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2017-379-Minutes for Meeting May 03,2017 Recorded 7/14/2017Recorded in Deschutes County CJ2017-379 Nancy Blankenship, County Clerk Commissioners' Journal 07/14/2017 4:19:31 PM 12#3011111111111111111111111111111111111111 ror i ecoramg stamp Unly Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97703-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org, MINUTES OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS Allen Conference Room Wednesday, May 3, 2017 Present were Commissioners Tammy Baney, Anthony DeBone and Phil Henderson. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David Doyle, County Counsel; and Sharon Ross, Board Executive Secretary. Attending for a portion of the meeting were Wayne Lowry, Finance Director; Whitney Hale, Public Information Officer; Nick Lelack and Peter Gutowsky, Community Development Department; Timm Schimke, Director of Solid Waste; and one other citizen. One representative of the media was in attendance. CALL TO ORDER: Vice -chair DeBone opened the meeting at 1:33 p.m. ACTION ITEMS 1. FY 2018 Fee Schedule Christina Partain, Accounting Technician presented the fiscal year 2018 proposed fee schedule and noted the annual review of the fee schedule comparing actual cost of service and including any state mandated changes. Ms. Partain noted any department changes were noted in staff memos that have been provided to the Board with this agenda packet. • Community Development Department staff reviewed their proposed fee adjustments to cover the actual cost of services maintaining current service levels Minutes of Board of Commissioners' Work Session May 3, 2017 Page 1 of 4 within the Building Safety Division, Code Enforcement, Environmental Soils, and Planning (staff memo attached to the record). The department is fully supported based on fees. Commissioner DeBone inquired on the recent study done in the department regarding fees and if raising fees due to cost of business results in efficiencies. Mr. Lelack noted the department is continually investing in staff to improve efficiencies. Land use volumes were 800 applications for calendar year 2016 and will easily reach 900 applications for 2017. Commissioner Henderson expressed interest in reviewing a ten year comparable chart. Commissioner Henderson also spoke on the cost of fees for building a home. A long range planner position is being considered by the department with the possibility of being paid for by the general fund. Commissioner Henderson expressed his opinion the department budget appears to have enough funds to cover that position. The hope is to fund the long range planner through the fee revenue. County Administrator Anderson made note this position recommendation will be a part of discussion during the budget hearings. • Health Services - James Wood of Health Services reviewed the Health Services fee changes (staff memo attached to the record). He noted the majority of the fees are set based on actual cost of service. Actual cost of service is not always reimbursed at 100%. There are sliding fees to assist clients facing financial distress. A $50 non - cancelled appointment fee was added as a tool to encourage clients to come in for their appointments. • Solid Waste Department - Timm Schimke, Director reviewed the proposed fee change to incorporate a tip fee increase. The increase is $5 per ton for waste disposed by franchise collectors and $1 increase in minimum charge for waste disposed by self -haul customers. The fee increase will provide for funding necessary for capital needs. Ms. Partain noted the Public Hearing to consider adoption of the Fiscal Year 2018 Fee Schedule is set for June 14th 2. Draft Social Media Policy for Consideration Whitney Hale, Public Information Officer presented a draft social media policy noting social media was governed by the communications policy in the past. This draft policy gives better guidelines to departments. Commissioner DeBone commented on the value of having direction for government employees on posting items to social media and also adds to our sense of professionalism and image. Minutes of Board of Commissioners' Work Session May 3, 2017 Page 2 of 4 BANEY: Move approval HENDERSON: Second VOTE: BANEY: Yes HENDERSON: Yes DEBONE: Vice chair votes yes. Motion carried 3. Continued Goal 11 Remand Discussion Nick Lelack and Peter Gutowsky of Community Development Department along with Eric Nigg, Department of Environmental Quality and John Jennings, Department of Land Conservation and Development were present to review the challenges associated with the Goal 11 exception. The term inevitable health hazard wasn't strong enough for LUBA and they remanded and we are faced with the decision if wanting to initiate a remand. Discussion held on the importance to engage the residents in South County and the need to address ground water quality. Ground water protection of South County is always included as a placeholder on the Community Development Department's work plan. Discussion held on options including the possibility of tackling one neighborhood at a time. DEQ is the lead for ground water protection but at this time are low on resources. Community outreach is needed. Commissioner Henderson requested to review the minutes of the DEQ meetings for further background information. OTHER ITEMS • Marijuana Legislation: Judith Ure, Management Analyst and Nick Lelack, Community Development Department, gave an update on the Joint Committee on Marijuana. Discussion held on holding meetings with various legislators regarding the Deschutes County regulations that were set after working with the Marijuana Advisory Committee. Commissioner Henderson noted his interest in traveling to Salem for discussions on Monday. Ms. Ure will work with Commissioner Henderson on talking points to take to the committee. Peter Gutowsky and Matt Martin of Community Development would be available as well. Last fall after regulations were set, there was a notation made by Deschutes County that an assessment and review of the program may be beneficial and that consideration of review remains at this time. Minutes of Board of Commissioners' Work Session May 3, 2017 Page 3 of 4 At 3:13 p.m. Vice Chair DeBone called for a recess and reconvened the meeting at 3:18 p.rn. At this time of 3:18 p.m. the Board went into Executive Session under ORS 192.660 (2) (d) Labor Negotiations and under ORS 192.660 (2) (h) Litigation. The Board carne out of Executive Session at 4:16 p.m. ADJOURN : Being no further discussion, the meeting adjourned at 4:16 p.m. DATED this Day of 2017 for the Deschutes County Board of Commissioners. ATTE : T: Recording S cretary Tammy Baney, Chairr Anthony DeBone, Vic Philip G. HE Chair ,t erson, Commissioner Minutes of Board of Commissioners' Work Session May 3, 2017 Page 4 of 4 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ WORK SESSION AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 1:30 PM, WEDNESDAY, MAY 3, 2017 Allen Conference Room - Deschutes Services Building, 2ND Floor —1300 NW Wall Street — Bend Pursuant to ORS 192.640, this agenda includes a list of the principal subjects anticipated to be addressed 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. Work Sessions allow the Board to discuss items in a less formal setting. Citizen comment is not allowed, although it may be permitted at the Board's discretion. If allowed, citizen comments regarding matters that are or have been the subject of a public hearing process will NOT be included in the official record of that hearing. Work Sessions are not normally video or audio recorded, but written minutes are taken for the record. CALL TO ORDER ACTION ITEMS 1. FY 2018 Fee Schedule - Christina Partain, Accounting Technician 2. Draft Social Media Policy for Consideration - Whitney Hale, Public Information Officer 3. Continued Goal 11 Remand Discussion - Peter Russell, Senior Planner OTHER ITEMS 4. EXECUTIVE SESSION: under ORS 192.660 (2) (d) Labor Negotiations These can be any items not included on the agenda that the Commissioners wish to discuss as part of the meeting, pursuant to ORS 192.640. At any time during the meeting, an executive session could be called to address issues relating to ORS 192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor negotiations; ORS 192.660(2)(b), personnel issues; or other executive session categories. Executive sessions are closed to the public; however, with few exceptions and under specific guidelines, are open to the media. Board of Commissioners Work Session Agenda Wednesday, May 3, 2017 Page 1 of 2 ADJOURN Deschutes County encourages persons with disabilities to participate in all programs and ® activities. To request this information in an alternate format please call (541) 617-4747. FUTURE MEETINGS: Additional meeting dates available at www.deschutes.ora/meetinacalendar (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 Work Session Agenda Wednesday, May 3, 2017 Page 2 of 2 X a) m N o CD c co > > > > > > > > > > > > O Ce *k N -N (MCO ti CO 00 N(C) CO N- CO CO ti 0000N Mt- 00 O N N NM CO MM CO MM d' d- 'j LC) In LC) LCD LOCO 0) Ca a. Fund/Department (0 c a) c E O -t E co O a) N 0 0 -, o O o c c Adult Parole & Probation .(0 L.L. - _o = (0 o O U O 2 -c 12 1 c.0 eL a) • W i o i U 06 d 5 U > (o L > L O a) 0 LLQ and al U Ems, c 0 0 0 (a o 0 7 N 0 0) c O = 2 Co ) _ U) >+ (a 10 Q U o U J i0 - V U O E •C N 0 fn (0 t"!) 0 p (0 O N OOLi C92 ��aWfYfYCf) Solid Waste Tax Collector N N 112 (0 H E 0 N O Z `0 CV LL .5 a) o d 0 U N 0) LL d N co 0)— 7 0 N Ct T C 0 U a) 0) L U 0) CU 0 ENACTMENT AUTHOR r z FY 2017 Fee ($) DESCRIPTION LO Q t a) 0) o. 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(n (n I, (n (n (n (n (n (n (n (n (n ' (n (n (n (n!!(n u)' �� c cn'I, c . a) (0 :a) U 0 c E 0 cnN •cr w c c Y o c O d a• a) c d 0 • T a) a) CO CO a a' U 'U o o c' C E E O O -CC .Nc C C E • E (0 (0 c i c (0 (0 L 0) E • E CD elle CO I (0 *ACS=Actual Cost of Services To: From: Date: RE: Community Development Departmen Planning Division 001101n9 Sartty Division Environmenlal Soils Division P,0, Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (54 1) 388-6575 Fax 4541; 385-1764 http://www.deschutes.orgicd Board of County Commissioners Nick Lelack, AICP, Director May 3, 2017 CDD Proposed Fee Adjustments FY 2017-18 The Community Development Department (CDD) is primarily a fee -supported department. CDD's FY 2017-18 requested budget highlights:, • Permit volume increase estimate of 5% to 10%; • Overall budget increase of 6.63% from FY 16-17 adjusted budget; • Of the requested 6.63% increase, 3.81% is due to health benefits trust charges, PERS and cost of living adjustments; • CDD's requested budget includes a special request to add 1.0 FTE, a senior long range planner, funded by fees and, if necessary, the General Fund toward the end of FY 18; • Budgeted reserve fund increases are projected to only apply to the Building Safety Division for building and electrical revenues. Other CDD divisions are not projected to generate additional reserve funds next fiscal year. CDD proposes the following fee increases for FY 2017-18 to cover the actual cost of services. The requested fee increase funds the difference between projected operating expenses and revenues, allowing the department to maintain current service levels. • Building Safety Division o Building Permits: o Electrical Permits: 0% (no fee increase) 1.5% fee increase • Code Enforcement O Administrative fee increase of .04% of building valuation (0.17% to 0.21%) • Environmental Soils O 2.5% fee increase • Planning O Advanced planning administrative fee increase from 0.23% to 0.25% .! Ser h Prude O Public information administrative fee increase from 0.23% to 0.25% o Most land use planning fees: 2.5% fee increase. Four exceptions below due to the Division's not covering the costs of processing the application types below due to complexity, controversy and legal requirements. 1. CDPN 34 — Improvement Agreement — Modified — modified improvement agreements require a revisit with the original improvement agreement and coordination with legal counsel. 2. CDPN 35 — Improvement Agreement — New — new improvement agreements are generating significant review by legal counsel as a result from recent solar farm decisions and the $1M bond requirement. 3. CDPN 84 — Site Plan Change of Use — these decisions are increasingly complex, requiring lengthy decisions, e.g. Sunriver Brewery — 28 page decision. 4. CDPN 112 — NEW FEE — Lot Line Adjustment — With Notice — due to a recent Land Use Board of Appeals Decision, Bowerman vs. Land County, serial lot line adjustments require notice. o Lot of Record Verification — With Notice — Commissioner Henderson expressed an interest in exploring a tiered fee for lot of record verifications during an April 5, 2017 work session. Stemming from Grimstad v. Deschutes County, the issuance of prior building permit no longer constitutes a lot of record verification. The current fee of $925 and proposed 2.5% increase reflects the average cost of processing these applications. It should be noted that many require significant time to verify lot of record status. The requested fee increases are projected to generate approximately $241,700 in revenue. CDD also conducted its annual fee survey of building, electrical and planning fees from 10 counties and cities throughout the region and State in order to gather and compare fee schedules proposed in FY 2017-18. The results of this survey varied from no fee increase to 3%. Please find attached a summary of CDD's current fee comparison with similar Oregon jurisdictions. It also important to note that only one (1) jurisdiction is completely financially supported with fees and without any General Fund monies for operations (excluding long range planning), Jackson County, similar to Deschutes County. All other jurisdictions included in the survey provide General Fund money to support permit operations and counter services. 2 E (1) Request support for Sr. Long Range Planner E a) c c.c "E" : 2 , a c c (a a Ta.. c !,too • 0 0 0 0 2 0 , ,01 c.i I iu 0 W :0.0 a) . la ID ' „. „.. . 2 a) 0 0) _c 600• 0 Clackamas County Crook County Unknown at this ti Jackson County Anticipate 1.5% - 2% Under discussion Jefferson County a) E a)(/) En lc '‘,.1--"Z • ..-3%'" ro • ",35--' 6 ,ca to 6 6 -o - o c o 3 c .. c D 13.cz 6 6 c o co 0) Cc) 0 Washington County tor, longe range & compliance Unknown at this time City of Redmond 0 nomah County '10 (0 o 0 0) li T, i (0(0 GO 4)) 0) ''.6 E '65 (0.0 rz 0 z 40 0 0 64 V) 0 0 4,4 ..— 0 tO CO 0 =0 0 20. 0 c0 0. ,i 0 0 t•-• :0 01 O. ai rst 4, ...- 0 csi c‘i 0 04 0 0 64 64 69 E9 4449 0 C, 0 0 <3 tO CO SD tv —4 0 0 0 0 C) 0 (0 N 4)4 0 0 64 6 9 tT, 51 4r, gRs t 12 5i 2 2' 10,„ N 0 0 01 0 69 09 .9 64 69 4,9 64 E9 cO E c c E3: � d a) C C a) -c fa 0 0 z 0 a) C 0 .E O N 00 tl' 00 N 01 V' (0 0) (n O CO u) N+ CO Lo u) co ort ' o n W r u) N N 0)co 0) N u) O 4 co co (0 oil N,'6959 03 �0�uj 4A FK EA Od) (0 M co (O 4 (O c0 (0 O V3 (n W (0 N N -M6- (0 u) 03 CO (0 O (f3 (A 'q' EA n 03 EA (0 ff3 co M Eli H O O 0 10 (0 M 0 V' O O co O NOMti MOOO 0 O 64.. 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V co a) V to N r a) Sr. `Cr. (O O) V U) Q W U E..... 69 (A(f3 Efl Er, u;,- EH 03 6964(f) 690)Efl K) 64 G /Z w � y 'N N W Q •' E Q > Lim. LL S a i L B N LL c N LL w C W E Uu. E U W m (6 C O r (6 C: Z 42 O 3__ c O �� _ N c IL N O > u" a) N L1.� '= "OO d a) N > (6 f6 c 4L LU n c .a p o o r O. W 'o c 'a Ts o o .c a) m N o- c .- .- _ p O v 0 c I to u) Q 0 u) < a v> U) Q U 0) ¢ L> N — > 11. Eii E a)) 'o N W W (i) o cn LL - N 0 0 r;,-.:0 u) a '63 c co c 0 — 0 DESCHUTES COUNTY HEALTH SERVICES MEMORANDUM To: Board of County Commissioners Christina Partain From: James Wood Fiscal Services Supervisor CC: David Inbody Date: 5/2/2017 Re: FY 2018 Health Services Fee Changes Public Health Fees for Vital Records are mandated by the State of Oregon. The Oregon Health Authority issued a new fee schedule effective January 1, 2016 and those changes were incorporated into the FY 2017 Public Health Fee Schedule Vital Records section last year. Since last year's fee schedule update, there have been no changes by the Oregon Health Authority that would go into effect for FY 2018. Public Health fees for New Patient Office Visits and Well Service Visits are calculated based on an actual cost analysis of FY 2016 services performed. The formula for calculating the fees is dictated by the Oregon Health Authority and the calculations are reviewed during the triennial review, performed by OHA. The majority of the FY 2018 fees for Office Visits and Well Services have been increased by 2-3%. The two main variables for this calculation are actual expenditures and service utilizations. The Maternal Child Health program fees are mandated by the Department of Human Services and will remain unchanged until mandated. Fees for the Immunizations program are mandated by the Department of Human Services and typically adjust on a semi-annual basis. The most recent mandated fee increase is reflected in schedule. Due to increases in costs of supplies, procedure time, and personnel labor, In -House Testing fees are increased by 2-3%. The Environmental Health program had a fee increase effective 1/1/2016. There are no fee increases proposed for FY 2018. Government entities will no longer receive a 50% • Page 1 break on full service restaurant inspection fees, they will be charged at the same rates as non-governmental entities. Behavioral Health Health Services utilizes a "unit cost calculator" financial tool to set the annual behavioral health service fees. Historically, this tool was created to provide Oregon Community Mental Health Programs with a reliable and standard methodology for calculating unit costs for the services provided. The primary inputs to the fee setting formula are budgeted expenditures, FTE count of direct service personnel, type of direct service personnel, and number of hours available for services. Budgeted expenditures, FTE count, and type of direct service personnel are consistent with the FY 2018 Requested Budget. Using the inputs, the model calculates a billable rate for each service provided, by each type of direct service personnel. Billable rates are summarized on the County's fee schedule by either service provided, or type of direct service personnel. The update to the unit cost calculator for FY 2018 resulted in an overall net increase to billable rates of 4%. The actual range of change experienced amongst the different service types and direct service personnel types ranged from a 7% decrease to an 11% increase. The FY 2018 results include staff and costs related to the Certified Community Behavioral Health Center (CCBHC) pilot program. A fee for Crisis Services has been identified for FY 2018. This is not a new charge, as Crisis Services have been billed during prior years using alternate fee codes associated with the staff performing the services. A new "non -cancelled appointment" fee has been proposed for FY 2018 to encourage clients to notify behavioral health staff of any appointment cancellations due to client circumstances. In summary, Health Services fees for FY 2018 do not vary significantly from the FY 2017 fees. • Page 2 To: Christina Partain From: Timm Schimke Date: April 28, 2017 Re: Fee Schedule The fee schedule for the Department of Solid Waste has been adjusted to incorporate a proposed tip fee increase which has been discussed with the BOCC and the Budget Committee. The increase is $5 dollars per ton for waste disposed by franchised collectors, and a$1 increase in the minimum charge for waste disposed by self — haul customers. The fee increase is estimated to produce about $650,000 per year in revenue to the Department. These funds are needed to fund capital needs such as landfill cell construction, closure, post -closure care, and to prepare for replacement of Knott Landfill when it reaches capacity. Other changes in the fee schedule are corrections, or clarifications of existing fees TES 0.. o Z $ -< Deschutes County Board of Commissioners 1300 NW WaII St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Work Session of Mav 3, 2017 DATE: April 28, 2017 FROM: Whitney Hale, Administrative Services, 541-330-4640 TITLE OF AGENDA ITEM: Draft Social Media Policy for Consideration PUBLIC HEARING ON THIS DATE?: No ATTENDANCE: Whitney Hale SUMMARY: Draft social media policy for BOCC consideration. Deschutes County Administrative Policy No. Effective Date: DESCHUTES COUNTY SOCIAL MEDIA POLICY STATEMENT OF POLICY It is the policy of Deschutes County that social media is an effective outreach tool to disseminate information, and promote programs, initiatives and services. DEFINITIONS For the purpose of this policy, the following definitions shall apply: • Social Media Channels — Digital platforms that allow users to create and share information, ideas or questions with other users or audiences. Popular social media channels include Facebook, Twitter, Instagram and Pinterest. • Social Media Presence — The specific account/profile that a user or organization has on a social media channel. For example, Administrative Services manages the Deschutes County presence, or page, on Facebook. • Post — Any content generated or shared on social media presences. Posts can include, but are not limited to, messages, links, images, maps videos and emoticons. • Comment - A post made in response to a post. • Official — For the purposes of this policy, "official" refers to any social media presence set up by the County. APPLICABILITY This policy applies to all employees, volunteers and agents of Deschutes County, with the following exceptions: employees of Deschutes County Fair and Expo, the Deschutes County 9-1-1 Service District and elected officials, or their staff, although all employees are encouraged to use this policy as a guideline. POLICY & PROCEDURE To best manage online relationships and conversations, the County Administrator will appoint a Public Information Officer (PIO) or designee as the administrator of social media content. The PIO will manage all of the County's social media accounts and will be responsible for content deployment. The PIO will also have the authority to establish and terminate accounts, monitor and respond to comments from the public and post updates on behalf of the County. Departments are not to create social media accounts on behalf of the County. Instead, they are directed to recommend and generate draft content (news, photos, videos) for use on official County social media accounts and submit the material to the PIO (or designee) for review. This centralized social media strategy allows for consistent branding and the ability to maintain a clear voice across County communications channels. This structure is intended to prevent audience fragmentation and lost engagement opportunities. It also allows departments to maximize their messaging and benefit from the large existing following of established Deschutes County social media presences. Social Media Communications on Behalf of Deschutes County Selection of Social Media Channels • Use of any new social media channels must be approved by the designated PIO (or designee) in coordination with the Legal Department and IT Department. Establishing New Social Media Presences • Authorized representatives (the PIO or designee) who set up accounts on behalf of the County should use a County email account created by the IT Department specifically for use with the social media account. • Where possible, accounts should link to the County's Social Media Terms & Conditions. Content Development • Content shared on official County social media channels will endeavor to reflect the values and priorities of Deschutes County. ■ Content created and shared by the County shall not: o Use vulgar, profane, violent, sexist, racist, threatening, or other offensive language or imagery. o Post information for personal gain. o Use inappropriate humor. o Be in violation of any applicable federal, state or local laws, or promote the violation of such. o Infringe on copyright or intellectual property rights. o Engage in political advocacy. o Violate any County policies. o Promote or perpetuate, in any fashion, discrimination in any form on the basis of race, sexual orientation, religious beliefs, color, age, gender identity, marital status, national origin, disability, or other aspects or traits. o Promote solicitation of commerce or specific businesses (unless a purpose can be demonstrated). o Compromise the safety or security of the public. o Violate the privacy of its subjects (images or information). o Provide false, libelous or defamatory information. o Be automated. • Content developed for social media use should link to the County's official website (www.deschutes.org) whenever possible. Brand Management • All County social media presences should be clearly identified as official Deschutes County assets, using the County's logo or department logo as the identifying image. They should also include Deschutes County in the account name. • Social media presences (and content) should be designed to emulate the County's brand. Public Comments / Engagement • A driving goal of social media is to promote effective two-way communication with members of the public and other key stakeholders. As such, comments from all parties are to be encouraged and welcomed, often directly by a post itself. Both positive and critical comments about Deschutes County, its programs or policies are welcome. • Any comment, reply or similar communication from followers/users should be allowed to remain posted, provided it does not violate the County's Social Media Terms & Conditions. • Deschutes County reserves the right to ban or block users from any of its social media presences for violations of its Social Media Terms & Conditions. If a comment, private/direct message or other communication is taken down or deleted, it must first be captured photographically or as an image and stored off-line. This image, and an explanation of actions taken, must be sent to the Public Information Officer for retention. Existing Department Presences • It is essential that County social media presences share content on a regular basis. Each year, the Public Information Officer will review existing Deschutes County social media accounts to determine whether they should continue as stand-alone presences or be absorbed by main County accounts. Records Retention / Public Records • Content posted or exchanged on county social media channels is subject to Oregon Public Records Law (ORS Chapter 192). Any content that is related to County business is a public record. Content shall be maintained in accordance with Oregon Archives Division's records retention schedules. • Any content that is removed from a county site will be documented with a description detailing why the content was removed or deemed unsuitable and maintained in accordance with OAR 166, County Records Retention Schedule. Related Policies All County authorized use of social media shall comply with the appropriate County policies and standards, including but not limited to: • IT User • Communications Policy • HIPAA • Public Records • County Personnel Rules Guidelines for Private Use of Social Media by Employees • Deschutes County employees are not permitted to use a County affiliated email address when using social media in personal capacities. (For example, don't create a personal Facebook or Twitter account using your deschutes.org email address.) • Content (including information, audio, photos or video) that is obtained during working hours or when the employee is acting in an official capacity may not be used or shared on personal social media accounts without Department Head approval. All employee use of County -sponsored social media and any internet resources is subject to Policy IT -1: Computer, Email and Mobile Computing Device Use. If you identify yourself as a Deschutes County employee when conducting personal social media activities, please state in your profile that your comments/views are not authorized by, or necessarily representative of Deschutes County government. Employees not acting in their official capacity shall not represent or give the impression that they are acting in their official capacity. Whether or not you specify on your personal social media accounts that you work for Deschutes County, your employment with the County is public record under Oregon Public Records Law. Be mindful that whenever you discuss issues online, whether in a personal or professional capacity, your comments could be attributed to your employment with Deschutes County. • Nothing in this policy is meant to prevent an employee from exercising his or her right to make a complaint of discrimination or other workplace misconduct, engage in lawful collective bargaining activity, or to express an opinion on a matter of public concern that does not unduly disrupt county operations. -< Deschutes County Board of Commissioners 1300 NW WaII St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Work Session of Mav 3, 2017 DATE: April 26, 2017 FROM: Peter Russell, Community Development, 541-383-6718 TITLE OF AGENDA ITEM: Continued Goal 11 Remand Discussion PUBLIC HEARING ON THIS DATE?: No ATTENDANCE: Peter Russell, CDD. SUMMARY: Continued discussion begun at April 26 work session on Board's desired course of action regarding Land Use Board of Appeal (LUBA) remand of Goal 11 Exception to allow sewers in southern Deschutes County. 11 11 1 1 11 NE TIERRA RD / NE MASON RD NE HAMPTON LN ;. -Jce °Ww2 (I) 00 ,U AR10 uJ 0 NE CORONA LN Legend tr:li Subject Property Bend Urban Growth Boundary Zoning EFUTRB - Tumalo/Redmond/Bend Subzone MUA10 - Multiple Use Agricultural UAR10 - Urban Area Reserve 10 Ac. Min. 17-12-35-00-01500 • • „44,, kVa14.4a 111111 1, 1 1 HVVY 20 .0000000000000.00000.00,......... „.000000000000P.0z00 Zone Change From EFU Tumalo/RedmondlBend (EFUTRB) To Multiple Use Agricultural (MUA10). MUA10 .ona, BEAR CREEK RD EFUTRB PROPOSED ZONING MAP Porter Kelly Burns Landholdings, LLC 21455 Highway 20, Bend Exhibit "A" to Ordinance 2017-008 0 200 400 800 May 18, 2017 11 11 0 1 Ili 1,1 1111 1 ,Fee, 0 EFUTRB MUA10 1 1,11 01 110010 0111111 1 111111111111111i 11111111011011 1 1111110111111 I BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON Tammy Baney, Chair Anthony DeBone, Vice-Chah Phil Henderson, Commissioner ATTEST Recording Secretary Dated this day of June, 2017 Effective Date. , 2017 LEGAL DESCRIPTION A PARCEL OF LAND BEING A POP.TION OF THE SOUTHIVEsT (» E•QU.A.RTER OF THE SOUTHEAST ()NE -QUARTER {SWI 4 SEI 4) OF SECTION 35. TOWNSHIP 1" SOUTH. RANGE 12 EAST OF THE CVILLAMETTE MERIDIAN BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF THE SWI '4 OF THE SF..L-! OF SECTION 35. T1?S. RI2E. \V.M.: THENCE NOO'4O° 13-W - 30,00 FEET ALONG THE WEST LINE C)F SAID SWV114 SE 1:-I TO THE TRUE POINT OF BEGINNING BEING LOCATED ON THE NORTHERLY RIGHT-OF-WAY LINE. FOR BEAR CREEK ROAD THENCE CONTINUING NOO'40'1 *" W P- (390.79 FEET ALONG THE WEST LINE OF SAID SWl 4 SE1 4 TO A POINT LOCATED ON THE CURRENT CITY OF BEND URBAN GROWTH BOUNDARY LINE: THENCE N2S`47` i 3"ETT .59,S.S7 FEET ALONG SAID URBAN GROWTH BOUNDARY LINE TO THE SOUTHERLY RIGHT-OF-WAY LINE FOR U.S, HIC0II\1'AY r:?: THENCE N89- 5)° 12"E - 1030.08 FEET ALONG SAIL) SOUTHERLY RIGHT-OF-WAY LINE TO THE EAST LINE OF SAID SWI/4 SEI 4: THENCE S00'3S'15"F. - 12.:5,-2 FEET ALONG THE EAST LINE OF SAID SW1'4 SEL4 TO THE NORTHERLY RI(H1-0F-wAY UNE FOR BEAR CREEK ROAD: THENCE N89 41'$4'°\V -. 1324.04 FEET ALONG SAID NORTHERLY RIGHT-OF-WAY LINE TO THE TRUE POINT OF BEGINNING, PARCEL CONTAINS APPROXIMATELY 35.32$ ACRES SUBJECT TO ALL EASEMENTS. RESTRICTIONS. AND RIGHTS-OF-WAY OF RECORD PERTAINING TO THE ABOVE DESCRIBED LANDS. Page 1 of 1 - EXHIBIT "B" TO ORDINANCE No. 2017-008 REVIEWED LEGAL COUNSEL For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Deschutes County Code, Title 23, and Amending Deschutes County Comprehensive Plan, Section 5.12 and to Change the Plan Designation for Certain Property From Agriculture to Rural Residential Exception Area. ORDINANCE NO. 2017-007 WHEREAS, Kelly Porter Burns Landholdings, LLC applied for a Comprehensive 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 Residential Exception Area; and WHEREAS, after notice was given in accordance with applicable law, public hearing was held on September 27, 2016 before the Deschutes County Hearings Officer, and on November 22, 2016 the Hearings Officer recommended approval of the Plan Amendment; and WHEREAS, after notice was given in accordance with applicable law, a de novo public hearing was held on June 5, 2017 before the Board of County Commissioners ("Board") ; and WHEREAS, the Board, after review conducted in accordance with applicable law, approved the plan amendment to change the comprehensive plan designation from Agriculture to Rural R; 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 4. 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 "D," with both exhibits attached and incorporated by reference herein, from Agriculture to Rural Residential Exception Area. Section 5. FINDINGS. The Board adopts as it findings in support of this Ordinance, the Decision of the Hearings Officer, Exhibit "E", and incorporated by reference herein. PAGE 1 OF 2 - ORDINANCE NO. 2017-007 ATTACHMENT "A" TO BOARD MEMO /// Dated this of , 2017 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ATTEST: Recording Secretary TAMMY BANEY, CHAIR ANTHONY DEBONE, VICE CHAIR PHIL HENDERSON, COMMISSIONER Date of 2nd Reading: day of , 2017. Record of Adoption Vote Commissioner Tammy Baney Anthony DeBone Phil Henderson Yes No Abstained Excused Effective date: day of , 2017. ATTEST: Recording Secretary PAGE 2 OF 2 - ORDINANCE NO. 2017-007 ATTACHMENT "A" TO BOARD MEMO Chapter 23.01 COMPREHENSIVE PLAN Chapter 23.01 COMPREHENSIVE PLAN 23.01.010. Introduction. A. The Deschutes County Comprehensive and found on the Deschutes County Communit by reference herein. B. The Deschutes County Comprehensive 2011-027, are incorporated by reference herein C. The Deschutes County Comprehensive 2012-005, are incorporated by reference herein D. The Deschutes County Comprehensive 2012-012, are incorporated by reference herein E. The Deschutes County Comprehensive 2012-016, are incorporated by reference herein P. The Deschutes County Comprehensive 2013-002, are incorporated by reference herein G. The Deschutes County Comprehensive 2013-009, are incorporated by reference herein H. The Deschutes County Comprehensive 2013-012, are incorporated by reference herein I. The Deschutes County Comprehensive 2013-007, are incorporated by reference herein J. The Deschutes County Comprehensive 2014-005, are incorporated by reference herein K. The Deschutes County Comprehensive 2014-006, are incorporated by reference herein L. The Deschutes County Comprehensive 2014-012, are incorporated by reference herein M. The Deschutes County Comprehensive 2014-021, are incorporated by reference herein N. The Deschutes County Comprehensive 2014-027, are incorporated by reference herein O. The Deschutes County Comprehensive 2015-021, are incorporated by reference herein P. The Deschutes County Comprehensive 2015-029, are incorporated by reference herein Q. The Deschutes County Comprehensive 2015-018, are incorporated by reference herein R. The Deschutes County Comprehensive 2015-010, are incorporated by reference herein S. The Deschutes County Comprehensive 2016-001, are incorporated by reference herein T. The Deschutes County Comprehensive 2016-022, are incorporated by reference herein U. The Deschutes County Comprehensive 2016-005, are incorporated by reference herein Plan, adopted by the Board in Ordinance 2011-003 y Development Department website, is incorporated Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance PAGE 1 OF 2 — EXHIBIT "A" TO ORDINANCE 2017-007 V. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2016-027, are incorporated by reference herein. W. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2016-029, are incorporated by reference herein. Y. The Deschutes County Comprehensive Plan amendments. adopted by the Board in Ordinance 2017-007, are incorporated by reference herein. (Ord. 2017-007 §1; Ord. 2016-029 §1, 2016; Ord. 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 2017-007 5ectiow 5.12 Lesisl,ativB H-%storu Background This section contains the legislative history of this Comprehensive Plan. Table 5.1 1.1 Comprehensive Plan Ordinance History Date Ado ted/ Ordinance P Effective 2011-003 8-10-1 1/1 1-9-1 I 2011-027 10-31-1 1/ 1 1-9-1 1 Chapter/Section Amendment 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), 2012-005 8-20-12/11-19-12 3.7 (revised), Appendix C (added) 2012-012 8-20-12/8-20-12 4.1, 4.2 2012-016 12-3-12/3-4-13 3.9 2013-002 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 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 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.1 1 GOAL 5 ADOPTED ORDINANCES Page 1 of 3 — EXHIBIT "B" TO ORDINANCE 2017-007 1 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 Plan 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 Plan 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 Plan 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 2017-007 Comprehensive Plan Map Amendment, changing 2016-001 12-21-15/04-5-16 23.01.010; 5.10 designation of certain property from, Agriculture to Rural Industrial (exception area) Comprehensive Plan Amendment to add an exception to Statewide 2016-007 2-10-16/5-10-16 23.01.010; 5.10 Planning Goal 11 to allow sewers in unincorporated lands in Southern Deschutes County Comprehensive Plan Amendment recognizing non - 2016 -005 11-28-16/2-16-17 23.01.010, 2.2, 3.3 resource lands process allowed under State law to change EFU zoning Comprehensive plan 2016-022 9-28-16/11-14-16 23.01.010, 1.3, 4.2 Amendment, including certain property within City of Bend Urban Growth Boundary Comprehensive Plan Map Amendment, changing 2016-029 12-14-16/ 12/28/ 16 23.01.010 designation of certain property from, Agriculture to Rural Industrial Comprehensive Plan Map Amendment, changing 2017-007 / 23.01.010 designation of certain property from Agriculture to Rural Residential Exception Area DESCHUTES COUNTY COMPREHENSIVE PLAN - 20I I CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.1 I GOAL 5 ADOPTED ORDINANCES Page 3 of 3 — EXHIBIT "B" TO ORDINANCE 2017-007 NE TIERRA RD i - 1 I-1F ll NE MASON RD NE HAMPTON LN NE SHIRLEY NE CORONA LN 11111111 AG HWY 20 Plan Amendment From Agriculture (AG) To Rural Residential Exception Area (RREA) RREA BEAR CREEK RD AG PROPOSED PLAN AMENDMENT Legend Subject Property 17-12-35-00-01500 Bend Urban Growth Boundary Comprehensive Plan Designation AG - Agriculture RREA - Rural Residential Exception Area URA -Urban Reserve Area Porter Kelly Burns Landholdings, LLC 21455 Highway 20, Bend Exhibit "D" to Ordinance 2017-007 � V 200 400 800 May 18, 2017 AG RREA BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON Tammy Baney, Chair Anthony DeBone, Vice -Chair Phil Henderson, Commissioner ATTEST Recording Secretary Feet Dated this day of June, 2017 Effective Date: , 2017 EXHIBIT "E" to Ordinance 2017-007 DECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: 247-16-000317-ZC / 318 -PA HEARING DATE: September 27, 2016, 6:00 p.m. Barnes & Sawyer Rooms Deschutes Services Center 1300 NW Wall Street Bend, OR 97708 APPLICANT/OWNER: Porter Kelly Burns Landholdings, LLC 152 Champanelle Way Bend, OR 97701 ATTORNEY FOR APPLICANT: PROPOSAL: Liz Fancher 644 NW Broadway Street Bend, OR 97701 The applicant requests approval of a Plan Amendment to change the designation of the subject property from Agriculture to Rural Residential Exception Area, and a Zone Change from Exclusive Farm Use (EFU-TRB) to Multiple Use Agricultural (MUA-10). STAFF REVIEWER: Chris Schmoyer, Associate Planner RECORD CLOSED: October 11, 2016; Applicant's Final Argument due and submitted on October 18, 2016. 1 APPLICABLE STANDARDS AND CRITERIA: Title 18 of the Deschutes County Code, the County Zoning Ordinance Chapter 18.16, Exclusive Farm Use Zone Chapter 18.32, Multiple Use Agricultural Zone Chapter 18.136, Amendments Title 22, Deschutes County Development Procedures Ordinance Title 23 of the Deschutes County Code, Deschutes County Comprehensive Plan (DCCP) Chapter 2, Resource Management Chapter 3, Rural Growth Chapter 23.64, Transportation System Plan Oregon Administrative Rules (OAR), Chapter 660 Division 12, Transportation Planning OAR 660-012-0060, Plan and Land Use Regulation Amendments Division 33, Agricultural Land Division 15, Statewide Planning Goals and Guidelines Oregon Revised Statutes (ORS) ORS 215.211 247-16-000317-ZC / 318 -PA 1 11. FINDINGS OF FACT: A. LOCATION: The subject property has an assigned address of 21455 Highway 20, Bend and is also identified on County Tax Map 17-12-35 as Tax Lot 1500. This proposal excludes land in the NW corner of the tax lot lying west of the Central Oregon Irrigation District (COID) canal that is zoned UAR-10. B. LOT OF RECORD: The subject property is a legal lot of record pursuant to the Deschutes County Planning Division's policy on what determines a legal lot of record. The subject property is considered a legal lot record as it was lawfully developed with a single-family dwelling prior to the County's involvement in the permit process. Per Deschutes County Assessor's data, the property supports a single-family dwelling that was constructed in 1940, long before the County regulated septic and building permits for construction. No land use regulations applied at the time. The subject property was lawfully created via deed instrument in 1947 prior to the County's adoption of the first Zoning Ordinance, PL -5 which became effective on 11/1/72. A copy of the 1947 deed that conveys the subject property as a single unit of land was included with the submitted application materials (Volume 80, Page 553 of the deed records of the Deschutes County Clerk). C. ZONING AND PLAN DESIGNATION: The subject property is zoned Exclusive Farm Use — Tumalo/Redmond/Bend subzone (EFU-TRB) and Urban Area Reserve 10 (UAR- 10). The subject property is designated Agriculture on the Deschutes County Comprehensive Plan Map. The subject property has not been mapped by Deschutes County as containing Goal 4 resources, but it includes a pond/wetland mapped as a Goal 5 resource. The portion of Tax Lot 1500 zoned UAR-10 is situated west of the COID canal and is not part of the subject property. The area has been approved for inclusion in the Bend urban growth boundary by the City of Bend. The subject property is situated within the Landscape Management Combining Zone associated with Highway 20. The proposal is not subject to LM site plan review as no development is proposed at this time. When development is proposed in the future, the County will review compliance with LM regulations. D. SITE DESCRIPTION: The subject property is one of three properties located in a small area surrounded by major roadways and the city limits of the City of Bend that is approximately 80 -acres in size. The property lies between Highway 20 (a principal arterial) and Bear Creek Road (a rural collector) and is about .25 miles west of Ward Road (a rural arterial). A Central Oregon Irrigation District canal traverses the property from the western property line through the northwest corner of the subject property. The subject property is approximately 34.89 acres in size as shown by the historic tax lot record card (Exhibit B to the applicant's Corrected Burden of Proof and Application ("Corrected Burden of Proof'), which is the size prior to the addition of land west of the canal to the tax lot. It has been developed with a home and outbuilding and has .25 acres of irrigation water rights and 9.75 acres of pond water rights distributed into two ponds. The two ponds occupy less than 9.75 acres of land. A house has been built on top of a significant part of the .25 acres of irrigation water rights as shown by Exhibit C to the Corrected Burden of Proof. The remaining water right is used to irrigate the lawn associated with the home. The water rights manager for Central Oregon Irrigation District (COID) informed the applicant that because the house was built over the water rights that the rights under the house have been lost and may not be transferred to another part of 247-16-000317-ZC / 318 -PA 2 the subject property or to another irrigation district customer. Vegetation on the property consists primarily of weeds, annual grasses, big sagebrush, and scattered juniper trees, with clusters of coniferous trees surrounding the dwelling and two ponds on the property. According to County GIS Mapping, based on the Natural Resource Conservation Service (NRCS) data, the subject property is predominantly comprised of Deskamp Loamy Sand soils, Unit 36A. NRCS Soil Unit 36A has an agricultural soil classification of IVS and is classified as high value where irrigated and a classification of VIS where unirrigated. The property is predominantly unirrigated and classified as non -high value farmland. To clarify the soils composition of the property, the applicant submitted a Soil Investigation Report ("Soils Assessment"), dated September 10, 2015, prepared by soil scientist Roger Borine, CPSC, CPSS, PWS of Sage West, LLC. Exhibit D to Corrected Burden of Proof. The Soils Assessment shows that 67% of the soils on Tax Lot 1500 are Class VII or Class VIII nonagricultural soils when not irrigated. These soils are not rated for irrigation as the soils are too poor to benefit from irrigation. The Land Capability Class of the soils will not improve when irrigated. Mr. Borine also determined that 67% of the subject property zoned EFU-TRB is LCC VII or VIII soil, Exhibit Q to Corrected Burden of Proof. Below is a recent aerial photograph of the subject property from the south: E. SURROUNDING LAND USES: The subject property lies between Highway 20 to the north and Bear Creek Road to the south. The western edge of the property borders the city limits for the City of Bend and land zoned UAR-10 that is a part of the legal lot of record that includes the subject property. Abutting the subject property to the west are small residential lots within the City Limits and UGB of Bend that are zoned Residential Urban Standard Density (RS). Zoning surrounding the property consists of UAR-10 and EFU-TRB to the north across Highway 20. The two adjacent properties to the east are 247-16-000317-ZC / 318 -PA 3 zoned EFU-TRB. To the south is EFU-TRB zoning, the southwest is UAR-10 and the southeast is MUA-10 (across Bear Creek Road). The applicant's Corrected Burden of Proof provides the following description of the development pattern in the area surrounding the subject property: West: Properties adjacent to the western edge of the subject property are zoned RS — Residential Urban Standard Density and are located within the city limits of the City of Bend. The south part of this area has been divided and developed with single-family homes on urban lots and the Light and Life Church. Three of the adjoining fax lots are part of the Traditions East Subdivision. One large fax lot which lies adjacent to Highway 20 is used by Landsystems Nursery for the growing of trees, plants and shrubbery. It adjoins the UAR-10 part of the subject properly. Landsystems Nursery sells its nursery stock from a property located directly across Highway 20 from this tax lot. Southwest: Properties located across Bear Creek Road to the southwest of the subject property are located within the UAR-10 (Urban Area Reserve) zone and all except one are developed with single-family residences. One fax lot is developed for use by an RV. One of the single-family home lots is used for the production of hay. South: Three tax lots lie directly south of the subject property across Bear Creek Road. A fourth small fax lot is located within the boundaries of one of these lots. They are zoned EFU-TRB. All four lots are developed with single-family dwellings. Tax Lot 201, Assessor's Map 18-12-02 received approval for a farm/nonfarm partition in 2009 in CU- 09-56/MP-09-20. This property contains approximately 36 acres of irrigation water rights and is currently used for the production of hay. This is the Harold Marken property. Mr. Marken testified that he loses money raising hay on his property and that the soils are poor, rocky soil. Many rocks were removed to make the property suitable for raising hay at a financial loss. Tax Lot 200, Assessor's Map 18-12-02 is not irrigated and has native grasses, sagebrush and junipers. The homes on the other two lots are not farm residences. Southeast: Properties to the southeast, across Bear Creek Road, are zoned MUA-10 and are RHEA (Rural Residential Exception Area) on the comprehensive plan. These lots range in size from approximately 1.77 acres to about 10 acres in size. This area of MUA-10 properties includes several subdivisions: Dobbin Acres, Dobbin Acres First Addition, Somerset Phase 1, Arrowhead Acres, Arrowhead Acres 1st Addition, 2'd Addition and Third Addition. Numerous parcels have also received partition approvals, Most of the MUA-10 properties within this area have been developed with single-family homes. East: Two fax lots adjoin the eastern property line and are under the same ownership. Tax Lot 1600, Assessor's Map 17-12-35 is developed with a manufactured home and Tax Lot 1601 is developed with a single-family residence. Neither tax lot appears to be irrigated nor employed in farm use. Together, these properties are about 40 acres in size. Ward Road, a busy rural ()aerial street, adjoins and runs along the eastern boundary of these properties and creates a small island of EFU-TRB land ringed by major roadways and the City of Bend. North: Highway 20 separates the subject property from four (4) fax lots to the north. One of these fax lots is located within the UAR-10 zone. The remaining three (3) tax lots 247-16-000317-ZC / 318 -PA 4 are zoned EFU-TRB. Three of these four lots are developed with single-family residences while the fourth, one zoned EFU, is undeveloped. None appear to be used for farm use or to have irrigated farm fields. The Hearings Officer notes that conflicting testimony at the public hearing was presented by Mr. and Mrs. Clevenger that properties to the north of the subject property do, in fact, have irrigation water rights and use them. F. PROPOSAL: The applicant requests Deschutes County to change the zoning of the subject property from EFU-TRB to MUA-10 and the comprehensive plan designation from Agriculture to Rural Residential Exceptions Area ("RREA") because the subject property does not qualify as "agricultural land" under state law or administrative rule. No exception to Statewide Planning Goal 3, Agricultural Land, is required because the subject property is not agricultural land No proposed development of the subject property is associated with the application. The Hearings Officer notes that a change from EFU-TRB to MUA-10 will not allow any new residences to be built on the subject property because the zone allows only one house per parcel. No additional home could be built after a rezone without County approval of a partition application G. SOILS REPORT: The applicant submitted an Order 1 Soil Survey of the subject property, titled "Agricultural Soils Capability Assessment" (hereafter referred to as "Soils Assessment"), with the application (Exhibit D to Corrected Burden of Proof). The document is entitled "Agricultural Soils Capacity Assessment and is dated September 10, 2015. The Soils Assessment was prepared by soil scientist Roger Borine, CPSC, CPSS, PWS of Sage West, LLC. Mr. Borine and applicant's attorney, Carl Hopp, submitted the soils report to the Department of Land Conservation and Development for review and certification on September 21, 2015 as shown by Exhibit E to Corrected Burden of Proof. On September 21, 2015, DLCD certified Exhibit D for use by Deschutes County. Exhibits F and G to Corrected Burden of Proof. The applicant has, therefore, satisfied the requirements of ORS 215.211 and Deschutes County may rely on the assessment in making its determination as to whether the land qualifies as "agricultural land." The Soils Assessment inventoried the soils found on all of Tax Lot 1500, including the part of the property zoned UAR-10. This shows that the percentage of Class VII and VIII nonagricultural soils on the entire property is 67%. The same percentage applies to the part of the property proposed for rezoning and for a plan map change. Exhibit Q to Corrected Burden of Proof. G. PUBLIC/PRIVATE AGENCY COMMENTS: The Planning Division mailed notice of the public hearing, on July 27, 2016, to several agencies and the following comments were received: 1) County Transportation Planner: Peter Russell, Senior Transportation Planner provided the following comment: / have reviewed the transmittal materials for 247-15-000317-ZC/318-PA for a plan amendment from Agriculture to Rural Residential Exception Area and a rezone from 247-16-000317-ZC / 318 -PA 5 Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA-10) on a 35 -acre parcel at 21455 U.S. 20, aka 17-12-35, Tax Lot 1500. The applicant has not provided a traffic analysis by a registered engineer as required by Deschutes County Code (DCC) at 18.116.310(E)(4), which requires a traffic study for zone changes. Additionally, a traffic analysis is needed to demonstrate compliance with the Transportation Planning Rule (OAR 660-012-0060) to demonstrate there is no adverse effect to the operations of the affected facility(ies) either now or in 20 years. The applicant asserts on page 25 that the proposed plan amendment/zone change would have a de minimis effect from a traffic generation standpoint. However, the applicant has not provided any evidence that there is capacity on US 20 under the following four scenarios: 1) in 2016 under the current zoning; 2) in 2016 under the proposed zoning; 3) in 2036 under the current zoning; and 4) 2036 under the proposed zoning. Finally, the TPR analysis needs to assume a reasonable "worst case" scenario, which means the trip generation rate must compare the highest trip -generation rate allowed outright under the EFU and MUA-10 zones. The burden of proof states the site could accommodate four (4) new homes, but needs to demonstrate that is the reasonable "worst case" scenario from a traffic generation standpoint. Reviewing the outright permitted uses in MUA-10 at DCC 18.32.020 that does seem a reasonable assumption, admittedly. Board Resolution 2013-020 as amended sets an SDC rate of $3,852 per p.m. peak hour trip. County staff has determined given the residential mix of housing units between primary and secondary residences in the County, that a single-family home will generate 0.81 p.m. hour trips, so the applicable SDC is $3,120 ($3,852 X 0.81) per lot for a total of $6,240 ($3,120 X 2). The SDC does not come into play with the plan amendment/zone change, but rather is triggered by development of the sites. The SDC amount is for informational purposes only. In response to the applicant's transportation memo, dated 9-9-16, Mr. Russell provided the following comments: 1 have reviewed the Sept. 9, 2016, transportation memo from the applicant's traffic engineer, which was prepared in response to staff's determination the transportation planning rule (TPR) analysis requirements have not been met for the Exclusive Farm Use (EFU) to Multiple Use (MUA-10) for demonstrating no significant effect. The property's sole access currently is a driveway onto US 20; the Deschutes County TSP shows this segment fails in 2030. In this most recent memo the applicant's engineer focused on establishing a baseline for trip generation in the existing zoning by using what would be the highest trip rate from a use permitted outright in the EFU zone and contrasting it to the highest trip generator permitted outright in the MUA-10. The applicant's traffic engineer concluded that based on this comparison the highest trip generator for EFU would be a church of less than 100 seats whereas the highest trip generator in the MUA-10 would be two additional houses, both with Type I home occupations. The church would generate more trips than the homes, thus the rezone would result in fewer trips, thus proving no significant effect. Staff agrees this would be an appropriate method if either 1) the EFU parcel was vacant or 2) the applicant was proposing a church simultaneously with the rezone or a church application already had been approved. Neither 1) nor 2) are true. The parcel is 247-16-000317-ZC / 318 -PA 6 developed with a single-family home and staff feels the baseline trip generation should be based on that use. This has been past County practice in cases were parcels were developed and there was no simultaneous application for a new land use. Thus, the parcel would have more trips generated under the MUA-10 zoning than EFU and the applicant has not demonstrated no significant effect. Staff will defer to the hearings officer on whether the applicant's approach to trip generation is allowable; however, staff points out TPR compliance can be met via a different route. While the affected segment of US 20 is forecast to fail in 2030, the Deschutes County TSP lists planned improvements at Table 5.3.T1 (County Road and Highway Projects). Adding additional travel lanes on US 20 between Providence and Hamby is listed as a $2 million dollar medium priority project (next 6-10 years). The applicant, under the TPR, can rely on planned improvements as a mitigation. Staff also agrees with the applicant that the amount of additional traffic that would be generated by the proposed zone change is minimal. While all parties agree the resulting trips would be under the County's 50 -trip threshold for traffic studies as stated in Deschutes County Code (DCC) 18.116.310(C)(3)(a), staff points out DCC 18.116.310(E)(4) requires traffic analysis for zone changes Again, staff agrees with the applicant's traffic engineer that there is no significant effect to US 20 from this EFU to MUA-10 zone change; we just arrived at the same destination via different routes. 2) Oregon Department of Transportation (ODOT): David Knitowski, Region 4 Access Management Engineer, provided the following comment: Facts, adopted policies, or any other comments that apply to this application: The driveway serving this property connecting to US Hwy 20 is permitted for a single- family house. Any future development will be subject to review under ODOT's Change of Use rule (OAR 734-051-2030). If the proposed future development will generate 50 peak hour vehicle trips more than the permitted use, 500 daily vehicle trips more than the permitted use, or 20 daily heavy truck trips more than the permitted use, that would constitute a change of use, and ODOT will require a new Application for State Highway Approach. The Deschutes County Transportation System Plan (TSP) contains Access Management Policy 5.3, which says, "Wherever practical, access to state highways shall be provided via frontage roads, alternate local roads or other means, rather than direct access to the highway. Therefore, when this property redevelops with MUA-10 uses, access shalt be provided via Bear Creek Road, and not US Hwy 20. Suaaested action by Deschutes County: Enforce Access Management Policy 5.3 when this property redevelops and require that access shall be provided via Bear Creek Road, and not US Hwy 20. In response to the Mr. Knitowski's comments, Peter Russell, County Transportation Planner, provided the following comment: I'd be hesitant to include the condition of approval language proposed by ODOT for a couple of reasons. First, ODOT is the road authority for the State highway system. Deschutes County has no legal ability to close a private approach to US 247-16-000317-ZC / 318 -PA 7 20. Second, while ODOT can close an approach to its own system, there is a protocol set forth in OAR 734-051-5110 about what is required. There is also a remedy process when closing a highway approach described in OAR 734-051-6010 with offer of remedies listed in OAR 734-051-6030, which includes monetary compensation. Third, typically the County cannot require conditions of approval under which it has not control or requires an action by another entity. Should this property redevelop, ODOT can certainly weigh whether to use its own processes to close the approach to US 20 or not and then present the outcome to Deschutes County for consideration regarding the County approving an access to Bear Creek Road where none currently exists. 1 would point out Access Management Policy 5.2 that states "Deschutes County shall require new development to minimize direct access points onto arterials and collectors by encouraging the use of common driveways." The TSP classifies Bear Creek as a collector. Thanks. 3) Bend Fire Department: Jeff Bond, Deputy Fire Marshal, provided the following comment: I'm not quite sure if this potentially involves the addition of any structures, but in case it does, here are my comments. FIRE APPARATUS ACCESS ROADS: • Approved fire apparatus access roads shall be provided for every facility, building or portion of a building hereafter constructed or moved into or within the jurisdiction. The fire apparatus access road shall comply with the requirements of this section and shall extend to within 150 feet of all portions of the facility and all portions of the exterior walls of the first story of the building as measured by an approved route around the exterior of the building or facility. 2014 OFC 503.1.1 • Fire apparatus roads shall have an unobstructed width of not less than 20 feet, exclusive of shoulders, except for approved security gates in accordance with Section 503.6, and an unobstructed vertical clearance of not less than 13 feet 6 inches. Where a fire hydrant is located on a fire apparatus road, the minimum width shall be 26 feet, exclusive of shoulders. Traffic calming along a fire apparatus road shall be approved by the fire code official. Approved signs or other approved notices or markings that include the words NO PARKING -FIRE LANE shall be provided for fire apparatus roads to prohibit parking on both sides of fire lanes 20 to 26 feet wide and on one side of fire lanes more than 26 feet to 32 feet wide. 2014 OFC 503.2.1, D103.1, 503.4.1, 503.3 • Fire apparatus access roads shall be designed and maintained to support the imposed loads of fire apparatus (60,000 pounds GVW) and shall be surfaced (asphalt, concrete or other approved driving surface) as to provide all weather driving capabilities. Inside and outside turning radius shall be approved by the fire department. All dead-end turnarounds shall be of an approved design. Bridges and elevated surfaces shall be constructed in accordance with AASHTO HB -17. The maximum grade of fire apparatus access roads shall not exceed 10 percent. Fire apparatus access road gates with electric gate operators shall be listed in accordance with UL325. Gates intended for automatic operation shall be designed, 247-16-000317-ZC / 318 -PA 8 constructed and installed to comply with the requirements of ASTM F 2200. A Knox® Key Switch shall be installed at all electronic gates. 2014 OFC D102.1, 503.2.4, FIRE PROTECTION WATER SUPPLIES: • An approved water supply capable of supplying the required fire flow for fire protection shall be provided to premises upon which facilities, buildings or portions of buildings are hereafter constructed or moved into or within the jurisdiction. 2014 OFC 507.1 • Fire flow requirements for buildings or portions of buildings shall be determined by an approved method. Documentation of the available fire flow shall be provided to the fire code official prior to final approval of the water supply system. • In areas without water supply systems, the fire code official is authorized to use NFPA 1142 in determining fire flow requirements. 2014 OFC B107.1 OTHER FIRE SERVICE FEATURES: • New and existing buildings shall have approved address numbers, building numbers or approved building identification placed in a position that is plainly legible and visible from the street or road fronting the property. These numbers shall be Arabic numbers or alphabetical letters. Numbers shall be a minimum 4 inches high with a minimum stroke width of 0.5 inch. Where access is by means of a private road and the building cannot be viewed from the public way, a monument, pole, or other sign or means shall be used to identify the structure. Address numbers shall be visible under low light conditions and evening hours. Provide illumination to address numbers to provide visibility under all conditions. Address signs are available through the Deschutes Rural Fire Protection District #2. An address sign application can be obtained from the City of Bend Fire Department website or by calling 541-388.-6309 during normal business hours. 2014 OFC 505.1 Codes and Referenced Standards: 2014 Oregon Fire Code (OFC) 2012 NFPA 1142 No responses were received from: Avion Water Company, Central Oregon Irrigation District, Watermaster District 11, Bend Parks and Recreation, Deschutes County Environmental Soils, County Road Department and the County Building Division. H. PUBLIC COMMENTS: On July 27, 2016, the Planning Division sent notice of the proposed land use application to all property owners within 750 feet of the subject property. Written comments, or email correspondence, were received from the following individuals prior to the public hearing, at the public hearing, and when the record was left open following the public hearing: John Foote: Submitted a letter, received August 1, 2016, expressing his support for approval of the proposed plan amendment and zone change request based on listed reasons. The letter has been entered into the record. Dom and Jane Cleavenaer: Emailed staff with questions regarding the proposal. The email correspondence has been entered into the record. Mr. and Mrs. Cleavenger also submitted a letter, dated September 26, 2016 expressing their disapproval, stating that 247-16-000317-ZC / 318 -PA 9 the property is capable of being farmed, disputing that neighboring properties have lost water rights, questioning whether there is adequate sewage capacity for new development, stating that the proposal does not address visible Landscape Management review regulations, expressing concerns that Highway 20 will need to be widened in the future and that development of the subject property will preclude such widening, and stating that approval of the application will set a precedent for high density development in disregard of the City of Bend's UGB decision and process. Each of these comments is addressed in the Findings below. The letter has been entered into the record. Jane Cleavenger: Separately submitted a letter dated September 26, 2016 in opposition to the application. She stated that the City of Bend planners decided the subject property was not appropriately considered to be part of the Bend UGB. Ms. Cleavenger also asserted that the applicant will negatively impact hundreds of other property owners if the application is granted. She noted that there is an open Code Enforcement violation on the subject property, commencing on August 12, 2016, regarding trash on the property that is visible from Highway 20. Ms. Cleavenger noted that a good example of stewardship in County development is the Tree Farm Development on the westside of the City, mentioning Charley Miller who gave back a sizeable quantity to parks and maintained the natural features and beauty of the land. She stated that larger homesites will better fit the County and will provide highly desirable Tots of which there is a scarce supply. Each of these comments is addressed in the Findings below. The letter has been entered into the record. Phil Tracy: Emailed staff with questions regarding the proposal and expressed concern regarding traffic along Bear Creek Road. Each of these questions and concerns is addressed in the Findings below. The email correspondence has been entered into the record. David Morman: Expressed concern regarding medium and high density development of the subject property and preservation of the pond on the property. Each of these questions and concerns is addressed in the Findings below. The comment letter has been entered into the record. 1000 Friends of Oregon submitted a letter dated September 27, 2016 in opposition to the application. Meriel Darzen submitted the letter on behalf of the non-profit organization. The letter discusses the cumulative impact of exurban and ranchette development on agricultural lands in general and the requirements of a viable agricultural economy. Specifically, 1000 Friends states that granting the application would be inconsistent with the following provisions of the Deschutes County Comprehensive Plan: Policy 2.2.3 (comprehensive plan and zoning map amendments for individual EFU parcels must be consistent with state statute, Oregon Administrative Rules and the Comprehensive Plan); Policy 2.5.24 (ensure water impacts are reviewed and addressed for significant land uses or developments); Policy 4.4.B (change in classification must be consistent with purpose and intent of proposed zone classification); Goal 4.C.2 (changing the zoning will serve the public health, safety and welfare; impacts on surrounding land use will be consistent with specific goals and policies in the Comprehensive Plan); and Goal 4.D (there has been a change in circumstances since the property was last zoned or a mistake was made in the zoning of the property in question). 1000 Friends also states that granting the application would be inconsistent with OAR 660-033-0020 and OAR 660-033-0030 because the subject property is agricultural land. 1000 Friends questions the conclusions of the applicant's 247-16-000317-ZC / 318 -PA 10 soils study. Each of these comments is addressed in the Findings below. The letter has been entered into the record. Following the public hearing on September 27, 2016, the Hearings Officer left the record open until 5:00 p.m. on October 4, 2016 for additional evidence and argument, and until 5:00 p.m. on October 11, 2016 for rebuttal evidence and argument. 1000 Friends of Oregon submitted post -hearing comments on the application to Deschutes County via email at 5:01 p.m. on October 4, 2016. I find that such comments are untimely. However, the applicant responded to the additional arguments submitted by 1000 Friends in its Rebuttal, timely submitted on October 11, 2016 and its Final Argument, via a Corrected Burden of Proof and Application, timely submitted on October 18, 2016. I. NOTICE REQUIREMENT: The applicant complied with the posted notice requirements of Section 22.23.030(B) of Deschutes County Code (DCC) Title 22. The applicant submitted a Land Use Action Sign Affidavit, dated July 14, 2016, indicating the applicant posted notice of the land use action on the property on that same date. Notice of the public hearing was sent to all property owners within 750 of the subject property on July 27, 2016. And the notice of public hearing was published in the Bend Bulletin on Sunday, July 31, 2016. J. REVIEW PERIOD: These applications were submitted on June 2, 2016. According to Deschutes County Code 22.20.040(D), the review of the proposed quasi-judicial plan amendment application is not subject to the 150 -day review period. K. PREVIOUS LAND USE HISTORY: There are no previous land use decisions associated with the subject property.' III. CONCLUSIONS OF LAW Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance A. Chapter 18.136, Amendments 1. Section 18.136.010, Amendments DCC Title 18 may be amended as set forth in DCC 18.136. The procedures for text or legislative map changes shall be as set forth in DCC 22.12. A request by a property owner for a quasi-judicial map amendment shall be accomplished by filing an application on forms provided by the Planning Department and shall be subject to applicable procedures of DCC Title 22. FINDING: The Hearings Officer finds that the applicant/property owner, has requested a quasi- judicial plan amendment, and filed the applications for a plan amendment and zone change. The applicant has filed the required Planning Division's land use application forms for the ' A scanned document for the subject property account in Deschutes County DIAL includes documentation of an Oregon Department of Fish and Wildlife (ODFW) Land Use Compatibility Statement (LUCS) for fish propagation associated with the ponds on the property. Planning Division signed the form on 12-16-92. 247-16-000317-ZC / 318 -PA 11 proposal. The application has been reviewed utilizing the applicable procedures contained in Title 22 of the Deschutes County Code. I find that these criteria are met. 2. Section 18.136.020, Rezoning Standards The applicant for a quasi-judicial rezoning must establish that the public interest is best served by rezoning the property. Factors to be demonstrated by the applicant are: A. That the change conforms with the Comprehensive Plan, and the change is consistent with the plan's introductory statement and goals. FINDING: In previous decisions, the Hearings Officer has found this paragraph establishes two requirements: (1) that the zone change conforms with the plan; and (2) that it is consistent with the plan's introductory statement and the plan's goals. I find that each of these requirements is met, as discussed below. 1. Conformance with Comprehensive Plan. The applicant requests approval of a plan amendment to change the Comprehensive Plan designation of the subject property from Agriculture to Rural Residential. The proposed rezoning from EFU-TRB to MUA-10 will be required to be consistent with its proposed new plan designation. 2. Consistency with the Plan's Introductory Statement and Goals. In previous decisions, the Hearings Officer has made the following findings concerning this requirement: "Comprehensive plan statements, goals and policies typically are not intended to, and do not, constitute mandatory approval criteria for quasi-judicial land use permit applications. Save Our Skyline v. City of Bend, 48 Or LUBA 192 (2004). There, LUBA held: 'As intervenor correctly points out, local and statutory requirements that land use decisions be consistent with the comprehensive plan do not mean that all parts of the comprehensive plan necessarily are approval standards. [Citations omitted.] Local governments and this Board have frequently considered the text and context of cited parts of the comprehensive plan and concluded that the alleged comprehensive plan standard was not an applicable approval standard. [Citations omitted.] Even if the comprehensive plan includes provisions that can operate as approval standards, those standards are not necessarily relevant to all quasi-judicial land use permit applications. [Citation omitted.] Moreover, even if a plan provision is a relevant standard that must be considered, the plan provision might not constitute a separate mandatory approval criterion, in the sense that it must be separately satisfied, along with any other mandatory approval criteria, before the application can be approved. instead, that plan provision, even if it constitutes a relevant standard, may represent a required consideration that must be balanced with other relevant considerations. [Citations omitted.]' LUBA went on to hold in Save Our Skyline that it is appropriate to `consider first whether the comprehensive plan itself expressly assigns a particular role to some or all of the plan's goals and policies.' Section 23.08.020 of the county's comprehensive plan provides as follows: 247-16-000317-ZC / 318 -PA 12 The purpose of the Comprehensive Plan for Deschutes County is not to provide a site- specific identification of the appropriate land uses which may take place on a particular piece of land but rather it is to consider the significant factors which affect or are affected by development in the County and provide a aeneral auide to the various decisions which must be made to promote the greatest efficiency and equity possible, while managing the continuing growth and change of the area. Part of that process is identification of an appropriate land use plan, which is then interpreted to make decisions about specific sites (most often in zoning and subdivision administration) but the plan must also consider the sociological, economic and environmental consequences of various actions and provide auidelines and policies for activities which may have effects beyond physical changes of the land. (Emphasis added.) The Hearings Officer previously found that the above -underscored language strongly suggests the county's plan statements, goals and policies are not intended to establish approval standards for quasi-judicial land use permit applications. In Bothman v. City of Eugene, 51 Or LUBA 426 (2006), LUBA found it appropriate also to review the language of specific plan policies to determine whether and to what extent they may in fact establish decisional standards. The policies at issue in that case included those ranging from aspirational statements to planning directives to the city to policies with language providing 'guidance for decision-making' with respect to specific rezoning proposals. In Bothman LUBA concluded the planning commission erred in not considering in a zone change proceeding a plan policy requiring the city to `trJecognize the existing general office and commercial uses located * * * [in the geographic area including the subject property] and discourage future rezonings of these properties.' LUBA held that: '* * * even where a plan provision might not constitute an independently applicable mandatory approval criterion, it may nonetheless represent a relevant and necessary consideration that must be reviewed and balanced with other relevant considerations, pursuant to ordinance provisions that require * * * consistency with applicable plan provisions.'(Emphasis added.) The county's comprehensive plan includes a large number of goals and policies. The applicant's burden of proof addresses goals for rural development, economy, transportation, public facilities, recreation, energy, natural hazards, destination resorts, open spaces, fish and wildlife, and forest lands. The Hearings Officer finds these goals are aspirational in nature and therefore are not intended to create decision standards for the proposed zone change." Hearings Officer Karen Green adhered to these findings in the Powell/Ramsey decision (file nos. PA-14-2/ZC-14-2), and found the above -referenced introductory statements and goals are not approval criteria for the proposed plan amendment and zone change. This Hearings Officer also adheres to the above findings herein. Nevertheless, depending upon their language, some plan provisions may require "consideration" even if they are not applicable approval criteria. Save Our Skyline v. City of Bend, 48 Or LUBA 192, 209 (2004). I find that the following amended comprehensive plan goals and policies require such consideration, and that other provisions of the plan do not apply: 247-16-000317-ZC / 318 -PA 13 Chapter 2, Resource Management 1. Section 2.2, Agricultural Lands Policies Goal 1, Preserve and maintain agricultural lands and the agricultural industry. FINDING: The Hearings Officer found in the Powell/Ramsey decision, and I agree in this Decision, that this is an aspirational goal and not an approval criterion. Nonetheless, I find that the subject property does not constitute "agricultural land" as defined in Goal 3, OAR 660-033- 0020(1) for the reasons set forth in this Finding and as discussed in additional findings below. Substantial evidence in the record supports a finding that the subject property does not constitute "agricultural land." The applicant's Order 1 soils study ("Soils Assessment") and the Agricultural Soils Capability Assessment information prepared by the Oregon Department of Land Conservation and Development, demonstrate that the subject property is not suitable agricultural land. The Soils Assessment shows that 67% of the subject property is Class VII and Class VIII soils. Contrary to the argument of 1000 Friends of Oregon, a property need not be comprised entirely (100%) of Class VII and Class VIII soils for a determination to be properly made that the property is not "agricultural land." Rather, it must be predominately (51%) comprised of soils that are not properly classified as Class 1 -VI soils to support such a determination. The County's Comprehensive Plan map, adopted in 1979, was developed without the benefit of reliable, detailed soils mapping information. The map was prepared prior to the USDAINRCS's publication of the "Soil Survey of Upper Deschutes River Area, Oregon." This survey is more comprehensive than prior soils mapping efforts but continues to provide general soils information. The subject application includes a more detailed Order 1 soils survey, Exhibit D to the Corrected Burden of Proof for the subject property based on specific soils sampling and testing of the subject property. Consistent with ORS 215.211, this survey has been approved for use by Deschutes County by DLCD. It provides Deschutes County with the information needed to conclude that the subject property does not qualify as "agricultural land" as defined by state administrative rule. When the County first implemented Statewide Goals, it applied resource zoning with a broad brush. Since that time, the County has rezoned properties from EFU to MUA-10 zoning and has applied a Rural Residential Exceptions Plan designation to lands found to be nonresource land. See Board of County Commissioners decisions in PA-07-1/ZC-07-1 (Pagel), PA-08-1/ZC-08-1 (The Daniels Group) and PA-11-7/ZC-11-2 (State of Oregon Department of State Lands) (Exhibits K, L and M to Corrected Burden of Proof). The Board has determined that the current comprehensive plan allows the County to approve applications to change the plan designation of nonagricultural land from Agricultural to RREA. Exhibit M. The Board has also determined that a goal exception is not required to allow the County to approve an RREA plan designation for nonagricultural land. Exhibit M. 1000 Friends of Oregon challenged the applicant's right to commission a soils classifier like Roger Borine to provide more detailed information than available through the NRCS soil surveys. However, I find that LCDC's Goal 3 rules, OAR 660 -033 -0030(5)(a) -(e), authorize property owners to submit and counties to rely on more detailed information about the land capability ratings of the soils in determining if land is "agricultural land." Soils classifiers like Mr. Borine are guided by a process established in OAR 660-033-0045 and OAR 660-033-0030(a)(a) to conduct soil surveys that provide a more detailed and accurate delineation of the soils found 247-16-000317-ZC / 318 -PA 14 on a specific property for purposes of defining agricultural land. Goal 3's definition of "agricultural land" does not require that counties adhere to the soils ratings of NRCS soil surveys. Goal 3 requires that the Soil Capability Classification System of the US Soil Conservation Service be used to classify soils. OAR 660-033-0020(1)(a)(A). Read together with OAR 660-033-0030, more detailed information provided by qualified state certified soil classifiers may be used. Mr. Borine is a certified soil classifier and scientist. He is qualified and approved by DLCD to classify soils for consideration by the County. Although 1000 Friends of Oregon argued that land in the ponds on the subject property should be rated Class VI, I find that Mr. Borine correctly classified this land according to the U.S. SCCS system as Class VIII. See Exhibit E to applicant's Rebuttal argument, submitted on October 11, 2016. 1000 Friends also argued that the NRCS soil survey, an Order 2/3 survey, rather than the Order 1 survey prepared by Mr. Borine, should be used to define agricultural land. However, the NRCS General Manual, Part 42-.6 says that soils surveys "are not designed to be used as primary regulatory tolls in permitting or citing decision." LUBA has noted that "the NRCS maps are intended for use at a higher landscape level and include the express statement "Warning: Soil Ratings may not be valid at this scale." Central Oregon LandWatch v. Deschutes County (Aceti), LUBA No. 2016- 012 (August 10, 2016). The applicant presented evidence that traffic on Highway 20 and Bear Creek Road has increased steadily around the subject property to the point where traffic volumes make it impracticable to move farm machinery by driving on either road. Traffic also prevents grazing and herding cattle to a different property after they have depleted the sparse vegetation found on the subject property. The subject property is located in close proximity to one of the largest commercial centers in the City of Bend, within 1/3-1/2 mile of three major shopping centers, numerous restaurants, retail shopping and car dealerships. It is also within '/4 mile from a large apartment complex development, the Stonebriar Apartments. The subject property is also close to Saint Charles Hospital, one of the largest employers in the region and the medical services area around the hospital. The applicant described the property, with two adjacent parcels of EFU-TRB zoned land as an "island of 80 acres of poor soils ringed by major roadways and the City of Bend." The applicant notes that lands in the "island" are not engaged in farm use, and that the subject property is not part of a farm unit on adjoining lands or other properties in the area, nor is it needed by any area farm property in order for those properties to continue in farm use. There is conflicting testimony in the record regarding the viability of farm use on the subject property and in the surrounding area. In particular, Mr. and Mrs. Cleavenger submitted letters and testimony that the property has pasture land, a livestock barn and a commercial fishing pond. They submitted that the property could be productive, but that investors have intentionally let it go fallow in anticipation of development. On the other hand, the information submitted by the applicant indicates that, in order to prepare the subject property for grazing (at a minimum) measures that are beyond accepted farming practices would be required. Evidence of other farming uses in the surrounding area consists of relatively small "hobby farms," and not commercial farm operations. Moreover, the fact the property is adjacent to high traffic on both Highway 20 and Bear Creek Road raises insurance issues for escaping livestock, in addition to difficulties moving farm machinery and grazing/herding cattle to different properties. Mr. Rob Marken and Mr. Harold Marken testified at the public hearing concerning the difficulties associated with farming the subject property. Rob Marken lives to the south and was friends 247-16-000317-ZC / 318 -PA 15 with the prior property owner of the subject property, Mr. Ensworth. He testified that the property would require $5,000 of fertilizer to result in $4,000 of hay. He also testified that there are other, more valuable farm properties. This "pocket" of EFU-zoned property is not valuable. Harold Marken testified that the driveway on the subject property includes rock piles from the property itself. He stated that the soils are only 5-6 inches deep. Mr. Marken commented that "if you put water on it, you get grass," but that the property is not able to be farmed. He stated that there are 10 cows and 4 calves on the property but that it doesn't make money in farming. On the other hand, Ms. Noreah Rogers -Livingstone testified that her father and brother are farmers and one only needs 5 inches of soil to grow crops. She also commented that multiple soils reports should be required, not just a single report prepared by the applicant's soils expert. 1000 Friends of Oregon argued the cumulative impact of conversion of agricultural lands puts the stability of Oregon's agricultural land base at risk. It noted the impacts of such conversion on farm land and the farm economy in Central Oregon. 1000 Friends also argued that fragmentation of farm lands will result, with a direct loss of land available for ranching and a loss of economies of scale. The applicant submitted evidence that the subject property does not currently have land use approval to use the ponds for fish propagation. No such approval is required as the use is permitted outright. Fish propagation licenses are issued by the Oregon Department of Fish and Wildlife and must be renewed annually. See Exhibit A to Rebuttal argument, submitted October 11, 2016. The applicant stated that the "Planning Approval" submitted with 1000 Friends of Oregon's October 4, 2016 letter is a land use compatibility statement (LUCS) required by ODFW, and that fish propagation cannot occur without an ODFW license and none exists for the subject property. The record shows that the fish ponds were a hobby of the prior owners of the subject property and was not intended to make a profit in money. Accordingly, the Hearings Officer finds that the fish ponds do not constitute a farm use as defined by ORS 215.203(2)(a). The record also shows that other limited agricultural uses that occurred on the subject property were hobby farm uses, not conducted to make a profit in money. According to Leslie Clark, Water Right Manager for Central Oregon Irrigation District, "[i]t appears historically water was diverted for the purposes of filling the ponds, very little irrigation occurred. The transfers (of water rights) in 1996 and 2000 were done as part of a cleanup of water rights, removing them from lands that were not beneficially using water and transferring them to lands in need of water." See Exhibit B to Rebuttal argument, submitted October 11, 2016. The law does not require several "independent" soils reports to support a determination that a property is not "agricultural lands" due to the soils of which it is comprised. I find that DLCD's review and approval of the Soils Assessment prepared by Mr. Borine in this case, and his experience and certifications (discussed in the findings below) demonstrate the reliability of the findings in the Soils Assessment. The arguments of opponents to the application do not merit denial of the application because the subject property does not constitute "Agricultural Land," as it consists predominantly of Class VII and VIII soils and is unsuitable for farm use. The record shows that the land in the area is not commercial farmland, although there are some hobby farm uses. As the County stated in its approval of Mr. and Mrs. Cleavenger's LM site plan decision, the property that adjoins the subject property "is surrounded by rural residential and some minor farm uses on 247-16-000317-ZC / 318 -PA 16 lands zoned EFU-TRB." Findings and Decision File Nos. 247-16-000071-AD/247-16-000072- LM (Exhibit K to Applicant's Response to Staff Report and Opponent Concerns). For all the foregoing reasons, I find that the Soils Assessment is adequate and reliable for determining whether the subject property is unsuitable for farm use, considering profitability and factors in the Goal 3 administrative rule, as set forth in additional findings below. The property is unsuitable for farm use considering, among other things, insufficient irrigation rights, the surrounding road network, impacts of nearby heavy traffic, the shallow depth of soils, the inability to employ the land for the primary purpose of obtaining a profit in money through specific farming -related endeavors, and the fact that the property has not been eligible for the farm tax deferral program, and the relatively small size of the parcel, which impacts economies of scale. The Hearings Officer finds that this goal does not apply. Policy 2.2.2 Exclusive Farm Use sub -zones shall remain as described in the 1992 Farm Study and shown in the table below, unless adequate legal findings for amending the sub -zones are adopted or an individual parcel is rezoned as allowed by Policy 2.2.3. FINDING: The applicant is not asking to amend the subzone that applies to the subject property; rather, the applicant is seeking a change under Policy 2.2.3 and has provided adequate findings to support rezoning the subject property MUA-10. The Hearings Officer finds that this policy is inapplicable. Policy 2.2.3 Allow comprehensive plan and zoning map amendments for individual EFU parcels as allowed by State Statute, Oregon Administrative Rules and this Comprehensive Plan. FINDING: The applicant's burden of proof states the following: In 1979, Deschutes County adopted its first comprehensive plan and zoning ordinance that implemented the Statewide Goals. The County's comprehensive plan map was developed without the benefit of reliable, detailed soils mapping information. The map was prepared prior to the USDA/NRCS's publication of the "Soil Survey of Upper Deschutes River Area, Oregon." This survey is more comprehensive than prior soils mapping efforts but continues to provide general soils information. This land application includes a more detailed and accurate Order 1 soils survey, Exhibit D, for the subject property based on specific soils sampling and testing of the subject property. Consistent with the requirements of ORS 215.211, this survey has been approved for use by Deschutes County by the Department of Land Conservation and Development. It provides Deschutes County with the information needed to conclude that the subject property does not qualify as "agricultural land" as defined by state administrative rule. When the County first implemented Statewide Goals, it applied resource zoning using a broad brush. Since that time, Deschutes County has rezoned properties from EFU to MUA-10 zoning and has applied a Rural Residential Exceptions Plan designation to lands found to be nonresource land. Recent examples include PA-07-1/ZC-07-1, Pagel (the hearings officer's decision adopted by the Board is Exhibit K), PA-08-1/ZC-08-1, The Daniels Group (Board Decision, Exhibit L) and PA-11-7/ZC-11-2 State of Oregon Department of State Lands (Board Decision, Exhibit M). 247-16-000317-ZC / 318 -PA 17 The Board's findings in Exhibit M conclude that the current comprehensive plan allows the county to approve applications to change the plan designation of nonagricultural land from Agricultural to RREA. The Board's findings also conclude that a goal exception is not required to allow the county to approve an RREA plan designation for nonagricultural land. The applicant is seeking a comprehensive plan amendment from Agriculture to RREA and a zone change from EFU-TRB and UAR-10 to MUA-10 for non -resource land. This is the same change approved by Deschutes County in PA-11-1/ZC-11-2 on land owned by the State of Oregon (DSL). In findings attached as Exhibit M of the applicant's burden of proof statement, Deschutes County determined that State law as interpreted in Wetherell v. Douglas County, 52 Or LUBA 677 (2006) allows this type of amendment. LUBA said, at pp. 678-679: "As we explained in DLCD v. Klamath County, 16 Or LUBA 817, 820 (1988), there are two ways a county can justify a decision to allow nonresource use of land previously designated and zoned for farm use or forest uses. One is to take an exception to Goal 3 (Agricultural Lands) and Goal 4 (Forest Lands). The other is to adopt findings which demonstrate the land does not qualify either as forest lands or agricultural lands under the statewide planning goals. When a county pursues the latter option, it must demonstrate that despite the prior resource plan and zoning designation, neither Goal 3 or Goal 4 applies to the property. Caine v. Tillamook County, 25 Or LUBA 209, 218 (1993); DLCD v. Josephine County, 18 Or LUBA 798, 802 (1990)." LUBA's decision in Wetherell was appealed to the Oregon Court of Appeals and the Oregon Supreme Court but neither court disturbed LUBA's ruling on this point. In fact, the Oregon Supreme Court changed the test for determining whether land is agricultural land to make it less stringent. Wetherell v. Douglas County, 342 Or 666, 160 P3d 614 (2007). In that case, the Supreme Court stated that: "Under Goal 3, land must be preserved as agricultural land if it is suitable for "farm use" as defined in ORS 215.203(2)(a), which means, in part, "the current employment of land for the primary purpose of obtaining a profit in money" through specific farming -related endeavors." Wetherell, 343 Or at 677. The Wetherell court held that when deciding whether land is agricultural land "a local government may not be precluded from considering the costs or expenses of engaging in those activities." Wetherell, 342 Or at 680. In this case, the applicant has shown that the subject property is primarily composed of Class Vil and Vlll nonagricultural soils when irrigated and when not irrigated making farm -related endeavors not profitable. Accordingly, this application complies with Policy 2.2.3. The Hearings Officer found in Powell/Ramsey, and I agree in this Decision, that this policy is directed at the county rather than an individual applicant. In any event, the applicant has requested a quasi-judicial plan amendment and zone change to remove the EFU designation and zoning from the subject property and has submitted information to establish the subject property is not "Agricultural Land" subject to Goal 3. The applicant's proposal is authorized by policies in the comprehensive plan and is permitted under state law. 247-16-000317-ZC / 318 -PA 18 The Hearings Officer finds that substantial evidence in the record shows that the subject property is not suitable for farm use defined in ORS 215.203(2)(a), as interpreted and applied by the Oregon Supreme Court in Wetherell v. Douglas, 342 Or 666, 160 P3d 614 (2007). As detailed in the findings above, incorporated herein by this reference, I find that the applicant's Order 1 Soils Assessment and the Agricultural Soils Capability Assessment information prepared by the Oregon Department of Land Conservation and Development, as well as the shallow depth of soils, the inability to employ the land for the primary purpose of obtaining a profit in money through specific farming -related endeavors, and the fact that the property has not been eligible for the farm tax deferral program support a determination that the subject property is not suitable for farm use. As the Wetherell court ruled, hobby farming is not "farm use." 342 Or at 671. A goal exception is not required where, as here, substantial evidence in the record supports a finding the land does not qualify either as forest lands or agricultural lands under the statewide planning goals for the reasons set forth above. OAR 660-033-0030(5)(a) authorizes the County to rely on more detailed data on soil capability than contained in the NRCS maps and surveys when determining if land is Agricultural Land. I find that the Soils Assessment prepared by Roger Borine is more accurate and complete than provided by the NRCS. The soils study authorized by DLCD rules is intended to determine the correct land capability classification of soils found on the property. It is expected, that if used, the report will show that soils have a different classification than shown by the NRCS maps. DLCD's description of its review of soils reports states that LCDC may choose to audit soils reports if "soils are shown to be more than one capability classification lower than that of the NRCS Internet Soil Study." (Exhibit C to Applicant's Response to Staff Report and Opponent Concerns). Mr. Borine is one of 5 soils scientists in the State of Oregon DLCD has determined is qualified to conduct a soil survey to help counties determine whether land is agricultural land. His review for this application was submitted to and reviewed by DLCD and found to comply with its rules for such a report. Substantial evidence in the record shows that Mr. Borine is qualified to complete this assessment, given his certifications and work experience. (Exhibits D, E, F, G, H and Ito Applicant's Response to Staff Report and Opponent Concerns). The Hearings Officer rejects the argument of 1000 Friends of Oregon that the Supreme Court's decision in Wetherall is not instructive with respect to the application of state statutes, OARs and the Comprehensive Plan. For all the foregoing reasons, the Hearings Officer finds that the proposal is consistent with this policy. Policy 2.2.4 Develop comprehensive policy criteria and code to provide clarity on when and how EFU parcels can be converted to other designations. FINDING: The applicant's burden of proof states the following: This plan policy directs Deschutes County to develop new policies to provide clarity when EFU parcels can be converted to other designations. In the DSL findings, Deschutes County found that this policy does not impose a moratorium on requests for applications of the type filed by DSL and, in this case, by the applicant. See Exhibit M. Deschutes County also noted that it had approved the conversion of EFU land to an RREA plan designation and MUA-10 zoning in the Pagel decision, Exhibit K and that nothing in this plan policy prohibits that action. The County's interpretation of Policy 2.2.3 above, spells out when and how EFU parcels can be converted to other designations. The facts presented by this case merit conversion of the subject property to a new plan designation under the County's interpretation of Policy 2.2.3. 247-16-000317-ZC / 318 -PA 19 The Hearings Officer found in Powell/Ramsey, and I agree in this Decision, that this policy is directed at the county rather than at an individual applicant. Nonetheless, the Hearings Officer finds that the County has developed comprehensive policy criteria and code requirements that provide clarity on the conversion of EFU parcels to other designations. I further find that the applicant is entitled to file an application to rezone and change the plan designation of the subject property under this policy under the law and facts of this application. The Hearings Officer finds that the proposal is consistent with this policy. Policy 2.2.13 Identify and retain accurately designated agricultural lands. FINDING: The Hearings Officer found in Powell/Ramsey and I agree in this Decision, that this policy is directed at the County rather than the applicant. I find that this plan policy requires identification and retention of agricultural lands that are accurately designated. Based on my findings above, incorporated herein by this reference, I find that the subject property was not accurately designated as demonstrated by the applicant's Order 1 Soils Assessment and the Agricultural Soils Capability Assessment information prepared by the Oregon Department of Land Conservation and Development because the property consists of predominantly Class VII and VIII soils and is unsuitable for farm use considering profitability and factors in the Goal 3 administrative rule. This finding is also based on the shallow depth of soils, the inability to employ the land for the primary purpose of obtaining a profit in money through specific farming -related endeavors, and the fact that the property has not been eligible for the farm tax deferral program. Accordingly, as set forth in the findings herein, the subject property does not constitute "Agricultural Land." Several members of the public2 testified at the public hearing that the parcel should not be rezoned because the City of Bend rejected including the parcel in its recent UGB expansion. However, the record does not support a determination that such decision was made due to the value of the property as "Agricultural Land." The City of Bend included the subject property in its original UGB proposal. However, the State of Oregon requires that resource lands, such as the subject property under its current zoning classification and plan designation, and exception lands not be included in a proposed UGB. The Hearings Officer further notes that the City of Bend UGB expansion process is not binding in any way on the subject application. The Hearings Officer finds that the proposal is consistent with this policy., 2. Section 2.5 Water Resources Policies Policy 2.5.24 Ensure water impacts are reviewed and, if necessary, addressed for significant land uses or developments. FINDING: The applicant's corrected burden of proof states the following. Comprehensive Plan Policy 2.5.24 requires the County to ensure that water impacts are reviewed and addressed for significant land uses or developments but it does not establish an approval criterion. it does not require that water impacts be considered when a plan amendment or zone change is proposed. This application does not propose a significant land use nor does it propose a development. 2 Jane Cleavenger, David Morman, Gavin Hepp referenced the Bend UGB decision in their testimony. 247-16-000317-ZC / 318 -PA 20 In its DSL findings, Exhibit M, Deschutes County found that impacts of any proposed future development of the DSL property on water resources would be reviewed by Deschutes County in future development applications. That finding was sufficient to demonstrate compliance with this plan policy. Together with the findings above and the later review by Deschutes County, this policy is satisfied. The subject property is served by Avian Water System. If the subject property is zoned MUA-10 no additional homes will be able to be built on the property as of right. Only if adequate water service can be provided will a land division be approved. irrigation water rights impacts under this application, also will be neutral to positive. It is possible that water rights will not be affected as the water rights are primarily pond rights. Only the residential lawn on the subject property is irrigated land. Much of the existing .25 acres of irrigation water rights are mapped under the house and cannot be used or transferred. irrigating poor farm ground consumes a large amount of the area's precious water resources without the resulting economic benefits of profitable agricultural production. Homes consume less water than would be needed for farm field irrigation on the subject property. In addition, if the subject property is annexed to the City of Bend, it is likely that the irrigation water rights will be transferred to more productive farm properties or used to enhance flows in the Deschutes River. On balance, based on the lack of productive resource land on the subject property, water resources will be better preserved and conserved under this application by reapplication to a more beneficial use. The Hearings Officer found in Powell/Ramsey, and I agree in this Decision, that this policy is directed at the County. Hearings Officer Green stated in the Powell/Ramsey decision: "Nevertheless, in my decision in NNP i held it is not clear from this plan language what "water impacts" require review -- impacts to water supplies from use or consumption on the subject property, or impacts to off-site water resources from development on the subject property. As a result, I addressed both issues in that decision, and I do so here as well." This Hearings Officer likewise addresses both issues as set forth below. The Hearings Officer finds that it is premature to review "water impacts" because the applicant has not proposed any particular land use or development. Any subsequent applications for development of the subject property would be reviewed under the County's land use regulations which include consideration of a variety of on- and off-site impacts. Substantial evidence in the record shows that irrigation water rights are minimal on the subject property; pond water rights cannot be converted to other use. While there is no evidence in the record to support speculation as to the future of irrigation water rights if the subject property is annexed to the City of Bend, the Hearings Officer agrees that proposed water use for the development of the subject property would be reviewed under any necessary land use process for the site in the future. 1000 Friends of Oregon argues that rezoning the property to MUA-10 will increase the water usage over the baseline (currently one residence), allowing up to three residences to be permitted. However, the applicant correctly notes that the zone change in and of itself cannot authorize any additional residences on the subject property; there is no current proposal for any 247-16-000317-ZC / 318 -PA 21 subdivision or partition. 1000 Friends is correct that each lot that could be created in the future will have to establish water rights before it can be developed. DCC 17.22.020 requires the County to find, prior to approval of a partition, that all required utilities, public services and facilities are available and adequate for the uses proposed. DCC 17.16.100 similarly requires the County to find, prior to approval of a subdivision, that the subdivision will not create an excessive demand on public facilities and services and utilities required to serve the development. 1000 Friends also argues that the property has been proposed to be developed with up to 800 units, having a substantial impact on water resources. However, MUA-10 zoning does not allow development of apartments or other high density development. I find that the application is not proposing a "significant land use or development." The applicant submitted evidence that the amount of water use associated with two new residences on the subject property is lower than the water requirements for uses allowed outright and conditionally allowed uses in the EFU zone, including, but not limited to churches. The applicant also submitted evidence from Avion Water Co., LLC that it serves the part of the community in which the subject property is located and it is willing to provide water service to the subject property and to serve future development. Exhibit Ito Corrected Burden of Proof. I find that future water impacts are not required to be reviewed at this time as there is no pending development proposal associated with the rezone application. The Hearings Officer finds that the proposal is consistent with this policy. Chapter 3, Rural Growth 1. Section 3.2, Rural Development Growth Potential As of 2010, the strong population growth of the last decade in Deschutes County was thought to have leveled off due to the economic recession. Besides flatter growth patterns, changes to State regulations opened up additional opportunities for new rural development. The following list identifies general categories for creating new residential lots, all of which are subject to specific State regulations. • Some farm lands with poor soils that are adjacent to rural residential uses can be rezoned as rural residential FINDING: The applicant's corrected burden of proof states the following; The County's Comprehensive Plan anticipates that EFU-zoned land with poor soils will be rezoned for rural residential development when it adjoins rural residential exceptions areas. The County's code provides mechanisms to amend the County's zoning maps when such changes are appropriate. The subject property has extremely poor soils. It is adjacent to the city limits for the City of Bend along its entire western boundary and adjoins a large area of properties in rural residential exception areas that are developed with rural residential uses at its southwest and southeast corners. The property adjoins land zoned UAR-10 (rural residential zoning) to the north. A part of the subject property is already zoned UAR-10. 247-16-000317-ZC / 318 -PA 22 The MUA-10 zone is a rural residential zone. It will provide for an orderly and efficient transition from rural to urban land use as intended by the purpose of the MUA-10 zone. As a result, rezoning the subject property MUA-10 is consistent with Section 3.2. The Hearings Officer finds that the County's Comprehensive Plan and County Code provisions anticipate the need for additional rural residential lots as the region continues to grow. The Plan and the Code provide for a mechanism to rezone farm lands with poor soils to a rural residential zoning designation. For the reasons set forth above, I find there is substantial evidence in the record to support a determination the subject property is comprised of poor soils and is adjacent to rurual residential uses. The MUA-10 zone is a rural residential zone. Rezoning the subject property will provide additional rural residential lots in the County and is appropriate where, as here, the subject property is comprised of poor soils, as specified in the policy above. Ms. Cleavenger argued that rezoning the subject property will devalue surrounding properties and erode home equity. No evidence was submitted to support this assertion, however. Nor is this argument evidence that the subject property, with poor soils that is adjacent to rural residential uses, cannot be rezoned to MUA-10, a rural residential designation under this policy. The MUA-10 zone will not permit urban residential development of the subject property. The Hearings Officer finds that the proposal is consistent with this policy. 2. Section 3.3, Rural Housing Rural Residential Exception Areas In Deschutes County most rural lands are designated for farms, forests or other resources and protected as described in the Resource Management chapter of this Plan. The majority of the land not recognized as resource lands or Unincorporated Community is designated Rural Residential Exception Area. The County had to follow a process under Statewide Goal 2 to explain why these lands did not warrant farm or forest zoning. The major determinant was that many of these lands were platted for residential use before Statewide Planning was adopted. In 1979 the County assessed that there were over 17,000 undeveloped Rural Residential Exception Area parcels, enough to meet anticipated demand for new rural housing. As of 2010 any new Rural Residential Exception Areas need to be justified through taking exceptions to farm, forest, public facilities and services and urbanization regulations, and follow guidelines set out in the OAR. FINDING: In response to this section, the applicant's burden of proof provides the following: The quoted language is a part of the background text of the County's comprehensive plan. it is not a plan policy or directive and it is not an approval standard for this application. This fact was confirmed by former Deschutes County Senior Planner Terri Hansen Payne, AICP during the County's review of the DSL rezoning and plan amendment application. See Exhibit M. Nonetheless, given the fact that the above - quoted text was discussed in the context of that application, the applicant has elected to address it in the context of this application. 247-16-000317-ZC / 318 -PA 23 This plan language does not bar application of the RREA plan designation to non - resource land. It does not require that an exception be taken to apply the RREA designation to non -resource land. Instead, as stated by the Board's findings in Exhibit M, the language "appears to be directed at a fundamentally different situation than the one presented in this application." The text is written to require that exceptions be taken for resource lands that require an exception; not to require goal exceptions for non -resource lands that do not require such exceptions. As LUBA and the Oregon Supreme Court recognized in the Wetherell decision, there are two ways a county can justify a decision to allow non -resource use of land previously designated and zoned for farm or forest uses. The first is to take an exception to Goal 3 and Goal 4 and the other is to adopt findings that demonstrate the land does not qualify either as forest lands or agricultural lands under the statewide planning goals. Here, the applicant is pursuing the latter approach. The quoted plan text addressed the former. If the quoted plan text were read to require an exception to Goal 3 or 4 where the underlying property does not qualify as either Goal 3 or Goal 4 resource land, such a reading would be in conflict with the rule set forth in Wetherell and Policy 2.2.3 of the Comprehensive Plan. Deschutes County has interpreted its RREA plan designation to be the proper "catchall" designation for non -resource land. As a result, the RREA plan designation is the appropriate plan designation for the subject property. The Hearings Officer finds that the language set forth above under Section 3.3 of the County Comprehensive Plan is background text and not a plan policy or directive. As set forth in the findings above, incorporated herein by this reference, no goal exception is required for the subject application because the Hearings Officer has made findings that the land does not qualify as forest lands or agricultural lands under the statewide planning goal. The Hearings Officer relies in part on the Hearings Officer's decision for PA-11-17/ZC-11-2 concerning this language of Section 3.3 in which, Hearings Officer Kenneth Helm, states at page 11 of the decision: To the extent that the quoted language above represents a policy, it appears to be directed at a fundamentally different situation than the one presented in this application. The quoted language addresses conversions of "farm" or "forest" land to rural residential use. In those cases, the language indicates that some type of exception under state statute and DLCD rules will be required in order to support a change in Comprehensive Plan designation. See ORS 197.732 and OAR 660, Division 004. That is not what this application seeks to do. The findings below explain that the applicant has been successful in demonstrating that the subject property is composed predominantly of nonagricultural soil types. Therefore, it is permissible to conclude that the property is not "farmland" as defined under state statute, DLCD rules, and that it is not correctly zoned for exclusive farm use. As such, the application does not seek to convert "agricultural land" to rural residential use. if the land is demonstrated to not be composed of agricultural soils, then there is no "exception" to be taken. There is no reason that the applicant should be made to demonstrate a reasons, developed or committed exception under state law because the subject property is not composed of the type of preferred land which the exceptions process was designed to protect. For all these reasons, the Hearings Officer concludes that the applicant is not required to obtain an exception to Goal 3. There is one additional related matter which warrants discussion in connection with this issue. It appears that part of Staff's hesitation and caution on the issue of whether an 247-16-000317-ZC / 318 -PA 24 exception might be required is rooted in the title of the Comprehensive Plan designation that would ultimately apply to the subject property — which is "Rural Residential Exception Area." There appears to be seven countywide Comprehensive Plan designations as identified in the plan itself. These include "Agriculture, Airport Development, Destination Resort Combining Zone, Forest, Open Space and Conservation, Rural Residential Exception Area, and Surface Mining." Of the seven designations, only Rural Residential Exception Area provides for associated zoning that will allow rural residential development. As demonstrated by reference to the Pagel decision discussed above, there appears to be instances in which rural residential zoning has been applied without the underlying land necessarily being identified as an exception area. This makes the title of the "Rural Residential Exception Area" designation confusing, and in some cases inaccurate, because no exception is associated with the underlying land in question. However, it is understandable that since this designation is the only one that will allow rural residential development, that it has become a catchall designation for land types that are authorized for rural residential zoning. That is the case with the current proposal, and again, for the same reasons set forth in Hearings Officer Green's decision in Pagel, I cannot find a reason why the County would be prohibited from this practice. (emphasis added). I find that Deschutes County has interpreted the RREA plan designation as the proper "catchall" designation for non -resource land. As a result, the Hearings Officer finds that the RREA plan designation is the appropriate plan designation for the subject property. Section 3.7, Transportation Appendix C — Transportation System Plan ARTERIAL AND COLLECTOR ROAD PLAN Goal 4 4. Establish a transportation system, supportive of a geographically distributed and diversified economic base, while also providing a safe, efficient network for residential mobility and tourism. Policies 4.4 Deschutes County shall consider roadway function, classification and capacity as criteria for plan map amendments and zone changes. This shall assure that proposed land uses do not exceed the planned capacity of the transportation system. FINDING: The Hearings Officer finds that this policy applies to the County and advises the County to consider the roadway function, classification and capacity as criteria for plan map amendments and zone changes. The County has complied with this direction by determining compliance with the Transportation System Planning Rule. B. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone classification. 247-16-000317-ZC / 318 -PA 25 FINDING: In response to subsection (B) of this policy, the applicant's burden of proof provides the following: The approval of this application is consistent with the purpose of the MUA-10 zoning district which stated in DCC 18.32.010 as follows: "The purposes of the Multiple Use Agricultural Zone are to preserve the rural character of various areas of the County while permitting development consistent with that character and with the capacity of the natural resources of the area; to preserve and maintain agricultural lands not suited to full-time commercial farming for diversified or part-time agricultural uses; to conserve forest lands for forest uses; to conserve open spaces and protect natural and scenic resources; to maintain and improve the quality of the air, water and land resources of the County; to establish standards and procedures for the use of those lands designated unsuitable for intense development by the Comprehensive Plan, and to provide for an orderly and efficient transition from rural to urban land use." The subject property is not suited to full-time commercial farming. The MUA-10 zone will allow property owners to engage in hobby farming. The low-density of development allowed by the MUA-10 zone will conserve open spaces and protect natural and scenic resources. This low level of development will also help maintain and improve the quality of the air, water and land resources of the county by encouraging the future owners of the property to return irrigation water to area waterways or to more productive farm ground elsewhere in the county rather than to waste it on unproductive lands. The subject property adjoins the City of Bend. The MUA-10 zoning provides a proper transition zone from EFU rural zoning to City zoning. The Hearings Officer finds that substantial evidence in the record shows that the subject property is not suited to full-time commercial farming, as discussed in the findings above, incorporated herein by this reference. I find that the proposed change in zoning classification from EFU is consistent with the purpose and intent of the MUA-10 zone. Specifically, the MUA- 10 zone is intended to preserve the rural character of various areas of the County while permitting development consistent with that character and with the capacity of the natural resources of the area. Approval of the proposed rezone to MUA-10 would permit applications for low-density development, which will comprise a transition zone between EFU rural zoning, primarily to the east and City zoning to the west. The evidence shows that the maximum density of the approximately 35 -acre property under MUA-10 zoning is approximately three (3) Tots, with the applicant agreeing to a condition of approval prohibiting a cluster development proposal. No additional residential development may occur until a partition or subdivision application is approved. This low-density development will allow property owners to engage in hobby farming, if they desire, and will conserve open spaces, preserve natural and scenic resources and maintain or improve the quality of air, water and land resources. The Hearings Officer notes that none of the current resources of the subject property including, but not limited to the pond, will be changed by approval of the rezone application. As discussed in more detail below, the pond is a Goat 5 resource that will enjoy the same protections under both the EFU-TRB current zoning and under the proposed MUA-10 zoning. Approval of a rezone will not in and of itself impact the Goal 5 resource. 247-16-000317-ZC / 318 -PA 26 1000 Friends of Oregon comments that the applicant intends to develop the property into a high-density housing complex, referring to an illustrative exhibit that the applicant submitted to the City of Bend during the UGB expansion process. First, the testimony at hearing by the applicant confirms that they are not proposing such a development because it would not be permitted under the MUA-10 zone. Second, the applicant has not submitted any development application with its rezone application, nor has it requested a partition or subdivision. The Hearings Officer finds that the proposal is consistent with this policy. Section 5.3, Goal 5 Inventory Water Resources Wetlands Inventory. In 1992, Deschutes County Ordinance 92-045 adopted all wetlands identified on the U.S. Fish and Wildlife Service National Wetland Inventory Maps as the Deschutes County wetland inventory. Additionally, Deschutes County Ordinance 2001-008 adopted a Local Wetland Inventory (LWI) covering 18,937 acres in South Deschutes County. FINDING: The subject property is not located in South Deschutes County and thus is not subject to Ordinance 2001-008. However, a pond on the subject property is a mapped wetland. The comprehensive plan inventories it as a Goal 5 resource. Section 2.5, Water Resources Wetlands Wetlands are those areas that are inundated or saturated by surface or ground water at a frequency and duration to support, under normal conditions, a prevalence of vegetation typically adapted for life in saturated soil conditions. Deschutes County Ordinance 92-045 adopted all wetlands identified on the U.S. Fish and Wildlife Service National Wetland Inventory (NWI) Maps as the Deschutes County wetland inventory. Additionally, Deschutes County Ordinance 2001-008 adopted a Local Wetland Inventory (LWI) covering 18,937 acres in South Deschutes County. These mapped areas are subject to County, state and federal fill and removal regulations. FINDING: The NWI Maps show an inventory of wetlands based on high-altitude aerial photos and limited field work. While the NWI can be useful for many resource management and planning purposes, its small scale, accuracy limitations, errors of omission that range up to 55 percent (existing wetlands now shown on NWI), age (1980s), and absence of property boundaries make it unsuitable for parcel -based decision making. With the exception of narrowly defined riparian buffers (100 ft from top of bank for all Class 1 and Class 2 streams), Deschutes County does not protect wetlands; instead development activities proposed in a NWI are required to initiate a land -use procedure and notify the Oregon Department of State Lands (DSL). According to the County's zoning regulations, no person shall fill or remove any material or remove any vegetation, within the bed and banks of any stream or river or in any wetland, unless approved as a conditional use or exception. All necessary state and federal permits must be obtained as a condition of approval 247-16-000317-ZC / 318 -PA 27 1 find that the pond on the subject property is protected by regulations in DCC 18.128.270 as a Goal 5 resource. Any fill or removal activity in a mapped wetland requires approval of a conditional use permit. This requirement applies in land in all zoning districts and plan designations (DCC 18.16.030(T) in the EFU zone; DCC 18.32.030(V) in the MUA-10 zone). This is the only protection imposed by the County code and comprehensive plan for wetlands. I find that the protections afforded by this program will not be weakened by a change in zoning or plan designation. Other wetlands protection programs administered by State and federal agencies apply, regardless of zoning district or plan designation. Compliance with Goal 5 is not dependent on restriction of the type of uses that may occur on properties that contain wetlands. Rather, compliance is achieved by compliance with the County's fill and removal program. The Hearings Officer finds that the change in zoning and plan designation will not impact the protection of the Goal 5 resource on the subject property. C. That changing the zoning will presently serve the public health, safety and welfare considering the following factors: 1. The availability and efficiency of providing necessary public services and facilities. FINDING: In response to this criterion, the applicant's corrected burden of proof provides the following: Necessary public facilities and services are available to serve the subject property as shown by the following evidence. Will -serve letters from PacifiCorp and Avion Water Company, Inc., Exhibits H and I of this application show that electric power and water services are available to serve the property. The subject property adjoins two major roadways: Highway 20 and Bear Creek Road. The impact of rezoning the subject property will be extremely minor. With its current zoning, it is theoretically possible to divide the property into a farm and nonfarm dwelling parcel if 23 acres of irrigation water rights were purchased. This would allow two dwellings on the subject property. MUA-10 zoning and a standard subdivision would allow the creation of three residential lots — an increase of one home. The applicant has agreed that cluster and planned development approvals should be prohibited to assure that no new lot is less than 10 acres in size. As a result, the higher density of development allowed in those developments will not be allowed to occur on the subject property. The property receives police services from the Deschutes County Sheriff. The property is in a rural fire protection district and the nearest fire station is nearby. It is efficient to provide necessary services to the property because the property is already served by these service providers and the property is close to the corporate limits of the City of Bend and adjacent to large tracts of land zoned MUA-10 and UAR-10 that has been extensively developed with rural and urban density residences. Mr. and Mrs. Cleavenger submitted letters and testified that the County should consider the over -taxed sewage system in the area and alleged that the County is not prepared to administer urban development. They note that there is a sewer project underway to replace the over -taxed 27th Street sewer line that will take two years to complete and that the applicant has not requested pre -approval to connect to City services. With respect to urban development in the County, the Cleavengers assert that the County's fee structure is not sufficient to cover 247-16-000317-ZC / 318 -PA 28 administration of higher density development to support additional burdens of such development including traffic, parks, open space, trails and libraries. The Hearings Officer rejects the arguments regarding septic capability because the property would be rezoned to MUA-10, which does not allow it to be served by City sewer. MUA-10 development is served by septic systems. I further reject the argument regarding insufficiency of fees to administer "higher density development," not only because there is a lack of proof on this issue, but because approval of the application does not constitute approval of any development, let along "higher density" development. With respect to transportation impacts, I find that substantial evidence in the record supports a determination that the proposed rezone will have minimal impact to the road system. Because the property would generate less than 50 trips, a traffic impact letter is acceptable. Senior Transportation Planner Peter Russell mistakenly interpreted DCC 18.116.310(E) to require a Transportation Impact Analysis for all rezones. DCC 18.116.310(D) only requires a TIA for proposals that generate at least 50 trips, among other things. I find that no TIA is required. The applicant's traffic impact letter constitutes the required traffic analysis under DCC 18.116.310 and OAR 660-012-0060. The Hearings Officer finds that two or three new homes is the worst case scenario for the subject property and that there will be no significant effect on Highway 20. I also find that the circumstances in this case are similar to those in the Pagel decision, PA -07-1, ZC-07-1, in which the property owner requested rezoning a parcel from EFU to MUA-10 and such property had already been developed with a single-family home. There, Mr. Russell advised that the applicants should compare the traffic generating potential of the uses permitted outright in EFU and MUA-10 zones. In so doing here, a comparison of traffic that would be generated by a church, for example that could be permitted in the EFU zone, but not in the MUA-10 zone, with traffic that would be generated by no more than 5 additional homes on the subject property is appropriate. Finally, I find that the Transportation Systems Plan includes planned improvements including additional lanes on Highway 20, upon which the applicant can rely as mitigation. With respect to the comments from ODOT, I agree with Mr. Russell that the agency's suggested condition of approval cannot be imposed by the County in this case. The County has no authority to close a private approach to the State highway system. Moreover, the County cannot require conditions of approval over which it does not have control, or which require action by another entity. The Hearings Officer finds that substantial evidence in the record shows that necessary public facilities and services are available to serve the subject property, including but not limited to electric power, water service and police and fire protection services. The Hearings Officer further finds that transportation services required to serve the subject property will be adequate given the small increase in potential lots that could be created under current EFU zoning, compared to potential development of the property under MUA-10 zoning (an increase of 1-2 Tots). The Hearings Officer notes that development of the property, under MUA-10 zoning, would need to comply with applicable requirements of the code and many uses would require a formal land use permit and process. Through the land use process, assurance of adequate public services and facilities will be verified. This criterion is met. 2. The impacts on surrounding land use will be consistent with the specific goals and policies contained within the Comprehensive Plan. 247-16-000317-ZC / 318 -PA 29 FINDING: In response to this criterion, the applicant's burden of proof provides the following: The MUA-10 zoning is consistent with the specific goals and policies in the comprehensive plan discussed above. The MUA-10 zoning is the same as the zoning of many other properties in the area southeast of the subject property. The zone change will not impose new impacts on EFU-zoned farm land to the south because these lands are separated from the subject property by Bear Creek Road and because the area along Bear Creek Road has been developed with a number of single-family homes. For the reasons discussed in the findings above, incorporated herein by this reference, the Hearings Officer finds that the proposed rezone from EFU to MUA-10 will be consistent with the goals and policies of the Comprehensive Plan. The Hearings Officer further finds that rezoning the subject property to MUA-10 will not result in new impacts on EFU-zoned farm land in the surrounding area because Bear Creek Road serves as a buffer for properties to the south that are engaged in farming, and the potential number of new Tots that could be created on the subject property under MUA-10 zoning will be no more than 2-3. Again, a partition or subdivision would first be required before any additional homes could be sited on the subject property. Ms. Cleavenger testified that larger homesites would better fit the County and would be highly desirable as there is a scarce supply of small acreage lots close to city limits. I note that, a maximum of 2-3 new lots could potentially be created in the future out of the approximately 35 - acre parcel, resulting in approximately 10 -acre homesites considerably larger than those in the adjacent City of Bend under residential standard (RS) density. Ms. Cleavenger also testified regarding a desire for the property owner to give back to the community (concerning parks) and to maintain natural features and beauty of the land. The Hearings Officer agrees that these are laudable goals and interests, but they are not required considerations for a rezone application. Again, if the property is reclassified to MUA-10, no additional homes may be sited on the property unless and until future applications for partition or subdivision are submitted and approved. The Hearings Officer also notes that there was concern expressed by the Cleavengers regarding impact of approval of the application on the irrigation delivery system that the Cleavengers use. There is no proof that any impact will occur, particularly given the fact that the Cleavengers live across Highway 20 to the north of the subject property and have independent irrigation rights not associated in any way with the subject property. Several people in opposition to the proposal testified regarding concerns about high density development that is inconsistent with the rural character of the MUA-10 zone. It appears that such concerns are based in part on a concept plan prepared by the applicant for consideration by the City of Bend when it was considering the entire property for inclusion in the Bend UGB. The applicant clarified that such concept drawing is not a current proposal for development of the subject property. Nor would such a development proposal be consistent with the MUA-10 zone. When a future development proposal is submitted for consideration by the County, the County will review to ensure consistency of such development with the goals and policies of the Comprehensive Plan, as well as with applicable zoning regulations. This criterion is met. 247-16-000317-ZC / 318 -PA 80 D. That there has been a change in circumstances since the property was last zoned, or a mistake was made in the zoning of the property in question. FINDING: In response to this criterion, the applicant's corrected burden of proof provides the following: There has been a change in circumstances since the subject property was last zoned and a mistake, evident in 20-20 hindsight, in designating the subject property EFU/Agriculture. This zone was applied to the property in 1979 and 1980 when Deschutes County adopted zones, a zoning ordinance and comprehensive plan that complied with the Statewide Goals. The change in circumstance that has occurred is that the City of Bend has developed out to the edge of the subject property. Prior to 1979 and 1980, this area was a rural area of open spaces along a State highway. It is now an area that includes a brew pub, apartments, major shopping centers and retailers, banks, restaurants, gyms, churches and car dealerships in close proximity — with all the traffic and impacts those uses generate. The rural areas around the property have developed with single-family homes. There are only a handful of farm properties in the area. Most of the EFU-zoned land is not engaged in farm use. in response to this change in the character of the area and a need for higher density development in the Bend UGB, the City of Bend rezoned and re -designated the land that adjoins the west boundary of the subject property from RL, Low Density Residential to RS, Standard Density Residential! This allows urban density residential housing along west boundary of the property. That type of housing has been built along the south half of the boundary. Traffic along Highway 20 and Bear Creek Road has increased dramatically since the property was designated EFU making it impractical to operate farm equipment on either road or to allow cattle to use these road to travel to other agricultural lands in the area that might be used for grazing.4 Since the property was zoned, it has become evident that farm uses are not viable on the property or on other area properties. The economics of farming have worsened over the decades making it virtually impossible for a Deschutes County property owner to make money farming good ground. Central Oregon Irrigation District has provided us with an irrigation map prepared by the State Engineer/Surveyor around 1945 to 1948, attached as Exhibit N of this burden of proof. It shows that lands in the area of the subject property had extensive water rights. Since that time, almost none of the lands shown continue to irrigate their properties. Between 2007 and 2012, the number of farm operations in the county dropped from 1405 to 1283 farms (8.68% decrease). This is not surprising as only 16.45% of farm operators achieved a net profit from farming in 2012 (211 of 1283 farm operations). That figure was 17% in 2007 (239 of 1405 farm operations). A copy of the Table 4, Net Cash Farm Income of the Operations and Operators: 2012 and 2007 from the 2012 US 3 The City's general plan map from 1994 shows that the subject property was designated RL. 4 There are currently no properties in the surrounding, nearby area that are currently available for this type of use. 247-16-000317-ZC / 318 -PA 31 Census of Agriculture, the source of this information, is Exhibit 0 of this burden of proof The vast majority of farms in Deschutes County have soils that are superior to those found on the subject property. As farming on those soils is problematic and generally not profitable, it is reasonable to conclude that no reasonable farmer would purchase the subject property for the purpose of attempting to earn a profit in money from agricultural use of the land. In 1979 and 1980, lands that contained poor soils but were mostly undeveloped were zoned EFU without regard to the specific soil characteristics of the property. Land owners were required to apply for a zone change to move their unproductive EFU properties out of the EFU zone. The County's zoning code allowed these owners a one-year window to complete the task. The zone change approach in 1979 and 1980 recognized that some properties would be mistakenly classified EFU even though soils and other conditions did not merit inclusion of the property in the EFU zone. Other property owners of lands east of Bend received approval to rezone their properties from EFU to MUA-10 because their properties contained poor soils and were improperly included in the EFU zone. The soils on the subject property are similarly poor and also merited MUA-10 zoning to correct the broad brush mapping done in 1979 and 1980. Furthermore, there is a change of circumstances since the application of EFU zoning — the County's comprehensive plan was amended to specifically allow individual property owners to, again, have improperly classified land reclassified. 1. Mistake. I find that the original EFU zoning of the subject property was not a mistake at the time of its original designation. The property's EFU designation and zoning were appropriate in light of the minimal soil data available to the county in the late 1970s when the comprehensive plan and map were adopted. 2. Change in Circumstances. In ZC-01-1, the Hearings Officer found that, "...any change in circumstance justifying a zone change must be to the subject property or other property in the vicinity and not to the property owner's circumstances or needs." I find that the record shows that the following general circumstances have changed with respect to the subject property and/or to other property in the vicinity since the property was originally zoned by the County and are not representative of a change in the property owner's circumstances or needs: • A significant increase in traffic along Highway 20 and Bear Creek Road over the past 35 years, has transformed the area from a quiet, rural farming community to one in which it is increasingly difficult to operate farm equipment and graze cattle. • Farming economics in Central Oregon have significantly changed; the evidence is clear that it is difficult to make a profit in farming, particularly on smaller parcels such as the subject property. • Farm uses are not viable on the property or on other area properties and, as a result, many property owners are choosing to forego irrigating their properties. • Farm operations have steadily declined in Deschutes County between 2007 and 2012, with only a small fraction of farm operators achieving a net profit from farming in 2011. • The encroaching development in the City of Bend, immediately to the west of the subject property has brought both traffic and higher intensity commercial uses to this area. 247-16-000317-ZC / 318 -PA 32 • The recent rezoning by the City of Bend of property to the west of the subject property from residential low density (RL) to residential standard density (RS), now allows urban level residential density development adjacent to the subject property. 1000 Friends of Oregon argues that the "vast majority of rural Deschutes County contains soils of the same classes" as on the subject property, and that "much of that land has been actively and successfully used as farmland or ranchland." There is no evidence in the record to support this argument, however. Furthermore, evidence in the record shows that the subject property is predominately comprised of soils rated VII and VIII, which do not constitute "agricultural lands" under OAR 660-033-0020(1)(a), as discussed in detail in the findings above, incorporated herein by this reference. For all the foregoing reasons, I find that the Applicant has established the public interest is best served by rezoning the property under the criteria set forth in DCC 18.136. The criteria are met. C. STATE LAW 1. Statewide Goal 3 The applicant's corrected burden of proof provides the following: State law requires the County to determine if the subject property has resource values that merit protection under State law. In 1979, Deschutes County applied agricultural plan designation to the property based on limited and general information about the nature of the soils found in the area of the property. The County has also implemented Goal 5 resource protection programs throughout Deschutes County. No Goal 5 resources were identified and protected on the subject property. The question before the County, at this time, is whether the subject property meets the definition of Agricultural land and, if not, whether it merits protection under Goal 3. The County must also determine if the property has forest resources that merit protection under Goal 4. In this case, it is clear that the subject property is not Goal 4 forest land. The requirements of Goal 4 are addressed near the end of this document. Goal 3 provides that it is a Statewide Goal "filo preserve and maintain agricultural lands." The Goal states that "Agricultural lands shall be preserved and maintained for farm use, consistent with existing and future needs for agricultural products, forest and open space and with the state's agricultural land use policy expressed in ORS 215.243 and 215.700." Farm use is an activity undertaken for the purpose of making a profit in money. Goal 3 defines agricultural land as follows: Agricultural Land — in western Oregon is land of predominantly Class 1, 11, Ii! and IV soils and in eastern Oregon is land of predominantly Class 1, i1, III, iV, V and Vi soils as identified in the Soil Capability Classification System of the United States Soil Conservation Service and other lands which are suitable for farm use taking into consideration soil fertility, suitability for grazing, climactic conditions, existing and future availability of water for farm irrigation purposes, existing land -use patterns, technological and energy outputs required, or accepted farming practices. Lands in other classes 247 -16 -000317 -LC; / 318 -PA 33 which are necessary to permit farm practices to be undertaken on adjacent or nearby lands, shall be included as agricultural land in any event. More detailed soil data to define agricultural land may be utilized by local governments if such data permits achievement of this goal. Agricultural land does not include land within acknowledged urban growth boundaries or land within acknowledged exceptions to Goals 3 or 4. The soils on the subject property, according to an Order 1 soil survey, are predominately Class VII and VIII soils as identified in the Order 2/3 Soil Capability Classification System of the United States Soil Conservation Service. This is more detailed soil data than provided by the NRCS soil surveys and should be utilized as it provides information at a level of detail appropriate for making land use decision on a property -by -property basis. That system is the Land Capability Classification system of placing soils into classes I- Vlll described in the Land -Capability Classification, Agricultural Handbook No. 210 of the Soil Conservation Service of the USDA. This system is supplemented, in Oregon, by USDA NRCS's publication "Guide for Placing Soils in Capability Classes in Oregon" (Rev 6/1977) that has received national approval for use by soil scientists in Oregon. Both were used by Mr. Borine in his soils assessment. The soils on the subject property are not suitable for farm use based on Goal 3 factors. The land is not necessary to permit farm practices to be undertaken on adjacent or nearby lands. No adjacent lands are in farm use. Nearby lands are separated from the subject property by a State highway and an arterial street. FINDING: The Hearings Officer finds that Goal 3 defines agricultural land. That definition is restated in OAR 660-033-0020. Consistency with Goal 3 and compliance with the administrative rule are addressed together in the findings below. 2. OAR 660, Division 33, Agricultural Land OAR 660-033-0020 For purposes of this division, the definitions in ORS 197.015, the Statewide Planning Goals, and OAR Chapter 660 shall apply. In addition, the following definitions shall apply: (1)(a) "Agricultural Land" as defined in Goal 3 includes: (A) Lands classified by the U.S. Natural Resources Conservation Service (NRCS) as predominantly Class I-IV soils in Western Oregon and I -VI soils in Eastern Oregon; FINDING: In response to (1)(a)(A) above, the applicant's corrected burden of proof provides the following: The NRCS soils survey that includes the subject property indicates that the subject property contains soils that are predominately Class I -VI soils. The soils found on the subject property, however are not predominately Class I through VI soils when irrigated or when not irrigated as shown by the more detailed soll data provided by an Order 1, more detailed soll survey, Exhibit D. Over 67% of the property is Class VII or VIII soil 247-16-000317-ZC / 318 -PA 34 when not irrigated and is not rated for irrigation use due to its unsuitability for that purpose. Goal 3 and OAR 660-033-0030(5) allow the County to rely on the more detailed and accurate information provided by the Exhibit D study. 1000 Friends of Oregon has made a lay challenge to the soils report claiming that wetlands and ponds on the subject property should be classified LCC VI rather than LCC VIII because the term "current employment" of land for farm use is defined by ORS 215.203(2)(b) to include wasteland not engaged in farm use if in common ownership with land in farm use.5 The definition of "current employment" is clearly not relevant to answering the question of whether land is "agricultural land" because "in eastern Oregon lit] is land of predominately Class 1, 11, Ill, IV, V and VI soils as identified in the Soil Capability Classification System of the United States Soil Conservation Service." As explained by Mr. Borine, water bodies or ponds are considered Miscellaneous Areas and classified LCC 8 by the Soil Survey Manual and Ag Handbook 210. As set forth in the findings above, incorporated herein by this reference, the Hearings Officer finds that the subject property, consisting of soils that are not classified as Class I -VI (whether irrigated or not), is not properly classified as Agricultural Land, and that it does not merit protection under Goal 3. It is proper for the County to rely on the Soils Assessment included as Exhibit D to the applicant's burden of proof. 1000 Friends of Oregon argues that the County should not rely on the Soils Assessment because OAR 660-033-0020(1) does not permit the County to substitute the Capability Classification assigned by the soil scientist for the Classification assigned by NRCS. For the reasons set forth in findings above, incorporated herein by this reference, I reject this argument. Specifically, OAR 660-033-0030 permits the use of more detailed data on soil capability than provided by NRCS soil maps to define agricultural land. Here, this more detailed information shows that the subject property has a lower soil capability than indicated by NRCS maps. As stated by the NRCS itself in NRCS General Manual Part 402.6 — Limitations on the Use of Soil Survey Information, "Soils Surveys seldom contain detailed site specific information and are not designed to be used as primary regulatory tools in permitting decisions, but may be used as reference sources." OAR 660-003-0030(5)(e), cited by 1000 Friends of Oregon, states: This section and OAR 660-033-0045 authorize a person to obtain additional information for use in the determination of whether a lot or parcel qualifies as agricultural land, but do not otherwise affect the process by which a county determines whether land qualifies as agricultural land as defined by Goal 3 and OAR 660-033-0020. The Hearings Officer finds that this part of the rule must be read in context. The rule allows more accurate soils information to be used for property with soils that are LCC I -VI but that compliance with other requirements of the Goal 3 definition of Agricultural Land also must be met. This section of the rule does not say that superior soils information allowed for assessing the land capability class of land cannot be used to determine the correct LCC for purposes of the Goal 3 definition of Agricultural Land. Accordingly, a soils study may be used to provide more detailed soils information than that contained in the Web Soil Survey operated by the This definition allows waste land to be assessed as farm land if the property is engaged in a current farm use. The subject property is not currently employed in a farm use so any waste land on the property, like the remainder of the property, is not currently employed in farm use. 247-16-000317-ZC / 318 -PA 35 NRCS, which may be relied upon to determine whether land was properly classified as "Agricultural Land." I reject the argument of 1000 Friends of Oregon that the County has impliedly added new language to the administrative rule above. With respect to the argument of 1000 Friends that the "zeta" soil classification used by Mr. Borine is improper, I find that such classification and the analysis thereof is not improper. The applicant argued that "zeta" soil is an unidentified soil that is shallow and in LCC VII. This is consistent with the NRCS soils date from the Soils Survey for the Upper Deschutes River Area, Oregon, that shows the 58C Gosney-Rock outcrop-Deskamp complex soil unit found on the subject property contains contrasting inclusion that include unidentified soils that are very shallow to bedrock. (Exhibit J to Applicant's Response to Staff Report and Opponent Concerns). Mr. Borine assigned a name to this unidentified soil for ease of reference in his Soils Assessment. I find that his study does not challenge NRCS data and that the assignment of LCC VII to the shallow soil (zeta) is consistent with the NRCS soils data. The Hearings Officer also rejects the argument of 1000 Friends that the wetlands/ponds on the subject property should be classified LCC VI and rules that the question of "current employment" is not determinative. 1 find that Mr. Borine properly classified the wetlands/ponds as LCC VIII (water bodies or ponds are Miscellanous and classified LCC VIII), consistent with the Soil Survey Manual and Ag Handbook 210. For all the foregoing reasons, the Hearings Officer finds that the application complies with this subsection. (B) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a), taking into consideration soil fertility; suitability for grazing; climatic conditions; existing and future availability of water for farm irrigation purposes; existing land use patterns; technological and energy inputs required; and accepted farming practices; and FINDING: In response to subsection (1)(a)(B) above, the applicant's corrected burden of proof provides the following: This part of the definition of "Agricultural Land" requires the County to consider whether the Class VI! and Vill soils found on the subject property are suitable for farm use despite their Class VII and VIII classification. The Oregon Supreme Court has determined that the term "farm use" as used in this rule and Goal 3 means the current employment of land for the primary purpose of obtaining a profit in money through specific farming -related endeavors. The costs of engaging in farm use are relevant to determining whether farm activities are profitable and this is a factor in determining whether land is agricultural land. Wetherell v. Douglas County, 342 Or 666, 160 P3d 614 (2007). The subject property was owned by John A. and Chrissie Ensworth from 1961 through 1994. Mr. Ensworth owned the property from 1994 until 2002. Internet research revealed that John A. Ensworth was a public school teacher at Kenwood Elementary School who received the 1973 National Teacher of the Year Award. According to an application filed with the County, starting around 1978 Mrs. Ensworth raised bass and crappies in the two ponds that are located on the property. The fish were sold to the owners of private ponds for fishing by their family and Mr. Ensworth's students. This operation is described in a letter to David Leslie, a Deschutes County Planner, in 1992, 247-16-000317-ZC / 318 -PA 36 Exhibit P. This use was abandoned long ago, and was not, according to Mr. Ensworth, profitable. Using the subject property to raise bass and crappies would not provide sufficient income to achieve a profit in money. The fish ponds were a hobby; not a farm use as defined by ORS 215.203(2)(a). Mr. Ensworth told H. Porter Burns that the ponds were used by him, his family and students for fishing and were a tax write-off. As the sales of fish did not cover the cost of production and was not intended to make a profit in money, it was not a farm use. This fact is a likely reason the use was abandoned. This assumption is supported by Table 22 of the 2012 Census of Agriculture which shows that there is only one aquaculture operation in Deschutes County and that it raises trout; not bass and crappies for stocking in private ponds. If the relatively small area set aside for this use is considered as being suitable for farm use, the majority of the property still is comprised of Class Vil and Vill soils. It is unknown whether any other activity that might qualify as farm use occurred on the property during the time the property was owned by the Ensworths but it is known that they would have lost water rights due to nonuse for a period of at least five years, but for a law that allowed them to transfer their lapsed water rights. The Ensworths had sheep at one time and a family cow that they milked but they were not farming the land to make a profit in money and, therefore, not a farm use. The extremely poor soils found on the property prevent it from providing sufficient feed for livestock for dryland grazing. The dry climate, the proximity to US Highway 20 and area development prevent grazing from being a viable or potentially profitable use of the property. The soils, also, are so poor that they would not support the production of crops for a profit, assuming irrigation water rights could be obtained for that purpose. The primary agricultural use conducted on properties with poor soils is grazing cattle. Given the high cost of irrigating and maintaining the property as pasture or cropland (high labor costs, labor-intensive, high cost of irrigation equipment and electricity, high cost of fertilizer, etc.), dry land grazing is the accepted farm use of poor soils in Deschutes County. This use can be conducted until the native vegetation is removed by grazing (see the discussion of the suitability of the property for grazing, below). When assessing the potential income from dry land grazing, Deschutes County uses a formula and assumptions developed by the OSU Extension Service. This formula is used by the County to decide whether EFU-zoned land is generally unsuitable for farm use. • One AUM is the equivalent to the forage required for a 1000 Ib. cow and calf to graze for 30 days (900 pounds of forage). • On good quality forage, an animal unit will gain 2 pounds per day. • Two animal units will eat as much in one month as one animal unit will eat in two months. • Forage production on dry land is not continuous. Once the forage is eatern, it generally will not grow back until the following spring. • An average market price for beef is $1.20 per pound. Based upon these assumptions, the value of beef production on the entire subject property can be calculated using the following formula: 247-16-000317-ZC / 318 -PA 37 30 days x 2#/dav/acre= 60.0 lbs. beef/acre (1 acre per AUM) 60.0 lbs. beef/acre x 36.39 acres x $1 .20/1b. = $2, 620.08 per year gross income Thus, the total gross beef production potential for the subject property would be approximately $2, 620.08 annually. This figure represents gross income and does not take into account real property taxes, fencing costs, land preparation, purchase costs of livestock, veterinary costs, or any other costs of production which would exceed income. in addition, as the subject property abuts a busy state highway, the cost for liability insurance due to the risk of livestock escape and the potential for a vehicle/livestock accident, would most likely be extremely high. A review of the seven considerations listed in the administrative rule, below, shows why the poor soils found on the subject property are not suitable for farm use that can be expected to be profitable: Soil Fertility: Without soil sampling, lab analyses, proper fertilization and soil amendment the soils found on the subject property are non-productive and infertile according to soils scientist Roger Borine. According to Mr. Borine's soils study, Exhibit D, organic matter is "extremely low" and clay content is less than five percent, resulting in a very low Cation Exchange Capacity (CEC). According to Mr. Borine, "CEC is important because it provides a reservoir of nutrients for plant uptake." Exhibit D, p. 6. Mr. Borine also determined that soils have a low level of nitrogen, phosphorous, potassium and sulfur. As a result, "[hjigh levels of fertilization are required for a grass crop to be produced. Without an ability of the soil to attract and absorb nutrients (low CEC) they are readily leached out of the soil by irrigation and precipitation thus becoming unavailable for plant use and lost into the surface and ground water." Exhibit D, p. 6. Mr. Borine noted that while the soils found on the subject property have an adequate pH, the use of needed fertilizers reduce the nutrients available to plant. "Lime as a soil amendment must be added to raise oil pH to an acceptable range for plant nutrient intake." Exhibit D, p. 6. Mr. Borine concluded that "(tjo maintain a minimum level of essential nutrients for proper crop growth multiple yearly application of very high rates of fertilizer and soils amendments are required." The fact that the soils are infertile unless made fertile through artificial means supports the applicant's position that the Class VII soils and the entire property is not suitable for farm use. The costs to purchase and apply fertilizer and soil amendments and the costs to sample and test soils are a part of the reason why it is not profitable to farm the subject property. This claim is consistent with data provided by the 2012 Census of Agriculture that shows that 83.55% of farms in the County loss money from farming, Exhibit 0. Suitability for Grazing: The climate is cold and dry. The growing season is very short — just half the length of the growing season in the more temperate Madras region of Central Oregon. The average annual precipitation is only 11.7 inches. This means that the amount of forage available for dry land grazing is low. This also means that a farmer has a short period of amount of time to irrigate pastures. This makes it difficult for a farmer to raise sufficient income to offset the high costs of establishing, maintaining and operating an irrigation system. 247-16-000317-ZC / 318 -PA 38 Existing and Future Availability of Water for Farm Irrigation Purposes: No new irrigation water rights are expected to be available to the Central Oregon Irrigation District (COID) in the foreseeable future. In order to obtain water rights, the applicant would need to convince another COID customer to remove water rights from their property and sell them to the applicant and obtain State and COID approval to apply the water rights to the subject property. In such a transaction, water rights would be taken off productive farm ground and applied to the nonagricultural soils found on the subject property. Such a transaction runs counter to the purpose of Goal 3 to maintain productive Agricultural Land in farm use. Most of the soils on the property are Class VIi soils that are not irrigated. Given the poor quality of these soils, it is highly unlikely that Central Oregon Irrigation District would approve a transfer of water rights to this property. In addition, no person intending to make a profit in farming would go to the expense of purchasing water rights, mapping the water rights and establishing an irrigation system to irrigate the lands on the subject property. A part of the small amount of irrigation water rights assigned to the subject property is currently used for irrigation around the existing residence located on the property and not for crops and/or livestock. The remainder of the water right is located under the house and is not transferable. Given the dry climate, it is necessary to irrigate the subject property to grow a hay crop and to maintain a pasture. Irrigating the soils found on the subject property, according to Mr. Borine, leaches nutrients from the soil so that expensive testing, soils amendments and fertilizers are needed to grow crops. A farmer would need to also spend significant sums of money to purchase additional water rights, purchase irrigation systems, maintain the systems, pay laborers to move and monitor equipment, obtain electricity, pay irrigation district assessments and pay increased liability insurance premiums for the risks involved with farming operations. Termination of Historic Irrigation Water Rights: According to Central Oregon Irrigation District, the subject property had water rights in the distant past but failed to put the water to beneficial use. As a result, the water rights were terminated. The lack of beneficial use of the water rights, at times prior to high land values and development pressure, is a true reflection of the fact that irrigating this property and its very poor soils was not prudent. The property to the east and lands to the north have, also, not been irrigated for decades. According to COID, 5.0 acres of irrigation water rights were transferred off the property in 1946. In 1955, 3.0 acres of irrigation water rights were removed as the result of a court decree due to nonuse. In 1996, 9.75 acres were transferred from an irrigation water right to a pond right (7.50 acres and 2.25 acres) and 9.0 additional acres were transferred to a property that was over -irrigating. The transfer document explains that the owner was under -irrigating. In 2000, a final 9.0 acre transfer occurred that removed all water other than the .25 acre water right that is located around the house and the pond water rights. According to COID, the 1996 and 2000 transfers were done as part of a cleanup of water rights that removed water from lands not putting the water rights to a beneficial use. These terminated water rights, if restored, would not improve the NRCS soils rating of the property to the point where a majority of the property would be Class I through VI 247-16-000317-ZC / 318 -PA 39 soils — making the property "Agricultural Land" as defined by Statewide Goal 3. The soils identified by Symbols B, C, D and W remain Class Vi! and Vlll even if irrigated according to the Borine Order 1 soils assessment. Existing Land lJse Patterns: The applicant's analysis of existing land use patterns earlier in this document shows that the properties located to the west are located within the city limits for the City of Bend and a majority of these lots are located in and developed with single-family homes, a nursery and a church. The property is bordered by Highway 20 to the north with the properties to the north of the highway being zoned UAR-10 and EFU. None of these properties appear to be employed in farm use. Two properties adjoin the eastern edge of the subject property and are zoned EFU-TRB. Neither is employed in farm use. One of the properties received conditional use approval for the placement of a manufactured home and the other property has a home which was constructed in 1935 but appears to be vacant at this time. Bear Creek Road adjoins the southern edge of the subject property with the properties south of Bear Creek Road zoned EFU-TRB. These properties appear to be small hobby farms with horses, irrigated pasture and some small hay production. One property is a nonfarm dwelling parcel that was created by a "farm/nonfarm" partition. The close proximity to the City of Bend, the busy highway and residential areas limits the types of agricultural activities that could reasonably be conducted for profit on the subject property. The subject property would not be suitable for raising animals that are disturbed by noise. Additionally, the property owner would bear the burden of paying for harm that might be caused by livestock escape along the extremely busy highway, in particular livestock and vehicle collisions. Any agricultural use that requires the application of pesticides and herbicides would be very difficult to conduct on the property given the numerous homes located in close proximity to the property and the heavy traffic along Highway 20 due to aerial drift of these chemicals. In addition, the creation of dust which accompanies the harvesting of crops is a major concern on this property due to the close proximity of Highway 20 and the significant amount of traffic using the highway on a daily basis. Heavy dust could limit vision along the highway and be a concern for major traffic accidents in this area. Technological and Energy Inputs Required: According to Mr. Borine, "jtJhis parcel requires technology and energy inputs over and above that considered acceptable farming practices. Excessive fertilization and soil amendments; very frequent irrigation applications pumped from a pond with limited availability; and marginal climatic conditions restrict cropping alternatives." Pumping water requires energy inputs. The application of lime and fertilizer typically requires the use of farm machinery that consumes energy. The irrigation of the property requires the installation and operation of irrigation systems. Accepted Farming Practices: Farming lands comprised of soils that are predominately Class ViI and ViII soils is not an accepted farm practice in Central Oregon. [Wand grazing, the farm use that can be conducted on the poorest soils in the County, typically occur on Class VI non -irrigated soils that have a higher soils class if irrigated. Crops are typically grown on soils in soil class 111 and IV. The Hearings Officer finds that the subject property is predominately comprised of Class VH and Class VIii soils and it is not suitable for farm use as defined in ORS 215.302(2)(a), considering limitations detailed in the record (set forth in findings above, incorporated herein by this reference) and supported by the applicant's burden of proof and exhibits. The Hearings Officer 247-16-000317-ZC / 318 -PA 40 noted in the Powell/Ramsey decision, and I agree with the statement that DLCD's administrative rules define Class VII and VIII soils as having very severe limitations that make them unsuited for cultivation. Thus, the next question under this administrative rule is whether the Class VII and VIII soils on the subject property nevertheless constitute "agricultural land" based on the factors listed in this paragraph. For the following reasons, I find that the answer to the question is "no." Significant limitations on the subject property include poor soil fertility, shallow depth of soils, unsuitability for grazing, the short growing season in the area due to climatic conditions, the lack of water available on the subject property for farm irrigation purposes and difficulties in obtaining new irrigation rights, the existing land use patterns in the area discussed in the findings above and incorporated herein by this reference which show encroaching urban development and significantly increased traffic along Highway 20 and Bear Creek Road, and the necessity for technological and energy inputs in order to farm the subject property that exceed acceptable farming practices. With respect to soil fertility, Mr. Borine found organic matter on the subject property to be "extremely low" such that Cation Exchange Capacity — a reservoir of nutrients for plant uptake — is also low. High rates of fertilizer and soils amendments are required because, due to the low CEC, it will be difficult for the soil to attract and absorb nutrients, resulting in leaching loss by irrigation and precipitation. Exhibit D to burden of proof. Unsuitability for grazing is a condition on the subject property that results from the cold and dry climate and relatively short growing period. Forage for dry land grazing is low, as a result. Farmers have a short period of time to irrigate pastures, which makes it difficult to raise income to offset the costs of irrigation. Existing and future availability of water for farm irri aq tion is another constraint on the subject property. COID states that no new irrigation water rights are expected to be available in the foreseeable future. Moreover, given the poor quality of soils on the property, it would be difficult to convince COID to transfer water rights to the property. The termination of historic irrigation water rights on the subject property occurred because the past owner was unable to put the water to beneficial use. Moreover, Mr. Borine has determined that if terminated water rights were restored, it would not improve the NRCS soils rating to the point that a majority of the soils could then be classified as LCC I -VI. Turning to existing land use patterns, the evidence is clear that the subject property is an "island" of EFU-zoned property flanked by the City of Bend, Highway 20 and Bear Creek Road. There are no large-scale commercial farming operations in the area, only small, hobby farms. Increasing traffic in the area makes it difficult to conduct certain farming operations, including raising animals sensitive to noise and the risk associated with animals escaping onto the roadways to both livestock and vehicles. There are also conflicts between dust and drifting chemicals associated with farming and with nearby rural residential development and traffic along the highway and arterials. Technology and energy inputs required also makes the property unsuitable for farm use on this record, given the information provided by Mr. Borine regarding excessive fertilization and soil amendments that would involve pumping water, installing and operating an irrigation system with energy inputs, as well as and farm machinery required to apply fertilizer. 247-16-000317-ZC / 318 -PA 41 The applicant would have to go above and beyond accepted farming practices to even attempt to farm the subject property to allow dryland grazing, given the fact it is predominately Class VII and VIII soils. There is no evidence crops could be successfully grown on the subject property. The evidence in the record supports a determination that the subject property has not ever been, and cannot be used for farming practices to provide sufficient income to achieve a profit in money. Past use of the property for fish ponds, sheep and a family cow was not profitable and does not qualify as farm use under ORS 215.203(2)(a). The Hearings Officer finds that the application complies with this subsection of the rule. (C) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands. FINDING: In response to subsection (1)(a)(C) above, the applicant's corrected burden of proof provides the following: The subject property is not land necessary to permit farm practices to be undertaken on adjacent or nearby lands. The following facts are shown by the applicant's discussion of surrounding development in Section E of this application, above, which is discussed further below: West: All of the properties to the west of the subject property are located within the city limits for the City of Bend, zoned RS — Residential Urban Standard Density and designated RM (Medium Density Residential on the Comprehensive Plan Map. Several of the adjoining tax lots are part of the Traditions East Subdivision. The largest adjoining tax lot to the west is operated by Landsystems Nursery and is used for the storing and growing of trees, plants, shrubbery and other items used in their retail nursery operation located directly across Highway 20 to the north. North: All of the land north of the subject property is separated from the subject property by US Highway 20, a state highway providing access between the City of Bend and small towns located to the east including Burns and on to the Idaho state line. This is a major east/west connector through the State of Oregon. It is not practicable to operate these properties as a single farm unit due to this separation. Furthermore, these properties are not employed in farm use and one property, tax lot 900, Assessor's Map 17-12-35 is zoned UAR-10 and designated URA (Urban Reserve Area) on the comprehensive plan map. The properties to the north that are zoned EFU-TRB and that are not employed in farm use are mapped by the NRCS as being located in Mapping Unit 58C. The vast majority of the soils in this mapping unit are nonagricultural soils (Class VII and VIII). Mapping unit 58C contains Gosney-rock outcrop-Deskamp complex soils. The Gosney soil is rated Class VII and is 50% of the mapping unit. Rock outcrops are rated Class Vlll and are 25% of this mapping unit. These poor soils are the likely reason these properties are not employed in farm use. East: Two tax lots adjoin the eastern boundary of the subject property. Both tax lots are developed with residences. Tax Lot 1600 has a double -wide manufactured home with a hay cover and machine shed. Tax Lot 1601 has a one-story residence built in 1935 and 247-16-000317-ZC / 318 -PA 42 appears to be vacant at this time. Neither of these tax lots is currently engaged in any farm use. According to information provided by the NRCS Soil Survey of the Upper Deschutes River Area, both of these tax lots are comprised of the identical soil types identified on the subject property. Tax Lot 1600 is surrounded on three sides by major roads including Highway 20 to the north, Ward Road to the east and Bear Creek Road to the south. South: All of the land south of the subject property is separated from the subject property by Bear Creek Road, a major rural collector, and is zoned EFU-TRB. Bear Creek Road is a major road that provides access to businesses, schools and commercial businesses located within the City of Bend. it is not practicable to operate these properties as a single farm unit due to this separation. The subject property, also, is not needed to permit farm practices to be undertaken on any of the lands found south of Bear Creek Road. These farm operations, are independent operations that can continue to operate after the subject property is zoned MUA-10 to match other MUA-10 zoning that adjoins EFU property that is south of the subject property. The above analysis and the more detailed inventory and photographs provided by the applicant after the application was filed show that the subject property is not land "necessary to permit farm practices to be undertaken on any adjacent nearby lands." The Hearings Officer finds that substantial evidence in the record supports a determination that the subject property is not land that is "necessary to permit farm practices to be undertaken on any adjacent nearby lands." In other words, the subject property is not land necessary to permit farm practices to be undertaken on adjacent or nearby lands because none of the identified farm uses on those lands is dependent upon the subject property. The information set forth in the applicant's burden of proof on this subsection was not refuted by other testimony or persuasive evidence. As set forth in the findings above, incorporated herein by this reference, land to the west of the subject property is primarily urban residential development or zoned for such uses in the City of Bend. Land to the north of the subject property is separated by Highway 20 and is not currently engaged in farming operations. The two lots to the east of the subject property are developed with single-family residences and are not engaged in farm use. Land to the south of the subject property is separated from the site by Bear Creek Road, such that the subject property cannot be used for operation of any single farm use. Independent farming operations to the south will be able to continue if the subject property is rezoned to MUA-10. For these reasons, the Hearings Officer finds that the application complies with this subsection of the rule. (b) Land in capability classes other than I-IV/I-VI that is adjacent to or intermingled with lands in capability classes I-iV/I-VI within a farm unit, shall be inventoried as agricultural lands even though this land may not be cropped or grazed; FINDING: In response to subsection (1)(b) above, the applicant's corrected burden of proof provides the following: Goal 3 applies a predominant soil type test to determine if a property is "agricultural land." if a majority of the soils is Class I -VI in Central or Eastern Oregon, it must be classified "agricultural land." 1000 Friends position is that this test is a 100% Class VII - VIII soils test rather than a 51% Class Vil and VIII soils test because the presence of any Class I -VI soil requires the County to identify the entire property "agricultural land." Case 247-16-000317-ZC / 318 -PA 43 law indicates that the Class 1 -VI soil test applies to a subject property proposed for a non-agricultural plan designation while the farm unit rule looks out beyond the boundaries of the subject property to consider how the subject property relates to lands in active farming in the area that were once a part of the area proposed for rezoning. It is not a test that requires that 100% of soils on a subject property be Class 1 -VI. The farm unit rule is written to preserve large farming operations in a block. It does this by preventing property owners from dividing farm land into smaller properties that, alone, do not meet the definition of "agricultural land." The subject property is not formerly part of a larger area of land that is or was used for farming operations and was then divided to isolate poor soils so that land could be removed from EFU zoning. The subject property is not in farm use. It has not been in farm use of any kind (hobby farming or commercial farming) for more than 14 years. It has no known history of commercial farm use and contains soils that make the property generally unsuitable for farm use as the term is defined by State law. it is not a part of a farm unit with other land. Deed records show that Jack and Chrissie Ensworth purchased the subject property in 1961, sold it in June 1979, repurchased in August 1979 and Mr. Ensworth sold it in 2002 to HP Burns Realty LP.6 The deed to the Ensworths is Exhibit C of this document. The deed to HP Burns Realty LP is Exhibit D.7 The Ensworths used the property as a hobby farm and family residence. No farm use or fish rearing, to the best of Mr. Burns' observation and recollection, was occurring when the property was sold to HP Burns Realty LP in 2002. All water rights, other than water for irrigating the lawn around the house and for ponds, were removed by 2000. The property has not been used for fish rearing or other farm use since it was acquired by HP Burns Realty LP. The subject property in this case, like the subject property in Central Oregon LandWatch v. Deschutes County (Aceti) is "property predominately Class VI and Vil soils and would not be considered a farm unit itself nor part of a larger farm unit based on the poor soils and the fact that none of the adjacent property is farmed." The applicant owns a triangular UAR-10 zoned property that is separated from the subject property by a major canal. That property has been included in the Bend urban growth boundary by the City of Bend and Deschutes County and has been designated for high density residential housing. The soil in this area is, also, predominantly Class Vil soil and no farm use has occurred here for decades. This small area of land west of the canal was acquired by the Ensworths around 1976, according to the Official Record of Descriptions of Real Property, maintained by the County Clerk. There is no evidence that the area was used as a part of the farming operations conducted by the Ensworths (aquaculture). It is unlikely that the area was used for farm operations as part of the farm unit as it is located to the west of the canal and does not have irrigation water rights. If this UAR-10 property is viewed to be a part of the farm unit, the majority of soils in the farm use are Class VII and Vlll nonagricultural soils as shown by the Borine soils report 6 Additionally, in 1979, the Ensworths sold then repurchased the property a few months later. The Hearings Officer notes that the references to Exhibit C and D in this paragraph are to the Exhibits submitted with the applicant's Rebuttal argument on October 11, 2016. 247-16-000317-2C / 318 -PA 44 submitted to DLCD, Exhibit D. This merits a finding that this parcel is not agricultural land and is properly zoned UAR-10. All parts of the subject property were studied by the applicant's soils analysis, Exhibit D. The analysis (Table 2, page 5) and Exhibit Q (Table 2.1) together show that the predominant soil type found on the property is Class VII and Vill, nonagricultural land (.59 acres Class VIINII; .54 acres Class I -VI or 47.8%). When the subject property and this area are considered as a single property, 67% of the property is Class VII and VII. Exhibit D (Table 3). Class VI soils are found on the subject property but they are in the minority. The predominance test says that the subject property is not agricultural soil and the farm unit rule does not require that the Class VIINIII soils that comprise the majority of the subject property be classified as agricultural land due to the presence of a small amount of Class I -VI soils on the subject property that are not employed in farm use and are not part of a farm unit. As a result, this rule does not require the Class VII and VIII soils on the subject property to be classified agricultural land because a minority of the property contains soils rated Class VI. The Hearings Officer finds that substantial evidence in the record supports a determination that the subject property is not adjacent to or intermingled with any lands in capability classes I -VI within a farm unit. The evidence shows that the subject property is not and has never been part of a farm unit that includes other lands not currently owned by the applicant. The subject property has no known history of commercial farm use and contains soils that make it generally unsuitable for farm use as defined in state law. I also find that Goal 3 applies a predominant soil type test for determining "agricultural land." If a majority of the soils is Class VII and/or Class VIII, e.g., 51% of the soils, the County may determine the property is not agricultural land. Based on the evidence in the record, I find that there is no basis to inventory the subject property as agricultural lands. The Hearings Officer finds that the application complies with this subsection of the rule. (c) "Agricultural Land" does not include land within acknowledged urban growth boundaries or land within acknowledged exception areas for Goal 3 or 4. FINDING: The Hearings Officer finds that the portion of Tax Lot 1500 west of the COID canal is part of the legal lot of record for the subject property and is also owned by the applicant. It is zoned UAR-10. The applicant indicates that this is an acknowledged exceptions area for Goal 3 and is not "Agricultural Land". However, the Deschutes County Comprehensive Plan Map reveals a designation of Agriculture has been applied to that portion as well. As discussed in the findings above, incorporated herein by this reference, this portion of the property has been included in the new Bend UGB. The Hearings Officer finds that, for the same reasons that the remainder of the subject property has been determined not to consist of "agricultural land," the portion of Tax Lot 1500 west of the COID property also is not "agricultural land." 247-16-000317-ZC / 318 -PA 45 OAR 660-033-0030 Identifying Agricultural Land (1) All land defined as "agricultural land" in OAR 660-033-0020(1) shall be inventoried as agricultural land. (2) When a jurisdiction determines the predominant soil capability classification of a lot or parcel it need only look to the land within the lot or parcel being inventoried. However, whether land is "suitable for farm use" requires an inquiry into factors beyond the mere identification of scientific soil classifications. The factors are listed in the definition of agricultural land set forth at OAR 660-033-0020(1)(a)(B). This inquiry requires the consideration of conditions existing outside the lot or parcel being inventoried. Even if a lot or parcel is not predominantly Class I-iV soils or suitable for farm use, Goal 3 nonetheless defines as agricultural "lands in other classes which are necessary to permit farm practices to be undertaken on adjacent or nearby lands." A determination that a lot or parcel is not agricultural land requires findings supported by substantial evidence that addresses each of the factors set forth in 660-033-0020(1). FINDING: In response to this criterion, the applicant's burden of proof provides the following: The applicant has provided substantial evidence that addresses the factors set forth in OAR 660-033-0020(1), the definition of Agricultural Land, in this document. The applicant's findings in subsection (3), below, show that the uses of all adjoining and nearby lands and that the lands on the subject property are not "necessary to permit farm practices to be undertaken on adjacent nearby lands." As set forth in the findings above, incorporated herein by this reference, the Hearings Officer finds that substantial evidence in the record supports a determination that the subject property is not "agricultural land," under OAR 660-033-0020(1) because it is predominantly Class VII and VIII soils. The subject property is not "necessary to permit farm practices to be undertaken on adjacent nearby lands." The Hearings Officer finds that the application complies with this subsection of the rule. (3) Goal 3 attaches no significance to the ownership of a lot or parcel when determining whether it is agricultural land. Nearby or adjacent land, regardless of ownership, shall be examined to the extent that a lot or parcel is either "suitable for farm use" or "necessary to permit farm practices to be undertaken on adjacent or nearby lands" outside the lot or parcel. FINDING: in response to this criterion, the applicant's burden of proof provides the following: The evidence that shows that the subject property is not suitable for farm use and is not necessary to permit farm practices to be undertaken on adjacent or nearby lands has assigned no significance to the ownership of adjoining properties. It has, also, involved a detailed examination of lands outside the boundaries of the subject property. As set forth in the findings above, incorporated herein by this reference, The Hearings Officer finds that substantial evidence in the record supports a determination that the subject property is not "agricultural land," is not "suitable for farm use," and is not "necessary to permit farm practices to be undertaken on adjacent nearby lands." The Hearings Officer finds that the application complies with this subsection of the rule. 247-16-000317-ZC / 318 -PA 46 (5)(a) More detailed data on soil capability than is contained in the USDA Natural Resources Conservation Service (NRCS) soil maps and soil surveys may be used to define agricultural land. However, the more detailed soils data shall be related to the NRCS land capability classification system. (b) If a person concludes that more detailed soils information than that contained in the Web Soil Survey operated by the NRCS as of January 2, 2012, would assist a county to make a better determination of whether land qualifies as agricultural land, the person must request that the department arrange for an assessment of the capability of the land by a professional soil classifier who is chosen by the person, using the process described in OAR 660-033-0045. FINDING: In response to this criterion, the applicant's corrected burden of proof provides the following: OAR 660-033-0030(5)(a) specifically authorizes the County to rely on more detailed data about soil capability than contained in the NRCS soils maps and surveys when determining if land is Agricultural Land. This is an exception to the definition of "Agricultural Land" contained in OAR 660-033-0020(1)(a) that says that lands classified by the U.S. Natural Resources Conservation Service (NRCS) as predominately Class I- V! soils in Eastern Oregon should be inventoried as Agricultural Land. This exception is consistent with Goal 3 which defines "agricultural land" as predominately Class 1, !l, Ill, IV, V and VI soils in Eastern Oregon "as identified in the Soil Capability Classification System of the United States Soil Conservation Service." The Soi! Capability Classification System was used by certified soil classifier Roger Borine of Sage West in assigning a soil class to the soils inventoried on the subject property and his determination is more detailed than that provided by the NCRS Order 2/3 soils maps. Mr. Borine assigned the name "Zeta" to an unidentified soil that is shallow and is in land capability class VII. This is consistent with the NRCS soils data from the Soils Survey for the Upper Deschutes River Area, Oregon that shows that the 58C Gosney-Rock outcrop-Deskamp soil unit found on the subject property contains a contrasting inclusion of unidentified "soils that are very shallow to bedrock." Exhibit J (description of 58C soil unit found on subject property from NRCS publication, "Soil Survey of Upper Deschutes River Area, Oregon"). Rather than referring to this shallow soil as "shallow soil," Mr. Borine referred to as "Zeta." Mr. Borine assigned an NRCS Land Capability Classification (LCC) rating of VII to the Zeta soil. The NRCS provides Mr. Borine a system that he used to apply the correct soil classification to soils found on the subject property. Mr. Borine has used the NRCS classification system to apply a rating to the unknown "Zeta" soil. Mr. Borine is a certified professional soil classifier and soil scientist who is trained to determine the correct LCC rating for soils and his determination of the correct rating for the unknown soil (Zeta) is reliable. The Sage West soils assessment, prepared by Roger Borine, Exhibit D provides more detailed soils information than contained on the Web Soil Survey, the Internet soil survey of soils data and information produced by the National Cooperative Soil Survey. Those sources provide general soils data for large units of land. The Sage West, LLC soils assessment provides detailed and accurate information about a single property based on numerous soil samples taken from the subject property. 247-16-000317-ZC / 318 -PA 47 Mr. Borine is one of five soils scientists in the State of Oregon DLCD has determined is qualified to conduct a soil survey to help counties determine whether land is or is not agricultural land. His review was submitted to and reviewed by DLCD and found to comply with its rules for such a report. Mr. Borine has worked for the NRCS and is eminently qualified to complete this assessment as shown by his certifications and work experience. The NRCS intends that its maps be used at higher landscape level, not on a property by property basis. They include the express statement: "Warning: Soil Rating may not be valid at this scale," on their maps. As stated by the NRCS itself in the NRCS General Manual Part 402.6 -Limitations on the Use of Soil Survey Information, "Soils Surveys seldom contain detailed site specific information and are not designed to be used as primary regulatory tools in permitting decisions, but may be used as reference sources." As Mr. Borine has explained NRCS maps may be perfectly correct at the landscape level while a tax lot may be in part or entirely a contrasting inclusion. An Order 1 soil survey is prudent to accurately identify soils, mapping units, and miscellaneous area and to accurately locate their boundaries. It provides more detailed information about the soils within the large mapping units used in the NRCS Soil Survey of the Upper Deschutes River Area. The depth of these soils was also determined. The soil samples taken from the subject property were tested to determine soil type and water -carrying capacity of the soils. The results of this analysis were used to develop an accurate soils map of the subject property. The Sage West, LLC soils assessment is related to the NCRS land capability classification system that classified soils Class 1 through 8. An LCC rating is assigned to each soil type based on rules provided by the NRCS. 1000 Friends claims that LCDC's rules and Goal 3 prevent Mr. Borine from assigning a different land capability classification to the soils found on the subject property. This claim, however, is inconsistent with LCDC's rules because it is expected Order 1 soils reports will show that soils have a different classification than shown by the NRCS maps. Otherwise, an applicant would simply rely on the NRCS maps. This fact is recognized by DLCD in its description of its review of soils reports. It states that LCDC may choose to audit soils reports if "soils are shown to be more than one capability classification lower than that of the NRCS Internet Soil Study." See, DLCD Website "Agricultural Soils Capability Assessment." As set forth in the findings above, incorporated herein by this reference, the Hearings Officer finds that the applicant has submitted more detailed data on soil capability than is contained in the USDA Natural Resources Conservation Service soil maps and soil survey in the Soils Assessment prepared by Mr. Borine of Sage West, LLC, and that the Soils Assessment relates to the NRCS land capability classification system. The Soils Assessment is presented to assist the County in making a better determination of whether the subject property qualifies as "agricultural land." I have previously determined in findings above that the County is authorized to rely on the more detailed soil capability data prepared by Mr. Borine and that his report and analyses meet all requirements of state laws and regulations. The Order 1 soils report is sufficient for the County to determine that the subject property is not "agricultural land." 247-16-000317-ZC / 318 -PA 48 The Hearings Officer finds that the application complies with this subsection of the rule. (c) This section and OAR 660-033-0045 apply to: (A) A change to the designation of land planned and zoned for exclusive farm use, forest use or mixed farm -forest use to a non -resource plan designation and zone on the basis that such land is not agricultural land; and FINDING: The Hearings Officer finds that the applicant is seeking approval of a non -resource plan designation on the basis that the subject property is not agricultural land. The application complies with this subsection of the rule. (d) This section and OAR 660-033-0045 implement ORS 215.211, effective on October 1, 2011. After this date, only those soils assessments certified by the department under section (9) of this rule may be considered by local governments in land use proceedings described in subsection (c) of this section. However, a local government may consider soils assessments that have been completed and submitted prior to October 1, 2011. FINDING: The Hearings Officer finds that the applicant's soil assessment has been certified by DLCD as required by this rule. The application complies with this subsection of the rule. (e) This section and OAR 660-033-0045 authorize a person to obtain additional information for use in the determination of whether land qualifies as agricultural land, but do not otherwise affect the process by which a county determines whether land qualifies as agricultural land as defined by Goal 3 and OAR 660-033- 0020. FINDING: As discussed in the findings above, incorporated herein by this reference, above, the Hearings Officer finds that the applicant has provided DLCD's certification of its soils analysis with the submitted application materials and has complied with the soils analysis requirements of OAR 660-033-0045 in order to obtain that certification. I find that DLCD's certification establishes compliance with OAR 660-033-0045. This information can be used to determine whether land qualifies as agricultural land. I find that the process for review, using that information, is not changed. I reject the arguments of 1000 Friends of Oregon and find that the process does not preclude the County from using the soils capability ratings determined by Mr. Borine using the LCC system of the NRCS (Soil Classification Service). Goal 3 bases the determination of class on that system, and not on the LCCs applied by NRCS soils surveys. Consistent with the administrative rules, the applicant has provided more detailed information that shows the subject property is not "agricultural land." The application complies with this subsection of the rule. 3. OAR 660, DIVISION 12, TRANSPORTATION RULE OAR 660-012-0060 Plan and Land use Regulation Amendments (1) If an amendment to a functional plan, an acknowledged comprehensive plan, or a land use regulation (including a zoning map) would significantly affect an existing or planned transportation facility, then the local government must put in place measures as provided in section (2) of this rule, unless the amendment is allowed under section (3), (9) or (10) of this rule. A plan or land use regulation amendment significantly affects a transportation facility if it would: 247-16-000317-ZC / 318 -PA 49 (a) Change the functional classification of an existing or planned transportation facility (exclusive of correction of map errors in an adopted plan); (b) Change standards implementing a functional classification system; or (c) Result in any of the effects listed in paragraphs (A) through (C) of this subsection based on projected conditions measured at the end of the planning period identified in the adopted TSP. As part of evaluating projected conditions, the amount of traffic projected to be generated within the area of the amendment may be reduced if the amendment includes an enforceable, ongoing requirement that would demonstrably limit traffic generation, including, but not limited to, transportation demand management. This reduction may diminish or completely eliminate the significant effect of the amendment. (A) Types or levels of travel or access that are inconsistent with the functional classification of an existing or planned transportation facility; (B) Degrade the performance of an existing or planned transportation facility such that it would not meet the performance standards identified in the TSP or comprehensive plan; or • (C) Degrade the performance of an existing or planned transportation facility that is otherwise projected to not meet the performance standards identified in the TSP or comprehensive plan. FINDING: In response to this criterion, the applicant's corrected burden of proof provides the following: The proposed rezoning and change in plan map designation will not significantly affect any existing or planned transportation facility, as documented by the transportation impact analysis prepared by Chris Clemow, PE and by comments provided by Transportation Planner Peter Russell. As a result, this application complies with the TPR. The County code does not impose a requirement of a transportation impact analysis for all zone changes. DCC 18.116.310(C) says that no transportation analysis is required for proposals that generate fewer than 50 trips per day. The proposed zone change will not result in an increase in vehicle trips as uses that do not require conditional use approval in the EFU zone generate more vehicle trips than similar uses in the MUA-10 zoning district. if an analysis is required by DCC 18.116.310(C), DCC 18.116.310(E) requires that a 20 -year study period be used in the analysis. It does not require that a TIA be performed. At the request of the County Senior Transportation Planner, Peter Russell, the applicant submitted a transportation memo, dated September 9, 2016, which was received on September 10, 2016. In response to the letter, Mr. Russell provided the following comments: I have reviewed the Sept. 9, 2016, transportation memo from the applicant's traffic engineer, which was prepared in response to staff's determination the transportation planning rule (TPR) analysis requirements have not been met for the Exclusive Farm Use (EFU) to Multiple Use (MUA-10) for demonstrating no significant effect. The property's sole access currently is a driveway onto US 20; the Deschutes County TSP shows this segment fails in 2030. In this most recent memo the applicant's engineer focused on establishing a baseline for trip generation in the existing zoning by using what would be the highest trip rate from a 247-16-000317-ZC / 318 -PA 50 use permitted outright in the EFU zone and contrasting it to the highest trip generator permitted outright in the MUA-10. The applicant's traffic engineer concluded that based on this comparison the highest trip generator for EFU would be a church of less than 100 seats whereas the highest trip generator in the MUA-10 would be two additional houses, both with Type l home occupations. The church would generate more trips than the homes, thus the rezone would result in fewer trips, thus proving no significant effect. Staff agrees this would be an appropriate method if either 1) the EFU parcel was vacant or 2) the applicant was proposing a church simultaneously with the rezone or a church application already had been approved. Neither 1) nor 2) are true. The parcel is developed with a single-family home and staff feels the baseline trip generation should be based on that use. This has been past County practice in cases were parcels were developed and there was no simultaneous application for a new land use. Thus, the parcel would have more trips generated under the MUA-10 zoning than EFU and the applicant has not demonstrated no significant effect. Staff will defer to the hearing's officer on whether the applicant's approach to trip generation is allowable; however, staff points out TPR compliance can be met via a different route. While the affected segment of US 20 is forecast to fail in 2030, the Deschutes County TSP lists planned improvements at Table 5.3.T1 (County Road and Highway Projects). Adding additional travel lanes on US 20 between Providence and Hamby is listed as a $2 million dollar medium priority project (next 6-10 years). The applicant, under the TPR, can rely on planned improvements as mitigation. Staff also agrees with the applicant that the amount of additional traffic that would be generated the proposed zone change is minimal. While the all parties agree the resulting trips would be under the County's 50 -trip threshold for traffic studies as stated in Deschutes County Code (DCC) 18.116.310(C)(3)(a), staff points out DCC 18.116.310(E)(4) requires traffic analysis for zone changes Again, staff agrees with the applicant's traffic engineer that there is no significant effect to US 20 frorn this EFU to MUA-10 zone change; we just arrived at the same destination via different routes. The Hearings Officer notes that the evidence at hearing shows that the maximum potential increase in traffic caused by the application is traffic generated by 2-3 new lots. As set forth in the findings above, I find that substantial evidence in the record supports a determination that the proposed rezone will have minimal impact to the road system. Because the property would generate less than 50 trips, a traffic impact letter is acceptable and no Traffic Impact Analysis is required. As discussed above, DCC 18.116.310(C) is entitled "Guidelines for Traffic Studies; subsection (3) sets forth trip generation thresholds that shall determine the level and scope of transportation analysis required for a new or expanded development, with subsection (a) stating that no report is required if there are fewer than 50 trips per day generated during a weekday. DCC 18.116.310(E) sets forth Study Time Frames and the information that must be included in a TIA, if one is required by the trip generation thresholds in DCC 18.116.310(C). I find that interpretation of DCC 18.116.310(E) must be read in context with the "Guidelines for Traffic Studies" in DCC 18.116.310(C). The threshold requirements in DCC 18.116.310(C) also apply in DCC 18.116.310(E). 247-16-000317-ZC / 318 -PA 51 The applicant's traffic impact letter constitutes the required traffic analysis under DCC 18.116.310 and OAR 660-012-0060 for a 20 -year period. In addition, the Transportation Systems Plan includes planned improvements including additional lanes on Highway 20, upon which the applicant can rely as mitigation. There is no evidence that rezoning the subject property will preclude widening of Highway 20 to a 4 -lane road, as Mr. Cleavenger asserts. Based on the County Senior Transportation Planner's conclusion that there is no significant effect to US 20 resulting from the proposed Plan Amendment and Zone Change, based on the submitted transportation letter, I find that compliance with the Transportation Planning Rule has been demonstrated. OAR 660, Division 15, Statewide Planning Goals and Guidelines FINDING: The applicant's corrected burden of proof statement addresses applicable Statewide Planning Goals and Guidelines below: Goal 1, Citizen Involvement Deschutes County will provide notice of the application to the public through mailed notice to affected property owners and by requiring the applicant to post a "proposed land use action sign" on the subject property. Notice of the public hearings held regarding this application will be placed in the Bend Bulletin. A minimum of two public hearings will be held to consider the application. Goal 2, Land Use Planning Goals, policies and processes related to zone change applications are included in the Deschutes County Comprehensive Plan and Titles 18 and 23 of the Deschutes County Code. The outcome of the application will be based on findings of act and conclusions of law related to the applicable provisions of those laws as required by Goal 2. Goal 3, Agricultural Lands The applicant has shown that the subject property is not agricultural land so Goal 3 does not apply. Goal 4, Forest Lands The existing site and surrounding areas do not include any lands that are suited for forestry operations. Goal 4 says that forest lands "are those lands acknowledged as forest lands as of the date of adoption of this goal amendment." The subject property does not include lands acknowledged as forest lands as of the date of adoption of Goal 4. Goal 4 also says that Where **a plan amendment involving forest lands is proposed, forest land shall include lands which are suitable for commercial forest uses including adjacent or nearby lands which are necessary to permit forest operations or practices and other forested lands that maintain soil, air, water and fish and wildlife resources." This plan amendment does not involve any forest land. The subject property does not contain any merchantable timber and is not located in a forested part of Deschutes County. Goal 5, Natural Resources, Scenic and Historic Areas, and Open Spaces A part of the large pond on the subject property is a mapped wetland that may be one of the wetlands inventoried by the County in ifs Goal 5 inventory. The wetland is a mapped wetland on the current National Wetlands Inventory prepared by the US Department of Fish and Wildlife. The National Wetlands Inventory inventories the large pond on the subject property as an excavated wetland (man-made). In 1992, Deschutes County protected all wetlands shown on NWI inventor maps in effect in 1992 as a Goal 5 resource. This fact is discussed in Section 5.3, Goal 5 Inventory of 247-16-000317-2C / 318 -PA 52 the County's comprehensive plan. The County has also adopted an LWI for South Deschutes County. The subject property is not in the study area of the South County LWi. Deschutes County's comprehensive plan does not contain policies that provide specific protections for wetlands. Protections are, instead, provided by County ordinances that implement Goal 5 protections. The plan amendment does not amend a resource list or a portion of a land use plan or regulation that protects wetlands. It also will not affect a Goal 5 resource. The resource protection for the pond will remain fhe same after the plan designation and zoning are changed. Both the EFU zone and the MUA-10 zone offer the same protection for wetlands. Both require conditional use permit approval for any excavation, grading and fill and removal within the bed and banks of a stream or river or in a wetland and must comply with DCC 18.120.050 and 18.128.270. This is the protection called for by the comprehensive plan. Wetlands are also subject to state and federal fill and removal regulations. Wetland resources are not protected by limiting the use of land. The changed uses allowed by the MUA-10 zone will not cause the fill and removal restrictions that protect the Goal 5 [sic] to become ineffective or inapplicable. As a result, the zone change and plan amendment will have no impact on Goal 5 protection provided to the resource by the County's comprehensive plan and zoning regulations. Goal 6, Air, Water, and Land Resources Quality The approval of this application will not cause a measurable impact on Goal 6 resources. Approval will make it more likely that the irrigation and pond water rights associated with the property will ultimately be returned to the Deschutes River or used to irrigate productive farm ground found elsewhere in Deschutes County. Goal 7, Areas Subject to Natural Disasters and Hazards This goal is not applicable because the subject property is not located in an area that is recognized by the comprehensive plan as a known natural disaster or hazard area. Goal 8, Recreational Needs This goal is not applicable because the property is not planned to meet the recreational needs of Deschutes County residents and does not directly impact areas that meet Goal 8 needs. Goal 9, Economy of the State This goal does not apply to this application because the subject property is not designated as Goal 9 economic development land. In addition, the approval of this application will not adversely impact economic activities of the state or area. Goal 10, Housing The County's comprehensive plan Goal 10 analysis anticipates that farm properties with poor soils, like the subject property, will be converted from EFU to MUA-10 or RR -10 zoning and that these lands will help meet the need for rural housing. Approval of this application, therefore, is consistent with Goal 10 as implemented by the acknowledged Deschutes County comprehensive plan. Goal 11, Public Facilities and Services The approval of this application will have no adverse impact on the provision of public facilities and services to the subject site. Utility service providers have confirmed that they have the capacity to serve the maximum level of residential development allowed by the MUA-10 zoning district. Goal 12, Transportation 247-16-000317-ZC / 318 -PA 53 This application complies with the Transportation System Planning Rule, OAR 660-012- 0060, the rule that implements Goal 12. Compliance with that rule also demonstrates compliance with Goal 12. Goal 13, Energy Conservation The approval of this application does not impede energy conservation. The subject property is located adjacent to the city limits for the City of Bend. Providing homes in this location as opposed to more remote rural locations will conserve energy needed for residents to travel to work, shopping and other essential services provided in the City of Bend. Goal 14, Urbanization This goal is not applicable because the applicant's proposal does not involve property within an urban growth boundary and does not involve the urbanization of rural land. The MUA-10 zone is an acknowledged rural residential zoning district that limits the intensity and density of developments to rural levels. The compliance of this zone with Goal 14 was recently acknowledged when the County amended its comprehensive plan. The plan recognizes the fact that the MUA-10 and RR zones are the zones that will be applied to lands designated Rural Residential Exception Areas. Goal 15, Willamette Greenway This goal does not apply because the subject property is not located in the Willamette Greenway. Goals 16 through 19 These goals do not apply to land in Central Oregon. The Hearings Officer finds that substantial evidence in the record supports a determination of compliance with all applicable Statewide Planning Goals, as follows: Goal 1, Citizen Involvement. The Planning Division provided notice of the proposed plan amendment and zone change to the public through individual mailed notices to nearby property owners, publication of notice in the Bend "Bulletin" newspaper, and posting of the subject property with a notice of proposed land use action sign. A public hearing has been held by the Hearings Officer on the proposal, and a public hearing on the proposal will also be held by the Deschutes County Board of Commissioners ("Board"), per DCC 22.28.030(C). The proposal is consistent with Goal 1. Goal 2, Land Use Planning. Goals, policies and processes related to plan amendment and zone change applications are included in the county's comprehensive plan and land use regulations in Titles 18 and 22 of the Deschutes County Code and have been applied to the review of these applications. The proposal is consistent with Goal 2. Goal 3, Agricultural Lands. Goal 3 is "[t]o preserve and maintain agricultural lands." As LUBA has explained in various cases including DLCD v. Klamath County, 16 Or LUBA 817, 820 (1998) and Wetherall v. Douglas County, LUBA No. 2006-122 (October 9, 2006), a county can follow one of two paths to support a decision to allow non -resource use of land previously designated and zoned for farm use. One option is to take an exception to Statewide Planning Goal 3. The other is to adopt findings which demonstrate that the land does not qualify as agricultural under the applicable statewide planning goal. The latter path has been selected as the preferred procedure which is a option permitted by state law. As discussed in the findings above, the subject property does not constitute "agricultural land" because it is comprised predominantly of Class VII and VIII soils that are not suitable for farm use. The proposal is consistent with Goal 3. 247-16-000317-ZC / 318 -PA 54 Goal 4, Forest Lands. I find that this goal is not applicable because the subject property does not include any lands that are zoned for, or that support, forest uses. Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. Since the hearing, the applicant has stated that the pond on the subject property is an inventoried Goal 5 resource. The applicant also states that the proposed change in zoning and plan designation will not change the Goal 5 protections that apply to the pond. This is because there is "ample room" on the property to allow it to be developed with the uses allowed in the MUA-10 zone without impinging on the resource. The applicant notes that the uses allowed outright in the EFU zone are more expansive than those allowed outright in the MUA-10 zone, comparing DCC 18.16.020 and 18.16.025 with DCC 18.32.020. Any more intensive use allowed in the MUA-10 zone requires approval of a conditional use permit that can be used to provide further protections to the Goal 5 resource. I find that the proposal is consistent with Goal 5 because the same zoning requirements apply in the EFU and MUA-10 zone with respect to grading, fill and removal in wetlands. The rezone and plan amendment in and of themselves will not impact any Goal 5 resource. Goal 6, Air, Water and Land Resources Quality. I find that the applicant's proposal to rezone and amend the plan designation, in and of itself, will not impact the quality of the air, water, and land resources of the county. Any future MUA-10 Zone development of the property would be subject to local, state, and federal regulations protecting these resources. The proposal is consistent with Goal 6. Goal 7, Areas Subject to Natural Disasters and Hazards. I find that this goal is not applicable because the subject property is not located in a known natural disaster or hazard area. Goal 8, Recreational Needs. I find that this goal is not applicable because the proposed plan amendment and zone change do not affect recreational needs, and no specific development of the property is proposed. Goal 9, Economy of the State. This goal is to provide adequate opportunities throughout the state for a variety of economic activities. This goal does not apply to this application because the subject property is not designated as Goal 9 economic development land. In addition, approval of this application will not adversely impact economic activities of the state or area. Goal 10, Housing. I find that approval of the application to convert a farm property with poor soils from EFU to MUA-10 zoning and to amend the plan designation is consistent with Goal 10 as implemented by the acknowledged Deschutes County comprehensive plan. Future development of the property will help meet the need for rural housing. The proposal is consistent with Goal 10. Goal 11, Public Facilities and Services. This goal requires planning for public services, including public services in rural areas, and generally has been held to prohibit extension of urban services such as sewer and water to rural lands outside urban growth boundaries. I find that this goal is not applicable to the applicant's proposal because it will not result in the extension of urban services to rural areas. As discussed in the findings above, public facilities and services necessary for development of the subject property in accordance with the MUA-10 Zone are available and will be adequate. The proposal is consistent with Goal 11. 247-16-000317-ZC / 318 -PA 55 Goal 12, Transportation. As discussed in the findings above, I find that the application complies with the Transportation System Planning Rule at OAR 660-012-0060, which is the rule that implements Goal 12. The proposal is consistent with Goal 12. Goal 13, Energy Conservation. I find that the applicant's proposed plan amendment and zone change, in and of themselves, will have no effect on energy use or conservation since no specific development has been proposed in conjunction with the subject applications. Given that the subject property is located adjacent to the city limits for the City of Bend, providing homes in this location as opposed to more remote rural locations will conserve energy needed for residents to travel to work, shopping and other essential services provided in the City of Bend. The proposal is consistent with Goal 13. Goal 14, Urbanization. Goal 14 is "[t]o provide for an orderly and efficient transition from rural to urban land use." I find that this goal is not applicable because the applicant's proposal does not involve property within an urban growth boundary and does not involve the urbanization of rural land. The MUA-10 zone is an acknowledged rural residential zoning district that limits the intensity and density of developments to rural levels. The compliance of this zone with Goal 14 was recently acknowledged when the County amended its comprehensive plan. The plan recognizes the fact that the MUA-10 and RR zones are the zones that will be applied to lands designated Rural Residential Exception Areas. The proposal is consistent with Goal 14. Goals 15 through 19. These goals, which address river, ocean, and estuarine resources, are not applicable because the subject property is not located in or adjacent to any such areas or resources. I find that the applicant's proposal is consistent with all applicable statewide planning goals. TITLE 22 OF THE DESCHUTES COUNTY CODE, DESCHUTES COUNTY DEVELOPMENT PROCEDURES ORDINANCE A. CHAPTER 22.20, REVIEW OF LAND USE ACTION APPLICATIONS Section 22.20.015 Code Enforcement and Land Use A. Except as described in (D) below, if any property is in violation of applicable land use regulations, and/or the conditions of approval of any previous land use decisions or building permits previously issued by the County, the County shall not: 1. Approve any application for land use development; 2. Make any other land use decision, including land divisions and/or property line adjustments; 3. Issue a building permit. B. As part of the application process, the applicant shall certify: 1. That to the best of the applicant's knowledge, the property in question, including any prior development phases of the property, is currently in compliance with both the Deschutes County Code and any prior land use approvals for the development of the property; or 2. That the application is for the purpose of bringing the property into compliance with the Deschutes County land use regulations and/or prior land use approvals. 247-16-000317-ZC / 318 -PA 56 C. A violation means the property has been determined to not be in compliance either through a prior decision by the County or other tribunal or through the review process of the current application, or through an acknowledgement by the alleged violator in a signed voluntary compliance agreement ("VCA'). D. A permit or other approval, including building permit applications, may be authorized if: 1. It results in the property coming into full compliance with all applicable provisions of the federal, state, or local laws, and Deschutes County Code, including sequencing of permits or other approvals as part of a voluntary compliance agreement; 2. It is necessary to protect the public health or safety; 3. It is for work related to and within a valid easement over, on, or under the affected property; or 4. It is for emergency repairs to make a structure habitable or a road or bridge to bear traffic. FINDING: Ms. Cleavenger testified at hearing that Deschutes County Code enforcement procedures have commenced against the owner of the subject property for an alleged nuisance under DCC 13.36.010 (solid waste accumulations). It is her position that the requested rezone cannot be approved due to this alleged code violation. I find that, first, there is not a "violation" as per DCC 22.20.015(C) because there is no prior decision by the County or other tribunal and no acknowledgment by the alleged violator in a signed voluntary compliance agreement. Second, I find that the requirements/prohibitions in DCC 13.36.010 do not constitute an "applicable land use regulation," and that there are no conditions of approval in any previous land use decisions or building permits previously issued by the County with which the applicant is not in compliance. Nonetheless, I will make a recommendation to the Board of Commissioners that the application be approved after the alleged violation has been corrected. Although the attorney for the applicant advised staff on October 11, 2016 that the trash on the subject property has been removed, with a supporting photograph, the Hearings Officer finds that confirmation of such a fact by County Code Enforcement Officers should be provided before the Deschutes County Board of Commissioners hearing on the proposed rezone. IV. DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby APPROVES the Applicant's application to change the Plan Designation and Zoning of the subject property from Agriculture/EFU-TRB to RREA/MUA-10 subject to the following conditions of approval: A. A hearing before the Deschutes County Board of Commissioners is required to consider approval of the proposed plan amendment and zone change. B. Prior to the hearing before the Deschutes County Board of Commissioners, the alleged violation of DCC 13.36.010 on the subject property shall be corrected to the reasonable satisfaction of Deschutes County Code Enforcement officers and the Code Enforcement file, if any, shall be officiallly closed. C. Prior to the public hearing before the Deschutes County Board of Commissioners to approve the subject plan amendment, zone change for the subject property, the applicant/owner shall submit to the Planning Division a metes -and -bounds description of 247-16-000317-ZC / 318 -PA 57 the subject site to be re -designated and rezoned. D. The Hearings Officer recommends that the Deschutes County Board of Commissioners impose the following conditions of approval: a. This approval is based upon the application, site plan, specifications, and supporting documentation submitted by the applicant. Any substantial change in this approved use will require review through a new land use application. b. This approval allows on the subject property all uses allowed outright and conditionally in the MUA-10 zone, except that cluster or planned development, as described by the County, shall not be allowed on the subject property as long as the property is zoned MUA-10. A notice of this restriction shall be recorded in the chain of title on the subject property. Stephan 1 a Marshall Hicks, Hearings Officer Dated this � day of November, 2016 Mailed this a ofy November, 2016 247-16-000317-ZC / 318 -PA 58 Subject: Name Address BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK 1,-;17 Com¢ K)w G(o o, S l� Phone #s S t 38E- - 3 E-mail address [ 17 c-7 C C mite, In Favor Neutral/Undecided Date: 171— Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. { BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Subject: arcA Name r vvvca, v® Address t `S 2 i2c 4 Phone #s E-mail address In Favor Opposed No Date: Cel -1 6 . r vv g (L 6v,S, cow, Neutral/Undecided Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. Opposed �J � w,cn No ��rJ Chris Schmoyer From: Liz Fancher <liz@lizfancher.com> Sent: Friday, June 02, 2017 1:40 PM To: Chris Schmoyer Cc: hpburns; Meriel Darzen Subject: RE: Porter Kelly Burns247-16-000317-ZC/318-PA Chris: Meriel Darzen and I worked together to craft the e-mail she sent to you. I am writing to confirm that it accurately reflects our agreement and joint request to the Board of Commissioners. Liz Fancier Liz Fancher, Attorney 644 NW Broadway Street Bend, OR 97703 541-385-3067 (telephone) CONFIDENTIALITY NOTICE: The information contained in this electronic mail transmission is confidential. This information is intended for the exclusive use of the addressee(s). If you are not the intended recipient, please notify the sender immediately by return email and you are hereby notified that any use, disclosure, dissemination, distribution (other than to the addressee(s)), copying or taking of any action because of this information is strictly prohibited. From: Meriel Darzen imailto:meriel@friends.orgl Sent: Friday, June 02, 2017 12:43 PM To: Chris Schmoyer <chris.schmoyer@deschutes.org> Cc: Liz Fancher <liz@lizfancher.com> Subject: Porter Kelly Burns247-16-000317-ZC/318-PA Hi Chris, In the above -referenced matter, the Porter Kelly Burns PAPA, 1000 Friends of Oregon and the applicant have agreed to ask the Board to approve zone change and plan amendment 247-16-000317-ZC/-318-PA if it can be approved with the following new Condition of Approval 1): U. If the subject property is divided, it shall be developed as a cluster development consistent with County code governing cluster developments. The two existing irrigation ponds shall be included in the common area of the cluster development. A conditions of approval agreement that contains these restrictions, applicable to the property if no appeal of the Board's decision is filed, shall be recorded in the chain of title to the subject property. The agreement and its restrictions shall be applicable to the property as long as it retains WA -10 zoning or other rural exceptions area zoning. 1 The condition would be imposed in lieu of Condition I) of the llcarings Officer's recommended decision. 1000 Friends and the applicant will work together to prepare, sign and record a Conditions of Approval Agreement with the above conditions if the Board approves the land use application prior to the time the Board adopts the zone change/plan amendment ordinance. Please include this correspondence in the record for this matter. I will not be able to attend the hearing but I would like the County to know that 1000 Friends believes this property and the community would be well - served by a cluster development that preserves the open space, aesthetic and wildlife values on the property while allowing compact residential development. Please let me know if you have any questions and please confirm receipt. Thanks Meriel Meriel L. Darzen Circuit Rider Staff Attorney 1000 Friends of Oregon Connecting People, Protecting Place. 2 Chris Schmoyer From: Meriel Darzen <meriel@friends.org> Sent: Friday, June 02, 2017 12:43 PM To: Chris Schmoyer Cc: Liz Fancher Subject: Porter Kelly Burns247-16-000317-ZC/318-PA Hi Chris, In the above -referenced matter, the Porter Kelly Burns PAPA, 1000 Friends of Oregon and the applicant have agreed to ask the Board to approve zone change and plan amendment 247-16-000317-ZC/-318-PA if it can be approved with the following new Condition of Approval D: n. tithe .subject property is divided, it shall be developed as a cluster development consistent with County code governing cluster developments. The two existing irrigation ponds shall be included in the common area of the cluster developnzent. A conditions of approval agreement Haat contains these restrictions, applicable to the property ?Ina appeal of the Board's decision is filed, shall be recorded in the chain of title to the subject property. The agreement and its restrictions shall be applicable to the property as long as it retains MUA-10 zoning or other rural exceptions area zoning The condition would be imposed in lieu of Condition D of the Hearings Officer's recommended decision. 1000 Friends and the applicant will work together to prepare, sign and record a Conditions of Approval Agreement with the above conditions if the Board approves the land use application prior to the time the Board adopts the zone change/plan amendment ordinance. Please include this correspondence in the record for this matter. I will not be able to attend the hearing but I would like the County to know that 1000 Friends believes this property and the community would be well - served by a cluster development that preserves the open space, aesthetic and wildlife values on the property while allowing compact residential development. Please let me know if you have any questions and please confirm receipt. Thanks Meriel Meriel L. Darzen Circuit Rider Staff Attorney 1000 Friends of Oregon Connecting People, Protecting Place. 1 Chris Schmoyer From: Chris Schmoyer Sent: Thursday, May 25, 2017 9:23 AM To: 'd.morman@bendbroadband.com' Cc: Peter Gutowsky Subject: RE: Comments for Hearing on File Numbers 247-16-000317-ZC / 318 -PA David, Thank you for the comments and photos. I will include them in the record for consideration by the Board of County Commissioners regarding this matter. You are welcome to submit hard copies, however, the email is sufficient and the submitted items will be entered into the record. Regards, Chris Chris Schmoyer Associate Planner Certified Associate in Project Management (CAPM) Deschutes County Community Development Department Ph# (541) 317-3164 Fax# (541) 385-1764 Web: http://www.deschutes.ora/cd Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. From: d.morman(bendbroadband.com(mailto:d.morman@bendbroadband.coml Sent: Thursday, May 25, 2017 8:57 AM To: Chris Schmoyer Subject: Comments for Hearing on File Numbers 247-16-000317-ZC / 318 -PA Mr. Schmoyer, Please forward the attached written testimony and accompanying photos to the Deschutes County Board of Commissioners and for inclusion in record for the June 5 public hearing on File Numbers 247-16-000317-ZC / 318 -PA. A reply from you confirming you have received this information will be appreciated. would be happy to submit a signed original copy of these comments, if needed. Thank -you, 1 David Morman 21352 Bartlett Lane Bend 503-569-1380 2 May 25, 2017 Deschutes County Community Development Department Planning Division P.O. Box 6005 Bend, Oregon 97708-6005 RE: File Number 247-16-000317-ZC / 318 -PA To the Deschutes County Board of Commissioners: I am writing to comment on the request by Porter Kelly Burns Landholdings, LLC for approval of a Plan Amendment to change the designation of the property located at 21455 Highway 20, near Bend (also identified as tax lot 1500 on County Assessor Map 17-12-35). The applicant is requesting to change the designation of the subject property from Agriculture to Rural Residential Exception Area and a zone change. My residence is 21352 Bartlett Lane in Bend, which is located a few hundred feet to the west of the subject property. I have a strong interest in how the use of the subject property might change if the applicant's request is approved, how that use and associated traffic flow might affect my neighborhood, and also in preservation of natural resources present on the subject property. The City of Bend is just completing an extensive Urban Growth Boundary (UGB) expansion process. Only 2.5 acres of this subject property were considered for inclusion in the UGB. I believe before any intensified residential or non-agricultural mixed-use development is allowed on the remaining portions of the subject property additional justification is needed as to: • Why the expanded UGB will not satisfy projected needs for such development and • Why the subject property should not retain its current designation until another future round of UGB expansion takes place. Without such a justification, the applicant's request appears contrary to the land use planning rules for the maintenance of lands zoned for agricultural use and for planned development and expansion of the City of Bend. I think that is what Urban Growth Boundaries are for. At one time, PACWEST Builders proposed a design for the subject property that would eventually include 858 housing units. Is this zone changed a first step towards that intended outcome by the property owners? East Bend is also already plagued with an accumulation of years of piecemeal development. By granting the applicant's request, Deschutes County would be allowing just one more piecemeal development action outside of the UGB, with no larger plan in place on how it will contribute to a "complete neighborhood." As decision -makers, you should require information establishing how the applicant's request is a logical contribution to the overall strategy for the development in Deschutes County and perhaps, some day, of East Bend and its neighborhoods. A second major concern regarding development of the subject property is the fate of the lake that resides on the lot (see attached photos). From aerial photos of the area this lake has stood there as far back as 1940. It is fed through the ground by the irrigation canal, has no pump facilities, and maintains a water level throughout the year that does not freeze over. This lake supports complex, water -loving vegetation and is home to countless birds and wildlife including osprey, hawks, deer, and huge families of ducks and other fowl. Consistent with the Land Use Planning requirements for the protection of Goal 5 resources, I strongly support protection of this water body and its surrounding natural vegetation. With the property owner's plans for development, this natural beauty would be covered and the entire area loses this natural landmark. This lake should more appropriately be preserved as an option for future integration into the Bend Parks District to provide an amenity to any future development in the vicinity. How much was spent on Discovery Park in Northwest Crossing for their artificial water feature? Why allow the destruction of a similar feature that already exists? Will East Bend residents be given access to beautiful features like this lake? It is a tremendous benefit to the area. This region of Bend will need more parks with new development already planned inside the UGB. I believe my neighbors and 1 are reasonable and willing to work with any new development to help our community grow in a healthy way. But I request that Deschutes County and the City of Bend first work together to craft a larger scale development strategy and transportation plan is in place for the area bounded by 27th Street, Bear Creek Road, Highway 20, and Ward Road. Critical information in such a plan will be details on the inevitable future development of the Landsystems Nursery property bordering both sides of Highway 20 just west of subject property and how development of the subject property and the nursery property will contribute to the already established neighborhoods, such as my own. Thank you for your work on this important topic and for considering my comments and including them in the public record. Sincerely, David and Cindy Morman 21352Bartlett Lane Bend, Oregon 1,P a) 0 o c6 co d 0 00- .2 0 0 0 U ._, .s:) H L,) Lj N CU L C 0 (6 tan L. 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N W _ • • 1 • Property to east is EFU; dry land not in farm use. co E v) O 4J �/' �1 W CO > D C 00 ▪ O , - 13 a) o i 4-0 o � t cu TA - 0 CU- o (1) °� ° W • c co a_ a) > .� c CU 2 Q E 0 0 0 1 l W o (1) 0 U 0 0 .0 O 1'q o a) 0 a, o 0 0 tDD z 0 0 r., Orange = EFU Zone Yellow = M UA -10 Zone Pink = UAR-10 Zone Area South of bn n� - • c W NO O o- u- - w U cu • ---1 4--) D C/) Li— -0 O c ro O ._ Z O ij ghbors to the North EFU Lots and Vacant/Dry EFU .{�� . t/') 73 73 L 0 a) a) t/) c cn 0- " 0 D 0 0 CO 4- •- E ' o v' 0 LE -� 0 J E a) ° 4-1 W0 0 >. V)73 0 C "MOM D. -1-;_C a� •— . v, n3 c •-E co U W N co CD --0 tu cu a)4 -OD (73 c 0 O •O a) aJ co Q0 co c 2 C 0 ca W U V c6 O v) tlo0 .0 L_ -0 i� 4— o '0 O o CU o °MO 4) H 0 Li_ O OJ E— ~- • • > 2 j "0 U O N_ C 4= O O 0,0 0 0_ a2>-0 4... 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Action Needed: Location of Ponds c 0 D U C 0 0 4--+ O CO N a) co CU (13 W 1 73 co 0 J Cs O = U +-' V 'L_ z4— bA O - Q I � O CO CU C cos > i U Q O O 13 U a = CU CI3 O i I— CL cn co O D 2 O D W E O 4— CD 73 CD CU n 0 Q) a) -o a) 4--' V) a) m 0- ) L C6 > 0 Q. O toW i )0 O V) a) CO 1 O � LL � O N 0° CO coCU c cu U O > O c CL Q O *4 -)CO O c 4-' O O V C6 a) O -C b.O 0 . O June 2, 2017 Representative Knute Buehler Representative John Huffman Representative Mike McLane Representative Gene Whisnant 900 Court Street N.E Salem, OR 97301 Central Oregon Representatives: Board of County Commissioners PO Box 6005, Bend, OR 97708-6005 1300 NW Wall Street, Suite 206, Bend, OR 97701-1960 TEL (541) 388-6570 • FAX (541) 385-3202 www.deschutes.ord board@co.deschutes.or.us Tammy Baney Anthony DeBone Philip Henderson Senate Bill 327, which restores immunity from tort liability to employees, volunteers, and other agents of public and private land owners who allow recreational use on their property free of charge, is currently scheduled for a third reading on the House Floor on Monday, June 5, 2017. To date, the A -Engrossed version of this bill has unanimously been passed by the Senate Judiciary Committee, the full Senate, and the House Judiciary Committee. The Deschutes County Board of Commissioners urges you to vote in favor of the bill in its current form as well. Recreational immunity was originally enacted to facilitate entry to places for hiking, bicycling, rock- climbing, swimming, boating, camping, hunting, fishing, winter sports, viewing historical and scenic sites, and other activities on among other things public lands and facilities such as these owned by Deschutes County. However, a recent court ruling has threatened this access by finding that employees, volunteers, and other agents of land owners could be held liable for injuries sustained by recreationists. City/County Insurance Services, which insures many public entities, estimates that it could cost $75,000 to prevail on a single gross negligence claim. Without adequate protection from this threat, public and private land -owners may be forced to close their properties from use. Passage of SB 327 will help safeguard against this outcome and allow continued outdoor opportunities for both Oregonians and visitors to our state. Thank you for considering this important issue and, once again, we urge an affirmative vote on SB 327 when it is brought to the House floor. Sincerely, DESCHUTES COUN : Y BOARD OF COMMISSIONERS Tammy Baney Chair Anthony DeBone Vice Chair c: Senators Ferrioli, Knopp, and Linthicum Phil Henderson Commissioner