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2016-570-Minutes for Meeting December 07,2016 Recorded 12/16/2016DESCH TES COUNTY OFFICIAL UBLANKENSHIP, COUNTY CLERK Ind 20+6' 10 NANCY COMMISSIONERS' JOURNAL 12/16/2016 04:13:29 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, WEDNESDAY, DECEMBER 7, 2016 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Alan Unger and Anthony DeBone; Commissioner Tammy Baney was out of the office, but called in via conference call for a portion of the meeting. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David Doyle, County Counsel; Whitney Hale, Information Officer; Tim Beuschlein, 9-1-1; Peter Gutowsky and Matt Martin, Community Development; James Lewis, Property & Facilities; and six other citizens. No representatives of the media were in attendance. CALL TO ORDER Chair Under called the meeting to order at 10:02 a.m. PLEDGE OF ALLEGIANCE Minutes of Board of Commissioners' Business Meeting Wednesday, December 7, 2016 Page 1 of 7 CITIZEN INPUT None was offered. CONSENT AGENDA UNGER: Move approval. DEBONE: Second. VOTE: DEBONE: Yes. UNGER: Chair votes yes. 1. Board Signature of Document No. 2016-759, an Amendment to an Agreement with PacificSource Regarding Mental Health Services 2. Consideration of Board Signature of Document 2016-770, Lease with Saving Grace 3. Signature of a Letter Reappointing Henry Kelley to the Board of Forest View Special Road District, through December 31, 2019 4. Signature of Letters regarding Deschutes River Recreation Homesites Special Road District #8: Accepting the Resignation of Verna Wackerbarth, and Thanking her for her Service; and Appointing Melanie Butler through December 31, 2019 5. Board Signature of Minutes - Joint Meeting with Redmond City Council, September 20, 2016 6. Board Signature of the Minutes of the November 28, 2016 Business Meeting and Work Session ACTION ITEMS 7. The Reading of a Proclamation, Recognizing December 13, 2016 as Deschutes County's Centennial. Kelly Cannon -Miller of the Deschutes Historical Museum spoke about the Centennial, and recognized Commissioner DeBone for his involvement. Minutes of Board of Commissioners' Business Meeting Wednesday, December 7, 2016 Page 2 of 7 She said that Wade Bryant was instrumental in restoring the first car in the County, a 1907 Holsman, so it could be used for public events. He was presented with a photo relevant to his efforts. Chair Unger stated that there was a lot of interest in the vehicle. Mr. Bryant said that it was particularly appreciated in Sunriver and at the Deschutes County Fair. Commissioner DeBone added that it helped people to understand the significance of the Centennial. Next Tuesday, December 13, is the actual birthday of the County, and a public birthday 'party' will take place at 11 a.m. at the Historical Museum that day. At this time, Commissioner DeBone conducted the reading of the Proclamation. DEBONE: Move signature. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Chair votes yes. At this time, Commissioner Tammy Baney joined the meeting via conference call. 8. Deliberations on a LUBA Remand Issue (Aceti). Peter Gutowsky provided an overview of the issue, which has also been discussed by the Board in a recent work session. A matrix was developed to help evaluate the issue. The Board can continue deliberations; it can deny the request; or it can support the request and direct staff to prepare findings and conclusions prior to the first reading of four Ordinances, which would take place at the Board business meeting on December 14, 2016; with the second reading and adoption to occur on December 28, 2016. He referred to the matrix at this time. Commissioner Baney confirmed that she has the appropriate information with her and can hear the discussion. Minutes of Board of Commissioners' Business Meeting Wednesday, December 7, 2016 Page 3 of 7 Question 1: Does the Rural Industrial Zone allow only rural uses, subject to restrictions. Chair Unger agreed with the applicant's argument that a Goal 14 exception is not required. Commissioner DeBone said this is a point of clarification for LUBA, and he agrees with Chair Unger. Commissioner Baney also agreed. Question 2: Is the Rural Industrial Zone limited to exceptions areas. Mr. Gutowsky stated that if land is outside an exception area, a Goal 14 exception is required. There are industrial zones today. A Rural Industrial comp plan area here does not trigger a Goal 14 exception. Chair Unger said that he feels a Goal 14 exception is not necessary. Commissioners DeBone and Baney agreed. Commissioner Baney added that Code is explicit in these terms, and an exception is not necessary. Question 3: Did Central Oregon Landwatch exhaust their remedies during the first appeal process, preventing them from raising other issues outside the scope of the remand. Chair Unger said that they had. The remand was focused on Goal 14 issues only. The County is rectifying this and clarifying the issue with LUBA. Commissioner DeBone stated he supports this as well. There was only one issue to address. Commissioner Baney agreed, and said that there were other opportunities but those might not have made a difference. At this point, it is very limited and she feels Central Oregon Landwatch's remedies have been exhausted. Mr. Gutowsky asked if the Board is directing staff to prepare findings and conclusions based on these answers, so Ordinances can be prepared per procedures Code. He anticipates the first reading would be requested for December 14, 2016. The Commissioners confirmed that staff should proceed with preparing appropriate findings. Commissioner Baney left the meeting at this time. Minutes of Board of Commissioners' Business Meeting Wednesday, December 7, 2016 Page 4 of 7 CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 9. Consideration of Board Signature of Document No. 2016-766, a Lease for a Radio Site at Cline Butte. Timm Beuschlein of 9-1-1 is project manager for the radio project, and explained the radio site documents. Two more sites will greatly improve safety for the public. DEBONE: Move approval. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Chair votes yes. 10. Consideration of Board Signature of Document No. 2016-769, a Lease for a Radio Site from Western Radio Services and C. B. Foss. DEBONE: Move approval. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Chair votes yes. 11. Consideration of Approval of 9-1-1 County Service District Weekly Accounts Payable Vouchers in the Amount of $9,137.83. DEBONE: Move approval, subject to review. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Chair votes yes. Minutes of Board of Commissioners' Business Meeting Wednesday, December 7, 2016 Page 5 of 7 CONVENED AS THE GOVERNING BODY OF THE EXTENSION/4-H COUNTY SERVICE DISTRICT 12. Consideration of Approval of Extension/4-H County Service District Weekly Accounts Payable Vouchers in the Amount of $1,045.14. DEBONE: Move approval, subject to review. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Chair votes yes. RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 13. Consideration of Approval of Weekly Accounts Payable Vouchers for Deschutes County in the Amount of $966,633.55. Tom Anderson said that the bills included funding the purchase of a drum roller at the Road Department. DEBONE: Move approval, subject to review. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Chair votes yes. OTHER ITEMS None were offered. ADJOURN Being no further items to come before the Board, the meeting was adjourned at 10:30 a.m. Minutes of Board of Commissioners' Business Meeting Wednesday, December 7, 2016 Page 6 of 7 DATED this �Lt' Day of (_L-'-4_-2016 for the Deschutes County Board of Commissioners. ATTEST: Recording Secretary atr- Alan Unger, Chair L41/) 2 1 7�,, Tammy Baney, VicAChair A1.201, Anthony DeBone, Commissioner Minutes of Board of Commissioners' Business Meeting Wednesday, December 7, 2016 Page 7 of 7 Deschutes County Board of Commissioners 1300 NW Wail 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, WEDNESDAY, DECEMBER 7, 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. Board Signature of Document No. 2016-759, an Amendment to an Agreement with PacificSource Regarding Mental Health Services Board of Commissioners Business Meeting Agenda of 3 Wednesday, December 7, 2016 Page 1 2. Consideration of Board Signature of Document 2016-770, Lease with Saving Grace 3. Signature of a Letter Reappointing Henry Kelley to the Board of Forest View Special Road District, through December 31, 2019 4. Signature of Letters regarding Deschutes River Recreation Homesites Special Road District #8: Accepting the Resignation of Verna Wackerbarth, and Thanking her for her Service; and Appointing Melanie Butler through December 31, 2019 5. Board Signature of Minutes - Joint Meeting with Redmond City Council, September 20, 2016 6. Board Signature of the Minutes of the November 28 Business Meeting and Work Session ACTION ITEMS 7. The Reading of a Proclamation, Recognizing December 13, 2016 as Deschutes County's Centennial - Whitney Hale, Public Information Officer 8. Deliberations on a LUBA Remand Issue (Aceti) - Peter Gutowsky, Planning Manager CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 9, Board Signature of Document No. 2016-766 , a Lease for a Radio Site at Cline Butte - Steve Reinke, Communications Director 10. Consideration of Board Signature of Document No. 2016-769, a Lease for a Radio Site from Western Radio Services and C. B. Foss - Steve Reinke, Communications Director 11. Consideration of Approval of Weekly Accounts Payable Vouchers CONVENE AS THE GOVERNING BODY OF THE EXTENSION/4-H COUNTY SERVICE DISTRICT 12. Consideration of Approval of Weekly Accounts Payable Vouchers RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 13. Consideration of Approval of Weekly Accounts Payable Vouchers OTHER ITEMS Board of Commissioners Business Meeting Agenda of 3 Wednesday, December 7, 2016 Page 2 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. ADJOURN To watch this meeting on line, go to: www.deschutes.ora/meetings 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. no Deschutes County encourages persons with disabiities 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/meetindcalendar (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 of 3 Wednesday, December 7, 2016 Page 3 3416 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 al.o (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Business Meeting of December 7, 2016 DATE: December 2, 2016 FROM: Whitney Hale, Administrative Services, 541-330-4640 TITLE OF AGENDA ITEM: The Reading of a Proclamation, Recognizing December 13, 2016 as Deschutes County's Centennial PUBLIC HEARING ON THIS DATE?: No BACKGROUND AND POLICY IMPLICATIONS: A special Centennial recognition and consideration of a Proclamation recognizing December 13, 2016 as Deschutes County's 100th birthday. ATTENDANCE: KeIIy Cannon -Miller; Deschutes Historical Museum. KeIIy Cannon -Miller, Executive Director of the Deschutes Historical Museum, would like to recognize Wade Bryant, of Wade Bryant's Auto Repair, for donating his time and effort to restore Bend's first car, a 1907 Holsman, in honor of the County's Centennial. Mr. Bryant was able to get the Holsman running and driving again for the first time since 1959. The Holsman appeared at multiple festivals, parades and car shows over the course of the year, and became the centerpiece of the County's Centennial celebration efforts. In addition to getting the car running and driving, Mr. Bryant personally trailered the car to all of its Centennial appearances. Ms. Cannon -Miller will be presenting Mr. Bryant with a token of appreciation for his commitment to the County's Centennial. After recognizing Mr. Bryant, Ms. Cannon -Miller would like to request that the Board read a proclamation in honor of the County's 100th Birthday, which will be celebrated on December 13. For Recording Stamp Only BEFORE THE BOARD OF COMMISSIONERS OF DESCHUTES COUNTY, OREGON PROCLAMATION RECOGNIZING DECEMBER 13, 2016 AS DESCHUTES COUNTY'S CENTENNIAL Whereas, one hundred years have passed since Deschutes County was created. Whereas, as Bend and Redmond grew around the railroad, residents began talking about splitting from Crook County. Whereas, in 1914, a ballot measure proposing the creation of Deschutes County from Crook County land was defeated. Whereas, two years later in 1916, voters passed a landmark measure to create a new county from western Crook County territory, and Deschutes County was born. Whereas, after years of heated debate, Deschutes County was created on December 13, 1916, and Bend was established as the County seat. Whereas, on December 19, 1916, leaders convened to select the first officers for Deschutes County. Appointments included Judge William Barnes, Commissioners A. L. Mackintosh and Lew Smith, District Attorney Harvey DeArmond, Sheriff S.E. Roberts and many others; Therefore, be it resolved that the Deschutes County Board of Commissioners: • Recognizes the significance of the vote of the people in 1916 to create Deschutes County. • Encourages the people of Deschutes County to observe and celebrate the Centennial at the County's 100th birthday celebration on December 13th • Honors the current and past elected County leaders, employees and volunteers who have dedicated their careers to helping people, families, youth, businesses and communities solve problems, develop skills and build a better future. • Thanks the Centennial Committee volunteers, staff from the Deschutes Historical Society and Wade Bryant, from Bryant Auto Repair, for donating their time, effort and energy to promote and recognize our County's history. • Celebrates the fact that over its 100 -year history, Deschutes County has developed into a bustling, exciting destination where progress, growth and unique beauty intertwine. Dated this day of December 2016 by the Deschutes County Board of Commissioners. ATTEST: Recording Secretary Alan Unger, Chair Tammy Baney, Vice Chair Anthony DeBone, Commissioner Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Business Meeting of December 7, 2016 DATE: November 30, 2016 FROM: Peter Gutowsky, Community Development, 541-385-1709 TITLE OF AGENDA ITEM: Deliberations on a LUBA Remand Issue (Aceti) PUBLIC HEARING ON THIS DATE?: No ATTENDANCE: Peter Gutowsky, Planning Manager SUMMARY: The Board of County Commissioners (Board) will deliberate on December 7 for File No. 247-16-000593-A; 247-14-000456-ZC; 247 -14 -000457 -PA. The applicant, Anthony Aceti, requests a proceeding on remand to repeal the portion of the prior decision that approved an exception to Goal 14, reaffirms its prior decision to change the plan designation and zoning for the property, and adopting appropriate findings and conclusions. The Board held a public hearing on October 31, 2016. At the end of the hearing, the Board closed the oral record but left the written record, rebuttal, and final argument open until November 7. A work session was held on November 28. RECOMMENDATION & ACTION REQUESTED: 1. Continue deliberations; or 2. Direct staff to coordinate with the applicant to prepare findings and conclusions prior to first reading of Ordinances No. 2016-027, 028, 029, and 030, consistent with DCC 22.28.060; or 3. Deny the plan amendment, zone change request. E� Community Development Department Planning Division Building Safety Division Environmental SoilDivision P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-8005 (541)388-6575 FAX (541)385-1764 STAFF REPORT DATE: November 30, 2016 TO: Deschutes County Board of Commissioners FROM: Peter Gutowsky, Planning Manager RE: Deliberation: Plan Amendment and Zone Change (File No. 247-16-000593+A; 247'14-000456-ZC;247-14-000457-PA) The Board of County Commissioners (Board) will deliberate on December 7 for File No. 247- 1 247-14-000456-ZC; 247 -14 -000457 -PA. Background The applicant requests a proceeding on remand to repeal the portion of the prior decision that approved an exception to Goal 14, reaffirms its prior decision to change the plan designation and zoning for the property, and adopting appropriate findings and conclusions. The Bheld a public hearing on October 31, 2016. At the and of the hearing, the Board closed the oral record but left the written record, rebuttal, and final argument open until November 7. NL Issue Requiring Board Decision The Board wiH need to determine if there is substantial evidence to: oChange the plan and zone designations of the subject property from Agricultural and Exclusive Farm Use to Rural Industrial to allow rural industrial uses. III. Matrix Staff provided a Matrix for the Board to assist them in evaluating the remand and formulating a IV. Additional Testimony and Rebuttal The applicant submitted a rebuttal and final argument for the Board's consideration (Attachment). No other testimony was provided. V. Next Steps At the conclusion of the deliberation, the Board can choose one of the following options: 1. Continue deliberation. Quality Services Performed with Pride 2. Direct staff to coordinate with the applicant to prepare findings and conclusions prior to first reading of Ordinance Nos 2016-027, 028, 029, and 030, consistent with DCC 22.28.060. 3. Deny the plan amendment, zone change request. Attachment: Applicant's rebuttal and final argument -2- a) -c 3 3 tu c +O. O OO 0 U O c a 0o 0-,-.-o (o 0) o 22 c)" 9 5 'co - ON ti :0 o .t in N c N O Ci m N O' - to c N � (6 co o 0 o = Z 9 3 U c r- co c N m'a Q _c O O) 6 c o 0 _o _ o o f3 N T cn as (n rt 3 N O O O _ O Z us •a 0 c Q O (n Irc O c O 0 as O c 1 U 0 re 0 c CO u) (0 cv) J c3 c 12 'i5c M00 cc W 2 0 CD .c 0_ - 4--. 3) o O 0- c) ON O cnj UN E=U as Q U "- t6O M c N c c - O U) ca)c C3 c( C3 O O O N O 0 >- Z >- • • • Board Analysis and Options Staff Comment 0 N N c m as < o u)w cm' o mm p) D 0 c6 u) `'r 3 m `O J 0 - =a)ca� m-majE m>,c`3'E (Vmv00ia Q c c 2 5 2 c E � O 3Q m > a >'m oc am) m 630 •(nm c�'C. as .2 -0 U c— 0 0 0 N N L C (3a, `• ) ! m 20-3 «+ 0 0 U 'L O3s L y0 C v) mc`o Cc nMC3 .� o•QLO U E 76 ,s - c O U 'O ` a) O •e O_ X) C 0 -0 `' N a) E Ea)a)c 'OC 0'V X' O o ai 0 0 T 0 0 ,- C U m U .0:- -P 3) � 0� C U m O. 0 0 w O 0 7 0 0 76 a3 0 = 0 .= — m "' 0 0 E U E 2 >, s O 0)(0 m Zr) = 3) O 0 .225 0- = N 3 u) m 'U .0 C --Q U C V .0 N CO 0 N 0 w m C (+6 o m m E :D.° i c .Ec"-..3 -oN O as O U 0 o N N �� m J ' a) m (3 J 0 m yam., O m V Cn o> C 0 O00w C 00 rn-2 N C 3 y 0 O (a E o 0 0 OTara ma) -m -Om i'O O. 0) O 0. — j a) 7 1,1 ' C 0- C N . 0 Q (3 •= — m0'C 0 s5 y o c c I---= cs c 0 o0 0 N (C0 (0 3 N m c i O C s- 0 O i 0 0 ° +�+ CO O c N m v y m 3s d s G) c O O m 3 � c c o N • a c3 in N -;; X •`- m 0 c 0 N as >, m ED - Mt is O. M to O .c Q ca C ..�0N O .. f6 C o O0 (a O U Q 0 03 0 (3 3"0 a) cca 0. w J m m 0 C �•O 0 o°c= a O m O Q O. 0 C .2 x o 0 0 c a) m o a3 1-4 > T ` a) a) 00 0 ccs 0 • 0 s c c U N �0 cm2ai t6 O � a-0 0 2 C 0 M y m c O cc c O N O N 0. m:3/)) E .... 0 C ECO-- 0 . aa)) 0 o N C .0 713 06 O s m p) r-. c6 C N C O'O 0 0 M C N f3 N (3 0 fa c .c 3 ca O w E O Q'a•-) O) ca 0 > U — i --La aa)) C (V Board Analysis and Options Staff Comment _(1) . au)ui2 g00 0 c a.) 0 as a) a)ameL =as _ 9@J» 0-£22ka \�%§ kƒ(��k oa-2± 00 a g / $ 0 ƒ % £ m ± c= 0 ca .0 v o £ 2 025$0 §0= -Sc ��/__c_c.o I u) co §E@k\k c)-. pc_ 2 2 2 2 § � 00 & \ 03 @ V # @ / 2 s- CV O'0aoC � = EjNoco 0 e 0 c 02 - e' �%mak ƒ\/25& k%fg2%«c (0 0 - g[\=/\ ..0 .>t °°�"= _ o� 2§af�\Ik \0£502co. ee§�� �. >o�>, cc&�o ©G\©e£ af,aatEoaaG cc=ems 0)00=°Q ��\§f kaƒ�=f ° @a3oos 0$�2L�'-au)§ 2k65 gfeR2� e0a=uo ca ga5/k00.2 2 Qe0)as(0- _J0a 4 LAW OFFICE OF BILL KLOOS, PC OREGON LAND USE LAW 375 W. 4`h AVENUE, SUITE 204 EUGENE, OR 97401 TEL: 541.343.8596 WEB: WWW.LANDUSEOREGON.COM RECEIVED BY: *Ai hi 1-13u4,-6 NOV 0 7 2016 DELIVERED BY: T°11%-gidthilh, DANTERRELL@LANDUSEOREGON.COM BILL KLOOS BILLKLOO S @LANDUSEOREGON.COM November 4, 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 (247-16-000593-A, 247-14-000456-ZV, 247 -14 -000457 -PA) Local Proceeding on Remand from LUBA — Rebuttal and Final Argument Dear Chair and Commissioners: Please accept this letter as the Applicant Tony Aceti's rebuttal and final argument for the remand proceeding considering his applications to change the comprehensive plan designation and zoning for his property from Agriculture/EFU to Rural Industrial/R-I. This letter first provides rebuttal arguments to the written and oral testimony given by Central Oregon LandWatch (COLW) at the October 31, 2016 public hearing. The letter then provides the Applicant's final argument. The Applicant respectfully requests that the County Board of Commissioners approve the comprehensive plan designation and zone change applications to allow rural industrial use of the subject property. Rebuttal Argument For the County Commissioner's convenience, the Applicant's rebuttal is broken down into headings organized around COLW's written testimony on remand. The rebuttal begins by addressing several broader issues that relate to arguments presented by COLW under multiple headings. Applicant then provides separate headings and rebuttal arguments to each of the sections of the COLW testimony. Each heading below begins by identifying the respective heading number and page numbers from the COLW testimony that is being rebutted. Broader Issues This section addresses broader aspects of COLW's written testimony that the County Commissioners should be aware of and respond to in the findings it adopts for this proceeding. Deschutes County Board of Commissioners November 4, 2016 Page 2 of 10 COLW raises issues that have been waived. The County Commissioners should decline to consider those waived issues, Throughout its written testimony, COLW raises issues that are outside the scope of this remand proceeding. As LUBA explained, the focus of the remand is on the urban -rural question, whether that comes in the form of review of an exception to Goal 14 or in review of whether the uses allowed in the County's R-1 zone constitute urban or rural uses. The County Board properly limits the issues that can be raised on remand to the issue specifically remanded by LUBA. Here, for example, COLW wants to challenge whether the application to change the plan and zone designations to rural industrial are consistent with Goals 5, 6 and 9. COLW had an opportunity to raise those and other issues below and had an opportunity to appeal them to LUBA. COLW elected not to do so and therefore waived their right to raise those issues now, failed to exhaust their remedies during the first appeal, or are otherwise precluded from raising those issues in this remand proceeding. See, e.g., Beck v. City of Tillamook, 313 Or 148, 153, 831 P2d 678 (1992)(resolved issues include all issues resolved by LUBA and all issues that could have been raised in a LUBA appeal but were not); Miles v. City of Florence, 190 Or App 500, 510, 79 P3d 392 (2003)(explaining exhaustion principle). The County Board should decline to review those issues, and note that those issues are not live on remand and have otherwise been waived in the findings the Board adopts in this proceeding. Specific waiver arguments are presented under the respective headings below. COLW's arguments about industrial uses are unequivocal and absolute. and alleges all industrial uses are urban uses. COLW makes no effort to identify which RI zone uses, if any. might constitute an urban use if located on the subject property and which would be rural. In its remand decision, regarding the types of issues COLW could raise on remand, LUBA held that COLW had not waived its right to raise urban -rural issues and explained: "The focus of petitioner's challenge in the second assignment of error is that Goal 14 exception. If the county on remand decides to adopt a different theory, i.e., that the RI zone only allows rural uses and may be applied to the property without an exception to Goal 14, petitioner has not waived its right to challenge that position and it has not waived its right to advance that challenge in this appeal." COLW v. Deschutes County, Slip Op. at 26. LUBA later explained regarding remand proceedings: "Once any potentially urban uses of concern that might be allowed in the RI zone have been identified, conditions of approval could be imposed to either preclude such urban uses or require approval of a Goal 14 exception in the future before such uses could be authorized in the future." Slip Op. at 28. Deschutes County Board of Commissioners November 4, 2016 Page 3 of 10 LUBA's decision basically says that on remand COLW can challenge categorically the question of whether the RI zone allows only rural uses and take the position that a Goal 14 exception is needed in all instances, but also explains that COLW could also argue that some of the RI zone uses would constitute an urban use on the subject property. Importantly, LUBA did not preclude COLW from arguing both positions in the alternative. Instead of pursuing both approaches, COLW chose to go solely with the first and to take the position that all industrial uses are urban uses and that a Goal 14 exception is needed in all instances to permit Rural Industrial uses on the subject property. See, e.g., COLW testimony p. 8, "Industrial land is an urban use."; p. 10 "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." COLW did not argue in the alternative that some, but not all, of the uses permitted in the R -I zone are urban and identify which particular uses it felt would be urban if permitted for this property. It provided no reasoning why one or more of the R -I permitted uses are urban instead of rural as the plan and code intend to limit those uses. One of the primary reasons for the raise it or waive it principle is to assist in local government decision making and to afford local government an opportunity to respond to that issue before it gets raised in a petition on review to LUBA. Boldt v. Clackamas County, 21 Or LUBA 40, 46, aff'd 107 Or App 619, 813 P2d 1078 (1991). The County Board should note in its findings on remand that COLW presented no arguments directed to particular uses for the Board to evaluate in its review of the uses permitted in the R -I zone. COLW generally fails to identify the approval criteria the testimony draws from in the standards for approval it seeks to impose. Throughout its testimony COLW suggests standards for approval yet fails to identify the approval criteria that require the standard to be met. The best example is the repeated use of the term "necessary." For example, in the subheading and argument under topic heading #1 addressed immediately below, COLW states "Subject property is not necessaryfor industrial use[.]" However, COLW refers to no standard that requires that a property be "necessary" for industrial use. An application to rezone property has no standard that requires a demonstration of necessity. The County Board should decline to impose requirements that have not been incorporated into its acknowledged land use regulations. COLW consistently misinterprets the Deschutes County Comprehensive Plan to argue that it does not permit Dian and zone changes on rural land to allow rural industrial uses. COLW consistently argues that the comprehensive plan states that new industrial uses are to be permitted only in unincorporated communities. See, e.g. Testimony p. 2 (under subheading "Subject property is not intended for industrial use in the county's comprehensive plan[.]"). Similarly, COLW argues that the Comprehensive Plan does not permit plan and zone changes to RI on rural land generally. Also, during oral testimony COLW proffered its interpretation of various comprehensive plan and code language. Simply put, COLWs interpretations generally Deschutes County Board of Commissioners November 4, 2016 Page 4 of 10 ignore the express language contained in the provision they're seeking to interpret or contextual language located elsewhere that make clear the meaning of the plan and code. LUBA affords deference only to the governing body's interpretation of its own plan and code. Siporen v. City of Medford, 349 Or 247, 262, 243 P3d 776 (2010). In its decision for this remand proceeding, the County Board should expressly interpret its plan and code, particularly when there are proffered interpretations that are inconsistent with the Board's. COLW misrepresents LUBA's remand by focusing on only one of the two approaches on remand LUBA discussed, positing a limited understanding of "rural uses" and seeking to impose inapplicable standards to the review of the proposal. This section rebuts arguments presented by COLW under topic heading #1 at pages 1 through 4 of its written testimony and corresponding oral arguments. COLW's arguments were organized under several subheadings. LUBA's remand decision noted that there were several possible avenues the County Commissioners (and the Applicant) could take on remand. The County could continue to seek an exception to Goal 14 to allow urban uses on rural land, either through revised findings for a "committed" exception or under a "reasons" exception theory. Alternatively, LUBA explained that the County could conclude that it intended only to allow rural uses on the property and simply approve the plan and zone change, without an exception to Goal 14, with conditions if necessary that guarantee the permitted uses will remain rural. See Slip Op. p. 26 (language quoted above). COLW takes the position that LUBA remanded solely for the County to prove up on Goal 14 and ignores the options LUBA expressly provided for in its decision. COLW is wrong, the County Commissioners are free to pursue any of the options LUBA noted in its decision. COLW presents a range of arguments under separate headings that argue for a narrow meaning of "rural uses", that the subject property is not suitable for, not "necessary" for, and not intended for industrial use. COLW argues for a 1986 description for "rural uses" to mean "sparse settlement, small farms, or acreage home sites with no or hardly any public services, on land not suitable, necessary, or intended for urban use" while ignoring subsequent case law that has interpreted what that Oregon Supreme Court decision meant by such language, particularly in the context of rural industrial uses. Permissible rural uses are not nearly as restrictive as those described by COLW and include rural industrial and rural commercial development. The site's suitability for industrial use was evaluated during the initial proceedings. See, e.g., Hearing Officer's decision, p. 25 of 81. There the Hearings Officer concluded that the proposal was consistent with the DCC use limitations and dimensional standards, "which are intended to protect the surrounding area from intense industrial uses." Id. COLW did not challenge that or any similar findings and conclusions regarding the property's suitability for the use in relationship to its proximity to the school in its appeal to LUBA. COLW has waived its Deschutes County Board of Commissioners November 4, 2016 Page 5 of 10 right to raise that issue now. In any event, the Hearings Officer has it right, the use and dimensional standards as well as Condition of Approval 2 protect adjacent and surrounding properties (to include the Three Sisters Adventist School, from adverse impacts from potential rural industrial development. The property is suitable for the intended use. As noted above in the Broader Issues section, COLW alleges the property must be "necessary" for industrial use. There is no need requirement for rural industrial uses. COLW's arguments focus on the County's incorporated communities' industrial needs and have no bearing or relevance to rural industrial uses. Those are urban needs, not rural industrial needs. As the Comprehensive Plan language from Chapter 3, page 11 explains, the purpose of the R -I zone is to allow industrial uses and "to ensure that they remain rural and that allowed uses are less intensive than those allowed in unincorporated communities." COLW's arguments miss the mark. COLW's final arguments under this section, from pages 2 through 4 of the testimony assume that the only industrial uses that are allowed by the comprehensive plan are those that are already identified and imply that rural industrial uses are only permitted in one of the County's unincorporated communities. That is a misinterpretation of the comprehensive plan that the County Commissioners should correct. Unincorporated communities are permitted to have urban uses, to include urban industrial uses, that is not the focus of R -I zoning. Further, the subject property's lack of relationship to an unincorporated community or a rural service center is not relevant to whether this site is appropriate for rural industrial uses at rural levels. It does not need to be a part of an unincorporated community for the plan and zone change to rural industrial to be approved. COLW's arguments seeking to invoke unincorporated communities and rural service center issues are irrelevant, misleading and legally flawed. The County Board should reject COLW's arguments under this section. The applicant has met his burden of proof to demonstrate that the plan and zone change to allow rural industrial use of the property is appropriate. This section rebuts COLW arguments presented under topic heading #2 at pages 4 through 5 of its written testimony and corresponding oral arguments. In a short section, COLW cites to a case that the applicant carries the burden of proof in a land use application. While that statement and citation are correet for the general proposition, COLW ignores the fact that the burden is met by demonstrating compliance with the County's acknowledged approval criteria. If COLW felt that the county's approval criteria for a plan and zone change do not satisfy the requirements set forth by Fasano v. Washington Co. Comm , it should have raised that to the County Commissioners in previous proceedings and then to LUBA. COLW has waived this issue. Furthermore, such an argument amounts to an impermissible collateral attack on Deschutes County's land use regulations. COLW also posits that because the Applicant has not identified a particular type of industrial use that would take place on the property, the County Board lacks the information to Deschutes County Board of Commissioners November 4, 2016 Page 6 of 10 conclude that the rezone is "necessary." As noted above, there is not a necessity requirement, only the requirement that a proposal satisfy the acknowledged standards for changing the plan and code designation for the property. There is substantial evidence in the record to support the County Board's approval of Mr. Aceti's request. COLW's arguments have no merit. The County's R -I zone is not limited to exception areas. This section rebuts COLW arguments presented under topic heading #3 at pages 5 through 6 of its written testimony and corresponding oral arguments. COLW argues that OAR 660-022 does not apply and that a Goal 14 exception is required because the County's Rural Industrial zone is limited to exception areas only. Applicant agrees that OAR 660-022, the administrative rule for unincorporated communities, does not apply to this proceeding. Applicant has said nothing about unincorporated communities; COLW is the party that keeps raising this straw man only to strike it down. OAR 660-022 is irrelevant, as are all of COLW's arguments directed towards unincorporated communities. COLW also posits an interpretation of the Comprehensive Plan that the County Board should expressly reject. COLW argues that the reason the RI zone was created was to bring specific exception areas that already existed into compliance with state law. As was the case in its reading of LUBA's decision, COLW prefers to look at only part of the Comprehensive Plan and to ignore all other portions of the plan. Yes, the Comprehensive Plan says that a reason for designating certain exception areas RI and imposing the Limited Combining Zone to some of those existing areas was for the purpose of bringing them into compliance with state land use laws. However, that is not the only purpose for the RI zone. COLW draws from explanations about why certain areas were designated RI but ignores the comprehensive plan language (Chapter 3, page 11) and plan policies (Policy 3.4.23, 3.4.28) that most directly address the purpose and application of the Rural Industrial zone to new properties. The Comprehensive Plan, DCC and state law permit the rezoning of rural properties to RI that have received an exception to Goal 3 or that are deemed nonresource land because they are not "agricultural land" as defined by the Goal 3 rule. The subject property falls into the latter category. The Board should expressly reject COLW's limited reading of the Deschutes Comprehensive Plan. The County Commissioners can conduct the Shaffer analysis, as LUBA recognized in its remand decision. COLW has waived its right to challenge Goals 5, 6 or 9 for this application proceeding. This section rebuts COLW arguments presented under topic heading #4 at pages 6 through 8 of its written testimony and corresponding oral arguments. Deschutes County Board of Commissioners November 4, 2016 Page 7 of 10 COLW has waived its right to revisit whether industrial use of the property would violate Goals 5, 6 or 9. The Hearing Officer made findings regarding all of the statewide planning goals at pages 31 and 32 of 81 in her decision and COLW failed to raise issues with any of them except the exception to Goal 14. COLW has waived its right to raise objections at this late stage of the proceeding. In any event, COLW's goals arguments are without merit. DLCD has acknowledged the Deschutes County Comprehensive Plan and RI zoning code as in compliance with the Statewide Planning Goals. Goal 5 is implemented through the identification of areas where Goal 5 protections are required; if a property is not in an area identified for Goal 5 protections, it is not subject to the County's Goal 5 program. Goal 5 compliance with respect to scenic views is implemented through development standards imposed by the Landscape Management Combining Zone to properties shown on the respective comprehensive plan map. That zone includes portions of the subject property. Those development standards apply equally to all potential uses and development on the property — whether farm, industrial, commercial or residential — and consequently Goal 5 scenic view compliance is assured. COLW has not explained how it would be impossible for industrial development to comply with the landscape standards or how compliance with those standards would fail to satisfy the requirements of the County's Goal 5 program. Similarly, the County has adopted Goal 5 protections for water and COLW has not identified that the property lies in any Goal 5 protected area. With respect to Goal 6, the Comprehensive Plan states: "Two additional goals are associated with resource protection but do not apply to specific lands. Statewide Goal 6, Air, Water and Land Resources quality, requires compliance with Federal and State regulations regarding air, water and land quality." Comp Plan Section 2.1 p. 2. None of the uses allowed in the RI zone present difficulties for obtaining necessary air, water or land quality permits from Federal or State regulators or for complying with all applicable environmental standards. The use and development standards restrict the intensity of development to rural levels, which makes such compliance with environmental regulations easier. As a precautionary measure, the Applicant urges the County to adopt appropriate findings and impose a condition of approval that requires the obtaining of all necessary air, water and land resource quality permits from the appropriate regulating authority prior to commencing any permitted use and complying with those permits. COLW errs in its belief that Goal 9 even applies to areas outside of urban growth boundaries. OAR 660, division 009, the implementing rule for Goal 9, expressly states: "This division applies to comprehensive plans for areas within urban growth boundaries. This division does not require or restrict planning for industrial and other employment uses outside urban growth boundaries." OAR 660-009- 0010(1). Deschutes County Board of Commissioners November 4, 2016 Page 8 of 10 COLW's Goal 9 arguments are without merit. COLW argues that it is impossible for the Board of Commissioners to apply the Shaffer analysis without an identified particular use. Interestingly, LUBA's decision concludes otherwise. LUBA understood that no particular use was being proposed and that review was for the full range of uses allowed in the County's Rural Industrial Zone. See, e.g., Slip Op at 27 (discussing Hearing Officer's concern that some of the uses allowed in the R-1 zone might be viewed as "urban" in nature); and Slip Op at 28 ("Once any potential urban uses of concern that might be allowed in the RI zone have been identified, conditions of approval could be imposed to * * * preclude such urban uses[]"). As I explained during the public hearing, while having to examine the full range of permitted uses in the rural industrial zone may make it necessary to answer one of the Shaffer questions in the negative, and thus force further action under the Shaffer framework, nothing about the Shaffer analysis precludes its use in instances where a particular use is not proposed, and LUBA's remand decision states it is entirely appropriate to do so. The County Board should reject COLW's arguments under the heading #4. A decision to allow only rural industrial uses that constitute rural uses is consistent with Goal 14. Goal 14 is invoked only if a use on rural land constitutes an urban use. This section rebuts COLW arguments presented under topic heading #5 at pages 8 through 10 of its written testimony and corresponding oral arguments. COLW's arguments in this section are all based on the premise that all industrial use of land constitutes urban use. Its arguments rely on a strained interpretation of Goal 14 language and cases that do not assist their argument. COLW posits an interpretation of Goal 14's language under the heading "Rural Industrial Development" that provides: "Notwithstanding other provisions of this goal restricting urban uses on rural land, a county may authorize industrial development, and accessory uses subordinate to the industrial development, in buildings of any size and type, on certain lands outside urban growth boundaries specified in ORS 197.713 and 197.714, consistent with the requirements of those statutes and any applicable administrative rules adopted by the Commission." COLW argues that the language equates "industrial development" with "urban use" and that the statement only has meaning with that reading and one must give meaning to the whole phrase. COLW's reading is not the only reading possible and ignores the context of the provision. The beginning of the sentence could also be read to mean, "Despite the provisions of Goal 14 Deschutes County Board of Commissioners November 4, 2016 Page 9 of 10 that restrict urban uses on rural land, a county may authorize industrial development and accessory uses consistent with state statute and administrative rules intended to keep industrial uses on rural lands at rural levels." Nothing about Goal 14 regulates rural levels of use on rural land, nor does it categorically classify industrial uses as urban as COLW suggests. COLW relies on an excerpted passage from 1000 Friends of Oregon v. Land Conservation & Dev. Comm. (Umatilla County), 85 Or App 88, 92 (1987) to argue that all industrial uses are urban. Unfortunately for COLW, two years after that decision LUBA interpreted that exact same language. See Shaffer v. Jackson County, 17 Or LUBA 922, 931 and FN 5 (1989). In Shaffer, LUBA explained that the Court of Appeal's decision and cited language was directed at the Heavy Industrial (not RI uses) at issue in that proceeding and did not apply broadly to all industrial uses. LUBA then proceeded to set forth the Shaffer analysis discussed at the hearing. LUBA's interpretation of the Court of Appeal's Umatilla County case flatly contradicts COLW's position. The court has had over 25 years to correct LUBA if it was wrong; the court has not done so. And, as recently as LUBA's decision in Columbia Riverkeepr v. Columbia County (Luba No 2014-017, August 27, 2014), it said, "In Shaffer v. Jackson County we rejected an argument that industrial uses are inherently urban in nature." Slip Op at 23 (citation omitted). COLW's reliance on its reading of Umatilla County is unfounded. COLW's reliance on 1000 Friends of Oregon v. LCDC (Curly County), 301 Or 447, 457 (1986) is equally unfounded. The passage COLW quotes applies for uses which are prohibited by a Statewide Planning Goal without an exception. However, if a use is not prohibited by a Goal, an exception is not needed. LUBA recognized this in its remand decision. Consequently, if rural industrial uses are rural, no exception is needed to allow rural industrial uses on rural land that has been deemed "not agricultural" land. COLW's arguments collapse once its assumption that "all industrial uses are urban" fails. Because the Deschutes County Code restricts the types of permissible uses to rural types of industrial uses and the use and development standards further limit the intensity of those permissible uses, they are permissible on rural land without an exception to Goal 14. This LUBA recognized in its remand decision. The County Board should reject COLW's arguments under heading #5. The County Commissioners should reject all of the arguments COWL presents in its testimony submitted orally and in writing for the remand proceeding. Final Argument Throughout this application, the Applicant has always desired and requested permission to allow rural levels of industrial uses on his property. Thus, the Applicant's proposals to change the plan and zone designations from AG/EFU to RI. In its remand decision, LUBA provided guidance to the county that is relevant for this proceeding. LUBA explained that the only purpose for an exception to Goal 14 is to allow urban uses. Consequently, if the County or Applicant wishes to have urban uses on the property, an Deschutes County Board of Commissioners November 4, 2016 Page 10 of 10 exception is necessary. However, LUBA also explained that if all that was desired was for rural use of the property, because the County's Comprehensive Plan provides that the purpose of the R -I zone is to ensure that the uses allowed in the RI zone are rural uses, all the county needs to do is approve the plan and zone change, and to impose any conditions necessary to preclude any specific RI use that might result in urban use of the land. It is that latter course of action — keep the uses rural and impose the RI plan and zone designation with appropriate restrictions — that the Applicant requested on remand. The Applicant has explained how this is possible and submitted proposed findings and supplemental findings to support a decision to approve the applications. This is a straight -forward application of the County's acknowledged Comprehensive Plan and land use code. The evidence in the record, both from the initial proceeding and from the remand proceeding, supports approval. COLW argued throughout the initial and remand proceeding that all industrial uses, to include permitted RI uses developed under the DCC use and development limitations for RI uses, are urban uses and can only be permitted with an exception to Goal 14. LUBA and the courts have rejected this extreme position. LUBA implicitly rejected that position in the guidance it provided to the County Board in this proceeding. The Board should reject COLW's arguments. Furthermore, COLW identified none of the RI uses that it deems might constitute an urban use if allowed on the subject property. It provides no arguments or analysis to assist the County Board's consideration of the permitted RI uses. The County Board's decision should reflect that fact. The Applicant respectfully requests that the County Board of Commissioners: reaffirm its determination that the subject property is not "agricultural land" as that term is defined by Goal 3; repeal its prior decision related to an exception to Goal 14; approve both the comprehensive plan designation change and zone change applications to Rural Industrial; and adopt findings supporting the Board's decision and imposing appropriate conditions of approval. Conclusion Fpr the reasons provided gbxve, the Cpt}nty Board of Commissioners should approve the comprehensive pian Designation and zone change applications to allow rural industrial use of the subject property. Thank you for your consideration. Best regards, Dan Terrell acie,mAg