2016-539-Minutes for Meeting October 31,2016 Recorded 12/2/2016DESCHUTES
NANCY BLANKENSHIP,FRECORDS COUNTY CLERK2016.539
COMMISSIONERS' JOURNAL 12/02/2016 02:46:37 PM
For Recording Stamp Only
Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
MINUTES OF BUSINESS MEETING
DESCHUTES COUNTY BOARD OF COMMISSIONERS,
MONDAY, OCTOBER 31, 2016
Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend
Present were Commissioners Alan Unger, Tammy Baney and Anthony DeBone.
Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy
County Administrator; Dave Doyle, County Counsel; Peter Gutowsky, Peter
Russell and Matt Martin, Community Development; Steve Reinke, 911; Judith Ure,
Administration; and six other citizens. No representatives of the media were in
attendance.
1. CALL TO ORDER
Chair Unger called the meeting to order at 10:00 a.m.
2. PLEDGE OF ALLEGIANCE
3. CITIZEN INPUT
None was offered.
Minutes of Board of Commissioners' Business Meeting Monday, October 31, 2016
Page 1 of 10
Before the Board was Consideration of Approval of the Consent Agenda.
DEBONE: Move approval.
BANEY: Second.
VOTE: DEBONE: Yes.
BANEY: Yes.
UNGER: Chair votes yes.
Consent Agenda Items
4. Minutes of the October 24, 2016 Business Meeting and Work Session
ACTION ITEMS
The Board addressed the 911 County Service District items first.
5. Before the Board was Consideration of Approval of Converting a $50,000
Economic Development Business Loan Made to BasX to a Grant
Judith Ure presented Jon Stark of REDI and EDCO. She explained that the
loan was granted in 2013, followed by job creation and retention. This is ahead
of schedule. Mr. Stark indicated that the company has grown very quickly,
starting out with 55 full-time jobs. As of August 2016 the company had 116
regular employees and 36 temporary employees, with an average wage of
$50,000.
One of the founders and the president, Matt Tobolski, acknowledged the
support given by the County, which helped them to bring staff on more quickly.
They now have 125 permanent employees and continue to grow.
Commissioner Baney thanked him for his commitment and for paying a decent
wage so people can stay here. A commitment by the County shows community
support.
Steve Comstock, CFO, said he came on a year ago. This loan/grant program is
well respected and appreciated. The company brought in $25 million its second
year. Programs like this help to reinforce entrepreneurial efforts.
Minutes of Board of Commissioners' Business Meeting Monday, October 31, 2016
Page 2 of 10
Chair Unger stated that he appreciates hearing the success story, and the
engagement of the company in helping to train youth. Everyone needs to
support local people. The return on the County's investment is a win-win.
Commissioner Baney thanked REDI and EDCO for their hard work. This is a
critical partnership.
6. Before the Board was a Public Hearing on a Land Use Board of Appeals
(LUBA) Regarding a Plan Amendment, Zone Change and Goal 14
Exception (Aceti Property).
Chair Unger opened the public hearing. Peter Gutowsky gave a PowerPoint
presentation after explaining the process. He said it was properly noticed. He
entered the case file into the record and explained the reason for the hearing.
(A copy of his staff report is attached for reference.)
Regarding ex parte contact, bias and conflicts of interest, the Commissioners
had none to disclose. There were no objections from the public.
Commissioner DeBone asked about the unincorporated community rule; Mr.
Gutowsky pointed out that this is a Statewide rule.
Chair Unger asked about the four ordinances. Mr. Gutowsky said two of them
would repeal the Board's decision from earlier this year, since LUBA
remanded the decision that relates to them. The other two Ordinances will
show the amendment now under consideration. He added that attorneys have
submitted additional findings and written testimony, and talking points.
Dan Terrell, an attorney out of Eugene who is representing the applicant, said if it
is not resource land, the question is what the proper zoning is. The second issue
was the Goal 14 exception. A prior land use decision made it advisable to do this
filing. LUBA remanded after some confusion regarding what the applicant and
County were trying to do. Ultimately LUBA provided some guidance.
A Goal 14 exception is for urban uses on rural lands. The applicant does not
want to locate urban uses on the property. The opponent wants this limited to
rural uses. LUBA said that if urban uses are not desired, a Goal 14 exception
is not required. The other case involved an already existing rural industrial use
that had been in place for years.
Minutes of Board of Commissioners' Business Meeting Monday, October 31, 2016
Page 3 of 10
LUBA said if a rural use is desired, a Goal 14 exception is not needed, but
concerns have to be addressed if someone thinks a use might be considered an
urban use. The County's conditions of approval indicated no pulp and paper
manufacturing could be established at the site.
The rural industrial use in a rural industrial zone assures that they are rural
rather than urban uses. Determining what is urban or rural is complicated, but
LUBA provided some casework to reference, Shaffer v. Jackson County and
Columbia County v. Columbia Riverkeeper.
Mr. Terrell referred to his handout and elaborated on what might constitute a
rural or urban use. DLCD has examined County Code and has provided
guidance. Goal 14 is not necessary for any potential future use desired by this
applicant.
Chair Unger indicated that he understands the issue. He opened up testimony
to the audience.
Carol McBeth of Central Oregon Landwatch provided a handout. She asked
that the Board deny this zone change. Her understanding of the case is
different from that of the applicant. LUBA is saying that no rural uses are
acceptable for this property. She referred to her handout at this time. There
are uses that do not require adequate soils, like raising bees or poultry, or a
large acreage homesite. She feels an industrial factory is being contemplated,
but the applicant has not said what his plans are.
Goal 5 also needs to be considered for open space, between Bend and
Redmond to avoid sprawl. It is also a scenic area. Goal 5 is for natural
resource protection; and any future uses might require a lot of water or
discharge of material into the ground or air, per Goal 6. Goal 9 asks about the
advantages of this over other sites. There are enough industrial lands
available in the cities.
This land is suitable for a rural use and is not intended for urban uses. It is
near a school, so is more consistent being rural. She does not think this has
been thought through. The burden is on the applicant to show why it should
become industrial. The neighbors moved into the area with the understanding
of this being rural. We do not know what kind of burden a future industrial use
might be on the area.
Minutes of Board of Commissioners' Business Meeting Monday, October 31, 2016
Page 4of10
Commissioner DeBone mentioned unincorporated communities. In 2010,
there was a process to do this and Deschutes Junction did not make it on the
list. Only unincorporated communities can have new industrial uses. No other
areas were set aside for this. This area is not as urban as those communities,
so has no status as such. The area across the highway has a specific
designation.
She disagrees with some of the case decisions, and feels there has to be an
exception to Goal 14. The only fixed point is that they know what rural uses
are. The County Plan talks about strict rules for a goal exception. This process
needs to be followed. There is insufficient information since no one knows
about the proposed use.
Tony Aceti testified that he sees this as a landowner who cannot utilize his
property. They have met the test. This hearing is for one issue and much of
what Ms. MacBeth spoke about is not a part of this remand. The County has
agreed to move forward. DLCD said private property cannot be open space.
Outright use of an acknowledged industrial use has been approved by the
County, with restrictions. LUBA says that Goal 14 does not have to be
addressed. The County has analyzed this. There will be another process when
it gets to development. This hearing is about the remand process and limited to
the direction provided by LUBA.
No other testimony was offered.
Mr. Terrell rebutted that his client is frustrated by testimony that is no longer
applicable. He asked that there be an opportunity to respond to the handout
provided by Ms. McBeth.
He said that the County Plan and Code is clear, and LUBA will respect it. He
read from the Jackson case regarding industrial uses not being inherently urban
in nature. It is easier to request a plan and zone change with a specific use in
mind. However, sometimes those are subject to attack. The owner has no
intended use of the property yet. Of the uses outlined in code as permissible, a
generic use has to be allowed, with express exclusions such as pulp or paper
processing. This would be part of conditions of approval. LUBA therefore
supports the rural industrial uses without going to a Goal 14 exception.
Minutes of Board of Commissioners' Business Meeting Monday, October 31, 2016
Page 5of10
Issues regarding Goal 5, 6 and 9 were not raised before and should not be
raised now. The property is non -resource land, not EFU. Air, water and other
off-site impacts would be addressed in other ways.
Mr. Gutowsky suggested oral testimony be closed and the written record left
open to November 7 at 5:00 p.m. Both would have a rebuttal period until
November 14, 5:00 p.m., and final rebuttal on November 21.
Chair Unger feels the issue is clear. He would like to close the record on
November 7. Commissioner Baney feels that with just two parties, they can
limit it to rebuttal only. Mr. Terrell indicated he can do this.
Ms. MacBeth said she can adjust to this, and rest with the documents submitted
today. Chair Unger stated that the hearing could be closed today and the
applicant will provide final argument and rebuttal by November 7. The
Commissioners agreed.
7. Before the Board was a Public Hearing, and First and Second Readings by
Title Only, and Adoption by Emergency of Ordinance 2016-026 - Modify
Definition of Lot of Record.
Commissioner Baney indicated that she needs to leave the meeting soon, but
said she is clear on the issue.
Mr. Martin said that Ms. MacBeth provided feedback at the last minute, so this
issue might need to be delayed.
Chair Unger opened the public hearing. Mr. Martin said this is a legislative
hearing and Deschutes County is the applicant. Ex parte contact is allowed. No
conflicts of interest were disclosed by the Board, and there were no challenges.
Mr. Martin referred to a PowerPoint presentation. A written County policy has
been followed in this regard, but has not been codified in Code, Title 18. A
decision has been challenged on this basis. This policy is already allowed in
State law, however. The only language to be added is to allow this to be in
Code to mirror State ORS. A partition plat would be required by the applicant
so it can be recognized as a legal lot of record.
Minutes of Board of Commissioners' Business Meeting Monday, October 31, 2016
Page 6 of 10
Ms. MacBeth testified and provided a handout on this issue. She feels that this
is already reflected in Code in Title 17. A lot of record is different from a
lawfully established lot. A new partition parcel would make it effective today,
not years ago. This action is not necessary and could lead to an unlawful result.
A parcel might not have been lawfully created, but the people are allowed to
move forward.
Garrett Chrostek is an attorney who was involved in Grimstad case, and said
this is just an oversight that LUBA pointed out. He is now hearing that there is
a difference and a need for this ordinance. The definition of partitioning land is
to create parcels; this would just validate what is already there. This is a good,
clear way to handle this issue. For the person who has a building permit issue
and just needs lawful status, this helps to get them there.
Attorney Liz Fancher testified that this was of interest to her decades ago. The
County went through an analysis and adopted the O'Neal case in La Pine. They
recognized this policy was out of lot of record law relating to septic permits.
Those came about because people were not denied the use of their property once
they had a building permit. With Grimstad, LUBA says the Ordinance doesn't
completely deal with this. The County needs to validate it, which narrows the
County's policy and Code. This will be a hardship on property owners and those
who are living in homes where there is no legal lot of record status.
Title 17 allows for this validation and development. Title 17 deals with
dividing land and conducting uses. Lawfully created lots might not qualify as
lot of record because they can't be used. This needs to be revisited and needs a
more complete look. Maybe this should look at just those lots that are not the
correct size. She does not see an issue by adding this to Code, but they need to
look at the creation date. Otherwise they may be disqualifying a lot of
properties.
Chair Unger suggested they close the oral testimony portion and the County can
provide rebuttal, as the applicant. Mr. Martin suggested leaving the written
record open until 5:00 p.m. on Friday, November 4. Staff will come back with
additional information for the Board to deliberate on Wednesday, November 9.
Chair Unger confirmed this timeframe.
Commissioner Baney left the meeting at this time.
Minutes of Board of Commissioners' Business Meeting Monday, October 31, 2016
Page 7 of 10
8. Before the Board were Deliberations and Consideration of First Reading,
by Title Only, of Ordinances 2015-005 and 2016-006 - Non -Resource
Lands.
Due to time restraints, this item was continued to the November 9, 2016 Board
business meeting.
CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY
SERVICE DISTRICT
Items #9 and #10 were addressed early in the meeting.
9. Before the Board was Consideration of Board Signature of Document No.
2016-724, a Radio Tower Lease Agreement with American Tower for the
Hoodoo Site.
Steve Reinke explained that this lease is for a tower site critical to the Hoodoo
and Santiam Pass areas. This was a challenging undertaking due to U.S. Forest
Service policies. American Tower will provide coverage and hopes to have the
tower operational this season.
Commissioner DeBone added that this will be part of the backbone to support
Search and Rescue, the State Police and other law enforcement, and citizens in
general.
DEBONE: Move approval.
BANEY: Second.
VOTE: DEBONE: Yes.
BANEY: Yes.
UNGER: Chair votes yes.
10. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers in the Amount of $76.38.
DEBONE: Move approval, subject to review.
BANEY: Second.
Minutes of Board of Commissioners' Business Meeting Monday, October 31, 2016
Page 8of10
VOTE: DEBONE: Yes.
BANEY: Yes.
UNGER: Chair votes yes.
CONVENED AS THE GOVERNING BODY OF THE EXTENSION/4-H
COUNTY SERVICE DISTRICT
11. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers in the Amount of $98,449.88.
DEBONE: Move approval, subject to review.
UNGER: Second.
VOTE: DEBONE: Yes.
UNGER: Chair votes yes.
RECONVENED AS THE DESCHUTES COUNTY BOARD OF
COMMISSIONERS
12. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers in the Amount of $464,477.80.
DEBONE: Move approval, subject to review.
UNGER: Second.
VOTE: DEBONE: Yes.
UNGER: Chair votes yes.
13. OTHER ITEMS
Being no further discussion or items addressed, the meeting was adjourned at
10:40 a.m.
Minutes of Board of Commissioners' Business Meeting Monday, October 31, 2016
Page 9 of 10
(7)
DATED this ? Day of 2016 for the
Deschutes County Board of Commissioners.
ATTEST:
421144/uull&k-I2A--
Recording Secretary
()Air—
Alan Unger, Chair
Ct[lr,lokA(.
Tammy Baney, Dee Chair
cc�!1erX —
Anthony DeBone, Commissioner
Minutes of Board of Commissioners' Business Meeting Monday, October 31, 2016
Page 10of10
BOARD OF COMMISSIONERS' MEETING
REOUEST TO SPEAK
Subject: 1--c r Of (,6 (1,1)
Name ��a Attisc i TI -0431-6 ( -
Address Sg"? 1 , w M v✓ (A)
Phone #s
E-mail address
In Favor
Date: I b
36 -43-5
(G..)( 4 -i & 4- (, PL- tjh Lv yG S, ce)A/N.
Neutral/Undecided
Submitting written documents as part of testimony? Yes
If so, please give a copy to the Recording Secretary for the record.
BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
Subject: Lobo Date:
Name (
Address CA4 ) cU -�- -
Phone #s — � — ,CUG2rte,_,
E-mail address 1.t F'
In Favor
Neutral/Undecided
Submitting written documents as part of testimony? Yes
If so, please give a copy to the Recording Secretary for the record.
Opposed
No
Opposed
No
1(0
HEARING PROCEDURES:
QUASI-JUDICIAL PUBLIC HEARING
• Timely notice of this hearing has been provided as required by ORS 197.763.
• Applicable criteria from the laws and regulations that apply to this application will
be verbally identified by staff at the outset of the hearing. In addition, they are
listed in the Staff Report, copies of which are available at this hearing, from the
Community Development Department, and on the County's website.
• The applicants have the burden of proving that they are entitled to the approval
requested.
• Testimony, arguments and evidence at this hearing must be directed toward the
applicable criteria, as well as toward any other criteria in the comprehensive land
use plan of the County or land use regulations which any person believes apply to
this decision.
• Failure on the part of any person to raise an issue, in person or by letter, with
sufficient specificity to afford this hearings body and parties to this proceeding an
opportunity to respond to the issue precludes appeal to the Land Use Board of
Appeals on that issue. Additionally, failure of the applicant to raise constitutional or
other issues relating to the approval with sufficient specificity to allow the Board to
respond to the issue precludes an action for damages in Circuit Court.
• The decision of the hearings body on this application will be based upon the record
before it, including as applicable, the Hearings Officer's decision, the Staff Report,
additional material within the record and the testimony and evidence presented at
this hearing.
• Any participant at this hearing may request that the hearing or record or both be
held open for an additional seven (7) days. If the request is granted, the hearings
body will identify a date and time certain for the continuance or open record period.
• Unless waived by the applicant, the hearings body will allow the applicant at least
seven (7) days after the record is closed to all other parties and participants to
submit final written arguments in support of the application. Final written argument
shall not include any new evidence.
Page 1 of 1 - PRELIMINARY STATEMENT FOR A QUASI-JUDICIAL PUBLIC
HEARING BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
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U O U O D
Hearing Talking Points — Applicant Tony Aceti
LUBA's Decision:
• AOE 1— Not Resource Land (Goal 3) — Affirmed — Re -Approve on Remand
• AOE 2 — Goal 14 Exception — Remanded — Must Address on Remand
LUBA's Guidance:
• If want to approve only rural uses — not need Goal 14 exception (legally
wrong). Slip Op. 27. Exception to Goal 14 allows urban uses.
• If want to allow only rural uses can simply apply RI zone, but must address
any concern that one or more identified RI zone uses are, in fact, rural.
Board can condition the decision to preclude such uses. Slip Op. 28.
Are Uses Allowed in RI Zone With Development Standards Urban or Rural?
• LUBA recognized the Rural Industrial Zone was adopted to ensure the uses
allowed are rural rather than urban in nature. Slip Op. 23.
• Consistent with language of Comprehensive Plan. Ch3, p. 11; Policy 3.4.23.
• DCC Chapter 18.100 — limits uses, imposes development limitations.
• Decision limited permitted uses — COA 2 — prohibited pulp and paper
manufacturing use.
Shaffer v. Jackson County 17 Or LUBA 922 (1989) Analysis [See also Columbia
Riverkeeper v. Columbia County, LUBA No 2014-017, August 27, 2014, Slip Op
24] :
Shaffer Questions — Might an RI use constitute urban uses?
1. Employs a small number of workers? Yes
2. Is significantly dependent on a site-specific resource and there is a practical
necessity to site the use near the resource? No
3. Is a type of use typically located in rural areas? Yes
4. Does not require public facilities or services? Yes
1
Shaffer Next -Step — If Answer No to One or More, Decision Maker Must:
1. Limit allowed uses to effectively prevent urban use of rural land.
2. Take an exception to Goal 14.
3. Adequately explain why the proposed use, notwithstanding the presence of
one or more factors pointing towards an urban nature, should be viewed as a
rural use.
County On Remand:
• County Commissioners have already done #1.
• If feel other RI uses are "urban" should exclude them too.
• Already done #3 — adopt findings to explain why RI zone and remaining
uses are rural uses. Already done in proposed findings
• Proposed Supplemental Findings to address Shaffer Analysis.
Other issues:
Are RI uses categorically Urban uses? No
• Columbia Riverkeeper, Slip Op. 23.
Is Deschutes County RI zone different than industrial zones questionably urban?
• Yes
• Deschutes Plan — RI zone intended to ensure uses remain rural.
• Zones in Shaffer and Columbia Riverkeeper — adopted under Goal 3
provision (OAR 660-004-0022(3)) to allow industrial uses on resource lands
due to proximity of certain resources— no Goal 14 considerations in its
adoptions or assertion of keeping land rural. 1000 Friends of Oregon v.
LCDC (Umatilla County), 85 Or App 88, 735 P2d 1295 (1987) — was not
standard RI zone, it was a Heavy Industrial Zone.
Can Deschutes County zone new properties RI? Yes
• Comprehensive Plan 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.
• Nothing in Plan or Code imposes limitations on new rezones to RI.
2
LAW OFFICE OF BILL KLOOS, PC
OREGON LAND USE LAW
375 W. 4th AVENUE, SUITE 204
EUGENE, OR 97401
TEL: 541.343.8596
WEB: WWW.LANDUSEOREGON.COM
DAN TERRELL
DANTERRELL@LANDUSEOREGON.COM
BILL KLOOS
BILLKLOOS@LANDUSEOREGON.COM
October 31, 2016
Deschutes County Board of Commissioners
c/o Peter Gutowsky, Planning Manager
Community Development Building
117 NW Lafayette Avenue
Bend, OR 97703
Re:
Aceti Property Plan and Zone Change Application
(247-14-000456-ZV, 247 -14 -000457 -PA)
Local Proceeding on Remand from LUBA
Dear Chair and Commissioners:
This firm represents Tony Aceti, the applicant for a proposal to change the plan designation and
zoning for his property at Deschutes Junction from EFU to Rural Industrial in the above -
captioned land use proceeding The applicant submits this letter and the attached Supplemental
Proposed Findings to further address the issue of whether uses permitted by the Rural Industrial
zone are rural or urban. The material covered by this letter will be addressed orally during the
remand hearing.
The applicant continues to assert that this is a straight -forward remand proceeding. Based upon
the guidance provided by LUBA, the Board of County Commissioners can approve the
application on remand by repealing the portion of the prior decision that approved an exception
to Goal 14, reaffirming its prior decision to change the plan designation and zoning for the
property to RI, and adopting appropriate findings and conclusions.
In response to comments made about whether the county's RI plan and zone designation is rural
or urban, and whether the county can rezone new properties to the R -I zone, the applicant
conducted further analysis of the plan and code as well as reviewed relevant caselaw. The
following analysis should assist the County Commissioners in its considerations on remand.
Are Rural Industrial Uses Inherently Urban in Nature?
No. LUBA in Shaffer v. Jackson County, 17 Or LUBA 22, 931 (1989) expressly rejected that
argument. See also, Columbia Riverkeeper v. Columbia County, Or LUBA (2014)(LUBA
No 2014-017, August 27, 2014, Slip Op 23)(citing Shaffer).
Deschutes County Board of Commissioners
October 31, 2016
Page 2 of 4
Do the County's Rural Industrial Plan Designation and R -I Zone Intend to Allow Only
Rural Levels of Use?
Yes. As noted in my previous letter, the Deschutes County Comprehensive Plan, Chapter 3 page
11 provides:
"The Rural Industrial plan designation and zoning brings these areas into
compliance with state rules by adopting zoning to ensure that they remain rural
and that the uses allowed are less intensive than those allowed in unincorporated
communities as defined in OAR 660-022."
This purpose is further supported by Industrial Plan Policy 3.4.23, which provides:
"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 660-22 or
any successor.
The plan is implemented through the acknowledged DCC Chapter 18.100 RURAL
INDUSTRIAL ZONE R -I, which limits the types of industrial uses permitted and provides a
range of development limitations on allowed uses in order to ensure that those uses are rural and
not urban uses.
Furthermore, LUBA recognized that the County adopted the Rural Industrial Zone to ensure the
uses allowed are rural rather than urban in nature. COLW v. Deschutes County, Slip Op. 23.
All evidence is that the County's Rural Industrial plan and zone designations are intended to
allow only rural levels of use. They were not intended to implement urban levels of use.
Can Deschutes County zone new properties to R -I?
Yes. Industrial Plan Policy 3.4.28 provides:
"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."
That policy expressly allows "new" industrial uses. Furthermore, nothing in the Comprehensive
Plan or the Deschutes County Code prohibits the zoning of rural land to R -I so long as the
approval criteria are met. The County's supply of rural industrial land is not "fixed."
Deschutes County Board of Commissioners
October 31, 2016
Page 3 of 4
How does the County guarantee that only rural uses are allowed under the R -I zone?
LUBA explained in its decision that it appeared from the hearings official's decision that she was
concerned that at least some of the uses allowed in the Rural Industrial Zone might be viewed as
"urban" in nature. COLW v. Deschutes County, Slip Op. 27.
In the Columbia Riverkeeper decision, LUBA clearly set forth the analytical approach it
established in its Shaffer decision for evaluating whether proposed rural industrial uses are rural
or urban. See, Columbia Riverkeeper v. Columbia County, Slip Op. 24.
There are four Shaffer factors to consider that may point towards a rural rather than an urban
industrial use. Those factors are whether the industrial use(s):
1. Employs a small number of workers;
2. Is significantly dependent on a site-specific resource and there is a practical necessity to
site the use near the resource;
3. Is a type of use typically located in rural areas;
4. Does not require public facilities or services.
Looking at those factors, the permitted industrial uses in the County's R -I zone typically employ
a small number of workers and are the type of uses typically located in rural areas. Also, the
DCC prohibits Rural Industrial uses to be provided with public facilities and services typical of
urban uses. The response to those three factors is Yes. However, the permitted R -I uses are not
limited to those that require a site-specific resource, and therefore the response to that is No.
Shaffer goes on to explain that if one or more of the responses is "No," then the county must do
one of three things. They are:
1. Limit the allowed uses to effectively prevent urban use of rural land;
2. Take an exception to goal 14; or
3. Adequately explain why the proposed use, notwithstanding the presence of one or more
factors pointing toward an urban nature, should be viewed as a rural use.
The County has already followed approach #1 by adopting Condition of Approval 2, which
prohibits pulp and paper manufacturing on the property. If fully developed, that could
potentially result in an urban level of use. The applicant sees no other uses permitted in the R -I
zone under the development limitations provided by the DCC as potentially allowing urban use
of the land. However, if the County Commissioners conclude that another use might, they
should condition the approval to exclude that potential use and approve the requested plan and
zone change to Rural Industrial.
Attached are supplemental proposed findings for your consideration that engages in the Shaffer
analysis and explains how the Plan and Code function to limit the permitted uses in the R -I zone
to rural levels of use through the limitations provided by the development standards. The
Deschutes County Board of Commissioners
October 31, 2016
Page 4 of 4
applicant encourages the County Board to incorporate those or similar findings in its adopted
findings and conclusions.
Thank you for your consideration.
Dan Terrell
Attachments
a
Attachment 1 Supplemental Proposed Findings
Attachment 1
SUPPLEMENTAL PROPOSED FINDINGS
BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
FINDINGS OF FACT AND CONCLUSIONS OF LAW ON REMAND
FILE NUMBERS: 247-14-000456-ZC;247-14-000457-PA
APPLICANT/OWNER: Anthony J. Aceti
21235 Tumalo Place
Bend, OR 97703
APPLICANT'S Pat Kliewer
REPRESENTATIVE: 60465 Sunridge Drive
Bend, OR 97702
REQUEST:
The applicant requests approvaof a plan amendment and zone change
from Exclusive Farm use to Rural tndustrial for a 21 .59 -acre site located
at Deschutes Junction north of Bend.
Findings and Conclusion
The Deschutes County Comprehensive Plan provides the following purpose for the Rural Industrial plan
designation:
"The Rural Industrial plan designation and zoning brings these areas into compliance
with state rules by adopting zoning to ensure that they remain rural and that the uses
allowed are less intensive than those allowed in unincorporated communities as defined
in OAR 660-022."
This purpose is implemented through Policy 3.4.23, which provides:
"Policy 3.4.23 To assure that urbauses are not permitted on rura) 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 660-22 or any
successor."
Other Rural Industrial Plan Policies further limit uses in RI zoned areas. These include:
"Policy 3.4.31 Residential and industrial uses shall be served by DEQ approved on-site
sewage disposal systems."
"Policy 3.4.32 Residentiaand industrial uses shall be served by ori -site welis or public
water systems."
"Policy 3.4.33 Community sewer systems shall not be allowed in Rural Industrial
zones."
The Deschutes County Code Chapter 18.100 implements the above plan policy and limits the types of
uses permitted in the Rural Industrial Zone and further provides limitations on development of the
permitted uses to ensure the uses allowed are rural and less intensive than those allowed for
unincorporated communities.
The following findings and analysis are intended to implement the analysis required for evaluating
whether Rural Industrial uses will allow urban use on rural land as set forth by LUBA in Shaffer v. Jackson
County, 17 Or LUBA 922 (1989) and as explained in its decision in Columbia Riverkeeper v. Columbia
County, OrLUBA(2U14)(LU8ANu2O14-D17.August 27.2014).
1
The Shaffer analysis requires consideration of sevral factors that point to rural rather than urban uses.
The factors and responses are provided below.
(1) Do the uses employ asmall number of uses? Yes, alI of the uses permitted in the RI zone employ a
small number of uses, particularly when limited by the development standards of the RI zone.
(2) Are the uses significantly dependent on a site-specific resource and is there a practical necessity to
site the uses near that resource? No, not aU of the permftted uses are dependent on site specific
resources.
(3) Are the permitted types of uses typically Iocated in rural areas? Yes, the permitted RI zone uses are
those typically located in rural areas.
(4) Do the uses not require public facilities or services? Yes, plan policies and DCC 18.100.030 K and L
limit Rural Industrial uses to on-site sewage disposal systems, and on-site wells or public water systems.
Because the response to one of the Shafferfactors was "No," the Shafferanaiysis requires the County to
undertake one of the following three actions: (1) limit the allowed uses to effectively prevent urban use of
rural land; (2) take an exception to Goal 14; or (3) adequately explain why the proposed rezone,
notwithstanding the presence of one or more factors pointing towards an urban nature, should be viewed
as a rural use.
The County Board of Commissioners has imposed Condition of Approval 2, which prohibits pulp and
paper manufacturing uses on the subjecproperty. The Board of Commissioners conciuded that puip and
paper manufacturing is the only potentially urban use from the permitted RI zone uses that might be
developed on the property.
The CountBoard of Commissioners does not intend to allow urban use of the subject property so will not
take an exception to Goal 14. This decision repeais the previously approved Goal 14 exception.
The County Board of Commissioners notes that DCC Chapter 18.100 provides limitations on permitted
rural industrial development that limit the intensity of the permitted uses, services that can be provided,
off-site impacts, dimensional standards, and other aspects of development. These standards heip to
ensure that the uses permitted by the R -I zone are rural uses instead of urban uses.
Because the adopted and acknowledged Comprehensive Plan, Comprehensive Plan Policies, and DCC
Chapter 18.100 RURAL INDUSTRIAL ZONE were intended to and do limit permitted rural industrial zone
uses to ensure that they remain rural, and for the reasons provided above and elsewhere in the findings,
the County Board of Commissioners conclude that the remaining uses as limited by the development
standards in the code are rural and that the County need not exclude any other RI Zone uses from the
property to ensure that oniy rural uses occur on the subject site.
[Additionai findings may be required if any party argues that particular R|zone uses other than pulp and
paper manufacturing, if allowed, would result in urban use of the property.]
2
CENTRA. OREGON
LAN DWATCH
October 31, 2016
Deschutes County Board of Commissioners
117 NW Lafayette Ave.
Bend, OR 97701
Delivered by hand
50 SW Bond St., Ste. 4 1 Bend, OR 97702
Phone: (541) 647-2930
www.centraloregonlandwatch.org
re: File Nos. 247-16-000593-A; 247-14-000456-ZC; 247 -14 -000457 -PA; approval of a
plan amendment and zone change from EFU to Rural Industrial on remand
Dear Commissioners,
Thank you for the opportunity to comment on the above -referenced matter. We
respectfully urge the Commission to deny the applicant's request for approval for an unspecified
industrial use on the subject property. We have the following specific comments.
1. This case was remanded for the county to provide evidence showing the property
cannot be used for rural uses
The Land Use Board of Appeals (LUBA) remanded this matter to the county, holding
there was inadequate support for a conclusion the EFU-zoned property cannot be used for rural
uses. LUBA wrote:
"The subject property is located in the vicinity of a variety of farm and rural non-farm
uses and is bordered by Highway 97 and divided by Tumalo Road. In the abstract it is
difficult to see how being surrounded by rural uses and roadways could ever irrevocably
commit rural land to urban uses, since that requires a finding that "all rural uses, are
impracticable. ... [I]f the county wants to approve an irrevocably committed exception to
Goal 14, it must supply the reasoning that supports the conclusion that the rural use of the
property is impracticable, with the result that it is committed to urban uses. That reasoning
is missing, and remand is therefore required." Central Oregon Land Watch v. Deschutes
County, LUBA No. 2016-012, 23-24.
LUBA remanded the decision for the county to demonstrate no rural uses are possible on
the subject property. According to the Oregon Supreme Court, the term "rural uses" means:
"sparse settlement, small farms, or acreage homesites with no or hardly any public
services, on lands which are not suitable, necessary, or intended for urban use." 1000
Friends of Oregon v. LCDC, 301 Or 447, 489 (1986).
2
Even if land is not available for farming, that does not establish the land is not available
for sparse settlement, small farms, or acreage homesites. As the Oregon Supreme Court has
explained:
"Proof that land is 'no longer available' for farming or forestry does not establish that it is
not available for sparse settlement, small farms or acreage homesites with no or hardly
any public services." Id
There is no evidence the subject property cannot be used for sparse settlement, small
farms, or acreage homesites on the subject property, which is not suitable, necessary or intended
for urban use. See Id. The lack of suitability, lack of necessity, and lack of intention to use the
subject property for industrial use are described in turn below.
Subject property is not suitable for industrial use
The lands surrounding the property are "surrounded by rural uses and roadways." Central
Oregon LandWatch v. Deschutes County, LUBA No. 2016-012, 23. The Three Sisters Adventist
School, located on the EFU property just west of the subject property, is a small school for
children between five and thirteen years old. The county's acknowledged zoning map, on which
the property is zoned for exclusive farm use, is wholly consistent with school children as
neighbors. Even if the land is nonresource, it remains suitable for sparse settlement; for small
farm uses not dependent on soil type (such as livestock production raising bees, rabbits, chickens,
ducks, or turkeys); or a large acreage homesite. By contrast it is hard to imagine any industrial use
that would be suitably consistent with a school or with the other rural uses surrounding the
property.
Subject property is not necessary for industrial use
There is no evidence the subject property is necessary for industrial use. To the contrary,
the industrial land needs for the county's incorporated communities are met on an ongoing basis
as each community expands its urban growth boundary. Because each community has already set
aside sufficient industrial lands to meet its current projected need, no additional industrial lands
are necessary in Deschutes County at all, let alone at the location of the subject property, which is
several miles outside of any urban growth boundary.
Subject property is not intended for industrial use in the county's comprehensive plan
The county's plan provides for new industrial uses, to be permitted only in unincorporated
communities. DCCP, 3.4; See DCCP, Chapter 4. The county considered, but rejected, the
Protecting Central Oregon's Natural Environment And Working For Sustainable Communities
3
highway intersection of Deschutes Junction as any type of unincorporated community, much less
a type of unincorporated community in Deschutes County where industrial use is permitted.
" Deschutes Junction, Deschutes River Woods Store and Spring River ... had previously
been designated Rural Service Centers, but a new Unincorporated Communities Rule
(OAR 660-022) defined "rural service centers" in such a way that these areas no longer
matched the criteria." DCCP 4.3 1
As the county's comprehensive plan explains, LCDC has established four kinds of rural
unincorporated communities where certain intensive land uses may be permitted on rural land
without requiring an exception to Statewide Planning Goals 11 and 14. The county's
unincorporated communities are the only place where industrial uses are intended by the county:
"Unincorporated Communities: New commercial and industrial uses are permitted in
unincorporated communities. These uses are limited in size. See Chapter 4 for more
information." DCCP, 3.4.
The county's unincorporated communities are shown in a reproduction of DCCP Table
4.3.1, below. As the table illustrates, Deschutes Junction is not on the list: industrial uses are not
intended for Deschutes Junction in the DCCP.
Table 4.3.1 — Deschutes County Unincorporated Communities 2010
Community Type Approval Date
La Pine Urban Unincorporated Community 1996. 2000
Sunriver Urban Unincorporated Community 1997
Terrebonne Rural Community 1997
Tumalo Rural Community 1997
Black Butte Ranch Resort Community 2001
Inn of the 7th Mountain/ Resort Community 2001
Widgi Creek
Alfalfa Rural Service Center 2002
Brothers Rural Service Center 2002
Hampton Rural Service Center 2002
Mikan Rural Service Center 2002
Whistlestop Rural Service Center 2002
Wildhunt Rural Service Center 2002
Source Dnduen Corea n euaDuuuen
The policies for unincorporated communities are based on extensive, relatively recent public
input and are for the most part still relevant as of 2010. Consequently, only minor changes have
been made to those sections of this Plan. The exceptions are the Community Plans for Tumalo
and Terrebonne which are being adopted separately. These have been Incorporated into this
plan as Sections 4.5 and 4.6.
1 DCCP, 4.3 Unincorporated Communities:
"In 1994 LCDC adopted a new administrative rule, OAR 660-22 to clarify what uses could be allowed in
"unincorporated communities" without violating Statewide Planning Goals 11 and 14 relating to public facilities and
urbanization. The rule identifies four different kinds of rural communities as shown below.
§ Urban Unincorporated Community (UUC)
§ Rural Community
§ Resort Community
§ Rural Service Center (RSC)
In response, Deschutes County reviewed its RSCs to determine which areas fit those four classifications. ... In
reviewing these areas for conformance with OAR 660-22, some did not fit within the parameters of any of the four
unincorporated community definitions and were instead zoned Rural Commercial or Rural Industrial. These areas are
discussed in the Rural Economy section of this Plan."
Protecting Central Oregon's Natural Environment And Working For Sustainable Communities
4
After studying the characteristics of the intersection near the subject property, the county
determined that the "Deschutes Junction," is not sufficiently developed to rise to the level of any
of the four types of unincorporated communities. DCCP.
Industrial uses are prohibited in the county's Rural Service Centers. DCCP Policy 4.9.10,
Rural Service Center Policies:
"Community water systems, motels, hotels and industrial uses shall not be
allowed."
The subject area, Deschutes Junction, does not rise to the level of a Rural Service Center in
Deschutes County. It is not credible that the county would prohibit new industrial uses in areas
that are more developed than Deschutes Junction, the six Rural Service Centers, but permit new
industrial uses in the relatively rural Deschutes Junction. To summarize, the county's
comprehensive plan policies, outlined in Chapter 4, permits very limited new industrial uses in
the county, and only in specific areas within specific types of community centers. Such uses are
prohibited outright in the county's six Rural Service Centers, all of which are more developed
than Deschutes Junction, according to the DCCP. There is no provision for new industrial
development for areas like Deschutes Junction that are not Urban Unincorporated Communities,
Rural Communities, or Resort Communities. In short, the subject property and Deschutes
Junction as a whole are not intended for new urban or new industrial use.
The subject property is not suitable, necessary, or intended for urban use. All that has been
shown is that the land is not resource land: this does not make the land unavailable for rural uses.
The application should therefore be denied. See 1000 Friends of Oregon v. LCDC, 301 Or 447,
490 (1986).
2. Applicant cannot meet burden of showing why industrial use is necessary
The Oregon Supreme Court has explained that where the county has already designated
other areas in Deschutes County for a particular type of development, such as industrial use, the
proponent bears the burden of showing why it is necessary to introduce that use in an area not
previously contemplated. The proponent must also show why the property owners in that area,
such as the young students of the Three Sisters Adventists School, their parents, or the school
itself, should bear the burden of the departure. Fasano v. Washington Co. Comm., 264 Or 574,
586 (1973).
Protecting Central Oregon's Natural Environment And Working For Sustainable Communities
5
"If other areas have previously been designated for the particular type of development, it
must be shown why it is necessary to introduce it into an area not previously contemplated
and why the property owners there should bear the burden of the departure."
The applicant here has not even produced evidence concerning what type of industrial use
he is applying for. The county lacks information on which to base a decision regarding why this
particular property is necessary for industrial use, and why the surrounding property owners
should bear the burden of a departure from the county's acknowledged comprehensive plan.
3. OAR 660-022 does not apply; exception to Goal 14 is required because county's Rural
Industrial zone is limited to exception areas
LCDC's rule OAR 660-022 provides that certain uses, including industrial uses, can occur
in unincorporated communities without an exception to Goals 11 and 14. DCCP, 4.3. As
explained above, the county considered Deschutes Junction, the location of the subject property,
for designation as an unincorporated community, but ultimately rejected it, because Deschutes
Junction did not qualify. Deschutes Junction is too rural, and lacks the requisite characteristics, to
qualify for application of OAR 660-022, which provides for the placement of industrial uses
without the county's taking exceptions to Goal 14.
The applicant has already tried and failed twice to obtain a Goal 14 exception. The
Hearings Officer denied applicant's application for a reasons exception to Goal 14 last year, while
LUBA's remand order explains there is insufficient evidence in the record to support a committed
exception to Goal 14.
The applicant errs in believing one of the county's Rural Industrial sites may be expanded
to include the subject property. The zone explicitly applies to designated exception areas, called
"sites," the tax lots of which are listed, one by one, in the county's comprehensive plan.
See DCCP, 5.10, describing the reasons exception to Goal 14 for Rural Industrial; DCCP, 3.4:
"The Rural Industrial designation applies to the following acknowledged exception areas.
§ _Redmond Military
§ _Deschutes Junction
§ _Bend Auto Recyclers...
"Rural Industrial Designated Areas
...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) and those portions of 161226C000111 located west of the
Burlington Northern -Santa Fe railroad tracks (16.45 acres). Generally, the Deschutes
Protecting Central Oregon's Natural Environment And Working For Sustainable Communities
6
Junction site is bordered on the west by Highway 97, 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."
The reason the Rural Industrial zone was created was to bring specific exception areas, on
specified tax lots, where uses predated the State land use laws, into compliance with state rules.
The Rural Industrial designation does not apply to land that is not an exception area like the
subject property, where no industrial use predates the State land use laws. DCCP, 3.4:
"In Deschutes County there are a handful of properties zoned Rural Commercial and
Rural Industrial. These designations recognize uses that predated State land use laws."
"The Rural Industrial plan designation applies to specific exception areas located outside
unincorporated communities and urban growth boundaries. The Rural Industrial plan
designation and zoning brings these areas into compliance with state rules...."
The Rural Industrial designation cannot be applied to the subject property because the
property is not one of the listed taxlots that comprises a designated Rural Industrial site, the
subject property does not have industrial uses 011 site that predate the State land use laws, and the
subject property does not qualify as an exception area. Both of applicant's prior requests for
exceptions to Goal 14 have failed: first the county hearings officer denied the applicant's request
for a reasons exception, then LUBA remanded the applicant's request for an irrevocably
committed exception. The zoning rules ensure that industrial uses on the exception area lands that
predate the State land use laws and are within the specific boundaries, enumerated by tax lot, of a
designated Rural Industrial site, remain rural in the future. The subject property requires an
exception to Goal 14 because even if a Rural Industrial site could be expanded to areas where
there are no uses that predate the State's land use laws, the designation would still only apply to
exception areas.
4. No way for county to determine whether the proposed use complies with Goals 5, 6, or
9 or with the Shaffer test
The application may not be approved because it is impossible to determine whether, under
the applicant's new legal theory, the proposed use complies with Goals 5, 6, and 9.
Goal 5
The Board of Commissioners cannot determine whether the proposed use would comply
with Goal 5, because no use has been proposed. Therefore it is impossible for the Board of
Commissioners to determine whether an eventual industrial use would disrupt scenic views and
Protecting Central Oregon's Natural Environment And Working For Sustainable Communities
7
open space specifically mentioned in the county's comprehensive plan as worthy of protection. As
shown in photographs in the record, the subject property is visually prominent. It is highly visible
to thousands of visitors to Deschutes County who travel past it on Highway 97. The property
forms part of a scenic vista of farm fields with the Three Sisters mountains in the background.
The county specifically refers to the open space between Bend and Redmond as open space that
provides a visual separation between communities and that should be protected. DCCP, 2.7:
"Policy 2.7.3 Support efforts to identify and protect significant open spaces and visually
important areas including those that provide a visual separation between communities
such as the open spaces between Bend and Redmond or lands that are visually
prominent."
Moreover, water is a natural resource that must be protected under Goal 5. Most industrial
uses require large amounts of water, a highly limited natural resource in the county. Because no
use has been proposed, it is impossible for the Board of Commissioners to determine whether the
proposed use will deplete groundwater in the area, disrupting the wells of nearby fanners and
other rural landowners.
Goal 6
Nor can the Board of Commissioners determine whether the proposed zone change would
comply with Goal 6, which requires a demonstration that discharges from an industrial use will
not violate air, water, or groundwater environmental quality standards. Because no use has been
proposed, it is impossible for the Board of Commissioner to determine if the discharge of toxic
wastes could directly or indirectly contaminate nearby canals or groundwater in this rural area
where all residents rely on well water.
Goal 9
Nor can the Board of Commissioner's determine whether the proposed use would comply
with Goal 9, given that hundreds of acres of other properties have already been considered and
found suitable to be included in industrial land inventories within the county's boundaries, while
this property has not. It is impossible for the Board of Commissioners to determine whether the
property has any comparative advantage over other locations as the most efficient use of
resources, as required by Goal 9.
Inability to assess the Shaffer factors
It is also impossible for the Board of Commissioners to determine whether the proposed
use is urban under the Shaffer test, since the applicant has declined to state what the proposed use
is. Shaffer v. Jackson County, 17 Or LUBA 922, 946 (1989). The meaning of Goal 14, and the
Protecting Central Oregon's Natural Environment And Working For Sustainable Communities
8
urban or rural character of a particular use, is a question of state law. Hammack & Associates, Inc.
v. Washington County, 89 Or App 40, 45 (1987). In the absence of a specified use the county
cannot determine whether that proposed use may be permitted based on the Shaffer factors: 1)
relevant characteristics of the proposed use (such as number of employees, noise, odor, dust and
other pollutants emitted, associated traffic); 2) the ultimate use of the products of the proposed
use (e.g., whether for urban or rural uses, and in what proportions); 3) the characteristics of urban
development in nearby UGBs; 4) where other similar uses in the county are located; and 5)
whether there is a practical necessity to locate the proposed use in the rural area, close to a site
specific resource. Shaffer v. Jackson County, 17 Or LUBA 922, 946 (1989).
For all of these reasons the county lacks fundamental information needed to evaluate
applicant's request, and the application must be denied.
5. Goal 14 Compliance (OAR 660-015-0000(14)); application would violate Goal 14; the
intent of 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.
Industrial land is an urban use. Goal 14, OAR 660-015-0000(14). The text of Goal 14
equates industrial development with urban use.
"Goal 14 ... Rural Industrial Development
Notwithstanding other provisions of this goal restricting urban uses on rural land, a
county may authorize industrial development .. on certain lands outside urban
growth boundaries..."
Goal 14 equates "urban use" with "industrial development." If not, then the first phrase of
the above -quoted sentence is superfluous. The term "notwithstanding" conveys an equivalence
between the two provisions -one, urban uses on rural land, and two, industrial development on
lands outside urban growth boundaries. Oregon courts must give effect, if possible, to all
particulars in a statute and thus must take into account why this sentence in Goal 14 is written to
equate "industrial development" with "urban uses." ORS 174.010 ("[W]here there are several
provisions or particulars such construction is, if possible, to be adopted as will give effect to
all."); See, e.g., Force v. Dept. of Rev., 350 Or 179,190 (2011) ("Statutory provisions,
however, must be construed, if possible, in a manner that will give effect to all of them."); Wyers
v. Am. Med. Response Northwest, Inc., 360 Or 211, 221 (2016). Goal 14 is correctly interpreted to
define industrial development as an urban use.
Protecting Central Oregon 's Natural Environment And Working For Sustainable Communities
9
The Oregon Court of Appeals has explained that the overall objective of Goal 14, together
with Goal 11, is to channel intensive uses and development to existing urban and urbanizable land
first, before allowing the conversion of or intense nonresource uses on the rural lands that
comprise the areas outside UGBs.
"[T]he overall objectives of [Goal 11] are to regulate development as well as services and
facilities, to coordinate development levels with service and facility levels and, together
with Goal 14, to channel intensive uses and development to existing urban and
urbanizable land first before allowing the conversion of or intense nonresource uses on the
rural land that comprises the areas outside UGBs.i5 Foland v. Jackson County, 239 Ore.
App. 60, 67 (2010.)
Whether industrial use is characterized as "rural" or "urban," it is a more "intensive use"
than sparse settlement, a small farm, or a large acreage homesite, i.e. is more intensive than the
rural uses available on the subject property. According to Foland, Goal 14 requires the applicant's
proposed use to be preferentially channeled to existing urban and urbanizable land first, before
allowing the conversion of intense nonresource uses on rural land outside UGBs, like the subject
property. Whatever industrial use is proposed, there are numerous places to accommodate it
within the UGBs of the county's incorporated communities. These places should be developed
with such uses first, before allowing intense nonresource uses on the subject property. Id.
Industrial use is not a "rural use" because it is fundamentally distinct from the rural uses
listed by the Oregon Supreme Court in 1000 Friends of Oregon v. LCDC, 301 Or 447, 489-490
(1986) (defining the term "rural uses" to mean uses on rural land, "sparse settlement, small farms,
or acreage homesites with no or hardly any public services, on lands which are not suitable,
necessary, or intended for urban use." Industrial use bears no resemblance to sparse settlement, no
resemblance to small farms, and no resemblance to acreage homesites: industrial use is clearly
unlike the uses the Oregon Supreme Court has determined are "rural uses." Instead, it is an urban
use.
According to the Oregon Court of Appeals, Goal 14, LCDC policy, and the very nature of
industrialization all suggest that industrial uses are urban uses. 1000 Friends of Oregon v. Land
5 As [the Court of Appeals] recognized in Gisler, although Goals 11 and 14 are interrelated, Goal 14 concerns
urbanization and has a distinct underlying purpose --viz., "[t]o 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." See also Curry County, 301 Ore. at 474
(reasoning that "the policy of Goal 14 is to contain urbanization within acknowledged UGBs").
Protecting Central Oregon's Natural Environment And Working For Sustainable Communities
10
Conservation & Dev. Com., 85 Or App 88, 92 (1987) ("However, the rule, previous LCDC policy
and the very nature of industrialization suggest that industrial uses are urban uses.")
From the text of Goal 14, from the above quotations from the Oregon Supreme Court and
the Oregon Court of Appeals, and from references by the Court of Appeals to Goal 14 and LCDC
policy, it appears that industrial use is an "urban use." Whether or not it is an "urban use" it is a
more intensive use than the uses the Oregon Supreme Court has described as "rural uses." Goal
14 channels intensive uses and development to existing urban and urbanizable land first before
allowing the conversion of or intense nonresource uses on the rural land that comprises the areas
outside UGBs. Whether industrial uses are "urban" or more intensive than rural uses, the uses
require an exception to Goal 14. See Foland v. Jackson County, 239 Or App at 67. Such an
exception may be granted if there is some reason, such as proximity to indispensable resources.
However such reasons must be given in the form of a reasons exception to Goal 14 under Goal 2.
An ad hoc, subjective determination that some industrial use is a "rural industrial use" based on
an analysis other than the reasons, committed, or built exception analyses is inconsistent with the
statutory requirement that an exception must be taken before a use not permitted by the applicable
goal may nevertheless be allowed in a particular area. ORS 197.732; 1000 Friends of Oregon v.
LCDC, 301 Or 447, 457 (1986):
"In order to allow land use which any Oregon Statewide Planning Goal listed under OAR
660-15-000 to 660-15-010 (1984) would prohibit, a local government must take an
"exception" to that goal. An "exception" is essentially a variance, a comprehensive plan
provision which allows a local government to waive compliance with a goal for specific
properties or situations."
To the extent that LUBA has found otherwise we respectfully disagree with that reasoning. See
DCCP, 5.10, describing the reasons exceptions to Goal 14 the county has taken for the county's
Rural Industrial sites. The county's plan explains:
"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." Id.
The subject property has already been denied a reasons exception to Goal 14 by the
county. The property does not qualify for a built exception to Goal 14, and has been remanded by
LUBA because there was insufficient evidence to support an irrevocably committed exception to
Goal 14. Because this is an urban use and a use that is more intensive than rural uses it requires an
exception to Goal 14, but the property does not qualify. Therefore the application must be denied.
Conclusion
Protecting Central Oregon's Natural Environment And Working For Sustainable Communities
11
We urge you to reject the proposed application to rezone the subject property to Rural
Industrial for the reasons outlined above. Thank you for your attention to these views. Please
consider this a formal request for written notification of any decision in this matter.
Best regar
Carol Macbeth
Staff Attorney
Central Oregon LandWatch
Protecting Central Oregon's Natural Environment And Working For Sustainable Communities
PRELIMINARY STATEMENT FOR A
LEGISLATIVE PUBLIC HEARING BEFORE
THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
• The applicants have the burden of proving that they are entitled to the approval
requested.
• Testimony and evidence at this hearing must be directed toward the approval
criteria, as well as toward any other criteria in the comprehensive land use plan of
the County or land use regulations which any person believes apply to this
decision.
• Failure on the part of any person to raise an issue with sufficient specificity to
afford the Board of County Commissioners and parties to this proceeding an
opportunity to respond to the issue precludes appeal to the Land Use Board of
Appeals on that issue. Additionally, failure of the applicant to raise constitutional or
other issues relating to the approval with sufficient specificity to allow the Board to
respond to the issue precludes an action for damages in circuit court.
• The Board's decision on this application will be based upon the record and the
Staff Report and the testimony and evidence presented at this hearing.
• The hearing will be conducted in the following order.
1. The staff will give a report.
2. The applicant presents testimony and evidence.
3 Proponents and opponents testify and present evidence.
4. The applicant presents rebuttal testimony.
5. At the Board's discretion, if the applicants presented new evidence on
rebuttal, opponents may be recognized for a rebuttal presentation.
6. Staff will be afforded an opportunity to make any closing comments.
• The Board may limit the time period for presentations.
• If anyone wishes to ask a question of a witness, the person may direct the
question to the Chair. The Chair is free to decide whether or not to ask such
questions of the witness.
• The grant of a continuance or record extension shall be at the discretion of the
Board.
• If the Board grants a continuance, it shall continue the public hearing to a date
certain.
File No.: 247 -16 -000609 -TA
Applicant: Deschutes County
The Board of County Commissioner's decision on
these applications will be based upon the record, the
staff report, and the testimony and evidence
presented at this hearing.
The hearing will be conducted in the following order:
Staff will provide;a.,bripf report.
The applicant will present its testimony and evidence.
Opponents and proponents will testify and present evidence.
Other interested persons will then present testimony or
evidence.
The applicant presents rebuttal testimony.
Staff will be afforded an opportunity to make any closing
comments.
10/31/2016
1
Lot of Record means:
A. A lot or parcel at least 5,000 square feet in area and at least
50 feet wide,...and which was created by any of the
following means:
1. - By partitioning- d'
2. By a subdivision plat
3. By deed or contract
4. By a town plat
5. By the subdividing or partitioning of adjacent or
surrounding land, leaving a remainder lot or parcel.
• The Community Development Department (CDD) utilized
issuance of building permits as a justification for
demonstrating a legal lot of record.
LUBA Remand: Grimstad vs. Deschutes County (2016)
• Assignment of Error: Local decision
does not explain how a building
permit approval can create a unit of
land, much less a unit of land that is
also a Lot of Record, as defined in
DCC 18.04.030.
BEFORE THE LAND USE BOARD OF APPEALS
OF THE STATE OF OREGON
PAUL GRLAISTAD.
Pomona.
DESCHUTTES COUNTY.
Respwndcnr.
and
DAN)dAHONEY.
Inrmenor-Regmndenr.
LUBA No 2016035
FINAL OPINION
AND ORDER
10/31/2016
2
DCC 18Record means:
B`�'AuUit�fl�ndv�|idat��in�ccor�anceVvkhO�59�.176.
Excerpt Summary:
A county may approve an application for a land use permit or
a permit under the applicable building code for the continued
use of a dwelitng or other buildinga una of land thatwas
not !willfully established if:
(a) The dwelling or other buiding was lawfully established
^� '
prior toJanuary l,ZOO7; and
(b) The permit does not change or intensify the use �f the
dwelling or other buitding.
COMPLETED THROUGH LOT OF RECORD VERIFICATION
10/31/2016
3
A unit of and becomes a Iawfully established parcel when the
county validates the unit of land if the owner of the unit of
land causes a partition plat to be recorded within 90 days after
the date the county
COMPLETED THROUGH RECORDING OF A PARTITION PLAT
IN THE COUNTY CLERI<'S RECORD
At the Conclusion of Testimony the Board can:
1. Continue the Hearing to a Date Certain;
2. Close the Hearing and Leave the Written Record Open to a
Date Certain;
3. Close the 191a
Ind Consider
of First (and possibly Second) Reading of the Ordinance.
10/31/2016
4
The hearing will be conducted in the following order:
Opponents and proponents
estify and present evidence.
Other interested persons will then; present testimony or
evidence.
The applicant presents rebuttal testimony.
Staff will be afforded an opportunity to make any closing
comments.
10/31/2016
5
CENTRA=.. OREGON
LANDWATCH
October 31, 2016
Deschutes County Board of Commissioners
117 NW Lafayette Ave.
Bend, OR 97701
Delivered by hand
50 SW Bond St., Ste. 4 1 Bend, OR 97702
Phone: (541) 647-2930
www.centraloregonlandwatch.org
re: File No. 247 -16 -000609 -TA; proposed text amendment to Title 18
Dear Commissioners,
Thank you for the opportunity to comment on the above -referenced text amendment. We
respectfully urge the Board of Commissioners to deny the text amendment for the reasons
outlined below. The county has already successfully amended Title 17 of its code to incorporate
the statute in question, ORS 92.176, which applies to lawfully and unlawfully established units
of land and not to lots of record.1 Moreover Deschutes County Code (DCC) 18.04.030,
regarding lots of record, accomplishes the apparent purpose of this amendment because it already
recognizes partition parcels created pursuant to any portion of ORS 92, including ORS 92.176.
The proposed text amendment, as written, would lead to an unlawful result. When
reworded in order to accomplish its apparent purpose, the proposed text amendment will be
superfluous.
1 "DCC 17.22.010:
D. An application for approval to validate a unit of land that was created by a sale that did not comply with the
applicable criteria for creation of a unit of land may be approved as provided in this ordinance if the unit of land:
1. Is not a lawfully established unit of land; and ...
3. ... an application to validate a unit of land may also be approved if the county has previously approved a permit,
as defined in ORS 215.402, for the construction or placement of a dwelling or other building on the unit of land
after the sale....
E. Notwithstanding subsection (D)(2) of this section, an application to validate a unit of land may be approved if the
county has previously approved a permit, as defined in ORS 215.402, for the construction or placement of a
dwelling or other building on the unit of land after the sale.
1. If the permit was approved for a dwelling, it must be determined that the dwelling qualifies for replacement
under the criteria set forth in ORS 215.755(1)(a) to (e).
2. An application for a permit, as defined in ORS 215.402, or a permit under the applicable state or local building
code for the continued use of a dwelling or other building on a unit of land that was not lawfully established permit
under the applicable building code, may be approved if:
(a) The dwelling or other building was lawfully established prior to January 1, 2007, and
(b) The permit does not change or intensify the use of the dwelling or other building."
2
The proposed text amendment will affect neither the outcome of Grimstad v. Deschutes
County on remand nor similar cases in the future. As LUBA explained in that decision, the
county's interpretation of the effect of building permits on lots of record reflects an error in
reasoning. That error in reasoning is not changed by the proposed amendment of the county's
code. Therefore we urge the county to deny the amendment, and have the following specific
comments.
DCC 18.04.030 already recognizes parcels created by partitioning land under ORS 92
DCC 18.04.030 will operate exactly the same way whether the proposed amendment is
adopted or not. Recognition of parcels created by partitioning under ORS 92 is already a basis
for a lot of record in DCC 18.04.030:
"Lot of Record' means:
"A. A lot or parcel ... which conformed to all zoning and
subdivision or partition requirements, if any, in effect on the
date the lot or parcel was created, and which was created by
any of the following means:
1. By partitioning land as defined in ORS 92..."
The proposed amendment is for the purpose of recognizing parcels created by partition under
ORS 92.176 as lots of record. But ORS 92.176 is part of ORS 92. So by adding this amendment,
however it is written, the County will be adding superfluous language. The amendment will not
change DCC 18.04.030, which already clearly recognizes parcels created under ORS 92.
2. The text amendment leads to an unlawful result as worded in Order 2016-026: "A unit
of land validated in accordance with ORS 92.176"
DCC 18.04.030 is a grandfather clause designed to protect rights gained under old land
use laws, by shielding those rights from the application of new land use laws. According to the
county's code, lot of record status is given to lots or parcels "which conformed to all zoning and
subdivision or partition requirements, if any, in effect on the date the lot or parcel was created..."
DCC 18.04.030.
ORS 92.176 ("Validation of unit of land not lawfully established") applies to parcels that
did not conform to all zoning and subdivision or partition requirements in effect on the date the
lot or parcel was created. The purpose of ORS 92.176 is to validate parcels that were granted a
building permit prior to 2007, even though the parcel was not lawfully created because it did not
Protecting Central Oregon's Natural Environment And Working For Sustainable Communities
3
conform to all zoning and subdivision or partitions requirements in effect on the date the lot or
parcel was created.
The effect of ORS 92.176 may be a new partition parcel, created after the date the statute
is applied, which qualifies as a "lawfully established unit of land:"
ORS 92.176(5):
A unit of land becomes a lawfully established parcel when the county or city validates the
unit of land under this section if the owner of the unit of land causes a partition plat to be
recorded within 90 days after the date the county or city validates the unit of land.
It is this lawfully established partition parcel, and not the unit of land that was granted a building
permit, that qualifies as a lot of record under the county code. The unit of land that was granted a
building permit was not lawfully created, whether ORS 92.176 is applied or not. ORS 92.176
merely allows the creation of a new partition parcel with the status of a lawfully established
parcel, even though the original unit of land was not lawfully created. This distinction between
the unit of land that received a building permit in the past, and the new partition parcel created
by ORS 92.176, is important under DCC 18.04.030, because DCC 18.04.030 is a grandfather
clause that preserves rights back to the date of creation.
The proposed text would recognize the unit of land that is validated in accordance with
ORS 92.176 as a lot of record:
"A unit of land validated in accordance with ORS 92.176"
This would preserve grandfather rights back to the date the unlawfully created unit of land
received a building permit prior to 2007. However, in the process of applying ORS 92.176, the
only lawfully created parcel is the new partition parcel created after ORS 92.176 has been
applied. Therefore if adopted at all, the proposed text amendment should refer to the new
partition parcel, not to "the unit of land validated in accordance with ORS 92.176." The apparent
purpose of the text amendment would require language referring to a "new partition parcel
created by ORS 92.176." Again, there is no purpose for such an amendment. It is not the
partition parcel created in the present, but the unlawfully established unit of land created in the
past, that must be "validated by ORS 92.176" before it can qualify as a lot of record under DCC
18.04.030.
We therefore urge the county to reject the proposed text amendment on this basis. In the
alternative, we urge the county to alter the wording of the amendment so that it applies to new
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4
partition parcels created by ORS 92.176, and not to the units of land validated by ORS 92.176,
because the current wording leads to an unlawful result. Since DCC 18.04.030 already applies to
parcels created by ORS 92, any text amendment adopted for the amendment's apparent purpose
will be superfluous.
The county provides for this process through its prior adoption of the text of ORS 92.176,
almost word for word, in Title 17 of the county code.2 ORS 92.176 does not apply to lots of
record, and the county would err by placing this text in its lot of record provision. It applies to
lawfully and unlawfully established units of land. The proposed amendment as written appears to
be unlawful, and if amended as we suggest based on its apparent purpose, is superfluous, and
therefore should not be adopted.
3. DCC 17.22.010 adopting the language of ORS 92.176 applies to units of land given
building permits and that have dwellings on them, not to undeveloped land
Whether or not the county adopts the superfluous, and as currently written, erroneous
proposed text amendment, the process outlined in DCC 17.22.010 and ORS 92.176 appears to
apply only to units of land that already have dwellings on them, not to undeveloped land.
4. Proposed text amendment will not affect Grimstad v. Deschutes County
The proposed text amendment will not affect the recently remanded case Grimstad v.
Deschutes County. As LUBA explained in its remand order, the lot of record status of the parcel
for which a building permit was issued is not in question. LUBA No. 2016-035 ("However, the
lot of record status for Parcel 3 was not an issue before the county planner, and is not an issue on
appeal to LUBA.") In Grimstad LUBA characterized the county's reasoning regarding the effect
of building permits on lots of record as "deeply flawed." Id. It is not the lack of ORS 92.176
language in DCC 18.04.030 but the flawed reasoning that determined the outcome. The adoption
of the proposed text amendment does not change the outcome. Id. ("Intervenor offers no theory
that we can understand, even an alternative one, for how Parcel X can be viewed as a Lot of
Record as defined at DCC 18.04.030.")
LUBA faulted the county's reasoning that granting a building permit creates a unit of
land. It does not. As explained above, the granting of a building permit prior to 2007 for an
Protecting Central Oregon's Natural Environment And Working For Sustainable Communities
5
unlawfully created unit of land triggers ORS 92.176. Though correct application of ORS 92.176
in such circumstances may result in the eventual creation of a partition parcel, it is incorrect to
say, as LUBA found the county did in Grirnstad, that the granting of a building permit itself
"created a unit of land." LUBA held in Grimstad:
"The county reasoned that the building permit approval had the effect of granting
legal lot of record status to Parcel 3, in its reduced size configuration. The county then
cited a county practice of recognizing as legal lots of record remainder lots created by
lawful means of creating legal lots of record. Based on those premises, the county
concluded that Parcel X is a legal lot of record, because it is a "remainder" lot, apparently
created in September 1983 when the county approved the building permit application for
a dwelling on Parcel 3.
Petitioner argues, and we agree, that that conclusion is deeply flawed.
Neither the decision nor intervenor explains how a building permit approval can
create a unit of land, much less a unit of land that is also a Lot of Record as defined at
DCC 18.04.030. The decision cites two informal processes: (1) a county practice to
recognize lots on which a building permit has been issued as being a Lot of Record, and
(2) the board of commissioners' practice to accord Lot of Record status to remainder lots
created by actions that are recognized as lawful means of creating legal lots of record.
However, neither informal practice has any counterpart or support in DCC 18.04.030.
Further, even if the building permit approval is a valid basis for recognizing Parcel 3 as a
legal lot of record, that building permit approval did not create Parcel 3, and therefore
could not possibly have created Parcel X as a remainder lot or any other separate unit of
land." Id.
As LUBA explains, the building permit may affect Parcel 3's status as a legal lot of
record, but the building permit did not create Parcel 3. Parcel 3 of Grimstad is the only area of
land that could qualify as a lot of record under DCC 18.04.030, but the status of Parcel 3 is not in
question in that case. Even if it were, Parcel 3 will qualify as a lot of record or not based on DCC
17 in conjunction with the current text of DCC 18.04.030. Neither the status of Parcel 3 nor the
status of any other area of land in the Grimstad case is affected one jot by the proposed
amendment. The proposed amendment is unlawful as currently written and superfluous if revised
to be lawfully written.
Conclusion
Because the County has already successfully amended the county code to incorporate
ORS 92.176 into Title 17, which is the relevant portion of the code; because that statute does not
apply to lots of record; and because inclusion of the proposed amendment in DCC 18.04.030
would be erroneous if not reworded and superfluous in any case, we urge you to deny the
Protecting Central Oregon's Natural Environment And Working For Sustainable Communities
6
proposed text amendment. Thank you for your attention to these views. Please consider this a
formal request for written notification of any decision in this matter and in the matter of
Grimstad v. Deschutes County.
Best reg
rol Macbeth
Staff Attorney
Central Oregon LandWatch
Protecting Central Oregon's Natural Environment And Working For Sustainable Communities
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/
BUSINESS MEETING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS,
10:00 AM, MONDAY, OCTOBER 31, 2016
Barnes and Sawyer Rooms - Deschutes Services Center -1300 NW Wall Street - Bend
Pursuant to ORS 192.640, this agenda includes a list of the principal subjects anticipated to be
considered or discussed at the meeting. This notice does not limit the ability of the Board to
address additional subjects. Meetings are subject to cancellation without notice. This meeting
is open to the public and interested citizens are invited to attend. Business Meetings are
usually recorded on video and audio, and can be viewed by the public live or at a later date;
and written minutes are taken for the record.
CALL TO ORDER
PLEDGE OF ALLEGIANCE
CITIZEN INPUT
This is the time provided for individuals wishing to address the Board, at the Board's discretion,
regarding issues that are not already on the agenda. Please complete a sign-up card
(provided), and give the card to the Recording Secretary. Use the microphone and clearly
state your name when the Board Chair calls on you to speak. PLEASE NOTE: Citizen input
regarding matters that are or have been the subject of a public hearing not being conducted as
a part of this meeting will NOT be included in the official record of that hearing.
If you offer or display to the Board any written documents, photographs or other printed matter
as part of your testimony during a public hearing, please be advised that staff is required to
retain those documents as part of the permanent record of that hearing.
CONSENT AGENDA
1. Minutes of the October 24 Business Meeting and Work Session
ACTION ITEMS
Board of Commissioners Business Meeting Agenda Monday, October 31, 2016
Page 1 of 3
2. Consider Converting $50,000 Economic Development Business Loan Made to BasX to
a Grant - Judith Ure, Management Analyst
3. A Public Hearing on a Land Use Board of Appeals (LUBA) Regarding a Plan
Amendment, Zone Change and Goal 14 Exception (Aceti Property) - Peter Gutowsky,
Planning Manager
4. A Public Hearing, and First and Second Readings by Title Only, and Adoption by
Emergency of Ordinance 2016-026 - Modify Definition of Lot of Record - Matt Martin,
Associate Planner
5. Deliberations and Consideration of First Reading, by Title Only, of Ordinances 2015-005
and 2016-006 - Non -Resource Lands - Matt Martin, Associate Planner
CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT
6. Consideration of Approval of Weekly Accounts Payable Vouchers
7. Board Signature of Document No. 2016-724, a Radio Tower Lease Agreement with
American Tower for the Hoodoo Site - Steve Reinke, Communications Director
CONVENE AS THE GOVERNING BODY OF THE EXTENSION/4-H COUNTY SERVICE
DISTRICT
8. Consideration of Approval of Weekly Accounts Payable Vouchers
RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
9. Consideration of Approval of Weekly Accounts Payable Vouchers
OTHER ITEMS
These can be any items not included on the agenda that the Commissioners wish to discuss
as part of the meeting, pursuant to ORS 192.640.
At any time during the meeting, an executive session could be called to address issues relating
to ORS 192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS
192.660(2)(d), labor negotiations; ORS 192.660(2)(b), personnel issues; or other executive
session categories.
Executive sessions are closed to the public; however, with few exceptions and under specific
guidelines, are open to the media.
Board of Commissioners Business Meeting Agenda Monday, October 31, 2016 Page 2 of 3
ADJOURN
To watch this meeting on line, go to: www.deschutes.oralmeetinas,
Please note that the video will not show up until recording begins. You can also view past
meetings on video by selecting the date shown on the website calendar.
Deschutes County encourages persons with disabilities to participate in all programs and
activities. To request this information in an alternate format please call (541) 617-4747.
FUTURE MEETINGS:
Additional meeting dates available at www.deschutes.ora/meetingcalendar
(Please note: Meeting dates and times are subject to change. All meetings take place in the Board of
Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions
regarding a meeting, please call 388-6572.)
Board of Commissioners Business Meeting Agenda Monday, October 31, 2016 Page 3 of 3