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2017-1-Ordinance No. 2016-029 Recorded 1/9/2017REVIEWED 03- IDV LEGAL COUNSEL DESCHUTES COUNTY OFFICIAL RECORDS CJ 207.1 NANCY BLANKENSHIP, COUNTY CLERK 1n1 COMMISSIONERS' JOURNAL 01/09/2017 01:52:08 PM 111111ill BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Deschutes County Code, Title 23, and Amending Deschutes County Comprehensive Plan, Sections 5.12, and to Change the Plan Designation for Certain Property From Agriculture to Rural Industrial. ORDINANCE NO. 2016-029 WHEREAS, the Land Use Board of Appeal on August 10, 2016 remanded an "irrevocably committed" exception to Statewide Planning Goal 14 (Goal 14) and a Plan Amendment to change the comprehensive plan designation of certain property from Agriculture to Rural Industrial; and WHEREAS, on remand, Anthony Aceti proposed a Plan Amendment to Deschutes County Code ("DCC"), Section 23.01.010, Introduction, and Deschutes County Comprehensive Plan, Section 5.12, Legislative History, to change the comprehensive plan designation of certain property from Agriculture to Rural Industrial; and WHEREAS, after notice was given in accordance with applicable law, a public hearing was held on October 31, 2016 before the Board of County Commissioners ("Board"); and, WHEREAS, the Board, after review conducted in accordance with applicable law, approved changing the comprehensive plan designation from Agriculture to Rural Industrial; now therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. AMENDMENT. DCC Section 23.01.010, Introduction, is amended to read as described in Exhibit "A" attached and incorporated by reference herein, with new language underlined. Section 2. AMENDMENT. Deschutes County Comprehensive Plan Section 5.12, Legislative History, is amended to read as described in Exhibit "B," attached and incorporated by reference herein with new language underlined. Section 3. AMENDMENT. The Deschutes County Comprehensive Plan Map, is amended to change the plan designation for certain property described in Exhibit "C" and depicted on the map set forth as Exhibit "E," with both exhibits attached and incorporated by reference herein, from Agriculture to Rural Industrial. Section 4. FINDINGS. The Board adopts as it findings in support of this Ordinance, the Decision of the Hearings Officer, Exhibit "D," and incorporated by reference herein. PAGE 1 OF 2 - ORDINANCE NO. 2016-029 /1/ Dated this 0 / of Ce -t. , 2016 ATTEST: BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ALAN UNGER, CHAIR � ilL5/Ety„ 4r - TAMMY BANEY, VICE CHAIR Recording Secretary ANTI PONY DEBONE, COMMISSIONER Date of 1St Reading: /9 day of .- , 2016. Date of 2nd Reading: day of 72t -e- , 2016. Record of Adoption Vote Commissioner Anthony DeBone Alan Unger Tammy Baney Yes No Abstained Excused Effective date: Zeday ofjt+i'�. , 2017. ATTEST: Recording Secretary PAGE 2 OF 2 - ORDINANCE NO. 2016-029 Chapter 23.01 COMPREHENSIVE PLAN Chapter 23.01 COMPREHENSIVE PLAN 23.01.010. Introduction. A. The Deschutes County Comprehensive Plan, adopted by the Board in Ordinance 2011-003 and found on the Deschutes County Community Development Department website, is incorporated by reference herein. B. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2011-027, are incorporated by reference herein. C. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2012-005, are incorporated by reference herein. D. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2012-012, are incorporated by reference herein. E. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2012-016, are incorporated by reference herein. F. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2013-002, are incorporated by reference herein. G. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2013-009, are incorporated by reference herein. H. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2013-012, are incorporated by reference herein. I. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2013-007, are incorporated by reference herein. J. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2014-005, are incorporated by reference herein. K. The Deschutes County Comprehensive Plan 2014-006, are incorporated by reference herein. L. The Deschutes County Comprehensive Plan 2014-012, are incorporated by reference herein. M. The Deschutes County Comprehensive Plan 2014-021, are incorporated by reference herein. N. The Deschutes County Comprehensive Plan 2014-027, are incorporated by reference herein. O. The Deschutes County Comprehensive Plan 2015-021, are incorporated by reference herein. P. The Deschutes County Comprehensive Plan 2015-029, are incorporated by reference herein. Q. The Deschutes County Comprehensive Plan 2015-018, are incorporated by reference herein. R. The Deschutes County Comprehensive Plan 2015-010, are incorporated by reference herein. S. The Deschutes County Comprehensive Plan 2016-001, are incorporated by reference herein. T. The Deschutes County Comprehensive Plan 2016-022, are incorporated by reference herein. U. The Deschutes County Comprehensive Plan 2016-005, are incorporated by reference herein. amendments, amendments, amendments, amendments, amendments, amendments, amendments, amendments, amendments, amendments, amendments, PAGE 1 OF 2 — EXHIBIT A TO ORDINANCE 2016-029 adopted by the Board in Ordinance adopted by the Board in Ordinance adopted by the Board in Ordinance adopted by the Board in Ordinance adopted by the Board in Ordinance adopted by the Board in Ordinance adopted by the Board in Ordinance adopted by the Board in Ordinance adopted by the Board in Ordinance adopted by the Board in Ordinance adopted by the Board in Ordinance V. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2016-027, are incorporated by reference herein. 1°he. Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2016-029, are incornorated by reference herein. (Ord. 2016-029 41. 201Ord. 2016-027 §1, 2016; Ord. 2016-005 §1, 2016; Ord. 2016-022 §1, 2016; Ord. 2016-001 §1, 2016; Ord. 2015-010 §1, 2015; Ord. 2015-018 § 1, 2015; Ord. 2015-029 § 1, 2015; Ord. 2015-021 § 1, 2015; Ord. 2014-027 § 1, 2014; Ord. 2014-021 §1, 2014; Ord. 2014-12 §1, 2014; Ord. 2014-006 §2, 2014; Ord. 2014-005 §2, 2014; Ord. 2013-012 §2, 2013; Ord. 2013-009 §2, 2013; Ord. 2013-007 §1, 2013; Ord. 2013-002 §1, 2013; Ord. 2013-001 §1, 2013; Ord. 2012-016 §1, 2012; Ord. 2012-013 §1, 2012; Ord. 2012-005 §1, 2012; Ord. 2011-027 §1 through 12, 2011; Ord. 2011- 017 repealed; Ord.2011-003 §3, 2011) Click here to be directed to the Comprehensive Plan (http://www.deschutes.org/compplan) PAGE 2 OF 2 — EXHIBIT A TO ORDINANCE 2016-029 sect%ow 5.12 Legisl.at%ve Ftistoru Background This section contains the legislative history of this Comprehensive Plan. Table 5.11,1 Comprehensive Plan Ordinance History Date Adopted/ Effective Ordinance 2011-003 8-10-1 1/ 1 1-9-1 1 2011-027 10-31-1 1/ 1 1-9- 11 2012-005 2012-012 2012-016 2013-002 Chapter/Section All, except Transportation, Tumalo and Terrebonne Community Plans, Deschutes Junction, Destination Resorts and ordinances adopted in 2011 2.5, 2.6, 3.4, 3.10, 3.5, 4.6,5.3,5.8,5.11, 23.40A, 23.40B, 23.40.065, 23.01.010 23.60, 23.64 (repealed), 8-20-12/11-19-12 3.7 (revised), Appendix C (added) 8-20-12/8-20-12 4.1, 4.2 12-3-12/3-4-13 3.9 1-7-13/1-7-13 4.2 2013-009 2-6-13/5-8-13 1.3 2013-012 5-8-13/8-6-13 23.01.010 2013-007 5-29-13/8-27-13 3.10, 3.11 Amendment Comprehensive Plan update Housekeeping amendments to ensure a smooth transition to the updated Plan Updated Transportation System Plan La Pine Urban Growth Boundary Housekeeping amendments to Destination Resort Chapter Central Oregon Regional Large -lot Employment Land Need Analysis Comprehensive Plan Map Amendment, changing designation of certain property from Agriculture to Rural Residential Exception Area Comprehensive Plan Map Amendment, including certain property within City of Bend Urban Growth Boundary Newberry Country: A Plan for Southern Deschutes County DESCHUTES COUNTY COMPREHENSIVE PLAN - 201 I CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.1 I GOAL 5 ADOPTED ORDINANCES PAGE 1 OF 3 — EXHIBIT B TO ORDINANCE 2016-029 Ordinance Date Adopted/ Chapter/Section Effective 2013-016 10-21-13/10-21-13 23.01.010 2014-005 2-26-14/2-26-14 23.01.010 2014-012 4-2-14/7-1-14 3.10, 3.11 2014-021 8-27-14/11-25-14 23.01.010, 5.10 2014-027 12-15-14/3-31-15 23.01.010, 5.10 2015-021 11-9-15/2-22-16 23.01.010 2015-029 11-23-15/11-30-15 23.01.010 2015-018 12-9-15/3-27-16 23.01.010, 2.2, 4.3 2015-010 12-2-15/12-2-15 2.6 Amendment Comprehensive Pian Map Amendment, including certain property within City of Sisters Urban Growth Boundary Comprehensive Plan Map Amendment, including certain property within City of Bend Urban Growth Boundary Housekeeping amendments to Title 23 Comprehensive Pian Map Amendment, changing designation of certain property from Sunriver Urban Unincorporated Community Forest to Sunriver Urban Unincorporated Community Utility Comprehensive Plan Map Amendment, changing designation of certain property from Agriculture to Rural Industrial Comprehensive Plan Map Amendment, changing designation of certain property from Agriculture to Surface Mining. Comprehensive Plan Map Amendment, changing designation of certain property from Tumalo Residential 5 -Acre Minimum to Tumalo Industrial Housekeeping Amendments to Title 23. Comprehensive Pian Text and Map Amendment recognizing Greater Sage -Grouse Habitat Inventories DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.1 2LEGISLATIVE HISTORY PAGE 2 OF 3 — EXHIBIT B TO ORDINANCE 2016-029 2016-001 12-21-15/04-5-16 23.01.010; 5.10 2016-007 2-10-16/5-10-16 23.01.010; 5.10 2016-005 11-28-16/2-16-17 23.01.010, 2.2, 3.3 2016-022 9-28-16/11-14-16 23.01.010, 1.3, 4.2 2016-029 TBD 23.01.010 Comprehensive Plan Map Amendment, changing designation of certain property from, Agriculture to Rural Industrial (exception area) Comprehensive Plan Amendment to add an exception to Statewide Planning Goal 11 to allow sewers in unincorporated lands in Southern Deschutes County Comprehensive Plan Amendment recognizing non - resource lands process allowed under State law to change EFU zoning Comprehensive plan Amendment, including certain property within City of Bend Urban Growth Boundary Comprehensive Pian Map Amendment, changing designation of certain property from. Agriculture to Rural Industrial DESCHUTES COUNTY COMPREHENSIVE PLAN - 201 I CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.1 I GOAL 5 ADOPTED ORDINANCES PAGE 3 OF 3 — EXHIBIT B TO ORDINANCE 2016-029 Plan Amendment from AG (Agriculture) To RI (Rural Industrial) Legend 3 Subject Property AG - Agriculture RREA - Rural Residential Exception Area RI - Rural Industrial RC - Rural Commercial PROPOSED PLAN AMENDMENT Anthony J. Aceti 21235 Tumalo Place, Bend Exhibit "C" to Ordinance 2016-029 V V 200 400 101 December 2010 BOARD OF COUNTY COMMISSIONERS OF DE k9G 1TES CONTY, OREGON rAlan er.us�,. U ..- 11P¢iily Dafla6n- fFl��� /^•�A �_ ATTEST Recording Secretary Dated this t dAy of QccemGvl, 2010 Effective Date. d 211 X-, 2017 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON FINDINGS OF FACT AND CONCLUSIONS OF LAW ON REMAND FILE NUMBERS: 247-16-000593-A; 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 approval of a plan amendment and zone change from Exclusive Farm use to Rural Industrial for a 21.59 -acre site located at Deschutes Junction north of Bend. FINDINGS OF FACT: A. Incorporated Findings of Fact: The Findings of Fact lettered A through K, from the Hearings Officer's decision dated September 30, 2015, are hereby incorporated to the extent they are consistent with these findings and conclusions. B. Procedural History: Central Oregon LandWatch appealed Ordinances 2016-001 and 2016-002 to the Land Use Board of Appeals. LUBA remanded the decisions on August 10, 2016. The applicant requested in writing on September 30, 2016 that the County Board proceed with the application on remand pursuant to ORS 215.435. The remand proceeding was limited to the issue remanded by LUBA and a public hearing on remand was held on October 31, 2016 following proper public notice. At the hearing the applicant and Central Oregon LandWatch (COLW) submitted written and oral testimony. The record was held open until November 7, 2016 for the applicant to submit rebuttal argument and final argument. COLW affirmatively waived an opportunity to provide rebuttal argument. The County Board deliberated and made a decision on December 7, 2016. The County Board issued its written decision on remand on December 28, 2016. C. LUBA Decision and Guidance: The Land Use Board of Appeal's Final Opinion and Order, Central Oregon Landwatch v. Deschutes County, LUBA No. 2016-012, denied many of Petitioner Central Oregon LandWatch's issues raised under the two assignments of error presented. However, because LUBA affirmed Petitioner's argument that the County Board erred in approving an exception to Goal 14 Urbanization, LUBA remanded the decision for further review. LUBA denied all of the arguments presented under Petitioner's first assignment of error, which challenged the County Board's conclusion that the subject property does not constitute "agricultural land" under OAR 660-033-020(1). LUBA Slip Op. p. 18. LUBA affirmed Petitioner's second assignment of error, concluding that the adopted findings did not supply the reasoning necessary to conclude that all rural use of the property is impracticable and is therefore irrevocably committed to urban uses. LUBA Slip Op. p. 24 and p. 28. Consequently, LUBA remanded the decision. 1 LUBA's Final Opinion and Order provides the County Board and staff guidance regarding the purpose of the Goal 14 exception and whether a Goal 14 exception is required to authorize rural uses on rural land. The decision states: And, "In a similar vein, the challenged decision applies the Rural Industrial Zone to the property. As explained below, the Rural Industrial Zone was adopted to allow rural industrial uses and ensure the uses allowed in the Rural Industrial Zone are rural rather than urban in nature. To approve a committed exception to Goal 14 to allow urban uses of the property (because all rural uses are impracticable) and then apply a zoning district that was adopted to limit industrial uses to rural industrial uses would appear on its face to be inconsistent. 'Whether approving an irrevocably committed exception to Goal 14 to allow urban uses of rural land and then applying a zone that was adopted to limit industrial uses to rural industrial uses is inconsistent or not, if 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." Slip Op. at p. 23-24 (emphasis supplied). 'What is clear is that the county approved an irrevocably committed exception to Goal 14: 'an exception to Goal 14 is required for the proposed plan amendment and zone change.' Record. 49. The only reason for approving such an exception that we can think of is to authorize urban uses of rural land." Slip Op. at p. 27 (emphasis supplied). D. Parties' Intentions: At no point during the prior proceedings did the applicant request that the County approve urban uses on the subject property. The applicant always asserted that he sought to allow rural industrial uses on the property at rural levels. When informed that the County believed he needed to apply for an exception to Goal 14 because of prior precedent, the applicant asserted he did not believe than an exception was necessary to allow rural uses, but would prepare an exception application to cooperate with the County. During the remand proceedings, the applicant's attorney reiterated that the applicant was seeking approval to allow only rural uses on the property. The County Board and county staff did not intend to authorize urban uses on the subject property through the Goal 14 exception approved by Ordinance 2016-001. This is reflected in the RI plan and zone designations as well as the conditions of approval imposed on the property that the County Board authorized. The County Board reiterates its intention to allow only rural uses on the property. E. Basis for Hearings Official's Decision: The County Board finds that the Hearings Officer did not intend to authorize urban uses on the subject property. The Hearings Officer's decision expressly states: "I find that it is appropriate to require an exception to Goal 14 to determine if the proposed "reasons" match the potential uses, and so that development limitations may be established as part of the goal exception to assure the subject site is not developed with "urban" uses. I note that such a goal exception was required by the Hearings Officer in ZC-14-2." Record p. 68 (emphasis supplied). F. Deschutes County Land Use Regulations: The Deschutes County Comprehensive Plan and Title 18 of the Deschutes County Code have been acknowledged by LCDC as consistent with all of the statewide planning goals. 2 The Comprehensive Plan states that the Rural Industrial plan designation and zoning applies to specific properties to provide compliance with state rules by adopting zoning to ensure that those properties remain rural and that the uses allowed there are less intensive than those allowed in unincorporated communities as defined in OAR 660-022. Comprehensive Plan, Ch. 3, p. 11. Specific Comprehensive Plan Policies implement this statement. These include: Policy 3.4.23 To assure that urban uses are not permitted on rural industrial lands, land use regulations in the Rural Industrial zones shall ensure that the uses allowed are less intensive than those allowed for unincorporated communities in OAR 660-22 or any successor. Policy 3.4.27 Land use regulations shall ensure that new uses authorized within the Rural Industrial sites do not adversely affect agricultural and forest uses in the surrounding area. Policy 3.4.28 New industrial uses shall be limited in size to a maximum floor area of 7,500 square feet per use within a building, except for the primary processing of raw materials produced in rural areas, for which there is no floor area per use limitation. Policy 3.4.31 Residential and industrial uses shall be served by DEQ approved on- site sewage disposal systems. Policy 3.4.32 Residential and industrial uses shall be served by on-site wells or public water systems. Policy 3.4.33 Community sewer systems shall not be allowed in Rural Industrial zones. The Comprehensive Plan also includes a policy specifically for the Deschutes Junction area intended to ensure rural uses in that rural area. Policy 3.10.5 Maximize protection of the rural character of neighborhoods in the Deschutes Junction area while recognizing the intended development of properties designated for commercial, industrial and agricultural uses. The Deschutes County Code Chapter 18.100 RURAL INDUSTRIAL ZONE — R -I, implements the above Comprehensive Plan policies. It limits the types of industrial uses, whether permitted outright or through conditional approval, to rural industrial uses at levels less intensive than for those allowed for in unincorporated communities. DCC 18.100.010 and .020. The DCC further restricts those industrial uses through use limitations, dimensional standards, off-street parking and loading standards, site design, additional requirements, solar setbacks, and restrictions through the Limited Use Combining Zone — Deschutes Junction. DCC 18.100.030 through .090. As discussed elsewhere in this decision, the County Board expressly interprets the above provisions to mean that all of the County's acknowledged rural industrial uses generally constitute rural uses and not urban uses. We also interpret the above provisions to mean that the Rural Industrial plan designation and zoning may be applied throughout the county where appropriate and when the criteria for such designation and zoning have been met, and that the RI designation and zoning is not limited to just exception areas or unincorporated communities in Deschutes County. G. Issue on Remand: The issue on remand is whether the rural industrial uses the applicant has requested approval to allow on the subject property (the uses allowed by the R -I zoning code) require an exception to Goal 14 or whether the application for a change in the plan and zone designation for the property to Rural Industrial can be approved without a Goal 14 exception 3 because those uses are rural uses or can otherwise be limited through conditions of approval so that only rural uses occur on the property. All other issues in this proceeding have either been resolved or are otherwise precluded because they were not raised or otherwise preserved in the appeal to LUBA. II. CONCLUSIONS OF LAW: For the reasons provided below and based upon the evidence in the record and the findings provided above, the Board of County Commissioners of Deschutes County concludes that the subject property does not qualify as "agricultural land" under OAR 660-033-020(1) for Goal 3 purposes, that an exception to Goal 14 Urbanization is not required for the County to approve the rural industrial comprehensive plan designation or zoning on the subject property and hereby approves the application to change the plan designation for the property from Agriculture to Rural Industrial and the zoning for the property from Exclusive Farm Use — Tumalo/Redmond/Bend Subzone (EFU-TRB) to Rural Industrial (R -I). LUBA's remand denied all of the Petitioner's challenges to our conclusion that the subject property does not qualify as "agricultural land" under OAR 660-033-020(1) and affirmed that portion of our previous decision. The consequence of that determination is that non -resource (i.e., other than EFU) rural uses may be permitted on the subject property consistent with the rural plan designation and zoning of the property. That issue has been resolved and is not subject to challenge in this remand proceeding. The County Board reaffirms that portion of our prior decision without further discussion or analysis. Given the above findings that the applicant did not intend to request and the County Board did not intend to authorize urban uses on the subject property, LUBA's remand warrants that we examine why an exception to Goal 14 was filed in this proceeding at all. It is plainly evident from the evidence in the record and the above findings that staffs request that the applicant submit an application requesting an exception to Goal 14, the Hearings Officer's consideration and approval of that exception, and the County Board's consideration of the exception application flowed directly from the precedent set by the Hearings Official's decision in ZC-14-2. The County had concluded that the decision was binding precedent and had consistently applied the approach used in that decision to assign R -I zoning to properties in subsequent applications. That decision, as interpreted and applied by the County, concluded that an exception to Goal 14 Urbanization was required whenever a property owner sought rural industrial zoning on rural property, and that the Goal 14 exception process was to ensure that the subject site was not developed with "urban" uses. The Hearings Officer's decision in ZC-14-2 was not appealed and, therefore, its reasoning was never reviewed by LUBA. As the excerpts from LUBA's opinion in this matter quoted above make clear, the Hearings Officer's analysis and conclusions in ZC-14-2 regarding the use of the Goal 14 exceptions process to limit Rural Industrial uses to those that are not "urban" is both rationally inconsistent and legally incorrect. As LUBA's decision plainly explains, the purpose of a Goal 14 exception is to allow urban uses on rural land. LUBA's decision also explains that to get a committed exception to Goal 14, one must demonstrate that it is impossible to locate any rural use on the subject property. It is thus illogical to approve a Goal 14 exception only to then limit it to Rural Industrial uses, which are "rural" by definition and acknowledgment. To do so is also inconsistent with the state's land use legal framework. The County Board hereby concludes that the County should no longer follow the precedent set forth in ZC-14-2 that requires approving an exception to Goal 14 before approving the change in plan designation and zoning of a rural property to the Rural Industrial plan designation and R -I 4 zoning if only rural uses are to be permitted on the property. As LUBA explained in its decision, the requirement for an applicant to apply for an exception to Goal 14 is to be limited to proposals that request urban uses on rural land, or as otherwise required by the DCC, state statute or state land use regulations. Based upon the above conclusion, because the applicant did not request urban uses to be allowed on the subject property and because the County Board did not intend to allow urban uses on rural land, the County Board concludes that the applicant should not have been required to submit an application for an exception to Goal 14 for the purposes set forth by the decision in ZC- 14-2 as followed by the Hearings Official in this proceeding. One related issue remains from the LUBA decision. LUBA seemed to think that the Hearings Officer believed that the application for R -I zoning would allow urban uses on rural land, and referenced page 49 of the record twice in its decision. The relevant passage from that page is: "I find that the subject property is 'nonresource land' based on the fact that it is not Agricultural Land subject to Goal 3, but the proposed plan amendment is subject to Goal 14. This is because it could result in the 'urbanization' of the subject site by allowing development with RI Zone uses that are more 'urban' in nature including both retail and service uses. For this reason, an exception to Goal 14 is required for the proposed plan amendment and zone change." Record p, 49. For the following reasons, the County Board rejects the Hearings Official's analysis provided above and similar comments contained elsewhere in the Hearings Officer's decision that the RI zone results in the "urbanization" of land for which a Goal 14 exception is necessary. First, uses allowed in the rural industrial zone are not more, or less, "urban" than other rural uses. Uses are either urban or they are rural. Rural industrial uses are no more urban or rural than rural residential uses, EFU uses or rural commercial uses. While R -I uses may be more or less intensive than rural residential uses or rural commercial uses, they remain "rural uses," particularly when developed consistent with the development standards for uses authorized within the county's RI zoning code. LUBA and the courts have even noted that farm practices permitted in the EFU zone often resemble industrial uses. The Hearings Officer erred when she concluded or otherwise suggested that the proposal for R -I zoning could lead to the urbanization of the subject site. Second, the County's Rural Industrial plan designation and the R -I zone provisions have been acknowledged by LCDC as rural uses. While acknowledgment is not a guarantee that all rural industrial uses will be rural in all instances, as LUBA recognized and as quoted above, the intention of the Rural Industrial plan designation and of R -I zoning is to ensure that permitted rural industrial uses are not urban uses and in fact are rural uses. Given the development limitations set forth under DCC 18.100.030 to .090, the authorized rural industrial uses on the subject property, if the application is approved, will be less intensive than those allowed in unincorporated communities. The Hearings Officer erred when she concluded or suggested that Rural Industrial development of the property under the zoning code would constitute an urban use of rural land. Third, there is nothing about the application or the subject property that suggests rural industrial uses within the range of uses permitted in the R -I zone would be "urban." The proposal simply seeks a rural industrial plan designation and zoning. All development proposals will be reviewed for consistency within the limitations established by the DCC, which will ensure that the approved uses are rural uses. With respect to the site, all industrial uses will be served by a DEQ approved on-site sewage disposal system consistent with Comprehensive Plan Policy 3.4.31. The property is not served by, nor can be approved for service by a community sewer system, which is consistent with Policy 3.4.33. Furthermore, the subject property is served by a public water system, which is consistent with Policy 3.4.32 and the Comprehensive Plan's limitations on property to ensure that rural industrial uses are in -fact rural. Any analysis, conclusions or 5 suggestions contained in the Hearings Official's decision that suggests any of the above site factors may lead to urban uses on rural land are in error. Based upon the above analysis, the County Board concludes that there is nothing about the applicant's request for a Rural Industrial plan designation and Rural Industrial (R -I) zoning that would categorically allow urban uses on rural land or that would require the applicant to obtain an exception to Goal 14 Urbanization. The County Board hereby incorporates those portions of the Hearings Official's findings and conclusions that are consistent with these findings and conclusions. The County Board hereby expressly rejects the Hearings Official's Goal 14 finding at page 32 of the Hearings Official's decision and finds instead: Goal 14, Urbanization. Goal 14 is "[t]o provide for an orderly and efficient transition from rural to urban land use." We find that the subject property is "nonresource land" based on the fact that it is not Agricultural land subject to Goal 3. Because our analysis leads us to conclude that the proposal as conditioned does not represent an "urban" use of land, and because the proposal seeks to apply rural industrial plan and zone designations to the property and the uses permitted under R -I zoning as restricted by the development standards provided in the Deschutes County Code constitute rural uses on rural land, the proposal is consistent with Goal 14. As noted in LUBA's decisions and by the parties during the remand proceeding, LUBA set forth the analysis required for evaluating individual applications to determine whether rural industrial uses would allow urban uses on rural land in Shaffer v. Jackson County, 17 Or LUBA 922 (1989), as explained further in its decision in Columbia Riverkeeper v. Columbia County, _ Or LUBA (2014)(LUBA No. 2014-017, August 27, 2014). The following is intended to implement the analysis required by those decisions. The Columbia Riverkeeper decision explained that the Shaffer analysis requires consideration of several factors that may indicate a use is rural rather than urban. The factors set forth by LUBA and responses are provided below. (1) Do the uses employ a small number of uses? Yes, all of the uses permitted in the RI zone employ a comparatively small number of persons, particularly when limited by the development standards of the RI zone intended to limit the scope and intensity of permitted uses. (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 all of the uses permitted in the RI zone are dependent on site specific resources. (3) Are the permitted types of uses typically located in rural areas? Yes, the permitted RI zone uses are acknowledged as the type of uses typically found and 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. No new facilities or services will be extended to the property for the permitted uses. Because the response to one of the Shaffer factors was "No," the Shaffer analysis 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. 6 As discussed above, the County Board of Commissioners does not intend to allow urban use of the subject so will not take an exception to Goal 14 as permitted above under option (2). This decision repeals the previously approved Goal 14 exception component of our previous decision. 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 help to ensure that the uses permitted by the R -I zone, to include those that are not dependent on a site specific resource, are developed as rural uses of land instead of at urban levels of use on rural land. The County Board has reviewed each of the permitted outright and conditional uses provided under DCC 18.100.010 and .020 and conclude that each of those uses, if developed consistent with the development limitations provided under DCC 18.100 and elsewhere, generally constitute rural uses of land. During the initial proceedings, and as repeated by the applicant's attorney on remand, the applicant proposed prohibiting the development of pulp and paper manufacturing as permitted outright under DCC 18.100.010.6.3 due to the fact that its off-site impacts may make such development an urban use of land if allowed on the subject property. The County Board concurs with the applicant's analysis and imposes Condition of Approval 2, which prohibits pulp and paper manufacturing on the subject property. The County Board has reviewed each of the other RI zone's outright permitted and conditional uses and concludes that each of those uses would result in the rural use of land if developed on the subject property. No party to the proceeding has articulated reasons why any of those uses, if developed consistent with the DCC limitations, would constitute an urban use of rural land. Consequently, the Count Board need not exclude any other RI uses from the subject property to ensure that only rural uses are developed on the site. The County Board Ultimately Concludes: • To reaffirm our previous decision that the subject property is "nonresource land" because the property is not "agricultural land" under OAR 660-033-020(1) and is therefore not subject to Goal 3. • To repeal those portions of Ordinance 2016-001 and the related findings that approved an exception to Goal 14, on the basis that a Goal 14 exception is not necessary to approve the requested plan designation and zone change, or to allow rural industrial uses on the subject property. • To approve the Comprehensive Plan Amendment to re -designate the subject property from Agriculture to Rural Industrial and the corresponding Zone Map Amendment (Zone Change) to reassign the zoning from Exclusive Farm Use — Tumalo/Redmond/Bend Subzone (EFU-TRB) to Rural Industrial Zone (R -I). • To impose conditions of approval necessary to implement this decision. III. Findinos. Analysis and Conclusions in Response to COLW Testimony on Remand Because COLW appeared on remand and continues to oppose the proposal, because its testimony posits interpretations of the Deschutes County Comprehensive Plan that the County Board concludes are incorrect, and because the County Board ultimately approves the requested plan designation and zone change applications, the County Board directly addresses issues raised by COLW's written and oral testimony in the findings below. 7 A. Waived Issues COLW's testimony on remand raises numerous issues that the County Board concludes have been waived or are otherwise precluded. These issues include, but may not be limited to: whether the proposal complies with Goals 5, 6 and 9; whether the site is "suitable" for industrial uses; and whether the County's approval criteria for a plan and zone change satisfy requirements for such land use actions set forth by cases such as the ones cited by COLW. As the applicant's rebuttal explains generally, because each of those issues could have been raised in prior proceedings and appealed to LUBA but were not, and because they do not pertain to the sole issue on remand or relate to the County Board's determination regarding whether the uses allowed in the RI zone would result in the rural or urban use of land, COLW is precluded from raising those issues on remand. As a precaution, and without conceding the conclusion that COLW has waived the above issues by not challenging them in the first instance in prior local proceedings or in the appeal to LUBA, the County Board adopts as its own the arguments on the merits presented in applicant's rebuttal to COLW's testimony on remand with respect to these issues. B. Nature of COLW's Arguments LUBA's remand decision provided two approaches for parties to challenge a conclusion by the County Board that the permitted RI zone uses are generally rural in nature. LUBA explained that a party could argue that all permitted RI zone uses are categorically urban uses, and/or a party could argue that some of the permitted RI zone would constitute an urban use of rural land on the subject property. Regarding the latter, page 28 of LUBA's opinion expressly envisioned that: "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 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." The County Board finds that COLW's arguments are unequivocal and absolute, and assert that all industrial uses, to include those permitted in the RI zone, are urban uses that require an exception to Goal 14 in all instances before those uses can be permitted on rural land. The County Board further finds that COLW made no effort to identify which, if any, of the range of permitted and conditional RI zone uses might individually constitute an urban use of land on the subject property, nor did COLW provide any analysis, argument, comments or guidance about how the County Board should review specific RI zone uses to determine whether that particular use might potentially constitute an urban use of land if permitted on the subject property. In this instance, only the applicant provided us such assistance and argument. Furthermore, COLW did not provide any reasoning or analysis related to the actual listed uses as to why each is an urban use of rural land based on the characteristics of the identified use, and why the development limitations provided under DCC 18.100.030 thorough .090 would not limit those uses to rural levels of use on rural land. The COLW testimony provided no recommendations on how any particular RI listed use they considered to be urban could be conditioned to ensure the use would result in the rural use of rural land. COLW's arguments were purely legal and were entirely divorced from the actual uses listed and development standards provided in the DCC's RI zone provisions. The County Board finds that the sole issue raised by COLW's arguments was whether all industrial uses, without exclusion, require an exception to Goal 14 before they may be permitted on rural land. As discussed above, we reject that argument and conclude that the uses permitted in the RI zone are inherently rural uses. 8 C. Interpretations of the Deschutes County Comprehensive Plan and Deschutes County Code COLW's arguments on remand and orally at the hearing posit interpretations of the Deschutes County Comprehensive Plan that the County Board finds are erroneous. These include interpretations to the effect that: the Comprehensive Plan and DCC consider rural industrial uses to be urban uses; the comprehensive plan intends that rural industrial uses are intended to be permitted only in one of the County's unincorporated communities; the RI zone was developed only to bring existing industrial lands that received an exception at the time of acknowledgement into compliance with state land use regulations and is otherwise limited to existing industrial uses; and that the RI zone is limited to exceptions areas only. We correct those misinterpretations below. COLW posits an interpretation of a statement from Section 3.4 of the Comprehensive Plan: "Unincorporated Communities: new commercial and industrial uses are permitted in unincorporated communities. These uses are limited in size. See Chapter 4 for more information." COLW contends that statement means that new industrial uses can be permitted only in unincorporated communities. That interpretation inserts the word "only" where it is not and ignores the greater context of Chapter 3 of the Comprehensive Plan as well as specific plan policies in that chapter, which are quoted earlier in this decision. The above statement expressly authorizes industrial uses in unincorporated communities; it does not prohibit rural industrial uses on rural lands. COLW's posited interpretation is inconsistent with the quoted language The County Board interprets Comprehensive Plan Chapter 3 to provide that the purpose of the Rural Industrial plan designation and zoning is to ensure that those properties that are zoned RI will remain rural and that the uses allowed on those properties are less intensive than those allowed in unincorporated communities. That provision is implemented by Policy 3.4.23 and the development standards adopted under DCC 18.100 RURAL INDUSTRIAL ZONE — R -I. The key import of that language is that the County Board considers rural industrial uses to be rural uses, not urban uses, and that they are allowed in rural areas throughout the county, not just in unincorporated communities. COLW also narrowly reads the following Comprehensive Plan statement: "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 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." COLW focuses on the term "exception area" to contend that RI uses are permitted only in exception areas, despite also arguing that RI uses are permitted only in unincorporated communities. The County Board reads this provision more broadly, giving weight to the language that notes the role state rules have regarding permitted uses. The County Board recognizes, as it did in the decision affirmed by LUBA in this proceeding, that the designation of land as not suitable for agricultural use does not lie solely through the exception process under state rules. The County Board interprets the use of the term exception area in this passage broadly to include any lands that have been lawfully deemed not subject to the resource goals (Goals 3 and 4) for whatever reason. Consequently, the County Board interprets the above comprehensive plan language as not prohibiting the designation of individual properties for rural industrial uses where those properties qualify for such designation because they have either received an exception to 9 Goal 3, or because the provisions of Goal 3 do not apply to them because they do not meet the definition of "agricultural land" and are therefore nonresource land. However, for such properties, Policies 3.4.28, 3.4.31, 3.4.32 and 3.4.33 provide standards, which have been incorporated into and implemented by DCC 18.100, that apply to rural industrial development to help ensure that such uses are developed at rural levels of intensity consistent with state rules. While the Comprehensive Plan permits industrial uses in unincorporated communities and in urban areas, it does not prohibit rural industrial uses at rural levels of intensity on rural lands. COLW's proposed interpretations ignore the plan language and plan policies that most directly address the purpose and application of the Rural Industrial designation to new properties. As presented in the findings, the County Board concludes that the RI designation and zoning is not limited to only unincorporated communities and existing exception areas as COLW asserts. D. COLW's Specific Arguments COLW contends that LUBA remanded our decision solely for the county to provide evidence showing the property cannot be used for rural uses and to demonstrate that an exception to Goal 14 is warranted. The County Board disagrees. While the remand proceeding could have been directed towards findings that support an exception to Goal 14, LUBA did not limit our remand to that one approach. LUBA recognized that the county may not have intended to allow urban uses on rural land and that an exception was therefore not warranted or appropriate. Our decision on remand follows the guidance LUBA provided for review of rural industrial uses and the requirements to ensure an approval in this instance does not permit urban use of rural land. COLW repeatedly cites a "necessary" standard in its arguments. COLW does not identify any DCC or state -mandated approval criterion that requires a demonstration that rural industrial uses are "necessary" and we are unaware of any. Furthermore, such arguments do not relate to whether rural industrial uses represent rural or urban uses, or to whether a Goal 14 exception is required before changing the plan and zone designation of the property. The issue of whether the proposal satisfied the approval criteria for a plan and zone change was the subject of our initial proceeding. If COLW believed the DCC or other state -mandated approval criteria imposed a "necessary" standard, it should have raised that issue in that proceeding or on appeal to LUBA. It did not. Consequently, COLW is precluded from raising such issues in the first instance on remand. COLW contends that the County Board lacks the information necessary to adequately determine whether uses permitted under the RI zone will be rural or to engage in the analysis required under Shaffer v. Jackson County. We disagree. While the fact that County Board does not have the benefit of a specific proposed use complicates the analysis and the County Board must assume that development will be at the most intensive levels permitted under the development standards, there is sufficient evidence in the record about the site and the surrounding area to properly evaluate whether RI uses, if permitted under the DCC development standards and as conditioned by this decision, would constitute an urban use of rural land. Furthermore, nothing in Shaffer or the other cases presented to the County Board precludes review without a specific development proposal and LUBA's remand decision suggests this is permissible in the passage quoted above. For the reasons provided elsewhere in these findings, the County Board disagrees with COLW's categorical statements such as "industrial land is urban use" and its repeated statements that an exception to Goal 14 is necessary before rural industrial uses can be permitted on the subject property. Approval of the applications as conditioned is consistent with Goal 14 because this decision limits the permitted rural industrial uses to rural uses and is therefore not prohibited by the goal. The County Board rejects the limited definition COLW posits for "rural use" drawn from 10 case law as ignoring decades worth of cases and land use regulations that have further expounded on the meaning of that term. Rural use is not limited to "sparse settlement, a small farm, or a large acreage home site." IV. DECISION: Based upon the foregoing Findings of Fact and Conclusions of Law, the Board of County Commissioners hereby APPROVES the Applicant's applications for a Comprehensive Plan Map amendment to re- designate the subject property from Agriculture to Rural Industrial and a corresponding Zone Map Amendment (Zone Change) to reassign the zoning from Exclusive Farm Use — Tumalo/Redmond/Bend Subzone (EFU-TRB) to Rural Industrial Zone (R -I) subject to the following conditions of approval: 1. This approval is based on the applicant's burdens of proof, supplemental materials, and written and oral testimony. Any substantial change to the approved plan amendment or zone change will require new land use application(s) and approval(s). This approval allows on the subject property all uses allowed outright and conditionally in the Rural Industrial zone, except that any pulp and paper manufacturing use shall not be allowed within the subject property. 3. The Deschutes County Year 2011 Comprehensive Plan shall be amended to include an updated description of the Deschutes Junction rural industrial site in Chapter 3.4, as follows: The Deschutes Junction site consists of the following tax lots: 161226C000107 (9.05 acres), 16126C000106 (4.33 acres), 161226C000102 (1.41 acres), 161226C000114 (2.50 acres), portions 161226C000300 (12.9 acres). 161226C000301 (8.93 acres), 161226A000203 (1.5 acres), those portions of 161226C000111 located west of the Burlington Northern - Santa Fe railroad tracks (16.45 acres), 161226C000201 (20.27 acres) and 161227D0000104 (1.32 acres). Generally, the Deschutes Junction site extends to property to the west of Highway 97, bordered by Tumalo Road and Tumalo Place and is bordered on the east by the Burlington Northern Railroad, on the north by Tumalo Place (except for a portion of 1612226A000111), and on the south by EFU-zoned property owned by the City of Bend. 4. Prior to any development of the property, the developer shall work with Swalley Irrigation District to transfer some or all of the existing 16 acres of irrigation water rights associated with the subject property to ensure that there will not be any development on top of irrigated land; only those irrigation water rights that can be dedicated to beneficial uses, such as irrigated landscaping, may be retained. 5. As part of any development of the property, the developer shall a. Create a system of access easements that connect the three driveways with any lots created by partitioning or subdividing of the land. b. Work with Commute Options to assist in preparing a two year start-up Transportation Demand Management program (TDM). The program will include: 1) Conducting workshops and training on TDM alternatives; 2) Provide posters and brochures promoting smart commuting choices; 3) A plan to have employees from on-site businesses have staggered start and end work hours. c. Prepare an internal Traffic Control Plan (in accordance with the MUTCD), that includes: 1) Directional signing to Redmond, Bend, Tumalo at each intersection; 2) Time -restrictive (4 PM — 6 PM) "NO LEFT TURN" sign at the driveway onto Tumalo Place; 3) Bridge undercrossing shall be signed "ONE LANE ROAD"; 11 4) Prepare a site map, with the aid of DCPWD, showing the location of traffic control devices. d. Have the Deschutes County Transportation Planner approve the Traffic Management Plan. 6. Prior to commencing any permitted use on the property, the applicant, developer or operating business will obtain all necessary air, water and land resource quality permits for the use from the appropriate local, state or federal regulating agency and will comply with the requirements of such permits. 12