites
within the County, rather than conducting a broad review of similar types of areas. Site specific
comparisons are not required because no other party to the proceeding has described any
specific site that can more reasonably accommodate the proposed use. However, as set forth
in the findings above, the applicant has not fully complied with the alternative areas standard
because there is no evidence that the potential uses cannot be located on other resource land
irrevocably committed to nonresource uses, not allowed by the applicable Goal, including
resource land in existing rural centers, or by increasing the density of uses on committed lands
and the applicant has not shown that any use allowed outright or conditionally in the RI zone
cannot be reasonably accommodated inside an urban growth boundary.
c) The long-term environmental, economic, social and
energy consequences resulting from the use at the
247-14-000456-ZC/457-PA Page 59 of 81
proposed site with measures designed to reduce
adverse impacts are not significantly more adverse
than would typically result from the same proposal
being located in other areas requiring a Goal
exception. The exception shall describe the
characteristics of each alternative areas considered by
the jurisdiction for which an exception might be taken,
the typical advantages and disadvantages of using the
area for a use not allowed by the Goal, and the typical
positive and negative consequences resulting from the
use at the proposed site with measures designed to
reduce adverse impacts. A detailed evaluation of
specific alternative sites is not required unless such
sites are specifically described with facts to support
the assertion that the sites have significantly fewer
adverse impacts during the local exceptions
proceeding. The exception shall include the reasons
why the consequences of the use at the chosen site
are not significantly more adverse than would typically
result from the same proposal being located in areas
requiring. a goal exception other than the proposed
site. Such reasons shall include but are not limited to,
the facts used to determine which resource land is
least productive; the ability to sustain resource uses
near the proposed use; and the long-term economic
impact on the general area caused by irreversible
removal of the land from the resource base. Other
possible impacts include the effects of the proposed
use on the water table, on the costs of improving
roads and on the costs to special service districts;
FINDINGS: The applicant addressed these four standards (environmental, economic, social and
energy consequences) on pages 178-182 of the burden of proof statement. However, I find that
the applicant's submission does not meet the requirements of this criterion because it lacks any
analysis comparing the environmental, economic, social and energy consequences of allowing
RI uses on the subject property, or the level of any such consequences if the RI uses are sited
on an alternative property. Specifically, there is no evidence to address "the reasons why the
consequences of the use at the chosen site are not significantly more adverse than would
typically result from the same proposal being located in areas requiring a goal exception other
than the proposed site." The applicant's burden of proof only addresses the attributes of the
subject property itself. This criterion is not met.
(d) The proposed uses are compatible with other adjacent
uses or will be so rendered through measures
designed to reduce adverse impacts. The exception
shall describe how the proposed use will be rendered
compatible with adjacent land uses. The exception
shall demonstrate that the proposed use is situated in
such a manner as to be compatible with surrounding
natural resource and resource management or
production practices. "Compatible" is not intended as
247-14-000456-ZC/457-PA Page 60 of 81
an absolute term meaning no interference or adverse
impacts of any type with adjacent uses.
FINDINGS: The applicant addressed this standard on page 184 of the burden of proof:
The Applicant's study of surrounding uses covers the vicinity. The study
shows the rezone is compatible with surrounding land uses. The study
includes all parcels within % of a mile from the subject site. The study,
area followed tax lot maps: Some tax lot maps ended mile from the
subject property, such as to the north. Others, due to large publicly-
owned parcels, ended 1.25 miles from the subject site, such as to the
south. It was completed after several weeks of work. It is more thorough
than any similar analysis in any other application previously submitted to
the County. This exhaustive work was done so that it could be
confidently determined whether or not the proposed RI zone will be
compatible with the surrounding natural resources, built environment and
existing uses.
It was determined that the proposed RI zone will be similar to the
commercial and industrial uses and zoning that are assigned to the
adjacent properties to the north and east.
(emphasis added). The applicant listed the adjacent uses in the burden of proof on pages 59 to
133. Again, the applicant has not proposed to preclude any uses from the suite of outright and
conditional uses in the RI zone that could be developed on the property (except the pulp and
paper manufacturing use. Accordingly, all of the outright and conditional uses in the RI zone
must be shown to be compatible with other adjacent uses, or that they can be rendered
compatible with other adjacent uses.
There do not appear to be any active adjacent natural resource uses, and resource
management or production practices. All of the uses that might be accommodated in the RI
zone on the subject property would be required to go through site plan review, and depending
upon the use, conditional use permit review. The record shows that potential uses are unlikely
to adversely impact existing industrial uses across Highway 97, directly to the east across the
overpass that connects the subject property via Tumalo Road with existing industrial and
commercial uses to the east of the subject property. Tumalo Road runs west to east and
connects to Deschutes Market Road. I find that compliance with Use Limitations set forth in
DCC 18.100.030, Dimensional Requirements in DCC 18.100.040, Parking and Loading
requirements in DCC 18.100.050, Site Plan Review requirements in DCC 18.100.060 (and DCC
Ch. 18.124), Conditional Use Review under DCC Ch. 18.128 (where required) and Additional
Requirements in DCC 18.100.070 may be applied and enforced to ensure compatibility of any
proposed RI use with other surrounding uses, including the school property and rural residential
development to the west, the EFU-zoned property developed with a single rural residence to the
south, and the MUA-10 zoned rural residential properties to the northwest.
(4) For the expansion of an unincorporated community defined
under OAR 660-022-0010. The exception requirements of
subsections (2)(b), (c), and (d) of this rule are modified to also
include the following:
247-14-000456-ZC/457-PA Page 61 of 81
FINDINGS: This criterion is not applicable because the subject site and subject property do not
constitute an "unincorporated community," defined in OAR 660-022-0010(10)(e) and Section
18.04.030 of the county code as land having a zoning designation "Urban Unincorporated
Community," "Rural Service Center," "Resort Community" or Rural Community."
d. OAR 660-04-022, Reasons Necessary to Justify an Exception Under
Goal 2, Part 11(c):
An exception under Goal 2, Part 1I(c) can be taken for any use not
allowed by the applicable goal(s). The types of reasons that may or
may not be used to justify certain types of uses not allowed on
resource lands are set forth in the following sections of this rule:
* * *
(3) Rural Industrial Development: For the siting of industrial
development on resource land outside an urban growth
boundary, appropriate reasons and facts include but are not
limited to the following:
(a) The use is significantly dependent upon a unique
resource located on agricultural or forest land.
Examples of such resources and resource sites
include geothermal wells, mineral or aggregate
deposits, water reservoirs, natural features, or river or
ocean ports; or* * *
FINDINGS: The property is zoned EFU-TRB and is still presently "resource land", following the
Hearing Officer's analysis in ZC-14-2/PA-14-2. There does not appear to be uses with which
the subject site could be developed that are "significantly dependent upon a unique resource"
on the subject property or other properties in the vicinity of this site.
(b) The use cannot be located inside an urban growth
boundary due to impacts that are hazardous or
incompatible in densely populated areas; or
FINDINGS: The applicant addressed this standard on pages 185-186 of the burden of proof.
The applicant has indicated that the types of uses that might occur at the site would be those
that have large trucks and bulky loads. The applicant states that "several of the potential uses
would be difficult to site in the urban areas, due to the needed wide turn radii, and to the size of
delivery and services vehicles, trucks and trailers. A regular volume of long trucks or trucks with
long booms or wheelbases are hazardous in the urban areas and cause traffic hazards in urban
intersections." The applicant further noted that "other problems businesses or services face in
finding available large lots in the UGBs of Redmond and Bend are that the infrastructure for
industrial lots are either already overtaxed or failing or is not developed."
As set forth in the findings above, since the applicant has not proposed to preclude any uses
from the suite of outright and conditional uses in the RI zone that could be developed on the
property (except the pulp and paper manufacturing use), the applicant would need to
demonstrate, for each outright and conditional use in the RI zone, that these uses "are
hazardous or incompatible in densely populated areas". This finding cannot be made given the
247-14-000456-ZC/457-PA Page 62 of 81
fact that many of these uses are outright or conditional uses in Redmond's or Bend's urban
industrial zones. This criterion is not met.
(c) The use would have a significant comparative
advantage due to its location (e.g. near existing
industrial activity, an energy facility, or products
available from other rural activities), which would
benefit the county economy and cause only minimal
loss of productive resource lands. Reasons for such a
decision should include a discussion of the lost
resource productivity and values in relation to the
county's gain from the industrial use, and the specific
transportation and resource advantages which
support the decision.
FINDINGS: Since the applicant has not proposed to preclude any uses from the suite of
outright and conditional uses in the RI zone that could be developed on the property, except the
pulp and paper manufacturing use, in order to comply with this criterion, the applicant is
required to provide a regional (Bend, Tumalo, and Redmond) analysis showing the comparative
advantage due to its location (e.g. near existing industrial activity, an energy facility, or products
available from other rural activities) for each outright and conditional use in the RI zone, were
they to be located on the subject property, rather than on other land that allowed these uses.
The applicant failed to provide any comparison analysis, but instead focused on the attributes of
the subject property with respect to location, benefit to the county economy and only minimal
loss of productive resource lands. As such, this criterion is not met.
The applicant described many of the advantages of the location of the subject property at page
186 of the Burden of Proof:
The location is a unique transportation hub, with county and state roads
surrounding and bisecting the subject property. (See FIGURE 1.
REGIONAL MAP, page 10). Many businesses that are dependent on the
rural economy and rural products need good access to highways to that
do not have to send trucks on urban residential streets or local roads.
They may locate here. This site also can help the economy by reducing
thousands of miles traveled per year due to its central location between
Sisters, Bend, and Redmond and its immediate access to major
highways. Costs to develop the transportation infrastructure would be
none or minimal due to the unique excellent system already in place and
the three existing, relatively new, turn lanes in the subject property. The
traffic study by Gary Judd (See Exhibit 28, TIA), shows there will be no
adverse impacts on the existing system. Depending on which businesses
or services locate on site, they may or may not be related to existing
businesses in Deschutes Junction and may enhance them.
Specific transportation advantages which support the decision are set forth at pages 28-32 of
the Burden of Proof. Of note is the fact that the Burlington Northern Railroad is located 1/8 mile
to the east of the site, with two sets of tracks, a main north-south line and a parallel passing
spur and a loading spur at the 4-R Construction Co. property that used to serve the Cascade
Pumice plant at Deschutes Junction. As set forth in detail in the findings above, Tumalo Road,
a paved county two-lane rural collector bisects the property east to west, providing a connection
247-14-000456-ZC/457-PA Page 63 of 81
to the Bend-Redmond Road and Highway 20. Tumalo Place also is a paved county, two-lane
rural collector road that serves as the on and off ramp to Highway 97. Second to Interstate-5,
Highway 97 is the most important north-south highway corridor in Oregon and is the main
corridor east of the Cascade Mountains. Deschutes Market Road is a paved county two-lane
Rural Arterial road which connects to the Tumalo Road overpass and provides a secondary
access to Bend and Highway 20 east. According to the County Surveyor Mike Berry,
Deschutes Junction has been a primary transportation hub since the late nineteenth century.
The ambient traffic noise generated by 25,600 average daily trips on Highway 97 at a point only
1/10th of a mile south of the Deschutes Overcrossing is adjacent to the subject property, and is
loud and incessant. The ADT and noise increase annually.
The subject property has three legal access points with dedicated turn refuges on Tumalo Road
and Tumalo Place, granted to Aceti by the County via (1) Settlement Agreement dated May 14,
1997 (Exhibit 18 to Burden of Proof) and (2) the Deschutes Junction Overcrossing, Corrected
Legal Description for Additional Turn Lane Right-of-Way Acquisition in 161226C Tax Lot 201,
dated May 4, 2001, recorded by Deschutes County Clerk as Volume 2001, Page 22023 (Exhibit
19 to Burden of Proof). The access points and turn refuges were designed to accommodate 90-
foot long tractor trailer truck combinations entering and exiting the subject property.
Benefit to County Economy. Following the Hearings Officer in ZC-14-2/PA-14-2, I find that
because the applicant has not identified a particular use of the site it has not demonstrated that
industrial development of the site would be of any greater benefit than similar development on
another industrial-zoned site. However, as noted in the findings above, development of the site
with RI uses will benefit the County economy as it will increase the productive use of the subject
property which today is largely unused and in a fallow state, with the exception of the existing
Hay Depot business.
Minimal Loss of Productive Resource Lands. The applicant addressed this standard on
pages 186-187 of the burden of proof statement. According to the Borine report, the applicant's
property is 80 percent class VII and VIII soils. Accordingly, I find that it would result in only a
minimal loss of resource lands (20% of 21.59 acres =4.3 acres).
Again, analysis of each of these factors (transportation, benefit to the county economy and
minimal loss of productive resources lands) with respect to the subject property is not enough to
meet the requirements of this standard. A comparative analysis is required, and the applicant
failed to meet this criterion.
For all the foregoing reasons set forth in the findings above, I find that a "reasons" exception is
not warranted for the requested Goal 14 Exception.
"IRREVOCABLY COMMITTED"EXCEPTION
d. 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
us_...esnotallapplicablegoal because existin
adjacent uses and other relevant factors make uses allowed
by the applicable goal impracticable:
247-14-000456-ZC/45'7-PA Page 64 of 81 .
(a) A "committed exception" is an exception taken in
accordance with ORS 197.732(2)(b), Goal 2, Part II(b),
and with the provisions of this rule, except where
other rules apply as described in OAR 660-004-0000(1).
FINDINGS: The applicant requests a "committed exception," as detailed herein. The following
statutory and regulatory provisions apply.
ORS 197.732(2): A local government may adopt an exception to a goal if:
(b)The land subject to the exception is irrevocably committed as described
by Land Conservation and Development Commission rule to uses not
allowed by the applicable goal because existing adjacent uses and other
relevant factors make uses allowed by the applicable goal impracticable.
OAR 660-004-0000(1)(c): The purpose of this division is to interpret
the requirements of Goal 2 and ORS 197.732 regarding exceptions.
This division explains the three types of exceptions set forth in Goal
2 "Land Use Planning,:.Part.II, Exceptions." Rules in other divisions
of OAR 660 provide substantive standards for some specific types
of goal exceptions. Where this is the case, the specific substantive
standards in the other divisions control over the more general
standards of this division. However, the definitions, notice, and
planning and zoning requirements of this division apply to all types.
of exceptions. The types of exceptions that are subject to specific
standards in other divisions are:
Standards to determine irrevocably committed : exceptions
pertaining to urban development on rural land are provided in OAR
660-014-0030, and standards for demonstration of reasons for urban
development on rural land are provided in OAR 660-014-0040.
As detailed in the findings below, existing adjacent uses and other relevant factors, namely
close proximity to Highway 97 and the bisection of the property via Tumalo Road, a major east-
west connecting road, make uses allowed by the applicable goal impracticable. Compliance
with the standards set forth in OAR 660-014-0030 is set forth in the findings below. For the
reasons stated below, standards for demonstration of reasons for urban development on rural
land under OAR 660-014-0040 are inapplicable to the applications.
(b) For the purposes of this rule, an "exception area" is
that area of land for which a "committed exception" is
taken.
FINDINGS: The exception area is the subject property, as described above.
(c) An "applicable goal," as used in this rule, is a
statewide planning goal or goal requirement that
would apply to the exception area if an exception were
not taken. (Emphasis added).
247-14-000456-ZC/457-PA Page 65 of 81
FINDINGS: The subject goal for which an exception is required is Goal 14.
(2) Whether land is irrevocably committed depends on the
relationship between the exception area and the lands
adjacent to it. The findings for a committed exception
therefore must address the following:
(a) The characteristics of the exception area;
•
FINDINGS: The applicant addressed this standard on page 188 of the burden of proof, in which
they submit that the subject site is irrevocably committed to a non-agricultural use:
It is comprised of Class VII and VIII soils. As previously discussed in
detail, agricultural use is impracticable in light of the subject site's
location, configuration, the changes in circumstances, the overpass and
road construction, the changes in irrigation water service and its isolation
from farms in the surrounding area. As also discussed above, the subject
site is separated from most properties by roads and highways. .
Although the applicant also discussed the surrounding and adjacent properties in this portion of
the burden of proof, this subsection requires a consideration of the characteristics of the
exception area alone. As set forth in the findings above, the property does not constitute
Agricultural Land under state law. Findings of fact regarding whether characteristics of the
exception area support an "irrevocably committed" exception are set forth below.
(b) The characteristics of the adjacent lands;
FINDINGS: The applicant addressed this standard on pages 188-197 of the burden of proof,
and also in detail in Section 16 of the burden of proof, pages 59-132. A detailed description of
the surrounding zoning and land uses of each adjacent property and their current uses is
provided in Section II(E) of this Decision above and is incorporated herein by reference. The
applicant's Burden of Proof includes analysis of eight (8) Tax Maps, ranging in size from 80
acres to one (1) square mile. Briefly summarized, there are no active agricultural uses that
adjoin the subject property. Parcels to the south that are zoned EFU are either completely
undeveloped or used only for one residence and otherwise are unimproved. To the west is the
Three Sisters Seventh Day Adventist Christian School site, 19 rural residential homes and an
additional six rural residential parcels. To the south, there are three rental houses and an
unused horse barn (161227D001300 and 161226C000200). Remaining land to the south is
undeveloped and publically owned. The City of Bend acquired 1500 acres from the County to
bring into the Bend Urban Growth Boundary. The urban development is known as Juniper
Ridge and is 1/4 mile southeast of the subject property. On both sides of Highway 97 and both
sides of Tumalo Road to the north are commercial, retail, wholesale and industrial uses,
including Fagan Landscaping, The Funny Farm, Fagan logging and construction company, a
bus repair and resale business, a pickup truck canopy sales business, a business selling and
renting shipping containers, the Whistle Stop retail nursery, Route 97 Antiques, an equipment
rental business and other smaller businesses, To the east are industrial and commercial uses
including Willamette Graystone, United Pipe, 4-R Equipment, a historic school adaptively used
as a residence, a mobile home park, and Cascade Pumice, which uses the railroad spur and a
fuel distributor.
247-14-000456-LC/457-PA Page 66 of 81
I note that the term "adjacent" is not defined in ORS 197.015, or in the Deschutes County Code_
However, "adjoining," is defined to mean contiguous, touching or connected. DCC 18.04.030.
Following the reasoning of the Hearings Officers in Powell/Ramsey and 4-R Equipment, and the
Oregon Land Use Board of Appeals in, for example, King v. Clackamas County, LUBA No.
2015-022 (Or LUBA, September 21, 2015) at p. 22_ I find that "adjacent" includes nearby and
neighboring properties, including properties across existing roads, as well as those properties
directly adjoining the subject property. I further find that the Applicant's adjacent lands study,
which includes all parcels within Y1 of a mile from the subject property and followed tax lot maps,
sufficiently describes adjacent lands characteristics.
Findings of fact regarding whether characteristics of the adjacent lands support an "irrevocably
committed" exception are set forth below.
(c) The relationship between the exception area and the
lands adjacent to it; and
FINDINGS: The applicant addressed this standard on page 198 of the burden of proof:
The record indicates the subject Property does not abut any residential or
resource uses. As previously discussed in detail, the subject site is
surrounded by roads, highways, industrial and commercial uses and by a
school. The southern property line abuts a 4-acre unfarmed triangular •
parcel with a rock spine running trough [sic] it that cannot be farmed. A
remodeled 112-year old single-story box-house in poor condition sits on
the rock ridge a distance from the subject property. The relationship
between the exception area and the lands adjacent to it leads to the
conclusion that the subject site is especially well suited to be a part of the
existing Deschutes Junction industrial and commercial complex. These
adjacent uses include mining operations, aggregate processing, heavy
equipment operations, cement products manufacturing, an antique store,
a wood products manufacturing business and a logging business. See
Table of uses in area. These surrounding uses, coupled with the poor
quality of the site's soils and the high volume of traffic noise, make the
subject site unsuitable for agricultural or residential uses.
Findings of fact regarding whether the relationship between the exception area and the lands
adjacent to it support an "irrevocably committed" exception are set forth below. Substantial
evidence in the record shows a greater "relationship" between the subject property and the
commercial and industrial lands to the north and east, than between the subject property and
rural residential us e s t o the south and west. Again, there are no adjoining active agricultural
uses, My finding is based primarily due to the bisection of the subject property by the Tumalo
Road overpass that connects the industrial and commercial uses on the east of Highway 97 to
the subject property itself. The Tumalo Road east-west connector becomes Deschutes Market
Road further to the east. The County and ODOT construction projects have essentially placed
the Aceti property at the center of the transportation interchange hub of Deschutes Junction.
This is clear from photographic evidence, maps and the video submitted by the applicant at the
hearing. Low density rural residential uses to the west and south of the subject property are
located a distance from the Highway 97 overpass and Tumalo Road such that impacts felt by
the subject property by such transportation projects are more remote.
247-14-000456-ZC/457-PA Page 67 of 81
Safety and noise concerns are most acute on the subject property, compared to any other
adjacent use, given the Tumalo Road bisection and Highway 97 on-off ramps from Tumalo
Place, which forms the northern boundary of the subject property. No other property that is still
in "rural" use within the study area is as proximate to the Highway 97 overpass and on-off ramps
as the subject property.
The record shows that other potential non-urban uses on the property, e.g. rural residential
development via rezone to RR-10 or MUA-10, are impracticable due to the close proximity of
the subject property to Highway 97 and the overpass/interchange project. For example, fencing
surrounding the property has been repeatedly impacted by truck and other vehicular traffic
missing turns. In addition to these safety concerns, highway noise, traffic and fumes would be
substantially disruptive to residential use, particularly as the Deschutes Junction area continues
to evolve into a commercial/industrial hub characterized by the only highway overpass between
the cities of Bend and Redmond. Considering the impact of adjacent lands and existing roads,
the most significant impact is that of the dedication of land to ODOT and the County for the
widening of Highway 97 and the construction of the overpass project. The taking and dedication
of portions of the subject property for these products has occurred to create an interconnected
transportation hub in the middle of Deschutes County.
(d) The other relevant factors set forth in OAR 660-004-
0028(6).
FINDINGS: The relevant factors in OAR 660-004-0028(6) are addressed in the findings of fact
below.
(3) Whether uses or activities allowed by an applicable goal are
impracticable as that term is used in ORS 197.732(2)(b), in
Goal 2, Part II(b), and in this rule shall be determined through
consideration of factors set forth in this rule, except where
other rules apply as described in OAR 660-004-0000(1).
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 reguired that local
governments; demonstrate that every use allowed by the
applicable goal is "impossible," For exceptions to Goals 3 or
4, local governments are required to demonstrate that only
the following uses or activities are impracticable:
(a) Farm use as defined in ORS 215.203;
(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). (Emphasis added.)
FINDINGS: Because the Goal Exception request is not for an exception to Goal 3 or Goal 4,
subsections (3)(a), (b) and (c) are inapplicable.
247-14-000456-ZC/457-PA Page 68 of 81
The applicant addressed the above standard on pages 198-199 of the burden of proof
statement as follows:
"The subject site is irrevocably committed to non-resource use due to its characteristics
and its relationship to the surrounding land, most of which is engaged in non-resource
(industrial) uses. Farming is impracticable. The site's current EFU-TRB zoning allows
outright and conditionally a variety of uses. The farm and forest uses allowed in the EFU
Zone, along with the uses related to or dependent upon those uses, would be
impracticable due to its constraints due to the overpass and realignment of roads around
the property, the reduction in the parcel size since 1995, the inaccessibility of the
northern portion for farming practices, the inaccessibility of irrigation water that will still
not make the soils productive, the less than 20 acre size, the poor quality of the site's
soils, and the site's inaccessibility of irrigation water and the difficulty in irrigating
triangular shaped sections of land that were created by the overpass construction. Other
resource-related uses allowed in the EFU Zone, e.g., mining, wetland creation, wildlife
habitat conservation, would be impracticable considering the site's size, location,
configuration, noise, and dry rocky soil.
With respect to residential and related uses allowed by the zone (e.g. nonfarm dwelling,
church, community center, park, room-and-board facility, etc.) the site's location
surrounded by industrial uses, major roads and excessive road noise would make the
establishment of such uses undesirable and impracticable. With respect to irrigation-
related uses, every effort has already been made to bring water to the land, although it is
not cost effective to do so. The assortment of utility and similar uses allowed in the EFU
Zone (e.g_ utility facilities, transmission towers, personal use airports, solar power
generating facilities, etc.) also would be impracticable on the subject site due to its
having only 14 developable acres in two separate portions and its constrained,
urbanized location."
The site's current EFU-TRB zoning allows outright or conditionally a variety of uses. These
uses include some which are not dependent on the quality of the soil, including kennel, church,
non-farm dwellings (and associated home occupations), farm stands, community centers, room
and board arrangements, and landscape contracting business. However, the standard above
states that local governments are not required to demonstrate that every use allowed by the
applicable goal is "impossible," but only that farm use, propagation or harvesting of a forest
product, and forest operations or forest practices are impracticable. As set forth in the findings
above, the applicant submitted evidence to show that the uses listed herein are not practicable
given the close proximity to Highway 97, the Tumalo Road overpass, and the Highway 97 on-off
ramps at Tumalo Place, including noise and safety impacts. These criteria are met.
(4) A conclusion that an exception area is irrevocably committed
shall be supported by findings of fact that address all
applicable factors of section {6) of this rule and by a
statement of reasons explaining why the facts support the
conclusion that uses allowed by the applicable goal are
impracticable in the exception area.
FINDINGS: Compliance with the factors in section (4) is addressed in the findings below.
(5) Findings of fact and a statement of reasons that land subject
to an exception is irrevocably committed need not be
247-14-000456-ZC/457-PA Page 69 of 81
prepared for each individual parcel in the exception area.
Lands that are found to be irrevocably committed under this
rule may include physically developed lands.
FINDINGS: The findings of fact herein cover the single parcel for which the exception is
requested. The applicant's proposed exception area consists of two tax lots (16-12-26C, 201,
and 16-12-27D, 104).
(6) Findings of fact for a committed exception shall address the
following factors:
(a) Existing adjacent uses;
FINDINGS: The applicant submitted an extensive section on adjacent uses, listed in Section 16
(pages 59-133) of the burden of proof statement. A detailed description of the surrounding
lands is also provided in Section II(E) of this Decision above and incorporated herein by
reference. Analysis and consideration of existing adjacent uses shows that the Deschutes
Junction area has been committed to residential development to the north, with a mix of
commercial and rural industrial development served by the transportation hub roads and
overpass and proximity to Highway 20 and Highway 97, and the Burlington Northern railroad.
Notably, Deschutes County Assessor's Tax Map 161226C includes the applicant's largest
parcel. The tax map includes approximately 150 acres, plus acreage devoted to roadways.
Only one acre in this tax map is used for pasture. 18.60 acres are used for roadways. 27.50
acres are used by Burlington Northern Railroad. The remaining zone is Rural Industrial. 53.84
acres are zoned and used for rural industrial uses. The Applicant's study area included analysis
of eight (8) separate tax maps, ranging in size from 80 acres to one (1) square mile, which
include all adjoining and adjacent property within at least % mile of the subject property.
Highway 97 forms the eastern boundary of the subject property and thus is properly considered
an adjacent use. Tumalo Road and the overpass are also considered adjacent uses because
they were constructed on property deeded to ODOT and the County in part by the applicant
himself. Tumalo Place, which connects to the Highway 97 on-off ramps and forms the northern
boundary of the subject parcel is also an existing adjacent use.
As set forth in detail in the findings above, the applicant appropriately described existing
adjacent uses to support the request for an "irrevocably committed" exception.
(b) Existing public facilities and services (water and sewer
lines, etc.);
FINDINGS: The record indicates there are no public water or sewer facilities in the vicinity of the
subject property. The subject property is served by an on-site septic system and water from a
private water company (Avian Water). However, the applicant's proposal to develop the subject
site with RI Zone uses will not require public water or sewer facilities. The subject property will
continue to receive fire and police protection from the Deschutes Rural Fire Protection District
No. 2 (through the Bend Fire Department), and the Deschutes County Sheriff.
The applicant appropriately described existing public facilities and services to support the
request for an "irrevocably committed" exception
(c) Parcel size and ownership patterns of the exception
area and adjacent lands:
247-14-000456-ZC/457-PA Page 70 of 81
(A) Consideration of parcel size and ownership
patterns under subsection (6)(c) of this rule
shall include an analysis of how the existing
development pattern came about and whether
findings against the goals were made at the
time of partitioning or subdivision. Past land
divisions made without application of the goals
do not in themselves demonstrate irrevocable
commitment of the exception area. Only if
development (e.q., physical improvements such
as roads and underground facilities) on the
resulting parcels or other factors makes
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 and
uses approved 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 the subject parcels or land
adjoining those parcels.
FINDINGS: The applicant submitted an extensive assessment of the exception area and
adjacent lands. Information on Tax Lots and Property Lines is set forth in Section 4 of the
Burden of Proof at page 12-15. The information on the subject property is in section 6 of the
Burden of Proof (pages 18-27), as well as the surrounding area is described in detail in section
16 (pages 59 to 133), incorporated herein by reference. The applicant further addressed the
above standard on pages 200 to 202 of the burden of proof. As set forth at page 201:
"By 1980, Deschutes Junction became irrevocably committed to industrial
and commercial uses. There was pre-existing industrial and commercial
development occurring on adjacent lands and subsequent zone changes
have added to the amount of industrial zoned property, creating a nearly
urban density neighborhood and rural service center."
As set forth in the Powell/Ramsey decision at pages 42-43:
[T]he Deschutes Junction area and the establishment of its
industrial uses resulted from a combination of goal exceptions and
legislative zone changes. In addition . . . some of the existing uses—e.g.,
Cascade Pumice and Willamette Graystone — pre-existed adoption of the
county's initial zoning ordinance. The record indicates the existing RI
zoning on the subject property resulted from the county's granting of an
exception to Goal 3 and subsequent zone change from EFU to RI on the
basis of findings that the soils were not suitable for agriculture. The
applicant states, and the Hearings Officer agrees, that the existing
247-14-000456-ZC/457-PA Page 71 of 81
exception area at Deschutes Junction did not become irrevocably
committed on account of a land division, but rather from pre-existing
industrial development occurred [sic] on adjacent lands, the county's
1980 approval of an industrial use on the RI-zoned portion of the subject
property (CU-90-145) and construction of the Deschutes Market/Tumalo
Road/Highway 97 overpass.
I incorporate these findings by reference herein. I further note that the key finding in support of
this requirement is the fact that development (e.g., physical improvements such as roads and
underground facilities) on the subject property has made unsuitable its resource use and the
resource use of nearby lands. This occurred via the Highway 97 expansion project and the
overpass/Tumalo Road project, and the Highway 97 on-off ramps via Tumalo Place, forming the
northern boundary of the subject property. Accordingly, I find that the subject property may be
considered to be irrevocably committed under this standard. Although the applicant described
parcel size and ownership patterns of the exception area and adjacent lands to support the
request for an "irrevocably committed" exception, such findings are not required to find
compliance with this criteria, consistent with Powell/Ramsey.
(B) Existing parcel sizes and contiguous
ownerships shall be considered together in
relation to the land's actual use. For example,
several contiguous undeveloped parcels
(including parcels separated only by a road or
highway) under one ownership shall be
considered as one farm or forest operation. The
mere fact that small parcels exist does not in
itself constitute irrevocable commitment. Small
parcels in separate ownerships are more likely
to be irrevocably committed if the parcels are
developed, clustered in a large 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 amidst larger
farm or forest operations, or are buffered from
such operations;
FINDINGS: The applicant addressed this standard on page 203 of the burden of proof as
follows:
"The RI-zoned parcels in Deschutes Junction range in size from 1.41 to 18.69 acres.
Jack Robinson and Sons and 4-R Equipment, a related owner, own the majority of the
RI-zoned land, approximately 63 of 77 RI-zoned acres at Deschutes Junction. Although
some of the existing RI-zoned parcels are small, it is not the size of the RI-zoned parcels
that makes the exception area — the subject site -- irrevocably committed to non-
resource uses. Rather, the exception area is irrevocably committed because it is a
relatively small and isolated parcel surrounded by contiguous RI-zoned parcels and uses
and physical barriers. RI-zoned parcels do not stand alone amidst larger farm or forest
operations because no such operations existing in the surrounding area. FIGURE 22,
TABLE OF SURROUNDING USES, is a parcel by parcel analysis of all tax lots in the
247-14-000456-ZC/457-PA Page 72 of 81
surrounding area. The actual owners' names, as found on DIAL, are given for all lots
over 3 acres. As can be seen, very few people,own more than one tax lot.
There is no surrounding agricultural parcel, under any ownership, that can be joined
together with the subject site that would allow productive farming on the subject site. To
the east is Ri property and a state highway. To the north is Tumalo Place and RC and
MUA-10 property. To the west is a school on 15 acres and to the south is an unfarmable
triangular 4-acre tax lot with a rock spine crossing it."
As the Hearings Officer found in Powell/Ramsey, it is not the size of the parcels that makes the
exception area irrevocably committed to non-resource uses. Rather, the subject parcel is
"irrevocably committed" due to its bisection by the Tumalo Road/Highway 97 overpass, the on-
off-ramps to Highway 97 from Tumalo Place and Highway 97 to the east. The subject property
does not stand alone amidst larger farm or forest operations because no such operations exist
in the surrounding area. I adopt the reasoning and findings of the Hearings Officer in
Powell/Ramsey to support a finding that the applicant has appropriately requested an
"irrevocably committed" exception based on existing parcel sizes and contiguous ownerships
I
considered together. The applicant is not relying on the fact or existence of any small pa rcels in
separate ownerships.
(d) Neighborhood and regional characteristics;
FINDINGS: The applicant addressed the above standard on pages 203-204 of the burden of
proof.
"The seven square miles of the Long Butte/Deschutes Junction community has been
developed with non-resource uses for over 60 years. Bordering Deschutes Junction are
large parcels of up to a square mile each that were never selected for homesteading,
never taken out of public ownership and never developed. They can be characterized
as predominantly undeveloped native vegetation on rocky parcels of large size owned by
public agencies and government. ...
As noted in the parcel survey, agricultural uses are scattered small hobby farms. Due to
the small parcel sizes, the infertility of the soil, the shallow soils, the surface rock and the
expense of farming small parcels, most EFU-zoned land at Deschutes Junction is either
or reverting back to native vegetation. The entire south side of Long Butte is
fallow g g g
subdivided into urban sized residential lots. The larges EFU lot is 20 acres and it is
located south of Tumalo Road(off Half Mile Lane). In the early 2000s, the current owner
wanted to subdivide it for residences under Measure 37 claim. He continues to plan to
do so when the opportunity arises. The Deschutes Junction neighborhood consists of a
pocket of 62 acres of industrial and commercially zoned land mixed with a pre-
kindergarten through 10`h grade school, few hobby farms and rural residences_ Non-
conforming uses were grandfathered in. Manufacturing, retail and commercial uses are
on EFU-zoned parcels immediately south of the subject property and site are physically
separated from them by roads, the school, and existing industrial and commercial uses.
Although there are primarily 3-5 acre hobby farms in the neighborhood, the subject
property and site are physically separated from them by roads, the school, and existing
industrial and corrrmercial uses. Approval of the proposed exception to add land to the
existing exception area would be consistent with the historic and current character and
land use pattern in the neighborhood."
247-14-000456-ZC/457-PA Page 73 of 81
With this information, as well as the applicant's detailed description of the surrounding area on
pages 59 to 133 of the burden of proof, the applicant appropriately described the neighborhood
and regional characteristics to support the request for an "irrevocably committed" exception. I
further adopt the reasoning of the Hearings Officer in Powell/Ramsey in this regard: "The
Deschutes Junction neighborhood consists of a pocket of industrial and quasi-commercial uses
mixed with a few farms and rural residences." Substantial evidence in this record shows that
the subject property bears a greater relation to the existing industrial uses to the east, accessed
via the Tumalo Road/Highway 97 overpass that bisects the property, and to the commercial
uses to the north of the property than to rural residential uses to the south and west. This is due
to the location of the property in the center of the primary existing transportation hub between
the cities of Bend and Redmond. I find that approval of the proposed exception to add land to
the exception area would result in little if any change to the character of the neighborhood.
(e) Natural or man-made features or other impediments
separating the exception area from adjacent resource
land. Such features or impediments include but are not
limited to roads, watercourses, utility lines,
easements, or rights-of-way that effectively impede
practicable resource use of all or part of the exception
area;
FINDINGS: I find that this subsection focuses on infrastructure improvements, specifically, and
not general commercial, industrial and urban density residential development. The applicant
stated at page 204 of the burden of proof that: "As discussed throughout this application, the
proposed exception area — the subject site -- is nearly surrounded by roads, commercial,
industrial and urban density residential development. Contiguous connection with adjacent
•
resource land occurs on the 22 percent of the property's boundary lines to the south and west.
A county collector road diagonally bisects the property as well." Notwithstanding the reference
to other non-infrastructure development, I find that the applicant appropriately described the
natural or man-made features or other impediments separating the exception area from
adjacent resource lands to support the request for an "irrevocably committed" exception.
(f) Physical development according to OAR 660-004-0025;
and
FINDINGS: The applicant addressed the above standard as follows at page 204 of the burden
of proof:
"The record indicates the physical development on the exception area consists of two
fire hydrants, a 1,420 foot long 12-inch diameter water line within a 20-foot easement
running north to south down the middle of the parcel, four power/utility poles, a 150-by-
60-foot commercial equipment display and sales pad in the northeast corner, fences
installed by the County along roadways and highways, three 120-foot long by 60-foot
wide paved driveways, a 23,460 square foot metal storage building, two 12-foot wide by
18-foot tall billboards, internal gravel roads, a failed irrigation storage pond, cindered
vehicle maneuvering areas and outdoor storage. The largest development and biggest
impediment over the parcel is the 442-foot long by approximately 170-foot wide
Deschutes Junction Overpass over the primary highway in Central Oregon, US Highway
97 and its associated concrete tunnel and drainage culverts. The development, the
roads and the Deschutes Junction Overpass bisecting the land does effectively preclude
247-14-000456-ZC/457-PA Page 74 of 81
resource uses (agriculture and forestry) in the exception area for reasons discussed in
previous sections."
OAR 660-004-0025 requires that "the extent and location of existing physical development on
the land," be set forth in findings, including "information on structures, roads, sewer and water
facilities and utility facilities." I find that the applicant appropriately described the physical
development of the exception area to support the request for an "irrevocably committed"
exception.
(g) Other relevant factors.
FINDINGS: The applicant addressed this standard on pages 204-205 of the burden of proof,
discussing the other relevant factors, including the road system and bisection of the property,
highway truck and vehicle noise, prevailing winds that blow across the property towards the
roads causing a hazard, the hazards associated with spraying herbicides or fertilizers near a
school and major state highway, theft, litter and property damage (especially vehicles running
into fences and gates), the non-resource soils, lack of access to irrigation water, small size and
irregular configuration of the property, and lack of agricultural uses in the immediate area.
The applicant appropriately described these other relevant factors to support the request for an
"irrevocably committed" exception.
(7) The evidence submitted to support any committed exception
shall, at a minimum, include a current map or aerial
photograph that shows the exception area and adjoining
lands, and any other means needed to convey information
about the factors set forth in this rule. For example, a local
government may use tables, charts, summaries, or narratives
to supplement the maps or photos. The applicable factors set
forth in section (6) of this rule shall be shown on the map or
aerial photograph. •
FINDINGS: The applicant's submitted materials include parcel maps, zoning and tax lot maps,
vicinity maps, historic maps, aerial photographs of the subject property and surrounding area as
well as ground-level photos of the subject site and surrounding properties. This criterion is met
e. OAR 660-014-0030, Rural Lands Irrevocably Committed to Urban
Levels of Development
(1) A conclusion, supported by reasons and facts, that rural land
is irrevocably committed to urban levels of development can
satisfy the Goal 2 exceptions standard (e.g., that it is not
appropriate to apply Goals 14's requirement prohibiting the
establishment of urban uses on rural lands). If a conclusion
that land is irrevocably committed to urban levels of
development is supported, the four factors in Goal 2 and OAR
660-004-0020(2) need not be addressed.
FINDINGS: The applicant addressed the above standard on page 206 of the burden of proof as
follows:
247-14-000456-ZC/457-PA Page 75 of 81
"The applicant has demonstrated that the proposed exception area, the subject site, is
irrevocably committed to non-resource uses in genera/ and to industrial and commercial
uses at urban levels in particular. Among other reasons, the exception area is
unsuitable for rural uses because of its size, configuration, non-resource soils, lack of
usable irrigation, and location virtually surrounded by existing roads and major highways,
industrial and commercial development which makes use of the site with rural uses
impracticable. Because the exception area has been irrevocably committed, the
Applicant does not need to address the four factors in Goal 2 and OAR 660-004-
0020(2).
li addressed the four factor in OAR 660-004-0020(2) 172 to
The a cant s Gaaf 2 and on pages pp l7g
187 of the burden of proof. As set forth in the findings above, the subject property is unsuitable
for agricultural uses because of its size, poor quality soils, lack of irrigation, and location virtually
surrounded by existing industrial development. These conditions also make use of the site with
rural/non-urban uses impracticable. Based on these facts, coupled with the adjacent industrial,
commercial and rural residential uses, the existence of an extensive network of roads and
highways, and the overpass that cuts through the applicant's subject property, I find that it is not
appropriate to apply Goal 14's requirement prohibiting the establishment of urban uses on rural
lands with respect to the subject property. The applicant is correct, and I find that, because the
exception area has been irrevocably committed, the four factors in Goal 2 and OAR 660-004-
0020(2) need not be addressed.
(2) A decision that land has been built upon at urban densities or
irrevocably committed to an urban level of development
depends on the situation at the specific site. The exact nature
and extent of the areas found to be irrevocably committed to
urban levels of development shall be clearly set forth in the
justification for the exception. The area proposed as land that
is built upon at urban densities or irrevocably committed to
an urban level of development must be shown on a map or
otherwise described and keyed to the appropriate findings of
fact.
FINDINGS: The applicant states the following for this standard:
"The exception area includes the subject property. It includes the two Deschutes County
tax lots: 16-12-26C000201 and 161227D000104. Tax lot maps of both parcels are
included in the background information. The description of the land that is irrevocably
committed to urban level of development, is set forth in detail in the findings and burden
of proof above. As discussed in those findings, the Applicant submitted maps and aerial
photos depicting the subject site. Exhibits include the deeds to subject properties
containing a metes any bounds description of the exception area Deeds are in Exhibits
8 and 9."
The determination that the subject property is irrevocably committed to an urban level of
development is based on the situation at the specific site. As set forth in the findings above, the
subject property is unsuitable for agricultural uses because of its size, poor quality soils, lack of
irrigation, and location virtually surrounded by existing industrial development which makes use
of the site with rural uses impracticable. The adjacent industrial, commercial and rural
residential uses, the existence of an extensive network of roads and highways, and the
247-14-000456-ZC/457-PA Page 76 of 81
overpass that cuts through the applicant's subject property support a finding that the property is
irrevocably committed to an urban level of development.
The area proposed as land that is irrevocably committed to an urban level of development is
shown on maps and other materials submitted by the applicant.
(3) A decision that land is committed to urban levels of
development shall be based on findings of fact, supported by
substantial evidence in the record of the local proceeding,
that address the following:
(a) Size and extent of commercial and industrial uses;
FINDINGS: The applicant addressed the above standard on pages 207-208 of the burden of
proof statement. Specifically, the applicant detailed land intensive businesses to the north and
east of the subject property. Among other things, the 1.77 lot directly north of the subject
property is zoned Rural Commercial and includes at least 10 individual land intensive
businesses detailed in the findings above. There is a 9.05 acre RI zoned land directly east of
the subject property. Jack Robinson & Sons and a subsidiary, 4-R Equipment, owns and uses
58.39 acres mostly zoned Rural Industrial and a railroad spur east of the subject property.
I find that the applicant's description of these commercial and industrial uses is more expansive
than would be required, because it includes properties several miles from the subject site.
Nonetheless, the standard is not limited to "adjoining" or "adjacent" commercial and industrial
uses. Moreover, the Applicant's study area is generally limited to '/ mile from the subject site.
The size and extent of commercial and industrial uses include, among other things, landscaping
services, antiques and wedding services, logging and construction company, bus repair and bus
resale business, pickup truck canopy sales, a business selling and renting shipping containers,
the Whistle Stop retail nursery, Route 97 antiques, an equipment rental business, Wililamette
Graystone, 4-R Equipment, United Pipe, Cascade Pumice, the Pilot Butte Irrigation Canal, City
of Bend Sewage Treatment Facility, COlD's Juniper Ridge Phase I Hydroelectric Plant and
Swalley's Hydroelectric Plant. The commercial and industrial uses most proximate to the
subject site are those relevant in this finding that the land is committed to urban levels of
development. Such uses include Willamette Graystone, 4-R Equipment, United Pipe, Cascade
Pumice and the RC zone to the north that includes building/landscape businesses. The
applicant appropriately described the size and extent of commercial and industrial uses to
support the request for an "irrevocably committed" exception
(b) Location, number and density of residential dwellings;
FINDINGS: The applicant addressed the above standard on pages 208-209 of the burden of
proof. The total number of platted lots in nearby subdivisions is 1,252. In addition, there is one
rural residence about 300 feet south of the site and a mobile home is located near the bus barn
on a 15.42 acre parcel owned by the Three Sisters School. North of Tumalo Place is a rental
house on property zoned MUA-10. Consistent with the Powell/Ramsey decision, I find that this
criterion requires a description of residences on surrounding lands, and not limited to the
exception area. For the reasons set forth in findings above, the applicant has adequately
indicated the location, number and density of residential dwellings to support the request for an
"irrevocably committed" exception.
247-14-000456-ZC/457-PA Page 77 of 81
(c) Location of urban levels of facilities and services;
including at least public water and sewer facilities; and
FINDINGS: The record indicates there are no public water or sewer facilities on or near the
subject property. Avion water company is a private water system. The closest of such facilities
is located within the Bend UGB which is at its closest point is approximately 3.25 miles south of
the exception area. The applicant appropriately described the location of urban levels of
facilities and services to support the request for an "irrevocably committed" exception
(d) Parcel sizes and ownership patterns.
FINDINGS: The applicant addressed the above standard on page 209-211 of the burden of
proof, which references the applicant's detailed analysis of the surrounding area (pages 59 to
133 of the burden of proof). Most parcels are under 2 acres in size. RI-zoned parcels in the
Deschutes Junction area total approximately 60 acres in several tax lots, with most properties
under 10 acres in size. Most of the RI-zoned land is owned by two related businesses and
consists of aggregate processing and the construction of concrete products and supplies.
Consistent with the Powell/Ramsey decision, I find that this criterion requires a description of
parcel sizes and ownership patterns on surrounding lands, and not limited to the exception area.
The applicant appropriately described parcel sizes and ownership patterns to support the
request for an "irrevocably committed" exception.
•
(4) A conclusion that rural land is irrevocably committed to
urban development shall be based on all of the factors listed
in section (3) of this rule. The conclusion shall be supported
by a statement of reasons explaining why the facts found
support the conclusion that the land in question is committed
to urban uses and urban level development rather than a rural
level of development.
FINDINGS: The applicant addressed this standard at page 212 of the burden of proof as
follows:
"As discussed extensively in the findings above, the proposed exception area -- the
subject site -- is irrevocably committed to non-resource uses and urban development
because: (1) it does not constitute agricultural land and is not suitable for farm or forest
use; (2) it is a relatively small parcel isolated from other EFU-zoned land; (3) it is virtually
surrounded by industrial, commercial and transportation uses; and (4) The two northern
portions are completely surrounded by roads and highways, and (5) it is surrounded by
man-made barriers including roads and extensive industrial, educational and commercial
development. The public facilities and services — e.g. water and sewer — are not
available to the exception area but there is sufficient private infrastructure in place to
support the level of uses that are predominate at Deschutes Junction and that could be
developed on the subject property with RI zoning, Looking at the evidence presented
about surrounding land uses, the parcel sizes and zoning, one concludes that this is an
inappropriate and constrained site for agriculture and an appropriate site for Rural
Industrial development."
Substantial evidence in the record supports the applicant's statement above. Again, as set forth
in the findings above, I find that the subject property is rural land that is irrevocably committed to
urban development. This finding is based on the fact that it is impracticable to use the subject
247-14-000456-ZC/457-PA Page 78 of 81
property rural uses because of its size, and location virtually surrounded by existing industrial
development. Most importantly, the adjacent industrial, commercial and rural residential uses,
the existence of an extensive network of roads and highways, and the overpass that cuts
through the applicant's subject property support a finding that the property is irrevocably
committed to an urban level of development. Findings set forth above to address the criteria in
OAR 660-014-0030 (3)(a), (b), (c) and (d) are hereby incorporated by this reference.
(5) More detailed findings and reasons must be provided to
demonstrate that land is committed to urban development
than would be required if the land is currently built upon at
urban densities.
FINDINGS: The applicant addressed this standard at page 212 of the burden of proof as
follows:
"The subject parcel has one large storage building, 23,460 square feet. It also has a
highway overpass crossing it. Previous criteria have asked for a complete list of all
structures on the site. The Application has tediously documented the historic and current
urbanization in the area and surrounding the subject site in great detail. Deschutes Junction
area application supports the proposed exception and demonstrates that the subject site is
irrevocably committed to urban development. Especially see applicable sections of this
application: Section 15. Changes in Circumstances, and Section 16. Surrounding Zoning
and Land Uses."
The Hearings Officer's detailed findings and reasons set forth above in support of the proposed
exception demonstrate the subject site is irrevocably committed to urban development, although the
subject property is not currently built upon at urban densities. The applicant requests a Goal
Exception on the basis that the land is committed to urban development. I find that the applicant
has met the more stringent standard required in this criterion. For the foregoing reasons and with
the imposition of the conditions of approval set forth below, the applicant's proposed exception
complies with the criteria in this rule.
3. Division 14, Application of the Statewide Planning Goals to Newly Incorporated
Cities, Annexation, and Urban Development on Rural Lands
a. OAR 660-014-0040, Establishment of New Urban Development on
Undeveloped Rural Lands
(1) As used in this rule, "undeveloped rural land" includes all
land outside of acknowledged urban growth boundaries
except for rural areas committed to urban development. This
definition includes all resource and nonresource lands
outside of urban growth boundaries. It also includes those
lands subject to built and committed exceptions to Goals 3 or
4 but not developed at urban density or committed to urban
level development.
FINDINGS: i find that the applicant's proposal is not subject to this administrative rule because
it is not for new urban development on "undeveloped rural land" since the subject site is
committed to urban development. Based on the detailed reasons set forth in the findings
above, I have found the applicant has demonstrated the subject site is "irrevocably committed"
247-14-000456-ZC/457-PA Page 79 of 81
to urban development. Moreover, as also discussed in the findings above, I have found that the
applicant did not demonstrate it is entitled to a "reasons" exception to Goal 14. Therefore, I find
this rule is not applicable to the applicant's proposal.
IV. DECISION:
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby
APPROVES the Applicant's applications for a Comprehensive Plan Map Amendment to re-
designate the subject property from Agriculture to Rural Industrial and a corresponding Zone
Map Amendment (Zone Change) to reassign the zoning from Exclusive Farm Use Tumalo/Bend
Subzone (EFU-TRB) to Rural Industrial Zone (R-1) and a Goal 14 Exception, subject to the
following conditions of approval:
1. This approval is based upon the applicant's submitted burdens of proof, supplemental
materials, and written and oral testimony. Any substantial change to the approved plan
amendment, zone change, and goal exception will require new land use application(s)
and approval(s).
2. This approval allows on the subject property all uses allowed outright and conditionally in
the Rural Industrial use, except that any pulp and paper manufacturing use shall not be
allowed within the subject property.
3. The Deschutes County Year 2011 Comprehensive Plan shall be amended to include an
updated description of the Deschutes Junction rural industrial site in Chapter 3.4, as
follows:
The Deschutes Junction site consists of the following tax lots: 161226C000107
(9.05 acres), 16126C000106 (4.33 acres), 161226C000102 (1.41 acres),
161226C000114(2.50 acres), portions 161226C000300 (12.9 acres). 161226C000301
(8.93 acres), 161226A000203 (1.5 acres), those portions of 161226C000111 located
west of the Burlington Northern-Santa Fe railroad tracks (16.45 acres),
161226C000201 (20.27 acres) and 161227D000104 (1.32 acres). Generally, the
Deschutes Junction site extends to property to the west of Highway 97, bordered
by Tumalo Road and Tumalo Place and is bordered on the east by the Burlington
Northern Railroad, on the north by Nichols Market Road (except for a portion of
1612226A000111), and on the south by EFU-zoned property owned by the City of
Bend.
4. The Deschutes County Year 2011 Comprehensive Plan shall be amended to include a
new Rural Economy Policy in Chapter 3.4, setting forth the following language for the
Deschutes Junction Limited Use Combining Zone:
To ensure that the uses in the Rural Industrial Zone on Tax Lot 201 on Deschutes
County Assessor's Map 16-12-26C, and Tax Lot 104 on Assessor's Map 16-12-27D
as described in Exhibit " " and depicted on Exhibit " " to Ordinance
and incorporated by reference herein, are limited in nature and scope, the Rural
Industrial zoning on the subject parcel shall be subject to a Limited Use
Combining Zone, which will prohibit the use on that site for any pulp and paper
manufacturing use.
247-14-000456-ZC/457-PA Page 80 of 81
5. The Deschutes County Year 2011 Comprehensive Plan shall be amended to include a
new Rural Economy Policy in Chapter 3.4, setting forth the following language for the
Deschutes Junction Limited Use Combining Zone:
A 2015 exception (Ordinance ) included an irrevocably committed
exception to Goal 14 to allow rural industrial use with a Limited Use Combining
Zone for any use allowed outright or conditionally in the Rural Industrial zone,
except for pulp and paper manufacturing use.
6. Prior to the public hearing before the Deschutes County Board of Commissioners to
approve the subject plan amendment, zone change and exception to Goal 14 for'the
subject property, the applicant/owner shall submit to the Planning Division a metes-and-
bounds description of the subject site to be re-designated and rezoned.
7. Prior to any development of the property, the developer shall work with Swalley Irrigation
District to transfer some or all of the existing 19.71 acres of irrigation water rights
associated with the subject property to ensure that there will not be any development on
top of irrigated land; only those irrigation water rights that can be dedicated to beneficial
uses, such as irrigated landscaping, may be retained.
8. As part of any development of the property, the developer shall:
a. Create a system of access easements that connect the three driveways with any lots
created by partitioning or subdividing of the land.
b. Work with Commute Options to assist in preparing a two year start-up Transportation
Demand Management program (TDM). The program will include:
1) Conducting workshops and training on TDM alternatives;
2) Provide posters and brochures promoting smart commuting choices;
3) A plan to have employees from on-site businesses have staggered start
and end work hours.
c. Prepare an internal Traffic Control Plan (in accordance with the MUTCD), that includes:
1) Directional signing to Redmond, Bend, Tumalo at each intersection;
2) Time-restrictive (4 PM — 6 PM) "NO LEFT TURN" sign at the driveway
onto Tumalo Place;
3) Bridge undercrossing shall be signed"ONE LANE ROAD";
4) Prepare a site map, with the aid of DCPWD, showing the location of traffic
control devices.
d. Have the Deschutes County Transportation Planner approve Traffic Management Plan.
S ' /Jj
Stephanie Marshall Hicks,Hearings Officer
Dated this 3. ' ay of September, 2015
Mailed this { day of Septerabcr,2015
Dce
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