2017-682-Minutes for Meeting September 25,2017 Recorded 10/16/2017Recorded in Deschutes County
Nancy Blankenship, County Clerk
Commissioners' Journal
0,4 t• �� ih i.
CJ2017-682
10/17/2017 11:39:35 AM
IlIIIllIIIIIIIIIlIIIIIII2mii
For Recording Stamp Only
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
Monday, September 25, 2017
Present were Commissioners Tammy Baney, Anthony DeBone. Commissioner Henderson was
absent. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County
Administrator; David Doyle, County Counsel; and Sharon Ross, Board Executive Secretary. One
representative of the media was in attendance.
CALL TO ORDER: Chair Baney opened the meeting at 1:30 p.m.
ACTION ITEMS
1. Grant Application Request, Oregon Criminal Justice Commission. This item was pulled
from the agenda per District Attorney's direction. Discussion held on the possible need
for the grant application to be reviewed by the Public Safety Coordinating Council.
2. Consideration of Board Order. From the discussions at this morning's business meeting
Order No. 2017-039, An Order Reopening the Public Hearing for Oral and Written
Testimony for Lot of Record Text Amendments, 247 -17 -000596 -TA was presented for
consideration.
Minutes of Board of Commissioners' Work Session September 25, 2017 Page 1 of 5
DEBONE: Move approval
BANEY: Second
VOTE: DEBONE: Yes
HENDERSON: Absent
BANEY: Chair votes yes. Motion Carried
3. Letter of Support — INFRA Grant ODOT
Chris Doty, Public Works Director presented the letter for consideration to support the
ODOT INFRA Grant proposal to construct the US 97 Bend North Corridor Project which
includes the County project for Hunnell Road.
DEBONE: Move approval
BANEY: Second
VOTE: DEBONE: Yes
HENDERSON: Absent
BANEY: Chair votes yes. Motion Carried
4. Deschutes County Personnel Rules — Revisions for New HR/Payroll/Time Collection
Systems
Kathleen Hinman, Human Resources Director presented proposed revisions to County
Code Personnel Rules noting part of the HR work plan is to address policy and employee
handbook and rules. The implementation of the new system required a look at the
language regarding such items as work week definitions and pay practices and changing
the name of the department from Personnel to Human Resources. Several of the
revisions will be reviewed with the unions as well. Legal noted that moving forward, the
County could remove the personnel rules from the county code and maintain them as
stand alone document that can be modified by Board Resolution.
Minutes of Board of Commissioners' Work Session September 25, 2017 Page 2 of 5
5. Deschutes County Compensation and Classification Project Update
Kathleen Hinman and Teri Lorenz, Human Resources Department presented the update
on the classification and compensation project.
The steering team recommended a compensation philosophy statement. Discussion
held on the wording of the statement and revision made to the last sentence to state
our goal is to attract, reward, and retain a talented and diverse workforce.
The pay grade structure of non -represented and AFSCME employees was reviewed.
Currently in the non -represented group there are 28 grades with 7 steps and in the
AFSCME group there are 30 grades and 9 steps. The staff recommendation presented to
the Board was a pay grade structure with 29 grades and 7 steps. The next piece to
consider is where to anchor the pay: above market, market average, or below market.
The over market average has the option of either 10% or 5%. Staff recommendation is
for 7 steps with 5% between each step. Discussion held on aligning for cost of housing
verses cost of living as it evident during recent hiring. There is a high cost of housing
and a labor shortage. Cost of labor will be brought to the next discussion. The Board
expressed support of the option of 7 steps with the 29 grades.
The presentation on classification would be brought to the Board for consideration of
adoption by mid-October. Ms. Hinman will compile the cost of implementing the
various options of where to anchor the pay with the market. The Board would like
information on the budget impact and recommendations of County Administrator
Anderson.
6. Preparations for Deliberations: Plan Amendment and Zone Change File Nos. 247-16-
000317-ZC/318-PA
Chris Schmoyer, Community Development Director presented this item to prepare the
Board for deliberations on Wednesday and reviewed the history of the file. This
presentation by CDD was audio recorded.. The matter involves 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 to Multiple Use Agricultural.
Discussion held on the property and development.
Minutes of Board of Commissioners' Work Session September 25, 2017 Page 3 of 5
OTHER ITEMS
• Marijuana Evaluation: Matt Martin, Nick Lelack, and Peter Gutowsky presented
information regarding strategies for public outreach for the marijuana regulations
evaluation. Options were reviewed including focus groups and stakeholder interviews.
Meetings of the focus groups would be publically noticed. Discussion held on
representation and appointments of the membership. The purpose of the public outreach
is to gain feedback on what is working and what is not in terms of the regulations.
Commissioner DeBone suggested to explain the purpose of the meetings by detailing the
intent of the focus groups. A presentation will come back to the Board with feedback.
Suggestion made for a community forum before the Board instead of a public hearing.
What are the key issues, concerns and challenges with code enforcement in terms of the
regulations?
A work session with the Planning Commission would review the existing conditions report
and summary of interviews with stakeholders and comments from focus groups. The
timeline of the outreach could bring information back to the Board mid -to late November.
The focus groups will be organized into two focus groups instead of four and the members
will be increased to 12. A questionnaire could be created for public input to allow for 2-3
weeks of comment.
OTHER ITEMS:
• County Administrator Anderson reported there was a marijuana production appeal that
went to the hearings officer and the hearings officer upheld the staff decision. Today is the
last day to be appealed.
• County Administrator Anderson reported the annual luncheon with Black Butte Ranch will
be rescheduled for June.
• Dick Tobiason, Oregon Medal of Honor, requested a contribution for the Oregon Medal of
Honor Highway signs. Mr. Tobiason has received $12,000 so far in funding and needs to
raise $24,000. There are twelve signs at $2,000 each. ODOT is allowing the signs to be
installed but is not covering the expense. There are four signs that will be installed in
Deschutes County.
DEBONE: Move approval of the amount of $8,000 toward four Oregon Medal Of Honor
Highway signs to be funded through the Transient Room Tax Fund.
BANEY: Second
Minutes of Board of Commissioners' Work Session September 25, 2017 Page 4 of 5
VOTE: DEBONE: Yes
HENDERSON: Absent
BANEY: Chair votes yes. Motion Carried
ADJOURN: Being no further discussion, the meeting adjourned at 4:09 p.m.
NDATED this 1 t Day of
Board of Commissioners.
ATTEST:
rding Secretary
2017 for the Deschutes County
Tammy Baney, Chair
Anthony DeBon, iLce Chair
Philip G. Heerson, Commissioner
Minutes of Board of Commissioners' Work Session September 25, 2017 Page 5 of 5
IES
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p � -< 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, MONDAY, SEPTEMBER 25, 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. Grant Application Request, Oregon Criminal Justice Commission - John Hummel,
County District Attorney
2. Letter of Support - INFRA Grant - ODOT - Chris Doty, Public Works Director
3. Deschutes County Personnel Rules - Revisions for New HR/Payroll/Time Collection
Systems - Kathleen Hinman, Human Resources Director
4. Deschutes County Compensation and Classification Project Update - Kathleen Hinman,
Human Resources Director
5. Preparations for Deliberations: Plan Amendment and Zone Change File Nos. 247-16-
000317-ZC/318-PA - Chris Schmoyer, Associate Planner
EXECUTIVE SESSION
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.
Board of Commissioners Work Session Agenda
Monday, September 25, 2017 Page 1 of 2
Executive sessions are closed to the public; however, with few exceptions and under specific
guidelines, are open to the media.
OTHER ITEMS
These can be any items not included on the agenda that the Commissioners wish to discuss as part of
the meeting, pursuant to ORS 192.640.
ADJOURN
CU
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.orq/meetinqcalendar
(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
Monday, September 25, 2017 Page 2 of 2
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Reopening the Public Hearing for Oral
and Written Testimony for Lot of Record Text
Amendments, 247 -17 -000596 -TA
*
*
ORDER NO. 2017-039
WHEREAS, the Deschutes County Planning Commission conducted a duly noticed public hearing on
August 24, 2017 to take testimony on Lot of Record Text Amendments, 247 -17 -000596 -TA and upon receiving
no opposition, closed the hearing, deliberated, and forwarded to the Deschutes County Board of Commissioners
(Board) a recommendation of approval; and
WHEREAS, the Board held a duly noticed public hearing on September 20, 2017 to take testimony on
Lot of Record Text Amendments, 247 -17 -000596 -TA; and
WHEREAS, Central Oregon Landwatch provided last-minute submittals on September 20 and 22,
respectively that require additional analysis and feedback from Deschutes County and members of the public who
have participated in the public process; and
WHEREAS, the Board wishes to allow additional evidence/testimony on the Lot of Record Text
Amendments, 247 -17 -000596 -TA; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. The Board hereby reopens the oral and written record pursuant to Deschutes County Code
(DCC) 22.24.160, of the Lot of Record Text Amendments, 247 -17 -000596 -TA through October 16, 2017 at
10:00 a.m.
Section 2. The Board will conduct a second public hearing on October 16, 2017 at 10:00 a.m.
Dated this of , 2017 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
TAMMY BANEY, Chair
ANTHONY DEBONE, Vice Chair
Recording Secretary PHILIP G. HENDERSON, Commissioner
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners Work Session of September 25, 2017
DATE: September 19, 2017
FROM: Chris Doty, Road Department, 541-322-7105
TITLE OF AGENDA ITEM:
Letter of Support - INFRA Grant - ODOT
PUBLIC HEARING ON THIS DATE?: No
ATTENDANCE: Chris Doty
SUMMARY: In HB 2017 (Transportation Funding Package), the Legislature earmarked $50M
for an initial "mid-term" phase of the US 97 Bend North Corridor Project. The mid-term phase
is a small piece of larger project intended to eventually extend the Parkway north of Cooley
Road ($200M+). The US Department of Transportation has issued a request for projects via a
federal grant program (INFRA) designed to leverage local funding into larger transportation
projects designed to "rebuild America's crumbling infrastructure".
(https://www.transportation.gov/buildamerica/infragrants)
The INFRA Grant provides an opportunity to potentially construct a significantly larger portion
of the Parkway extension - upwards of a $150M total investment.
Key to a successful INFRA Grant application is the availability of state and local match to
couple with and leverage the federal investment. As a complimentary project to the proposed
US 97 improvements, the County's Hunnell Road Project (contained within the 5 -year CIP) is
eligible to be included as a portion of the state/local match. To accompany their application,
ODOT has requested a letter of support from the BOCC for the Project as well as a
commitment from Deschutes County to fund the Hunnell Road project in the 2021 timeframe.
Per the approved CIP (outlined in the FY 18 Budget), the Hunnell Road project is scheduled to
be delivered in this timeframe.
RECOMMENDATION & ACTION REQUESTED:
Approval with suggested motion: "I move to approve a letter of support for the ODOT INFRA
Grant proposal to construct the US 97 Bend North Corridor Project - including a County
commitment to construct Hunnell Road as a portion of the local match requirement."
-TES
0
o -< Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners Work Session of September 25, 2017
DATE: September 20, 2017
FROM: Kathleen Hinman, Human Resources, 541-385-3215
TITLE OF AGENDA ITEM:
Deschutes County Personnel Rules - Revisions for New HR/Payroll/Time Collection Systems
PUBLIC HEARING ON THIS DATE?: No
RECOMMENDATION & ACTION REQUESTED:
Discussion of proposed revisions made by HR to County Code, Title 3. Personnel Rules. The
revisions reflect the modernization of current pay and time collection practices. These
changes are required due to the implementation of the new HR/Payroll system, MUNIS, and
the new time collection system, NOVAtime.
Chapter 3.20. HOURS OF WORK
3.20.010. Work Schedules.
3.20.020. Rest and Meal Breaks.
3.20.030. Alternative or Flexible Work Schedules.
3.20.040. Outside Employment.
3.20.010. Work Schedules.
A. Reporting time. Employees must be at their designated workspace on time and ready to work.
Employees shall remain at work until the end of the employee's work day or work shift, unless
permission to leave earlier is granted by the employee's supervisor or department head. If an
employee is not able to report for work, the employee must notify his or her supervisor as soon as
possible prior to the employee's scheduled shift of his or her inability to report to work, the reason
the employee is not able to report to work, and the estimated length of time before the employee
will be able to return to work. An employee's failure to report to work without prior notification to
the employee's supervisor or department head shall be considered an implied resignation by the
employee unless circumstances beyond the control of the employee reasonably prevent the
employee from reporting to work or notifying his or her supervisor or department head of the
employee's inability to report to work.
B. Hours of work. Work hours are established by the County Administrator. Department heads shall
have personnel available to serve the public at all times during work hours, unless otherwise
authorized by the County Administrator. Department heads may establish flexible work schedules,
subject to approval by the County Administrator, so long as the flexible work schedule is in
compliance with other sections of the Personnel Rules, the terms of any applicable collective
bargaining agreement and all applicable wage and hour laws.
C. Work week and work schedules. The standard work week for Deschutes County employees will
consist of seven (7) consecutive twenty-four (24) hour periods from is -Sunday through Saturday.
Except as may otherwise be defined in a collective bargaining agreement, work schedules for each
department shall be determined by the department head, subject to approval by the County
Administrator.
(Ord. 2009-027, §1, 2009; Ord. 2007-017, §2, 2007; Ord. 86-011, §1, 1986; Ord. 81-053, §1, 1981)
3.20.020. Rest and Meal Periods.
A. A. Rest periods. Each employee shall be provided an uninterrupted rest period of fifteen (15)
minutes for every four hours in a work period, to be taken as close as possible to the midpoint of
each four-hour work period. Rest periods must be provided and taken separately from the
employee's meal period and cannot be saved up to lengthen the employee's meal period or to allow
an employee to leave work early.
B. Meal periods.
--A11 employees who work more than six (6) hours in a work day shall be given a meal period
during the employee's work shift. Except when, due to the nature and circumstances of an
employee's work, an employee is required to remain on duty or to perform work tasks during
the employee's meal period, the employee's meal period shall be taken as close as possible to
the middle of the employee's work shift. Meal periods shall be at least -thirty_
(30) continuous minutes in length.
3:2. Non -duty meal periods are the employee's own personal time. During a non -duty meal
period, an employee shall be free to leave his or her work station and shall not be expected to
perform any work. In the event of an emergency or other circumstance in which an employee
is required by his or her supervisor or department head to remain on duty or to perform work
tasks during the employee's designated meal period, the meal period will be paid time.
Chapter 3.20 (4209/92017)
43. Meal periods cannot be skipped or shortened to less than thirty (30) continuous
minutes in length to allow an employee to leave work early.
C. Expression of Breast Milk. An employee shall be allowed an unpaid 30 -minute rest period to
express milk during each four-hour work period, or the major part of a four-hour work period, to
be taken by the employee approximately in the middle of the work period unless the County
determnnines an undue hardship under state law (ORS 653.077). The County may require, if
feasible, that the employee take the rest periods at the same time as the rest periods or meal periods
that are otherwise provided. This shall only apply to employees expressing milk for her child 18
months of age or younger. The County shall make reasonable efforts to provide a location, other
than a public restroom or toilet stall, in close proximity to the employee's work area for the
employee to express milk in private.
(Ord. 2009-027, §1, 2009; Ord. 2009-012, §2; Ord. 2007-017, §2, 2007; Ord. 86-011, §1, 1986;
Ord. 81-053, §1, 1981)
3.20.030. Alternative or Flexible Work Schedules.
If an employee is interested in working an alternative or flexible work schedule, the employee must
submit a written request to his or her department head. Alternative or flexible scheduling shall only
be permitted if approved by the employee's department head, if department operations and public
service requirements will not be adversely affected, and if the alternative or flexible schedule does
not conflict with these Personnel Rules, any applicable collective bargaining agreement or any
applicable wage and hour law.
(Ord. 2009-027, §1, 2009; Ord. 2007-017, §2, 2007; Ord. 86-011, § 1, 1986; Ord. 81-053, §1 , 1981)
3.20.040. Outside Employment.
County employees may, in general, engage in employment or business outside their work for the
County. However, employees shall not utilize county time, materials, equipment or resources for
such outside employment or business, or allow such employment or business to conflict with, or
appear to conflict with, the employee's work for the County or with the interests or business of the
County. No employee may perform any service or employment, outside of County employment,
or engage in any business for which the employee receives compensation during the employee's
County work hours. Employees may be subject to other requirements depending on department
needs. Questions or issues regarding any actual, potential or apparent conflict of interest shall be
resolved by the County Administrator.
Any outside employment or business obligations must not interfere with or adversely affect the
employee's ability to fulfill all of the employee's responsibilities to the County. If, in the judgment
of the employee's department head, an employee's outside employment or business interferes with
or adversely affects the employee's performance of duties for the County, the department head may
require the employee to terminate the outside employment or business. Under such circumstances,
the failure or refusal of an employee to terminate outside employment may be grounds for
termination of employment with the County.
(Ord. 2009-027, §1, 2009; Ord. 2007-017, §2, 2007; Ord. 86-011, §1, 1986; Ord. 81-053, §1,
1981)
Chapter 3.20 2 (1-209/20092017
Chapter 3.36. LEAVE.
3.36.010. Authorization for Leave.
3.36.020. Military Leave.
3.36.030. Leave of Absence Without Pay.
3.36.040. Family and Medical Leave.
3.36.050. Special Leave - Closure of County Offices.
3.36.060. Victims of Domestic Violence, Sexual Assault or Stalking Leave.
3.36.070. Holidays.
3.36.080. Criminal Proceedings Leave.
3.36.010. Authorization for Leave.
Chapter 3.36 (1209/200f32017)
Except as otherwise provided in these Personnel Rules, any applicable collective bargaining agreement,
or as required by law, all requests for leave must be approved by an employee's supervisor or department
head.
An employee granted a leave of absence will be required to use all accrued and unused compensatory
time and all accrued and unused paid leave time before the employee may take leave without pay. After
an employee's paid time is exhausted, any leave granted or permitted will be without pay.
All leave used (paid or unpaid) shall be recorded on the employee's timecard.monthly Payroll Time and
Leave Worksheet. Each employee is responsible for the accuracy of his/her timecard. The department
head, or his/her designee, is responsible for reviewing the timecard activities to ensure that all leave
used by the employee is accurately recorded and reported, and is otherwise in accordance with the
County's Personnel Rules, Policies, and Collective Bargaining Agreements. ensuring that all leave used
by employees in their department is accurately recorded and reported on the monthly Payroll Time and
Leave Worksheets.
(Ord. 2009-027, §l , 2009; Ord. 2007-017, §2, 2007; Ord. 86-011, §1, 1986; Ord. 81-053, §1, 1981)
3.36.020. Military Leave.
A. Military leave with pay. An employee who has been employed with the County for at least six
(6) months and who is a member of the National Guard or the reserve of any branch of the U.S.
military is entitled to military leave with pay for a period not to exceed fifteen (15) work days per
federal fiscal year. Such leave will be granted without loss of pay or leave and without impairment
of merit ratings or other rights or benefits of employment with the County.
Military leave with pay may be granted only to personnel with certified orders and will not be paid
if the employee does not return to his or her position on the employee's first scheduled work day
following the end of the approved duty period. Leave with pay will not be granted to those
employees entering military service for extended or indefinite periods of time.
B. Military leave of absence without pay. All County employees who perform "service in the uniformed
services," as defined in 38 U.S.C. § 4304, are entitled to military leave without pay pursuant to and
in accordance with the provisions of the Uniformed Services Employment and Reemployment
Rights Act of 1994 [38 U.S.C. §§4301, et seq.], as amended. Employees may, but are not required
to, use accrued and unused time management, vacation or holiday bank leave or accrued and
unused compensatory time off for any period of military service which is unpaid by the County.
Except as may otherwise be required by law, employees are not entitled to use accrued sick leave
for periods of leave for military service.
(Ord. 2009-027, §1, 2009; Ord. 2007-017, §2, 2007; Ord. 86-011, §1, 1986; Ord. 81-053, §1,
1981)
C. Military Leave for Spouses. During a period of military conflict, an employee who is a spouse of
a member of the Armed Forces, National Guard, or military reserve forces is entitled to 14 days
of leave per deployment including time before the deployment and/or leave from
deployment. The employee must provide five days advance notice. To be eligible, the employee
must work an average of 20 hours per week for at least 180 calendar days immediately preceding
the date of leave.
D. Payroll records. Department heads, or his/her designee are required to document all military leave
taken by an employee on the employee's Payroll Time and Leave Worksheettimecard. Copies of
military orders shall be submitted to the Personnel Human Resources Department and kept in the
employee's Personnel File. -
(Ref. ORS 408.290)(Ord. 2009-027, §1, 2009; Ord. 2007-017, §2, 2007; Ord. 86-011, §1, 1986;
Ord. 81-053, §1, 1981)
Chapter 3.36 2 (4-209/29992017)
3.36.030. Leave of Absence Without Pay.
An employee's department head may grant a leave of absence without pay not to exceed 30 calendar
days. Leaves of absence without pay for periods in excess of 30 days must be approved by the County
Administrator and the employee's department head except for leaves of absence which, by law, an
employee is entitled to take.
(Ord. 2009-027, §1, 2009; Ord. 2007-017, §2, 2007; Ord. 86-011, §1, 1986; Ord. 81-053, §1,
1981)
3.36.040. Family and Medical Leave.
County employees shall be eligible to take family and medical leave as provided under the federal
Family and Medical Leave Act of 1993 ("FMLA") and the Oregon Family Leave Act (ORS 659.010,
"OFLA"), and pursuant to the Deschutes County Family and Medical Leave Policy.
(Ord. 2009-027, §1, 2009; Ord. 2007-017, §2, 2007; Ord. 86-011, §1, 1986; Ord. 81-053, §1, 1981)
3.36.050. Special Leave - Closure of County Offices.
In the event of weather-related or other conditions determined to be an emergency by the Board or the
County Administrator, the Board or the County Administrator may decide to close County offices. For
purposes of this section, an emergency includes, but is not limited to, conditions due to the following:
A. Snow/ice
B. Building problem
C. Bomb threat
D. Volcano
E. Forest Fire
F. Earthquake
G. Flood
H. Terrorist threat
I. Civil unrest
If County offices are closed due to a declared emergency, employees will be granted leave with pay
for the duration of the closure.
If County offices are open for business and an employee does not report to work due to weather- related
or other conditions, the time off will be deducted from the employee's accrued paid leave unless it is
deteunined by the County Administrator that the employee could not report to work due to
circumstances beyond the reasonable control of the employee.
(Ord. 2009-027, §1, 2009; Ord. 2007-017, §2, 2007; Ord. 86-011, §1, 1986; Ord. 81-053, §1,
1981)
3.36.060. Victims of Domestic Violence, Sexual Assault or Stalking Leave.
Chapter 3.36 3 (4209/20092017)
An employee shall be allowed to take a reasonable amount of leave determined by the County
Administrator and Personnel Human Resources Department to address domestic violence, sexual
assault, or stalking of the employee or his or her minor dependents (ORS 659A.272). The
employee must have been employed with the County for at least six months and worked an
average of more than 25 hours per week for at least 180 days immediately before the requested
leave. The leave must not create an undue hardship on the department and it must be for an
authorized purpose. An authorized purpose includes seeking legal or law enforcement assistance
or remedies - seeking medical treatment or recovering from injuries; obtaining counseling or
services from a victim services provider; or relocating or taking steps to secure a safe home for the
employee or minor child.
The employee shall provide the Personnel Human Resources Department and his/her department
head with as much advance notice as is practicable. The County may require certification of the
need for the leave, such as a police report; protective order; documentation from a law
enforcement officer, attorney, or victim services provider.
If approved, the employee must use paid leave (excluding sick leave) which includes time
management, vacation, compensatory time, or holiday time. If all paid time is exhausted, the
employee may request unpaid leave.
Upon request from an employee, the County shall make reasonable work safety accommodations
for an employee that is victim of domestic violence, sexual assault, or stalking.
(Ord. 2009-027, §1, 2009; 0 rd. 2009-012, §2)
3.36.070 Holidays
The following shall be recognized as paid holidays for full-time and part-time (on a pro -rated
basis) County employees: New Year's Day, President's Day, Martin Luther King's Day,
Memorial Day, Independence day, Labor Day, Veteran's Day, Thanksgiving Day, Christmas
Day, and one floating holiday.
(Ord. 2009-107, §1, 2009)
3.36.080 Criminal Proceedings Leave.
An employee who is a felony crime victim shall be allowed to take leave to attend a felony criminal
proceeding involving the employee or immediate family - defined as spouse, domestic partner, father,
mother, sibling, child, stepchild and grandparent (ORS 659A.192). The employee must provide
reasonable advance notice of the leave, provide copies of the notices of the criminal proceedings, have
been employed with the County for at least six months, and worked an average of more than 25 hours
per week for at least 180 days immediately before the requested leave. The leave must not create an
undue hardship on the department. If approved, the employee must use paid leave (excluding sick leave)
which includes time management, vacation, compensatory time, or holiday time. The employee shall
not use sick leave. If all paid time is exhausted, the employee may request unpaid leave.
(Ord. 2009-107, §1, 2009)
Chapter 3.36 4 (4209/28092017)
Chapter 3.24. WAGE AND SALARY ADMINISTRATION
3.24.010.
3.24.020.
3.24.030.
Pay Plan.
Pay Periods and Pay Days.
Wage and Salary Adjustments.
3.24.010. Pay Plan.
The pay plan will include a schedule of rates of pay for all County positions. The objective of the pay
plan is to provide a competitive salary structure to recruit and retain qualified employees.
A. Pay grades will be established based upon the following factors:
1. The relative difficulty and responsibility of work;
2. The recruiting experience of the County;
3. The prevailing rates of pay for comparable public sector employers. Prevailing rates of pay in
the private sector inay be used depending on the pay grade or position being reviewed.
4. Cost -of -living;
5. The financial policies of the County;
6. Internal equity; and
7. Other relevant economic considerations.
B. The Personnel Human Resources Department is responsible for the development and
administration of the County pay plan. A County -wide pay plan for all County positions shall
be adopted by the Board as a part of the annual budget adoption process. Pay grade adjustments
for individual positions may be approved outside the budget process by the County
Administrator if no budget amendment is required to fund such adjustment or adjustments.
C. Pay rates.
1. Generally: Each employee shall be paid at one of the steps in the approved pay grade for
the employee's position. No employee can receive base pay in excess of the established
maximum step of the pay grade for the employee's position.
2. Longevity pay. For employees covered by a collective bargaining agreement, longevity pay
shall be provided in accordance with the terms of the applicable collective bargaining
agreement. For employees not covered by a collective bargaining agreement, the following
shall apply:
a. Longevity is determined by an employee's continuous full-time or part-time service as a
County employee. Full-time employees who have worked continuously for the County shall
receive additional pay per (month -pay period for each five years of continuous service.
b. For employees working less than full-time but at least half-time, longevity shall be pro-
rated by using the ratio of the regularly scheduled work hours for the employee to the
regularly scheduled work hours for a full-time position. Employees working less than half-
time shall not accrue longevity and shall not receive longevity pay.
c. Longevity amounts for non -represented employees shall be equivalent to amounts
provided for in the collective bargaining agreement between Deschutes County and
AFSCME Local 3997 unless otherwise adjusted by the Deschutes County Budget
Committee during the annual budget approval process.
d. Longevity shall terminate in the event of the -following:
(1) Voluntary tennination for more than three (3) months, except under special
circumstances to be determined by the County;
(2) Discharge for cause;
(3) A lay-off of more than eighteen (18) months;
Chapter 3.24 (096/20147)
(4) An unexcused failure to report to work at the termination of an extended leave of
absence;
(5) Acceptance of other employment without the permission of County while on a
leave of absence; or
(6) Retirement.
(Ord. 2009-027, §1, 2009; Ord. 2007-017, §2, 2007; Ord. 86-011, §1, 1986; Ord. 81-053, §1, 1981)
3.24.020. Pay Periods and Pay Days.
A County Administration will set pay schedules and pay dates including, but not limited to,
1. Monthly pay periods and pay dates.
a. Pay periods for regular employees shall run from the first day of the month through
the last day of the same month with payment for that period to be made on the last
work day of the month. If the last day of the month falls on a holiday or a weekend,
payday for that pav period will be the last work day immediately preceding the holiday
or weekend.
b. Pay periods for temporary, hourly, and on-call employees shall run from the day after
payroll cut-off in a month to the date of payroll cut-off in the subsequent month with
payment for that period to be made on the last work day of the month. If the last day
of the month falls on a holiday or a weekend, the payday for that pay period will be
the last work day immediately preceding the holiday or weekend.
2. Bi -weekly pay periods and pay dates. Employees shall be paid every two weeks as determined
by the published pay period and pay date scheduled. When a regular payday falls on a holiday,
the payday for that pay period will be the last workday immediately preceding the regular
payday. For example, the pay dates may be every other Friday and the pay received will be for
a two week period ending on the Saturday prior to the pay date.
3. Bi -monthly pay periods and pay dates. Employees shall be paid twice per month as determined
by the published pay period and pay date scheduled. When the regular payday falls on a holiday,
the payday for that pay period will be the last workday immediately preceding the regular
payday. For example, pay dates may be on the 51h and the 20t1 of each month and the pay
received on the 511 will be for work completed from the 16th through the end of the prior month.
The pay received on the 20th will be for work completed from the 151 through the 15th of that
same month.
Full time and at least half time employees. Pay periods for full time employees and for employees who
are regularly scheduled to work at least half time shall run from the first day of the month through
the Last day of the same month, with payment for that period to be made on thc last work day of the
month. If thc last day of the month falls on a holiday or a weekend , payday for that pay period will
be the Last work day preceding the holiday or weekend.
employees shall run from the day after payroll cut off in a month to the date ofpayroll cut off
in the subsequent month.
r before the 25th of the month will receive
their first paycheck at the end of the month they begin their employment. Employees beginning
work after the 25th of the month will receive their first paycheck at the end of the month following
(Ord. 2009-027, §1, 2009; Ord. 2007-017, §2, 2007; Ord. 86-011, §1, 1986; Ord. 81-053, §1, 1981)
3.24.030. Wage and Salary Adjustments.
A _New employees. New employees shall generally be hired at the first step of the pay grade.
Chapter 3.24
2 (609/20417)
Formatted: List Paragraph, Numbered + Level: 1 +
Numbering Style: 1, 2, 3, ... + Start at: 1 + Alignment
Left + Aligned at: 0.35" + Indent at: 0.6"
When a new employee has extensive prior experience and the department head believes it is
justified, an employee may be hired at the second step of the pay grade. Hiring at Step 3 or
above requires prior approval by the County Administrator and will only be granted in
extraordinary circumstances.
B. Merit step increases. In addition to cost -of -living pay increases, if funds are available and
appropriated, employees are eligible for merit step increases, provided their performance has
met or exceeded performance standards established by the department head and/or the
employee's supervisor. For an employee to receive a merit step increase, the employee's
department head must complete a written performance evaluation of the employee with a
recommendation for the increase. The amount of an authorized merit step increase will be
determined by the adopted pay plan. Employees who are at the top step in their pay grade are
not eligible for merit step increases. Employees shall be eligible for merit step increases on
their eligibility date. An employee's eligibility date is based on the employee's date of hire,. or
hire date into a classification, and all merit step increases will be effective the first day of the
pay period following the eligibility date. as follows: If hired on or before the fifteenth (15th)
employee was hired; if hired on or after the sixteenth (16th) of the month, the employee's
was hired. Supervisors shall complete a scheduled performance evaluation for on-call and hourly
employees after the employee has been employed for at least 12 -months and worked at least
1,000 hours. Subsequent scheduled evaluations shall be when the employee has worked at least
another 12 -months and at least an additional 1,000 hours. On-call and hourly employees are
eligible for a merit step increase when receiving a scheduled performance evaluation. A
department head may authorize a performance evaluation for an on-call or hourly employee
before the required hours have been worked, if in the department head's discretion such an
evaluation is necessary or prudent. In unusual circumstances and with County Administrator
approval, a department head may authorize a merit increase along with an unscheduled
performance evaluation.
C. Cost -of -living increases. As part of the annual budget adoption process, the Board will
determine what cost -of -living increase, if any, will be applied to the County's pay plan.
Increases are contingent upon the availability and appropriation of funds. Cost -of -living pay
increases are not guaranteed and are subject to the discretion of the Board.
D. Upon prior approval by the County Administrator, a non -represented employee is eligible to
receive a 5% or 10% differential for performing lead work. The lead work must be assigned in
writing by the employee's department head. Lead work may include the coordination and
assignment of work duties to assigned employees and/or the review of employee work to ensure
work quality and compliance with applicable methods, policies, and procedures. Examples of
lead work include distribution of work assignments to employees, maintaining a balanced
workload among a group of employees, or reviewing the completed work of employees. The
lead pay must be approved by the County Administrator in advance of the employee receiving
the assigned lead duties. Retroactive lead pay is not allowed.
E. Upon prior approval by the County Administrator, a non -represented employee is eligible to
receive on-call pay at a compensation rate of up to the equivalent of two hours per day at their
current hourly rate. An employee receiving on-call pay must be able to be contacted by phone or
pager during the on-call period and respond in a timely manner as determined by the
department.
(Ord. 2011-024, §§2,3, 2011; Ord. 2009-027, §1, 2009; Ord. 2007-017, §2, 2007; Ord. 86-011, §1,
1986; Ord. 81-053, §1, 1981)
Chapter 3.24 3 (609/204417
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners Work Session of September 25, 2017
DATE: September 20, 2017
FROM: Kathleen Hinman, Human Resources, 541-385-3215
TITLE OF AGENDA ITEM:
Deschutes County Compensation and Classification Project Update
PUBLIC HEARING ON THIS DATE?: No
ATTENDANCE: Kathleen Hinman, HR Director and members of the Steering Team.
SUMMARY: Update to BOCC on the progress of the Compensation and Classification project.
This update will include the recommended County Pay Philosophy and Pay Grade Structure.
RECOMMENDATION & ACTION REQUESTED:
Review of project update and recommendation of the County Pay Philosophy and new Pay
Grade Structure.
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101 $ 33,116.32 $ 34,859.29 $ 36,693.99
102 $ 34,859.29 $ 36,693.99 $ 38,625.25
103 $ 36,693.99 $ 38,625.25 $ 40,658.16
104 $ 38,625.25 $ 40,658.16 $ 42,798.06
105 $ 40,658.16 $ 42,798.06 $ 45,050.59
106 $ 42,798.06 $ 45,050.59 $ 47,421.67
107 $ 45,050.59 $ 47,421.67 $ 49,917.55
108 $ 47,421.67 $ 49,917.55 $ 52,544.79
109 $ 49,917.55 $ 52,544.79 $ 55,310.30
110 $ 52,544.79 $ 55,310.30 $ 58,221.37
111 $ 55,310.30 $ 58,221.37 $ 61,285.66
112 $ 58,221.37 $ 61,285.66 $ 64,511.22
113 $ 61,285.66 $ 64,511.22 $ 67,906.54
114 $ 64,511.22 $ 67,906.54 $ 71,480.57
115 $ 67,906.54 $ 71,480.57 $ 75,242.71
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$ 38,625.25
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$ 42,798.06
$ 45,050.59
$ 47,421.67
$ 49,917.55
$ 52,544.79
$ 55,310.30
$ 58,221.37
$ 61,285.66
$ 64,511.22
$ 67,906.54
$ 71,480.57
$ 75,242.71
$ 79,202.85
116 $ 71,301.87 $ 75,054.60 $ 79,004.84 $ 83,162.99
117 $ 74,866.97 $ 78,807.33 $ 82,955.09 $ 87,321.14
118 $ 78,610.31 $ 82,747.70 $ 87,102.84 $ 91,687.20
119 $ 82,540.83 $ 86,885.08 $ 91,457.98 $ 96,271.56
120 $ 86,667.87 $ 91,229.34 $ 96,030.88 $ 101,085.14
121 $ 91,001.26 $ 95,790.80 $ 100,832.43 $ 106,139.40
122 $ 95,551.33 $ 100,580.34 $ 105,874.05 $ 111,446.37
123 $ 100,328.89 $ 105,609.36 $ 111,167.75 $ 117,018.68
124 $ 105,345.34 $ 110,889.83 $ 116,726.14 $ 122,869.62
125 $ 110,612.61 $ 116,434.32 $ 122,562.44 $ 129,013.10
126 $ 116,143.24 $ 122,256.04 $ 128,690.57 $ 135,463.75
127 $ 121,950.40 $ 128,368.84 $ 135,125.09 $ 142,236.94
128 $ 128,047.92 $ 134,787.28 $ 141,881.35 $ 149,348.79
129 $ 134,450.31 $ 141,526.65 $ 148,975.42 $ 156,816.23
$ 40,556.51 $ 42,584.34 $ 44,713.55
$ 42,691.06 $ 44,825.62 $ 47,066.90
$ 44,937.96 $ 47,184.86 $ 49,544.10
$ 47,303.12 $ 49,668.27 $ 52,151.69
$ 49,792.76 $ 52,282.39 $ 54,896.51
$ 52,413.43 $ 55,034.10 $ 57,785.80
$ 55,172.03 $ 57,930.63 $ 60,827.16
$ 58,075.82 $ 60,979.61 $ 64,028.59
$ 61,132.44 $ 64,189.06 $ 67,398.52
$ 64,349.94 $ 67,567.44 $ 70,945.81
$ 67,736.78 $ 71,123.62 $ 74,679.80
$ 71,301.87 $ 74,866.97 $ 78,610.31
$ 75,054.60 $ 78,807.33 $ 82,747.70
$ 79,004.84 $ 82,955.09 $ 87,102.84
$ 83,162.99 $ 87, 321.14 $ 91,687.20
$ 87,321.14 $ 91,687.20 $ 96,271.56
$ 91,687.20 $ 96,271.56 $ 101,085.14
$ 96,271.56 $ 101,085.14 $ 106,139.40
$ 101,085.14 $ 106,139.40 $ 111,446.37
$ 106,139.40 $ 111,446.37 $ 117,018.68
$ 111,446.37 $ 117,018.68 $ 122,869.62
$ 117,018.68 $ 122,869.62 $ 129,013.10
$ 122,869.62 $ 129,013.10 $ 135,463.75
$ 129,013.10 $ 135,463.75 $ 142,236.94
$ 135,463.75 $ 142,236.94 $ 149,348.79
$ 142,236.94 $ 149,348.79 $ 156,816.23
$ 149,348.79 $ 156,816.23 $ 164,657.04
$ 156,816.23 $ 164,657.04 $ 172,889.89
$ 164,657.04 $ 172,889.89 $ 181,534.39
5% Above Market - Anchor Mid Point Average, 5% Grade/Step Spread, 35% Grade Range
Step 1 Step 2 Step 3 Step 4 Step 5 Step 6 Step 7
101 $ 31,607.87 $ 33,271.45 $ 35,022.58 $ 36,865.87 $ 38,709.16 $ 40,644.62 $ 42,676.85
102 $ 33,271.45 $ 35,022.58 $ 36,865.87 $ 38,806.18 $ 40,746.49 $ 42,783.81 $ 44,923.00
103 $ 35,022.58 $ 36,865.87 $ 38,806.18 $ 40,848.61 $ 42,891.04 $ 45,035.59 $ 47,287.37
104 $ 36,865.87 $ 38,806.18 $ 40,848.61 $ 42,998.54 $ 45,148.46 $ 47,405.88 $ 49,776.18
105 $ 38,806.18 $ 40,848.61 $ 42,998.54 $ 45,261.62 $ 47,524.70 $ 49,900.93 $ 52,395.98
106 $ 40,848.61 $ 42,998.54 $ 45,261.62 $ 47,643.81 $ 50,026.00 $ 52,527.30 $ 55,153.66
107 $ 42,998.54 $ 45,261.62 $ 47,643.81 $ 50,151.38 $ 52,658.94 $ 55,291.89 $ 58,056.49
108 $ 45,261.62 $ 47,643.81 $ 50,151.38 $ 52,790.92 $ 55,430.47 $ 58,201.99 $ 61,112.09
109 $ 47,643.81 $ 50,151.38 $ 52,790.92 $ 55,569.39 $ 58,347.86 $ 61,265.25 $ 64,328.52
110 $ 50,151.38 $ 52,790.92 $ 55,569.39 $ 58,494.10 $ 61,418.80 $ 64,489.74 $ 67,714.23
111 $ 52,790.92 $ 55,569.39 $ 58,494.10 $ 61,572.73 $ 64,651.37 $ 67,883.94 $ 71,278.13
112 $ 55,569.39 $ 58,494.10 $ 61,572.73 $ 64,813.40 $ 68,054.07 $ 71,456.78 $ 75,029.61
113 $ 58,494.10 $ 61,572.73 $ 64,813.40 $ 68,224.63 $ 71,635.87 $ 75,217.66 $ 78,978.54
114 $ 61,572.73 $ 64,813.40 $ 68,224.63 $ 71,815.40 $ 75,406.17 $ 79,176.48 $ 83,135.31
115 $ 64,813.40 $ 68,224.63 $ 71,815.40 $ 75,595.16 $ 79,374.92 $ 83,343.67 $ 87,510.85
116 $ 68,054.07 $ 71,635.87 $ 75,406.17 $ 79,374.92 $ 83,343.67 $ 87,510.85 $ 91,886.39
117 $ 71,456.78 $ 75,217.66 $ 79,176.48 $ 83,343.67 $ 87,510.85 $ 91,886.39 $ 96,480.71
118 $ 75,029.61 $ 78,978.54 $ 83,135.31 $ 87,510.85 $ 91,886.39 $ 96,480.71 $ 101,304.75
119 $ 78,781.10 $ 82,927.47 $ 87,292.07 $ 91,886.39 $ 96,480.71 $ 101,304.75 $ 106,369.98
120 $ 82,720.15 $ 87,073.84 $ 91,656.68 $ 96,480.71 $ 101,304.75 $106,369.98 $ 111,688.48
121 $ 86,856.16 $ 91,427.53 $ 96,239.51 $101,304.75 $ 106,369.98 $111,688.48 $ 117,272.91
122 $ 91,198.97 $ 95,998.91 $ 101,051.49 $106,369.98 $111,688.48 $ 117,272.91 $123,136.55
123 $ 95,758.91 $100,798.86 $ 106,104.06 $111,688.48 $117,272.91 $123,136.55 $129,293.38
124 $ 100,546.86 $ 105,838.80 $ 111,409.26 $117,272.91 $123,136.55 $129,293.38 $135,758.05
125 $ 105,574.20 $ 111,130.74 $ 116,979.73 $ 123,136.55 $ 129,293.38 $ 135,758.05 $ 142,545.95
126 $ 110,852.91 $116,687.28 $ 122,828.71 $129,293.38 $135,758.05 $142,545.95 $149,673.25
127 $ 116,395.56 $ 122,521.64 $ 128,970.15 $ 135,758.05 $ 142,545.95 $ 149,673.25 $ 157,156.91
128 $ 122,215.34 $ 128,647.72 $ 135,418.65 $ 142,545.95 $ 149,673.25 $ 157,156.91 $ 165,014.76
129 $ 128,326.10 $ 135,080.11 $ 142,189.59 $ 149,673.25 $ 157,156.91 $ 165,014.76 $ 173,265.50
NEW GRADE +5% ABV MKT
Anchor Mid Point Average, 5% Grade/Step Spread, 35% Grade Range
Step 1
101 $ 30,105.75
102 $ 31,690.26
103 $ 33, 358.17
104 $ 35,113.86
105 $ 36,961.96
106 $ 38,907.33
107 $ 40, 955.08
108 $ 43,110.61
109 $ 45,379.59
110 $ 47, 767.99
111 $ 50,282.10
112 $ 52,928.52
113 $ 55,714.23
114 $ 58,646.56
115 $ 61,733.22
116 $ 64,819.88
117 $ 68, 060.88
118 $ 71,463.92
119 $ 75,037.12
120 $ 78,788.97
121 $ 82,728.42
122 $ 86,864.84
123 $ 91,208.09
124 $ 95,768.49
125 $ 100,556.91
126 $ 105,584.76
127 $ 110,864.00
128 $116,407.20
129 $ 122,227.56
Step 2 Step 3
$ 31,690.26 $ 33,358.17
$ 33, 358.17 $ 35,113.86
$ 35,113.86 $ 36,961.96
$ 36,961.96 $ 38,907.33
$ 38,907.33 $ 40,955.08
$ 40, 955.08 $ 43,110.61
$ 43,110.61 $ 45,379.59
$ 45,379.59 $ 47,767.99
$ 47,767.99 $ 50,282.10
$ 50,282.10 $ 52,928.52
$ 52,928.52 $ 55,714.23
$ 55,714.23 $ 58,646.56
$ 58,646.56 $ 61,733.22
$ 61,733.22 $ 64,982.34
$ 64,982.34 $ 68,402.46
$ 68,231.46 $ 71,822.59 $ 75,602.72
$ 71,643.03 $ 75,413.71 $ 79,382.86
$ 75,225.18 $ 79,184.40 $ 83,352.00
$ 78,986.44 $ 83,143.62 $ 87,519.60
$ 82,935.76 $ 87,300.80 $ 91,895.58
$ 87,082.55 $ 91,665.84 $ 96,490.36
$ 91,436.68 $ 96,249.13 $ 101,314.88
$ 96,008.51 $ 101,061.59 $ 106,380.62
$ 100,808.94 $106,114.67 $111,699.65
$ 105,849.38 $ 111,420.40 $ 117,284.64
$ 111,141.85 $ 116, 991.42 $ 123,148.87
$ 116,698.95 $ 122,840.99 $ 129,306.31
$ 122,533.89 $ 128,983.04 $ 135,771.63
$ 128,660.59 $ 135,432.20 $ 142,560.21
Step 4
$ 35,113.86
$ 36,961.96
$ 38, 907.33
$ 40,955.08
$ 43,110.61
$ 45,379.59
$ 47,767.99
$ 50,282.10
$ 52,928.52
$ 55,714.23
$ 58,646.56
$ 61,733.22
$ 64,982.34
$ 68,402.46
$ 72,002.59
Step 5 Step 6 Step 7
$ 36,869.56 $ 38,713.03 $ 40,648.69
$ 38,810.06 $ 40,750.56 $ 42,788.09
$ 40,852.69 $ 42,895.33 $ 45,040.09
$ 43,002.83 $ 45,152.98 $ 47,410.63
$ 45,266.14 $ 47,529.45 $ 49,905.92
$ 47,648.57 $ 50,031.00 $ 52,532.55
$ 50,156.39 $ 52,664.21 $ 55,297.42
$ 52,796.20 $ 55,436.01 $ 58,207.81
$ 55, 574.95 $ 58, 353.69 $ 61, 271.38
$ 58,499.94 $ 61,424.94 $ 64,496.19
$ 61,578.89 $ 64,657.83 $ 67,890.73
$ 64,819.88 $ 68,060.88 $ 71,463.92
$ 68,231.46 $ 71,643.03 $ 75,225.18
$ 71,822.59 $ 75,413.71 $ 79,184.40
$ 75,602.72 $ 79,382.86 $ 83,352.00
$ 79,382.86 $ 83,352.00 $ 87,519.60
$ 83,352.00 $ 87,519.60 $ 91,895.58
$ 87,519.60 $ 91,895.58 $ 96,490.36
$ 91,895.58 $ 96,490.36 $ 101,314.88
$ 96,490.36 $ 101,314.88 $ 106,380.62
$ 101,314.88 $ 106,380.62 $ 111,699.65
$ 106,380.62 $ 111,699.65 $ 117,284.64
$ 111,699.65 $ 117,284.64 $ 123,148.87
$ 117,284.64 $ 123,148.87 $ 129,306.31
$ 123,148.87 $ 129,306.31 $ 135,771.63
$ 129,306.31 $ 135,771.63 $ 142,560.21
$ 135,771.63 $ 142,560.21 $ 149,688.22
$ 142,560.21 $ 149,688.22 $ 157,172.63
$ 149,688.22 $ 157,172.63 $ 165,031.26
5% BELOW MKT - Anchor Mid Point Average, 5% Grade/Step Spread, 35% Grade Range
Step 1 Step 2 Step 3 Step 4 Step 5 Step 6 Step 7
101 $ 28,600.46 $ 30,105.75 $ 31,690.26 $ 33,358.17 $ 35,026.08 $ 36,777.38 $ 38,616.25
102 $ 30,105.75 $ 31,690.26 $ 33,358.17 $ 35,113.86 $ 36,869.56 $ 38,713.03 $ 40,648.69
103 $ 31,690.26 $ 33,358.17 $ 35,113.86 $ 36,961.96 $ 38,810.06 $ 40,750.56 $ 42,788.09
104 $ 33,358.17 $ 35,113.86 $ 36,961.96 $ 38,907.33 $ 40,852.69 $ 42,895.33 $ 45,040.09
105 $ 35,113.86 $ 36,961.96 $ 38,907.33 $ 40,955.08 $ 43,002.83 $ 45,152.98 $ 47,410.63
106 $ 36,961.96 $ 38,907.33 $ 40,955.08 $ 43,110.61 $ 45,266.14 $ 47,529.45 $ 49,905.92
107 $ 38,907.33 $ 40,955.08 $ 43,110.61 $ 45,379.59 $ 47,648.57 $ 50,031.00 $ 52,532.55
108 $ 40,955.08 $ 43,110.61 $ 45,379.59 $ 47,767.99 $ 50,156.39 $ 52,664.21 $ 55,297.42
109 $ 43,110.61 $ 45,379.59 $ 47,767.99 $ 50,282.10 $ 52,796.20 $ 55,436.01 $ 58,207.81
110 $ 45,379.59 $ 47,767.99 $ 50,282.10 $ 52,928.52 $ 55,574.95 $ 58,353.69 $ 61,271.38
111 $ 47,767.99 $ 50,282.10 $ 52,928.52 $ 55,714.23 $ 58,499.94 $ 61,424.94 $ 64,496.19
112 $ 50,282.10 $ 52,928.52 $ 55,714.23 $ 58,646.56 $ 61,578.89 $ 64,657.83 $ 67,890.73
113 $ 52,928.52 $ 55,714.23 $ 58,646.56 $ 61,733.22 $ 64,819.88 $ 68,060.88 $ 71,463.92
114 $ 55,714.23 $ 58,646.56 $ 61,733.22 $ 64,982.34 $ 68,231.46 $ 71,643.03 $ 75,225.18
115 $ 58,646.56 $ 61,733.22 $ 64,982.34 $ 68,402.46 $ 71,822.59 $ 75,413.71 $ 79,184.40
116 $ 61,578.89 $ 64,819.88 $ 68,231.46 $ 71,822.59 $ 75,413.71 $ 79,184.40 $ 83,143.62
117 $ 64,657.83 $ 68,060.88 $ 71,643.03 $ 75,413.71 $ 79,184.40 $ 83,143.62 $ 87,300.80
118 $ 67,890.73 $ 71,463.92 $ 75,225.18 $ 79,184.40 $ 83,143.62 $ 87,300.80 $ 91,665.84
119 $ 71,285.26 $ 75,037.12 $ 78,986.44 $ 83,143.62 $ 87,300.80 $ 91,665.84 $ 96,249.13
120 $ 74,849.52 $ 78,788.97 $ 82,935.76 $ 87,300.80 $ 91,665.84 $ 96,249.13 $ 101,061.59
121 $ 78,592.00 $ 82,728.42 $ 87,082.55 $ 91,665.84 $ 96,249.13 $ 101,061.59 $ 106,114.67
122 $ 82,521.60 $ 86,864.84 $ 91,436.68 $ 96,249.13 $ 101,061.59 $ 106,114.67 $ 111,420.40
123 $ 86,647.68 $ 91,208.09 $ 96,008.51 $ 101,061.59 $ 106,114.67 $ 111,420.40 $ 116,991.42
124 $ 90,980.07 $ 95,768.49 $ 100,808.94 $ 106,114.67 $ 111,420.40 $ 116,991.42 $ 122,840.99
125 $ 95,529.07 $ 100,556.91 $ 105,849.38 $ 111,420.40 $ 116,991.42 $ 122,840.99 $ 128,983.04
126 $ 100,305.52 $ 105,584.76 $ 111,141.85 $ 116,991.42 $ 122,840.99 $ 128,983.04 $ 135,432.20
127 $ 105,320.80 $ 110,864.00 $ 116,698.95 $ 122,840.99 $ 128,983.04 $ 135,432.20 $ 142,203.81
128 $ 110,586.84 $ 116,407.20 $ 122,533.89 $ 128,983.04 $ 135,432.20 $ 142,203.81 $ 149,314.00
129 $ 116,116.18 $ 122,227.56 $ 128,660.59 $ 135,432.20 $ 142,203.81 $ 149,314.00 $ 156,779.70
Chapter 3.24. WAGE AND SALARY ADMINISTRATION
3.24.010. Pay Plan.
3.24.020. Pay Periods and Pay Days.
3.24.030. Wage and Salary Adjustments.
3.24:2111l.
The pay plan will include a schedule of rates of pay for all County positions. The objective of the pay
plan is to provide a competitive salary structure to recruit and retain qualified employees.
A. Pay grades will be established based upon the following factors:
1. The relative difficulty and responsibility of work;
2. The recruiting experience of the County;
3. The prevailing rates of pay for comparable public sector employers. Prevailing rates of pay in
the private sector may be used depending on the pay grade or position being reviewed.
4. Cost -of -living;
5. The financial policies of the County;
6. Internal equity; and
7. Other relevant economic considerations.
B. The P-cfs�iwe1--!Human Resources Department is responsible for the development and
administration of the County pay plan. A County -wide pay plan for all County positions shall
be adopted by the Board as a part of the annual budget adoption process. Pay grade adjustments
for individual positions may be approved outside the budget process by the County
Administrator if no budget amendment is required to fund such adjustment oradjustments.
C. Pay rates.
1. Generally: Each employee shall be paid at one of the steps in the approved pay grade for
the employee's position. No employee can receive base pay in excess of the established
maximum step of the pay grade for the employee's position.
2. Longevity pay. For employees covered by a collective bargaining agreement, longevity pay
shall be provided in accordance with the teens of the applicable collective bargaining
agreement. For employees not covered by a collective bargaining agreement, the following
shall apply:
a. Longevity is determined by an employee's continuous full-time or part-time service as a
County employee. Full-time employees who have worked continuously for the County shall
receive additional pay per month pay period for each five years of continuous service.
b. For employees working less than full-time but at least half-time, longevity shall be pro-
rated by using the ratio of the regularly scheduled work hours for the employee to the
regularly scheduled work hours for a full-time position. Employees working less than half-
time shall not accrue longevity and shall not receive longevity pay.
c. Longevity amounts for non -represented employees shall be equivalent to amounts
provided for in the collective bargaining agreement between Deschutes County and
AFSCME Local 3997 unless otherwise adjusted by the Deschutes County Budget
Committee during the annual budget approval process.
d. Longevity shall terminate in the event of the -following:
(1) Voluntary termination for more than three (3) months, except under special
circumstances to be determined by the County;
(2) Discharge for cause;
(3) A lay-off of more than eighteen (18) months;
Chapter 3.24 (096/201-47)
(4) An unexcused failure to report to work at the termination of an extended leave of
absence;
(5) Acceptance of other employment without the permission of County while on a
leave of absence; or
(6) Retirement.
(Ord. 2009-027, §1, 2009; Ord. 2007-017, §2, 2007; Ord. 86-011, §1, 1986; Ord. 81-053, §1, 1981)
3.24.020. Pay Periods and Pay Days.
A County Administration willsetpay schedules tnd_pa1 d resincluding, but not limited to,
1. Monthly payperiods and pay dates,
Pay periods for regular employees shall Rill from the _first day_pr the month through
the last day or the same month with p ayment for that period to be made on the last
Wolk day of the month If the list_day of the month falls on a_holiday ora weekend,
payday for that pay period will be the last work day immediately preceding the holiday
or weekend.
0 Payperiods for tempma1y hourly,and on-call employees shall run from theday alter
payroll cut-off in a monthtothe date of payroll cut-off in the subsequent month with
payment for that period tohc made on the last woi k day of the month. 17 thelist day
of the month falls 00 a holiday or a weekend, the payday for that pay period will he
the last work day_immediately precedingthe holiday or weekend,
1. 13r weekly pay periods and pry dates Employees c shall he paid every two weeks as determined
by thc.pubhshed p ay period and pay d rte scheduled When a regular payday frl k on a holiday,.
1Pc payday for that pay _period will be the last workday unumedi atcly preceding the regular
payday. For example, the pay dates may be every otIlci Friday id ly and the pay received will be for
0 two week period ending 00 the Saturday f;rior to the pay date.__
3 Bi --monthly pay periods and pay dates. l :nrployces shall be paid twice per month as determined
alined
by the published pay period rod and pa,d date scheduled When the regular payday falls on aholiday
the payday lin_ that pay period will be the last workday immediately _preceding the regular
payday For example, pay dates may be on the 5° and the 20th of each month and the
received on the 5° will be for wail( completed from the 16th through the end of lhc prior month.
The pay received on the 20th will be for work completed from the 1s1 through the 15' i of that
same month.
_Full - time and -at -least hall:- ployces,-Pay per=rods Mr -IMI -time -employees and-for-employecs-who
tare -regal lysehedMed -work at least time shalt r n from -the first-day of thernontirthinugh
the -last ,day-oftl-e-sanme month -with 3maynre,mt-forthat pen-iod-10 tk: n>ade on tlx: 1ast-wedday -ef the
nmonth-if-thr last-ctay,olthe-monthfaAs-on a holid-a-y or -a -weekend -payday -forth at l ay-periotkwi-ll
be t-he-l-ast r orla-ek;y-pr ecdi >.1110 holiday .--or--weekend:
=i 0n er-rrv,-herr!-y-rand-wo. ri-4 err-iployees-P-ay-per vds-fomtemporary--hourrly-a-ad on-oaU-
e+nploaee-s-sl -I-run-ltonmhe-dmy-a-fier-p i-yro-N-eat-csfk-inzrn+onil-r-to-the date-ofprayroll-c-ut-off
in-the-suhseque ni -ne nils
—. owemployees--Employe -;--b ginning-cnsploy+ncmn-tan orbefor'c tame -2.511a o£-tho-nmonth-w-illreecive
thea 1i; st-payehee-tFat -thc-cnd-UF the orma#-they-begin -their eurploynwrrt-Etuployetimbeginning
work afters -time 25t-ls--o€thz-mnrrth- all s=eeeivc their -tit p ayeheek-at-the-enol af-the-rmmen-th-lot-Iwwung
ih it -f n st-month-of-employment
(Ord. 2009-027, §1, 2009; Ord. 2007-017, §2, 2007; Ord. 86-011, §1, 1986; Ord. 81-053, §1, 1981)
3.24.030. Wage and SalaryAdjustments.
A New employees. New employees shall generally be hired at the first step of the pay grade.
Chapter 3.24 2 (609/20-1-11
Formatted: List Paragraph, Numbered + Level: 1 +
Numbering Style: 1, 2, 3, ... + Start at: 1 + Alignment:
Left + Aligned at: 0.35" + Indent at: 0.6"
When a new employee has extensive prior experience and the department head believes it is
justified, an employee may be hired at the second step of the pay grade. Hiring at Step 3 or
above requires prior approval by the County Administrator and will only be granted in
extraordinary circumstances.
B. Merit step increases. In addition to cost -of -living pay increases, if funds are available and
appropriated, employees are eligible for merit step increases, provided their performance has
met or exceeded performance standards established by the department head and/or the
employee's supervisor. For an employee to receive a merit step increase, the employee's
department head must complete a written performance evaluation of the employee with a
recommendation for the increase. The amount of an authorized merit step increase will be
determined by the adopted pay plan. Employees who are at the top step in their pay grade are
not eligible for merit step increases. Employees shall be eligible for merit step increases on
their eligibility date. IC the employee is paid on ahi-weekly. or bi monthlvpay schedule.
lis/herAn�mployecs eligibility date is based on the employee's date of hire. a hire due into a
cltssificatinn and all 01U It kj) increases will be effective the first day ol Uae pav period
iollogiml the eli3Obiliri date if the employee is paid on a monthlyI>a} schedule his/her
e]ie ibilitv; d ate is as follows: If hired on or before the fifteenth (15th) of the month, the
employee's eligibility date shall be the first day of the month in which the employee was hired;
if hired on or after the sixteenth (16th) of the month, the employee's eligibility date shall be the
first day of the month following the month in which the employee was hired. Supervisors shall
complete a scheduled performance evaluation for on-call and hourly employees after the
employee has been employed for at least 12 -months and worked at least 1,000 hours. Subsequent
scheduled evaluations shall be when the employee has worked at least another 12 -months and
at least an additional 1,000 hours. On-call and hourly employees are eligible for a merit step
increase when receiving a scheduled performance evaluation. A department head may authorize
a performance evaluation for an on-call or hourly employee before the required hours have been
worked, if in the department head's discretion such an evaluation is necessary or prudent. In
unusual circumstances and with County Administrator approval, a department head may
authorize a merit increase along with an unscheduled performance evaluation.
C. Cost -of -living increases. As part of the annual budget adoption process, the Board will
determine what cost -of -living increase, if any, will be applied to the County's pay plan.
Increases are contingent upon the availability and appropriation of funds. Cost -of -living pay
increases are not guaranteed and are subject to the discretion of the Board.
D. Upon prior approval by the County Administrator, a non -represented employee is eligible to
receive a 5% or 10% differential for performing lead work. The lead work must be assigned in
writing by the employee's department head. Lead work may include the coordination and
assignment of work duties to assigned employees and/or the review of employee work to ensure
work quality and compliance with applicable methods, policies, and procedures. Examples of
lead work include distribution of work assignments to employees, maintaining a balanced
workload among a group of employees, or reviewing the completed work of employees. The
lead pay must be approved by the County Administrator in advance of the employee receiving
the assigned lead duties. Retroactive lead pay is not allowed.
E. Upon prior approval by the County Administrator, a non -represented employee is eligible to
receive on-call pay at a compensation rate of up to the equivalent of two hours per day at their
current hourly rate. An employee receiving on-call pay must be able to be contacted by phone or
pager during the on-call period and respond in a timely manner as determined by the
department.
(Ord. 2011-024, §§2,3, 2011; Ord. 2009-027, §1, 2009; Ord. 2007-017, §2, 2007; Ord. 86-011, §1,
1986; Ord. 81-053, §1, 1981)
Chapter 3.24 3 (609/20.t4.I7�
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 September 25, 2017
DATE: September 20, 2017
FROM: Chris Schmoyer, Community Development, 541-317-3164
TITLE OF AGENDA ITEM:
Preparations for Deliberations: Plan Amendment and Zone Change File Nos. 247-16-000317-
ZC/318-PA
PUBLIC HEARING ON THIS DATE?: No
ATTENDANCE: Chris Schmoyer, Associate Planner
SUMMARY: Work Session to discuss matter for deliberations scheduled for Wednesday,
9/27/17. The matter involves 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). The Board of
Commissioners held a de novo public hearing on June 5, 2017.
SES
❑;E c 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 September 25, 2017
DATE: September 20, 2017
FROM: Chris Schmoyer, Community Development, 541-317-3164
TITLE OF AGENDA ITEM:
Preparations for Deliberations: Plan Amendment and Zone Change File Nos. 247-16-000317-
ZC/318-PA
PUBLIC HEARING ON THIS DATE?: No
ATTENDANCE: Chris Schmoyer, Associate Planner
SUMMARY: Work Session to discuss matter for deliberations scheduled for Wednesday,
9/27/17. The matter involves 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). The Board of
Commissioners held a de novo public hearing on June 5, 2017.
Co unity Dir velopment Department
Planning Division Building Safety Division Environmental Soits Division
MEMORANDUM
7 NW Lafayette Avenue Bend, Oregon. 97708-6005
Phone: (541) 388-6575 Fax: (541) 385-1764
http://www.deschutes.orgicd
DATE: September 20, 2017
TO: Deschutes County Board of Commissioners
FROM: Chris Schmoyer, Associate Planner
RE: Plan Amendment and Zone Change (247-16-000317-ZC and 247 -16 -000318 -PA;
Applicant: Porter Kelly Burns Landholdings, LLC)
The applicant proposes a plan amendment from Agricultural (AG) to Rural Residential Exception
Area (RREA) and a zone change from Exclusive Farm Use (EFU) to Multiple Use Agricultural
(MUA10). The proposal is on an approximate 35.32 -acre parcel abutting the City of Bend Urban
Growth Boundary (UGB) on the east side of Bend. 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.
Stephanie Hicks, a County Hearings Officer, issued a decision of approval on November 22, 2016.
The Board of County Commissioners (BOCC) held a de novo public hearing on Monday, June 5,
2017, to consider Ordinances Nos. 2017-007 and 2017-008 for the plan amendment and zone
change.
Following the close of the public hearing, the written record remained open seven days for new
testimony and evidence, an additional seven days for written rebuttal to materials submitted
during the first seven days and seven additional days for final written argument by the applicant.
The only item received during the open record period following the Board's public hearing, was
an email from the applicant's attorney Liz Fancher that includes a draft Conditions of Approval
Agreement. The purpose of the Conditions of Approval Agreement is to limit future division of the
property to a cluster development and also to require inclusion of the two irrigation ponds within
a common area associated with any such cluster development under the proposed MUA-10 zone
or any other rural residential zoning designation that may be applied to the subject property in the
future. County Legal Counsel has reviewed the draft Agreement and found it to be acceptable.
Pursuant to Deschutes County Code Section 22.20.040(D), the proposal is not subject to the 150 -
day review clock under ORS 215.427.
As noted below, this memo includes a number of attachments to assist the Board with its review
of the project
Attachments:
1. Maps
Quality ServicesPere nw )tit Pride
2. Staff Memorandum dated May 22, 2017 (prior to public hearing) and its attachments
which include:
A. Ordinance 2017-007 (Title 23 amendment)
Exhibits:
"A" — 23.01.010 (introduction)
"B" — Comp Plan 5.12 (Legislative History)
"C" — Legal Description of Property
"D" — Comp Plan Map
"E" — Hearings Officer Decision
B. Ordinance 2017-008 (Title 18 amendment)
Exhibits:
"A" — Zone Map
"B" - Legal Description of Property
3. June 12, 2017 email from Liz Fancher with draft Conditions of Approval Agreement and
copy of the cluster development provisisions of the Deschutes County Code included as
attachments to the email.
NOTE: The complete written record is available on the Deschutes County Property Information
website: http://dial.deschutes.orq/Real/DevelopmentDocs/119047
Staff Memo to BOCC, File Nos. 247-16-000317-ZC and 247 -16 -000318 -PA 2
File Nos. 247-16-000317-ZC/318-PA Porter Kelly Burns Land Holdings, LLC
vicinity
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File Nos. 247-16-000317-ZC/318-PA Porter Kelly Burns Land Holdings, LLC
Subject Property and Bend Urban Growth Boundary (UGB)
Subject Property
Deschutes County GIS, Sources: Esri, USG S,INOAA
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File Nos. 247-16-000317-ZC/318-PA Porter Kelly Burns Land Holdings, LLC
Community Development Department
Planning Division Building Safety Division Environmental Soils Division
P.O. Box 6005 117 Nit Lafayette Avenue Bend, Oregon 97708-6005
Phone: (541) 388-6575 Fax: (541) 385-1764
http://www.deschutes,org/cd
MEMORANDUM
DATE: May 22, 2017
TO: Deschutes County Board of Commissioners
FROM: Chris Schmoyer, Associate Planner
RE: Public Hearing: Plan Amendment and Zone Change (247-16-000317-ZC and
247 -16 -000318 -PA; Applicant: Porter Kelly Burns Landholdings, LLC)
This memorandum prepares the Board of County Commissioners (BOCC) for a public hearing
on Monday, June 5, 2017, to consider Ordinances Nos. 2017-007 and 2017-008 for a plan
amendment from Agriculture to Rural Residential Exception Area (RREA) and zone change
from Exclusive Farm Use to Multiple Use Agricultural (MUA-10) for an approximate 34.6 acre
parcel abutting the City of Bend Urban Growth Boundary (UGB) on the east side of Bend. The
ordinances are included as Attachments A and B to this memorandum.
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 northwest
corner of the tax lot Tying west of the Central Oregon Irrigation District (COID) canal that is
zoned UAR-10 and inside the Bend UGB. The portion of the property in the northwest corner,
west of the Central Oregon Irrigation District canal is a separate legal lot of record'. Approvals
for property line adjustments have been approved by both the County and the City of Bend to
adjust the common property line to coincide with the new UGB line.
I. Background
Stephanie Hicks, a County Hearings Officer, issued a decision of approval on November 22,
2016 subject to 4 conditions of approval which are listed in Section III.
The BOCC is required to conduct a hearing. Deschutes County Code (DCC) 22.28.030(C),
Decision on Plan Amendments and Zone Changes states:
Plan amendments and zone changes requiring an exception to the goals or
concerning lands designated for forest or agricultural use shall be heard de novo
before the Board of County Commissioners without the necessity of filing an
appeal, regardless of the determination of the Hearings Officer or Planning
Commission.
1 As determined in County Land Use File 247 -16 -000653 -LR
Quality Services Performed with Pride
II. Key Findings
A. Not Agricultural Land
The Hearings Officer found that the subject property does not constitute "agricultural
land" as defined in Statewide Planning Goal 3, Oregon Administrative Rule (OAR) 660-
033-0020(1). Statewide Planning Goal 3 (Agricultural Lands) 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% or greater of these soils, the County may determine the property is
not agricultural land. An Agricultural Soils Capability Assessment (hereafter referred as
"Soils Assessment"), prepared by soil scientist Roger Borine, CPSC, CPSS, PWS of
Sage West, LLC, determined that the subject property consists of approximately 67%
class VII and VIII soils that are un -suitable for agricultural uses whether irrigated or not.
The Soils Assessment was reviewed and certified by the Department of Land
Conservation and Development for review on September 21, 2015.
The Hearings Officer found 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 well as other factors set forth
in additional findings outlined below:
• Insufficient irrigation rights
• 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
• The relatively small size of the parcel, which also affects the economic viability of
farming the property for profit
• The fact that the property has not been eligible for the farm tax deferral program
• The surrounding road network and impacts of nearby heavy traffic; property abuts
Highway 20 to the north and Bear Creek Road to the south
B. Transportation Planning Rule Compliance
The Hearings Officer found the application complies with the Transportation Planning
Rule of OAR 660-012-0060, which is the rule that implements Statewide Planning Goal
12, Transportation.
The Hearings Officer found that substantial evidence in the record supports a
determination that the proposed rezone will have minimal impact to the road system.
Because the proposed plan amendment and rezoning would generate Tess than 50 daily
vehicle trips, the Hearings Officer found that the traffic impact letter submitted by the
applicant to be acceptable and that a Traffic Impact Analysis is not required. This is
consistent with the comments submitted by the County's Senior Transportation Planner.
C. Change in Circumstances
The Hearings officer found that evidence in the record demonstrates the following general
circumstances have changed with respect to the subject property and/or to other property in the
vicinity since the it was originally zoned and are not representative of a change in the property
owner's circumstances or needs:
Staff Memo to BOCC, File Nos. 247-16-000317-ZC and 247 -16 -000318 -PA 2
• 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.
• 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.
III. Conclusions
The Hearings Officer concluded that the subject property is unsuitable for agricultural uses as
the 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, as well as those reasons and change
in circumstances outlined above.
The Hearings Officer's decision of approval includes 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 officially closed.
Staff response: Staff confirmed that the code violation, File No. 247 -16 -000303 -
CE, was officially closed, which occurred on October 14, 2016.
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 the subject site to be re -designated and rezoned.
Staff response: The applicant has provided a current metes and bounds
description for the subject property (Ordinance No. 2017-007, Exhibit C).
D. The Hearings Officer recommends that the Deschutes County Board of
Commissioners impose the following conditions of approval:
Staff Memo to BOCC, File Nos. 247-16-000317-ZC and 247 -16 -000318 -PA 3
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.
Staff response: The Hearings Officer found the maximum density of the
approximate 34.6 -acre subject parcel under MUA-10 zoning to be three
(3) parcels, with the applicant agreeing to a condition of approval
prohibiting a cluster or planned development proposal. Consequently,
Condition D (b) was imposed by the Hearings Officer.
IV. NEXT STEPS
At the conclusion of the hearing, the BOCC can choose one of the following options:
1. Continue the hearing to a date certain.
2. Close the hearing and begin deliberation.
3. Close the hearing and leave the written record open to a date certain. Deliberations will
be scheduled at a date to be determined.
4. Close the hearing and then allow a specified amount of time for a rebuttal period; and a
specified time for final argument. Deliberations will be scheduled at a date to be
determined.
5. Close the hearing, allowing the applicant a specified amount of time for final argument.
Deliberations will be scheduled at a date to be determined
Attachments:
A. Ordinance 2017-007 (Title 23 amendment)
Exhibits:
"A" — 23.01.010 (introduction)
"B" — Comp Plan 5.12 (Legislative History)
"C" — Legal Description of Property
"D" — Comp Plan Map
"E" - Hearings Officer Decision
B. Ordinance 2017-008 (Title 18 amendment)
Exhibits:
"A" — Zone Map
"B" - Legal Description of Property
C. Staff Hearing PowerPoint
Staff Memo to BOCC, File Nos. 247-16-000317-ZC and 247 -16 -000318 -PA 4
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 Bums 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
/1/
Dated this of , 2017 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
TAMMY BANEY, CHAIR
ANTHONY DEBONE, VICE CHAIR
ATTEST:
Recording Secretary PHIL HENDERSON, COMMISSIONER
Date of 2nd Reading: day of , 2017.
Record of Adoption Vote
Commissioner Yes No Abstained Excused
Tammy Baney
Anthony DeBone
Phil Henderson
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 Plan, adopted by the Board in Ordinance 2011-003
and found on the Deschutes County Community Development Department website, is incorporated
by reference herein.
B. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2011-027, are incorporated by reference herein.
C. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2012-005, are incorporated by reference herein.
D. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2012-012, are incorporated by reference herein.
E. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2012-016, are incorporated by reference herein.
F. The Deschutes County Comprehensive Plan
2013-002, are incorporated by reference herein.
G. The Deschutes County Comprehensive Plan
2013-009, are incorporated by reference herein.
H. The Deschutes County Comprehensive Plan
2013-012, are incorporated by reference herein.
I. The Deschutes County Comprehensive Plan
2013-007, are incorporated by reference herein.
J. The Deschutes County Comprehensive Plan
2014-005, are incorporated by reference herein.
K. The Deschutes County Comprehensive Plan
2014-006, are incorporated by reference herein.
L. The Deschutes County Comprehensive Plan
2014-012, are incorporated by reference herein.
M. The Deschutes County Comprehensive Plan
2014-021, are incorporated by reference herein.
N. The Deschutes County Comprehensive Plan
2014-027, are incorporated by reference herein.
O. The Deschutes County Comprehensive Plan
2015-021, are incorporated by reference herein.
P. The Deschutes County Comprehensive Plan
2015-029, are incorporated by reference herein.
Q. The Deschutes County Comprehensive Plan
2015-018, are incorporated by reference herein.
R. The Deschutes County Comprehensive Plan
2015-010, are incorporated by reference herein.
S. The Deschutes County Comprehensive Plan
2016-001, are incorporated by reference herein.
T. The Deschutes County Comprehensive Plan
2016-022, are incorporated by reference herein.
U. The Deschutes County Comprehensive Plan
2016-005, are incorporated by reference herein.
amendments,
amendments,
amendments,
amendments,
amendments,
amendments,
amendments,
amendments,
amendments,
amendments,
amendments,
amendments,
amendments,
amendments,
amendments,
amendments,
PAGE 1 OF 2 — EXHIBIT "A" TO ORDINANCE 2017-007
adopted by the Board in Ordinance
adopted by the Board in Ordinance
adopted by the Board in Ordinance
adopted by the Board in Ordinance
adopted by the Board in Ordinance
adopted by the Board in Ordinance
adopted by the Board in Ordinance
adopted by the Board in Ordinance
adopted by the Board in Ordinance
adopted by the Board in Ordinance
adopted by the Board in Ordinance
adopted by the Board in Ordinance
adopted by the Board in Ordinance
adopted by the Board in Ordinance
adopted by the Board in Ordinance
adopted by the Board in Ordinance
V. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-027, are incorporated by reference herein.
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
LEGAL DESCRIPTION
A PARCEL OF LAND BEING A PORTION OF THE SOUTHWEST ONE-QUARTER OF THE SOUTHEAST
ONE-QLTARTER (SW1/4 SE114) OF SECTION 35. TOWNSHIP 17 SOUTH. RANGE 12 EAST OF THE
WILLAMETTE MERIDIAN BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF THE SW1/4 OF THE SE1I4 OF SECTION 35, T17S.
R12E. W.M.: THENCE N00°40'13 -W 30.00 FEET ALONG THE WEST LINE OF SAID SW1/4 SE1/4 TO THE
TRUE POINT OF BEGLNNING BEING LOCATED ON THE NORTHERLY RIGHT-OF-WAY LINE FOR
BEAR CREEK ROAD: THENCE CONTINUING N00c40'13"W — 690.79 FEET ALONG THE WEST LINE OF
SAID SW114 SE174 TO A POINT LOCATED ON THE CURRENT CITY OF BEND URBAN GROWTH
BOUNDARY LINE: THENCE N28°47'13"E — 598.87 FEET ALONG SAID URBAN GROWTH BOUNDARY
LINE TO THE SOUTHERLY RIGHT-OF-WAY LINE FOR U.S. HIGHWAY 20: THENCE N89°50'12 -E —
1030.08 FEET ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE TO THE EAST LINE OF SAID SW1/4
SE1!4; THENCE S00°38 '1 .5"E — 1225.72 FEET ALONG THE EAST LINE OF SAID SW1/4 SE1/4 TO THE
NORTHERLY RIGHT-OF-WAY LINE FOR BEAR CREEK ROAD: THENCE NS9c41'34"W — 1324.04 FEET
ALONG SAID NORTHERLY RIGHT-OF-WAY LINE TO THE TRUE POINT OF BEGINNING.
PARCEL CONTAINS APPROXIMATELY 35.324 AC'RES SUBJECT TO ALL EASEMENTS, RESTRICTIONS.
AND RIGHTS-OF-WAY OF RECORD PERTAINING TO THE ABOVE DESCRIBED LANDS.
Page 1 of 1 — EXHIBIT "C" TO ORDINANCE 2017-007
NE HAMPTON LN
NE CORONA LN
HWY
Plan Amendment From
LMNGy�o4o�� C —I-� I AgriculTuore (AG)
.cc Rural Residential Exception Area (RREA)
i -
BEAR CREEK RD
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
PROPOSED PLAN AMENDMENT
Porter Kelly Burns Landholdings, LLC
21455 Highway 20, Bend
Exhibit "D"
to Ordinance 2017-007
� V
200 400 800
May 18, 2017
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:
APPLICANT/OWNER:
ATTORNEY
FOR APPLICANT:
PROPOSAL:
STAFF REVIEWER:
RECORD CLOSED:
September 27, 2016, 6:00 p.m.
Barnes & Sawyer Rooms
Deschutes Services Center
1300 NW Wall Street
Bend, OR 97708
Porter Kelly Burns Landholdings, LLC
152 Champanelle Way
Bend, OR 97701
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).
Chris Schmoyer, Associate Planner
October 11, 2016; Applicant's Final Argument due and submitted on
October 18, 2016.
I. 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 !VS 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 Vill soil, Exhibit C1 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 tax lots are
part of the Traditions East Subdivision. One large tax 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 property. 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 tax 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 tax 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,
Assesso'r'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 RREA (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, 2nd
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 tax 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 arterial 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) tax lots to the north.
One of these tax lots is located within the UAR-10 zone. The remaining three (3) tax lots
247-16-000317-ZC 1318 -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:
I 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:
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
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 1 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 shall be provided via Bear Creek Road, and not US Hwy 20.
Suggested 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.
I 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.
Doug and Jane Cleavenger: 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 lots 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. l 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.
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
1 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 1 318 -PA 11
proposal. The application has been reviewed utilizing the applicable procedures contained in
Title 22 of the Deschutes County Code. l find that these criteria are met.
2. Section 18.136.020, Rezoning Standards
The applicant for a quasijudicial 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-
s ecific identification of thea ro riate land uses which ma take , lace on a articular
piece of land but rather it is to consider the significant factors which affect or are affected
by development in the County and provide a general guide to the various decisions
which must be made to promote the greatest efficiency and equity possible, while
managing the continuing growth and change of the area. Part of that process is
identification of an appropriate land use plan, which is then interpreted to make
decisions abocit s ecific sites most often in :zonin and subdivision administration but
the plan must also consider the sociological, economic and environmental
consequences of various actions and provide guidelines and policies for activities which
may have effects beyond physical changes of the land. (Emphasis added.)
The Hearings Officer previously found that the above -underscored language strongly
suggests the county's plan statements, goals and policies are not intended to establish
approval standards for quasi-judicial land use permit applications.
In Bothman v. City of Eugene, 51 Or LUBA 426 (2006), LUBA found it appropriate also
to review the language of specific plan policies to determine whether and to what extent
they may in fact establish decisional standards. The policies at issue in that case
included those ranging from aspirational statements to planning directives to the city to
policies with language providing 'guidance for decision-making' with respect to specific
rezoning proposals. In Bothman LUBA concluded the planning commission erred in not
considering in a zone change proceeding a plan policy requiring the city to `(r]ecognize
the existing general office and commercial uses located * * * (in the geographic area
including the subject property] and discourage future rezonings of these properties.'
LUBA held that:
`* * * even where a plan provision might not constitute an independently
applicable mandatory approval criterion, it may nonetheless represent a relevant
and necessary consideration that must be reviewed and balanced with other
relevant considerations, pursuant to ordinance provisions that require * * *
consistency with applicable plan provisions.'(Emphasis added.)
The county's comprehensive plan includes a large number of goals and policies. The
applicant's burden of proof addresses goals for rural development, economy,
transportation, public facilities, recreation, energy, natural hazards, destination resorts,
open spaces, fish and wildlife, and forest lands. The Hearings Officer finds these goals
are aspirational in nature and therefore are not intended to create decision standards for
the proposed zone change."
Hearings Officer Karen Green adhered to these findings in the Powell/Ramsey decision (file
nos. PA-14-2/ZC-14-2), and found the above -referenced introductory statements and goals are
not approval criteria for the proposed plan amendment and zone change.
This Hearings Officer also adheres to the above findings herein. Nevertheless, depending upon
their language, some plan provisions may require "consideration" even if they are not applicable
approval criteria. Save Our Skyline v. City of Bend, 48 Or LUBA 192, 209 (2004). I find that the
following amended comprehensive plan goals and policies require such consideration, and that
other provisions of the plan do not apply:
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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 I -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 Pian 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 % 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 Toss
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, "Mt 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 Z2.2 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 Z2.3.
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 2.23 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-11-7IZC-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 riot 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 VIII 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 Wetherell 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. 1 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 1318 -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 Avion 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 l 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. White 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 Avian 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 Pian
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) lots, 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 Goal 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
i 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, 1 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
lots). 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 lots 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 30
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.3 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 Vil 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 I, ll, Il! and IV soils
and in eastern Oregon is land of predominantly Class 1, ll, 111, 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-ZC / 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 Vil and Vlll 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 soil data provided by an Order 1,
more detailed soil survey, Exhibit D. Over 67% of the property is Class VII or Vlll 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
Vlll 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
[it] is land of predominately Class I, Il, III, iV, V and VI soils as identified in the Soil
Capability Classification System of the United States Sail 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 1 -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
5 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 Misceilanous 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 VII and Vlll 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 -of 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 VII 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 lb. 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#/day/acre= 60.0 lbs. beef/acre
(1 acre per AUM)
60.0 lbs. beef/acre x 36.39 acres x $1.20/lb. = $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 'No 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 O.
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 (COLD) 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 VIi and Vlll even if irrigated
according to the Borine Order 1 soils assessment.
Existing Land Use 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, "Wtjhis 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. Dryland
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 III and IV.
The Hearings Officer finds that the subject property is predominately comprised of Class VII 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 irrigation 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 Vill). 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 VIII 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-IVII-VI that is adjacent to or intermingled
with lands in capability classes 1-IV/l-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 Centra! or Eastern Oregon, it must be
classified "agricultural land." 1000 Friends position is that this test is a 100% Class VII -
VII! soils test rather than a 51% Class VI! and VII! soils test because the presence of any
Class 1 -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 I -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 I -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 properly in Central Oregon LandWatch v.
Deschutes County (Aceti) is "property predominately Class VI and VII 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
VII 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.
7 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-ZC / 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 1 -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 1 -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 -
VI 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, Il, 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 Soil 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 Vil 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. Nis 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 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
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 from 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 its Goal 5 inventory. The wetland is a mapped
wetland Lill 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-ZC / 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 the 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 "[tjo 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.
Stephani&'Marshall Hicks, Hearings Officer
Dated this 1� -- day of November, 2016 Mailed this , ay of November, 2016
247-16-000317-ZC / 318 -PA 58
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Deschutes County Code
Title 18, the Deschutes County Zoning Map, to
Change the Zone Designation on Certain Property
from Exclusive Farm Use (EFU-TRB) to Multiple
Use Agricultural (MUA-10)
ORDINANCE NO. 2017-008
WHEREAS, Kelly Porter Burns Landholdings, LLC applied for a Zone Change to the Deschutes
County Code ("DCC) Title 18, Zoning Map, to rezone certain property from Exclusive Farm Use —
Tumalo/Redmond/Bend Subzone ("EFU-TRB") to Multiple Use Agricultural ("MUA-10"); 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 a Zone Change; 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, on this same date, the Board adopted Ordinance 2017-007, amending DCC Title 23, the
County Comprehensive Plan, changing the plan designation of the property from Agriculture to Rural
Residential Exception Area ; and
WHEREAS a change to the Deschutes County Zoning Map is necessary to implement the amendment
adopted in Ordinance 2017-007; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. AMENDMENT. DCC Title 18, Zoning Map, is amended to change the zone designation
from Exclusive Farm Use ("EFU") to Multiple Use Agricultural ("MUA-10") for certain property depicted on
the map set forth as Exhibit "A," attached and incorporated by reference herein, and described in Exhibit "B,"
incorporated by reference herein.
Section 2. FINDINGS. The Board adopts as it findings in support of this Ordinance, the Decision of
the County Hearings Officer, attached to Ordinance 2017-007 as Exhibit "E," and incorporated by reference
herein.
PAGE 1 OF 2 - ORDINANCE NO. 2017-008
ATTACHMENT "B" TO BOARD MEMO
II/
Dated this of , 2017 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
TAMMY BANEY, CHAIR
ANTHONY DEBONE, VICE CHAIR
Recording Secretary 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. 2017-008
ATTACHMENT "B" TO BOARD MEMO
Zone Change From
EFU Tumalo/Redmond/Bend (EFUTRB)
To
Multiple Use Agricultural (MUA10).
Legend
Subject Property 17-12-35-00-01500
Bend Urban Growth Boundary
Zoning
EFUTRB - Tumalo/Redmond/Bend Subzone
MUA10 - Multiple Use Agricultural
UAR10 - Urban Area Reserve 10 Ac. Min.
PROPOSED ZONING MAP
Porter Kelly Burns Landholdings, LLC
21455 Highway 20, Bend
0
Exhibit "A"
to Ordinance 2017-008
200
400
800
May 18, 2017
Feet
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
Tammy Baney, Chair
Anthony DeBone, Vice -Chair
Phil Henderson, Commissioner
ATTEST: Recording Secretary
Dated this day of June, 2017
Effective Date: 2017
LEGAL DESCRIPTION
A PARCEL OF LAND BEING A PORTION OF THE SOUTHWEST ONE-QUARTER OF THE SOUTHEAST
ONE-QUARTER (SW1/4 SE1/4) OF SECTION 35, TOWNSHIP 17 SOUTH. RANGE 12 EAST OF THE
WILLAMETTE MERIDIAN BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF THE SW114 OF THE SE1i4 OF SECTION 35. T17S.
R12E. W.M.: THENCE NOV40'13-W — 30.00 FEET ALONG THE WEST LNE OF SAID SWI/4 SEI/4 TO THE
TRUE POINT OF BEGINNING BEING LOCATED ON THE NORTHERLY RIGHT-OF-WAY LINE FOR
BEAR CREEK ROAD; THENCE CONTINUING N00'40'13"W — 690.79 FEET ALONG THE WEST LINE OF
SAID SW1/4 SEI/4 TO A POINT LOCATED ON THE CURRENT CITY OF BEND URBAN GROWTH
BOUNDARY LINE; THENCE N28c47'13"E — 598.87 FEET ALONG SAID URBAN GROWTH BOUNDARY
LNE TO THE SOUTHERLY RIGHT-OF-WAY LINE FOR U.S. HIGHWAY 20; THENCE N89°50'12"E
1030.08 FEET ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE TO THE EAST LINE OF SAID SWI/4
SE1/4: THENCE S00c38'15"E — 1225.72 FEET ALONG THE EAST LINE OF SAID SW114 SE1/4 TO THE
NORTHERLY RIGHT-OF-WAY LINE FOR BEAR CREEK ROAD: THENCE N89°41 34"W — 1324.04 FEET
ALONG SAID NORTHERLY RIGHT-OF-WAY LINE TO THE TRUE POINT OF BEGINNING,
PARCEL CONTAINS APPROXIMATELY 35.324 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
Chris Schmo e
From:
Sent:
To:
Cc:
Subject:
Attachments:
Chris:
Liz Fancher <liz@lizfancher.com>
Monday, June 12, 2017 10:47 AM
Chris Schmoyer
Merle! Darzen; hpburns; Bill Email
PZ -247 -16 -000317 -PZ and PZ -247 -16 -000318 -PA, Porter Kelly Bums Land Holdings, LLC
CHAPTER 18,128 - CONDITIONAL USEcluster.pdf; draftagreementfinal.pdf
I have prepared a draft conditions of approval agreement for consideration by the Deschutes County
Commission. Merle! Darzen, attorney for 1000 Friends, has reviewed and approved the draft agreement.
I have also attached a copy of the cluster development provisions of the County's code for reference by the Board,
Would you please include this e-mail and its attachments in the record of the above -referenced case?
Thank you,
Liz Tancrjer
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.
After recording return to:
Deschutes County Community Development
117 NW Lafayette Avenue
Bend, OR 97703
CONDITIONS OF APPROVAL AGREEMENT
This conditions of approval agreement is made this day of , 2017
by Porter Kelly Burns Land Holdings, LLC, an Oregon limited liability company (hereinafter
"PKB") and Deschutes County, a political subdivision of the State of Oregon (hereinafter
"County").
RECITALS
WHEREAS; PKB sought approval of a plan amendment from Agriculture to RREA and
zone change from EFU-TRB to MUA-10 in File Nos. 247-16-000317-ZC and 247 -16 -000318 -
PA for the property described on Exhibit A, a copy of which is attached and incorporated by
reference herein; and
WHEREAS, the applicant and other parties in the land use review process asked the
County to impose a condition of approval on future development of the property that will apply
while the property is zoned MUA-10; and
WHEREAS, the Board of Commissioners approved the land use applications and
imposed the condition of approval requested; and
WHEREAS, the condition of approval requires that an agreement be recorded that
memorializes the condition of approval and applies it to the rezoned property;
NOW THEREFORE, the parties agree as follows:
1. If the Exhibit A 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.
2. This agreement and its restrictions apply to the Exhibit A property as long as it retains
MUA-10 zoning or other rural exceptions area zoning that allows cluster development.
The agreement shall become void if the property is annexed to the City of Bend.
3. This agreement is not assignable.
4. This agreement runs with the land and is enforceable against future owners of the Exhibit
A property.
Page 1 of 4— Conditions of Approval Agreement
DATED this day of , 2017.
COUNTY BOARD OF COMMISSIONERS
OF DESCHUTES COUNTY
TAMMY BANEY, Chair
ANTHONY DEBONE, Vice -Chair
PHILIP G. HENDERSON, Commissioner
ATTEST:
Recording Secretary
STATE OF OREGON )
) ss.
COUNTY OF DESCHUTES )
This instrument was acknowledged before me on , 2017 by
Tammy Baney, Anthony DeBone and Philip G. Henderson, the above-named Board of County
Commissioners of Deschutes County, Oregon and acknowledged the foregoing instrument on
behalf of Deschutes County.
Notary Public
Print Name
My commission expires
Page 2 of 4— Conditions of Approval Agreement
DATED this day of , 2017.
PKB
By: H. Porter Burns
Its: Managing Member
STATE OF OREGON
COUNTY OF DESCHUTES
This instrument was acknowledged before me on , 2017 by
H. Porter Burns as Managing Member of PORTER/KELLY BURNS LANDHOLDINGS, LLC,
an Oregon limited liability corporation.
Notary Public
Print Name
My commission expires
(Use this space for notarial stamp/seal)
Page 3 of 4— Conditions of Approval Agreement
EXHIBIT A
PROPERTY DESCRIPTION
A PARCEL OF LAND BEING A PORTION OF THE SOUTHWEST ONE-QUARTER OF
THE SOUTHEAST ONE-QUARTER (SW1/4 SE1/4) OF SECTION 35, TOWNSHIP 17
SOUTH, RANGE 12 EAST OF THE WILLAMETTE MERIDIAN BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF THE SW1/4 OF THE SE1/4 OF
SECTION 35, T17S, R12E, W.M.; THENCE N00°40' 13"W — 30.00 FEET ALONG THE
WEST LINE OF SAID SW1/4 SE1/4 TO THE TRUE POINT OF BEGINNING BEING
LOCATED ON THE NORTHERLY RIGHT-OF-WAY LINE FOR BEAR CREEK ROAD;
THENCE CONTINUING N00°40' 13 "W — 690.79 FEET ALONG THE WEST LINE OF SAID
SW1/4 SE1/4 TO A POINT LOCATED ON THE CURRENT CITY OF BEND URBAN
GROWTH BOUNDARY LINE; THENCE N28°47' 13"E — 598.87 FEET ALONG SAID
URBAN GROWTH BOUNDARY LINE TO THE SOUTHERLY RIGHT-OF-WAY LINE FOR
U.S. HIGHWAY 20; THENCE N89°50' 12"E — 1030.08 FEET ALONG SAID SOUTHERLY
RIGHT-OF-WAY LINE TO THE EAST LINE OF SAID SW1/4 SE1/4; THENCE S00°38'15"E
— 1225.72 FEET ALONG THE EAST LINE OF SAID SW1/4 SE1/4 TO THE NORTHERLY
RIGHT-OF-WAY LINE FOR BEAR CREEK ROAD; THENCE N89°41'34"W — 1324.04
FEET ALONG SAID NORTHERLY RIGHT-OF-WAY LINE TO THE TRUE POINT OF
BEGINNING.
PARCEL CONTAINS APPROXIMATELY 35.324 ACRES SUBJECT TO ALL EASEMENTS,
RESTRICTIONS, AND RIGHTS-OF-WAY OF RECORD PERTAINING TO THE ABOVE
DESCRIBED LANDS.
Page 4 of 4— Conditions of Approval Agreement
Chapter 1.8.128. CONDITIONAL USE.
18.128.010. Operation.
18.128.015. General Standards Governing Conditional Uses.
18.128.020. Conditions.
18.128.030. Performance Bond.
18.128.040. Specific Use Stan.dards.
18.128.050. Airports, Aircraft Landing Fields, :Aircraft Charter, Rental, Service
Maintenance. Facilities Not .Located in the A -D Zone.
18.128.060. Automobile Wrecking Yard or junkyard.
18.128.070. Cemeteries..
18.128.080. Church, Hospital, Nursing Home, Cons'atesce.nt Home, .R.etfrenient Home.
18.128.090. Medical Clinic, Veterinary Clinic, Club, Lod.ge, Fraternal Organization,
Community Center, Grange Hall, Golf Course, Horse Stable and Horse
Events Requiring Conditional Uses, Grounds and Buildings For Gaines or
Sports, Country Club, Swimming, Boating, Tennis Clubs and Similar
Activities, Governinent Structures and Land Uses, Parks, Playgrounds.
18.128.100. Dog .Pounds and Kennels.
18.128.110. Repealed.
18.128.120. Landfill, Solid Waste Disposal Site.
18.128.130. Commercial Use or Accessory Use Not Wholly Enclosed Within A -Building, or
a Retail Establishment, Office, Service Cornmereial Establishment, Financial
Institution, or Personal or .Business Service Establishment on a .Lot Adjoining
or A.cross a Street From a Lot on a -Residential Zone.
18,128,140, Commercial Amusement Establishment.
18.128.150. Manufactured Horne Park.
18.128.160. Multi -Family Dwelling Complex.
18.128.170. Recreational 'Vehicle :Park.
1.8.128.180. Radio, Television Tower, Utility Station or Substation.
1.8.128.190. Schools.
18.128.200. Cluster Development (Single -Family Residential Uses Only).
18.128.210» Planned Development.
18.128.22.0. Planned Communities.
18.128.230. Dude Ranches.
18.128.240. Shopping Complex.
18.128.250. High.-Te.mperature Geothermal Wells and Small -Scale Geothermal Energy
Facilities.
18.128.260. Hydroelectric Facilities.
18.128,270, Fill and Removal.
18.128.280. Surface Mining of Non -Goal 5 Mineral and. Aggregate Resources
1.8,128.290. Storage, Crushing and 'Processing of Minerals in Conjunction with the
Maintenance or Construction of Public. Roads or .Highways.
18.1.28.300. Mini -Storage Facility.
18.128.310. Bed and Breakfast. inn.
18.1.28.320. Campgrounds.
18.128.330. Microwave and Radio Communication Towers in the SM Zone.
1.8.128.340. Wireless Telecommunications Facilities.
1.8.128.350. Guest Lodge.
18.128.360. Guest Ranch.
18.1.28.370. Thne-Share- Unit.
18.128.380. Procedure for Taking Action on Condi.tionai Usc Application.
18.128 (03/2016)
18.128.200. Cluster Development (Single -Family Residential Uses Only).
A. Such uses may be authorized as a conditional use only after consideration of the following
-1.actors:
1. Need for residential uses in the immediate area of the proposed development.
2. Envimmental, social and economic impacts likely to result from the development,
including impacts on public facilities such as schools and roads.
3. Effect of the development on the rural character of the area.
4. Effect of the development on agricultural, forestry, wildlife or other natural resource Uses in
tile arca.
B. The conditional use shall not be granted unless the following :findings are made:
1„ AR development and alterations of the natural landscape, will be limited to- 35 percent of
the land and: at least 65 percent shall be kept in open space. In cases where the natural
landscape has been altered or destroyed by a prior land use, such as surface mining, dam.
construction or timber ICIII0Val, the County may allow reclamation and enhancement of the
open space area if enhancement creates or improves wetlands, creates or improves wildlife
habitat, restores native vegetation or provides for agricultural or forestry use of the property
after reclamation.
2. The area not dedicated to open space or common use may be platted as residential dwelling
lots or parcels that are a mii.iiinum of two acres and a maximum of three acres in size.
Their use shall be restricted to single-family use. Single-family use may Maude 'accessory
uses and County authorized home occupations. Uses permitted in the open space area -may
include the .management of natural resources, trail. systems or other outdoor uses that are
consistent with the character of the natural landscape.
3. In the Wildlife Area Combining Zone, in addition to compliance with. the .WA zone
development restrictions, uses and activities must be consistent with the required Wildlife
Management Plan. The Plan shall be approved if it proposes all of the following in the
required. open space. area:
a. Preserves, iprotects and enhances wildlife habitat for WA zone protected species as
specified. in the Deschutes County Comprehensive 'Plan., and.
b. Prohibits golf courses, tennis courts, swimming pools, marinas, ski runs or other
developed recreational. uses of similar intensity. Low intensity recreational uses such.
as properly located bicycle, equestrian and pedestrian trails, wildlife viewing areas and
.fitness courses may be.permitted; and
c. Provides a supplemental, private open -space area on home lots by imposing special
yard setback of 100 feet onyards adjacent to required open space areas. In this yard,
no structures other than fences consistent with DCC 18.88.070 may be constructed.
The size of the yard may be reduced dirring:development review if the County .finds
that, through the review of the wildlife management plan, natural landscape protection.
or wildlife values will. achieve equal or greater protection through the approval of a.
reduced. setback. in granting an adjustment, the County may require that a specific
building -envelope be shown on the final plat or may impose other conditions that
assure the natural resource values relied upon to justify the exception to the special
yard requirements will be protected.
d. Off-road motor vehicle use shall be prohibited in the open space -area.
c. Adequate corridors on the cluster property to allow lbr wildlife passage through the
development.
4. All lots within the development shall be contiguous to one another except for occasional
corridors to allow for human 'passage, wildlife travel, natural features such as a stream or
18.128 (03/2016)
bluff' or development of property divided by a public road which shall not be wider than the
average lot width, unless the Planning Director or Hearings Body finds that special
circumstances warrant a wider corridor.
5. All applicable subdivision or partition. requirements contained in DCC Title 17, the
Subdivision/Partition Ordinance, shall be met.
6. The total number of units shall be established by reference to the lot size standards of the
applicable zoning district and. combining zones.
7. The open space of the proposed development shall be platted as a separate parcel or in
comtnon ownership of some or all of the clustered lots or parcels. For any open space or
common. area provided. as a part oldie cluster development, the owner shall submit proof of
deed restrictions recorded in the County re -cords. The deed restrictions shall. preclude all
future- rights to construct a residential dwelling on the lot:, parcel or tract designated as open.
space or common area for as long aS the lot, parcel or tract remains outside an urban growth
boundary. The deed shall also assure that the use of the open space shall be continued in
the use allowed by the approved cluster development plan, unless the whole development is
brought inside an urban growth boundary. If open space is to be owned. by a homeowner's
association or if private .roads are approved., a homeowner's association must be .formed to
manage the open space and/or road areas. The bylaws ofthe association must be recorded
prior to or concurtent with the :filing of the :final .plat. lf the open spate is located within the
Wildlife Area Combining Zone, the Inana.gement plan for the open space .must be recorded
with the deed restrictions or bylaws of the homeowner's association.
" Notwithstanding any provision to the contraly in other parts of the County's land use
regulations, roads within a cluster development may be private roads and lots or parcels
may be createdthat front on private roads only. These roads Must meet the private road
standards of DCC Title 1.7, and are not subject to public road standards under DCC Title
17. An agreement acceptable to the Road Department and County Legal Counsel shall be
required for the maintenance of private roads. Public roads may be required where street
continuation. standards of DCC Title 17 call. for street connections and th.e County finds that
the benefits of street extension are significant and needed in the future, given the
established pattern of street development 011 adjoining properties and transportation
distribution needs. The area dedicated for public road rights of way within or adjacent to a
planned or cluster development or. required by the County during cluster development
review shall be subtracted from the gross acreage of the cluster development prior to
calculating compliance with open space requirements.
9. All service connections shall be the minimum length necessary and underground. where
10. The number anew dwelling units to be clustered d.oes not exceed 10.
11 The number of new lots or parcels to be created does not exceed 10.
1.2. The development is not to be served by a new community sewer system or by any new
extension of a sewer system -from. within. -an. urban growth boundary or :from within. an.
unincorporated co.mmunity.
13. The development will not force a significant Change in accepted farm or forest practices on
nearby lands devoted to farm or forest use, and will not significantly increase the cost of
acceptedfarm or forest practices there.
14. All dwellings in a cluster development must be setback a minimum of 100 feet from the
boundary tine of an. adjacent lot zoned Exclusive Farm Use that is receiving special.
assessment for farm. use.
C. All applications shall be accompanied by- a plan with the :following information:
1. A plat map meeting all the subdivision requirements of. DCC Title 17, the
Subdivision/Partition Ordinance.
2. A draft of the deed restrictions required by DCC 18.128.200(B)(7).
18.128 (03/2016)
A written document establishing an acceptable homeowners association assuring the
maintenance of common property, if any„ in the development. The document shall include
a method lor the resolution of disputes .by the association. membership, and shall be
included as part of the bylaws.
4. In the. WA Combining Zone, the applicant shall submit an. evaluation of the property with a
Wildlife Management PIan for the open space area, prepared by a wildlife biologist that
includes the following:
a. A description. of the condition of the property and the current ability of the property to
support use of the open space area by wildlife protected by the applicable WA zone
during the periods specified in the com.prehensive plan; and
b. A descriptionof the protected species and periods of protection identified by the
comprehensive plan. and the Current use of the open space area; and
A management plan that contains prescriptions that will achieve compliance with the
wildlife protection guidelines in the comprehensive plan. In overlay zones th.at are
keyed to seasons or particular times of the year, restrictions or protections may vary
based on th.e time of year. The management plan may also propose protections or
enhancements of benefit to other types of -wildlife that may be considered. in weighing
use impacts versus plan 'benefits.
5. Photographs and a narrative description of the natural landscape features of the open space
areas of the subject property. If the features are to be removed or developed, the applicant
shall explain why removal is appropriate.
6. A description of the forestry or -agricultural uses proposed, if any.
D. Dimensional Standards:
1. Setbacks and height limitations shall be as prescribed in the zone in which the development
is proposed unless adequate justification for variation is provided the Planning. Director or
Hearings Body.
2. Minimum area tbr a cluster development shall be determined by the zone in which it is
proposed.
E. Conditions for phased. development shall be specified and performance bonds shall be required.
by the Planning Director or Hearings Body to assure completion of the project as stipulated, if
required improvements are not. completed prior to platting.
F. Developments with private toads shall provide bicycle and pedestrian facilities that, comply
with the private road requirement.; (Wilder.
a Bicycle and pedestrian. co.nncctions shall be provided at the ends of ea -de -sacs, at: mid -block,
between subdivision plats, etc., in the following situations. Connections shall have a 20 -foot
right of way, with. at least a 10 -foot wide useable surface, shall be as straight as possible, and
shall not be more than 400 feet long.
1. Where the addition of a connection would reduce the walking or cycling, distance to an
existingor planned transit .stop, school, shopping center, or neighborhood park by 400 feet
and by at least 50 percent aver other available routes.
2. For schools or commercial uses, where the addition of a connection would reduce the
walking or cycling distance to an existing or planned transit stop,. school, shopping center,
or neighborhood park. by 200 feet or by at least 50 percent over other available routes.
3 For cut -de -sacs or dead end. streets where a street connection is determined by the Hearings
Officer or Planning Director to be unfeasible or inappropriate provided that a bicycle or
pedestrian. connection is not required where th.e logical extension. of th.e road that te,nninates
in a cul de sac or dead end street to the nearest boundary of the development 'would not
create a direct connection to an arca street, sidewalk: or bikeway,
The County may approve a cluster development without bicycle or pedestrian connections if
connections interfere with wildlife passage through the subdivision, .harm wildlife habitat or
alter landscape approved .for protection. in its natural state.
18.128 (03/2016)
11. A Conditions of Approval Agreement for the cluster development shall be recorded prior to
or concurrent with the final plat fOr the development.
(Ord. 2015-016 §8, 2015; Ord. 2004-024 §2, 2004; Ord. 95-075 §1, 1995; Ord. 93-005 §11, 1993;
Ord. 91-020 §1, 1991)
1.8.128.210. Planned Development,
A. Such uses may be authorized as a conditional use onlyafter consideration of the following
factors:
1. Proposed land uses and densities.
2. Building types and densities.
3. Circulation pattern, including- bicycle and pedestrian circulation, and a demonstration of
how those facilities connect to the County transportation facilities. Private developments
with private roads shall provide bicycle and pedestrian facilities.
4. Bicycle and pedestrian connections shall be provided at the ends of cul-de-sacs, at
mid -block, between subdivision plats, etc., wherever the addition of such a connection
would reduce the walkingor cycling distance to a connecting street by 400 feet and by at
least 50 percent over other available routes. These connections shall have a 20 -foot right of
way; with at least a 10-lbot wide useable surface, and should not be more than 100 feet
long if possible.
5. Parks, playgrounds, open spaces.
6. .Existing natural .features.
7. Environmental, social, energy and economic impacts likely to result from the development,
including impacts on public facilities such as schools, roads, water and. sewage systems, fire
protection, etc.
8. Effect of the development on the rural character of the area.
9. Proposed ownership pattern.
10. Operation and maintenance proposal (i.e., homeowners assoc tion, eondoniniurn, etc.).
11. Waste disposal facilities.
12. Water supply system.
13. Lighting.
14. General timetable of development.
13. The conditional use may be granted upon thc following findings:
1. All subdivision restrictions contained in DCC Title :17, the Subdivision/Partition Ordina.nce,
shall be inet.
2. The proposed development conforms to the Comprehensive Plan.
3. Any exceptions :front the standards of the underlying district are warranted by the design
and amenities incorporated in the development pianandprogram.
4. The proposal is in harmony with the surrounding area or its potential future use.
5. The system of ownership and the Means of developing, preserving and maintaining open.
space is adequate,
6. That sufficient financing exists to assure the proposed development will be substantially
completed within four years of approval.
7. Sixty-five percent of the land is to be maintained in open space.
Adequate provision is made :for the preservation of natural resources such. as bodies of
water, natural vegetation and special terrain features.
C. All applications for planned developments shall include the .materials and information required
for approval of a. subdivision. as specified in DCC Title 17, tb.c Subdivision/Partition Ordinance
and the Materials and information required for approval of a conditional use as specified in
DCC Title 18.
1.8.128 (03/2016)
Co mn runty Development Department
Planning Division airitcting Safety Oivsion Environmental Soils Divis'orr
P,O, Box 6805 117 NW Lafayette Avenue Bend, Oregon 97788--6085
388-6575 (541)385-1764
http://www.deschutes,org/cd
MARIJUANA EVALUATION
REVISED DRAFT PUBLIC OUTREACH
4 Focus Groups (Week of October 16)
Focus groups will be organized to gather specific feedback regarding the regulations. One subset of
groups include an intensive, detailed review of the regulations and the other will include a general,
"what's working, what's not?" forum. Focus group participation is by invitation only.
Purpose: Detailed Regulation Review
1. 6-8 marijuana industry representatives including those that have received land use approval and
with an Oregon Liquor Control Commission (OLCC) license.
2. 6-8 members of the public within the notice area of locally approved marijuana production sites
and with an OLCC License, and participated in the related land use process.
Purpose: General "What's Working, What's Not?" Forum
3. 10-12 marijuana Industry representatives including those who have applied for land use.
4. 10-12 members of the public who participated in a marijuana land use hearing.
Stakeholder Interviews (Week of October 16)
Individual interviews will be conducted with the flowing groups and individuals addressing specific
area of involvement or expertise.
• Members of the Marijuana Advisory Committee (MAC) not participating in the focus groups.
• Agency and Service Providers
• OLCC
• Oregon Department of Agriculture
• Oregon Water Resource Department
• Oregon Farm Bureau
• County Building Division
• County Road Department
• County Sheriff's Office
• Fire Districts/State Fire Marshall
• Irrigation districts (Three Sisters, Tumalo, Central Oregon, North Unit, Swalley)
• Electrical utility providers (Pacific Power, Midstate Electric Co -Op, Central Electric Co -Op)
Planning Commission Work Session (November 9)
• Presentation of existing conditions report
• Summary of stakeholder interviews, focus groups, and comments received to date
• Opportunity for Planning Commissioner comments.
tee
Board of County Commissioners Public Hearing (Evening, November 29)
• Presentation of existing conditions report
• Summary of stakeholder interviews, focus groups, Planning Commission work session, and
comments received to date
• Opportunity for public comment
Other Opportunities to Participate (End December 4)
Additional opportunities will be available for interested parties to express their opinions, including:
• On -Line questionnaire
• Via unique e-mail address (e.g. mariivana.regulation.evaluationPdeschutes.org)
• Submittal of written comments
Final Report (December 8)
Staff will produce a final report that will include:
• Existing Conditions Report
• Summary of Public Involvement
• Staff Evaluation and Comment
Board Direction (December 13 or after)
Staff will schedule a work session or regular business meeting with the Board in December 2017 to
determine next steps.
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