2018-14-Ordinance No. 2018-002 Recorded 1/8/2018REVIEWED
LEGV U
COUN SEL
Recorded in Deschutes County CJ2018-14
Nancy Blankenship, County Clerk
Commissioners' Journal 01/08/2018 8:42:55 AM
1111111111111111111111111111
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Deschutes County
Comprehensive Plan to recognize churches are
permitted in the Wildlife Area Combining Zone and
Declaring an Emergency.
ORDINANCE NO. 2018-002
WHEREAS, the Deschutes County Community Development Department (CDD) initiated an
amendment (Planning Division File No. 247 -17 -000703 -PA) to the Deschutes County Comprehensive Plan,
Chapter 2, Resource Management, to permit churches in the Wildlife Area Combining Zone; and
WHEREAS, the Deschutes County Planning Commission reviewed the proposed changes on
September 28, 2017, and forwarded to the Deschutes County Board of County Commissioners ("Board"), a
unanimous recommendation of approval; and
WHEREAS, the Board considered this matter after a duly noticed public hearing on October 25, 2017,
and concluded that the public will benefit from the proposed changes to the Deschutes County Comprehensive
Plan; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. AMENDMENT. DCC 23.01.010, Introduction, is amended to read as described in Exhibit
"A," attached hereto and by this reference incorporated herein, with new language underlined and language to
be deleted in strilc3th:ough.
Section 2. AMENDMENT. Deschutes County Comprehensive Plan Chapter 2, Resource
Management, is amended to read as described in Exhibit "B," attached hereto and by this reference incorporated
herein, with new language underlined and language to be deleted in stri'�.
Section 3. AMENDMENT. Deschutes County Comprehensive Plan Chapter 5, Supplementary
Sections, is amended to read as described in Exhibit "C," attached hereto and by this reference incorporated
herein, with new language underlined and language to be deleted in ctrilcethrough.
Section 4. FINDINGS. The Board adopts as its findings Exhibit "D", and incorporated by reference
herein.
Section 5. EMERGENCY. This Ordinance being necessary for the immediate preservation of the
public peace, health and safety, an emergency is declared to exist, and this Ordinance becomes effective on
January 25, 2018.
PAGE 1 OF 2 - ORDINANCE NO. 2018-002
Dated this 3 of.....I uAP , 2018
ATTEST:
Recording Secretary
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
/Grd ra13-
ANT,4I\NY DeBONE, Chair
PHIL G. HE IERSON, Vice Chair
TAMMY BANEY, Conissioner
Date of 1st Reading: 3 day ofJwn, 2018.
Date of 2nd Reading: 3 day of-®,f\vaP 2018.
Record of Adoption Vote
Commissioner Yes No Abstained Excused
Tammy Baney �C
Anthony DeBone
Philip G. Henderson �G
Effective date: 2.5 day of--34VKANan, 2018.
ATTEST:
Recording Secretary
PAGE 2 OF 2 - ORDINANCE NO. 2018-002
Chapter 23.01 COMPREHENSIVE PLAN
Chapter 23.01 COMPREHENSIVE PLAN
23.01.010. Introduction.
A. The Deschutes County Comprehensive Plan, adopted by the Board in Ordinance 2011-003
and found on the Deschutes County Community Development Department website, is incorporated
by reference herein.
B. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2011-027, are incorporated by reference herein.
C. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2012-005, are incorporated by reference herein.
D. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2012-012, are incorporated by reference herein.
E. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2012-016, are incorporated by reference herein.
F. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2013-002, are incorporated by reference herein.
G. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2013-009, are incorporated by reference herein.
H. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2013-012, are incorporated by reference herein.
I. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2013-007, are incorporated by reference herein.
J. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-005, are incorporated by reference herein.
K. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
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,
PAGE 1 OF 2 — EXHIBIT A TO ORDINANCE 2018-002
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.
X. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2017-007, are incorporated by reference herein.
Y. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2018-002, are incorporated by reference herein.
(Ord. 2018-002 §1, 2018; Ord. 2017-007 §1, 2017; 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 2018-002
SCctioIA, 2.6 Wil.dl,%fe
Background
Wildlife diversity is a major attraction of Deschutes County. It was mentioned in many
Comprehensive Plan meetings in 2008 and 2009 as important to the community. Healthy
wildlife populations are often a sign of a healthy environment for humans as well as other
species. The key to protecting wildlife is protecting the habitats each species needs for food,
water, shelter and reproduction. Also important is retaining or enhancing connectivity between
habitats, in order to protect migration routes and avoid isolated populations.
Wildlife is tied to land use planning because human development impacts habitats in complex
ways. Wildlife protections are provided by federal, state and local governments. Oregon land
use planning protects wildlife with Statewide Planning Goal 5, Open Spaces, Scenic and
Historical Areas and Natural Resources and the associated Oregon Administrative Rule (OAR)
660-023 (this Rule replaced 660-016 in 1996). Statewide Goal 5 includes a list of resources
which each local government must inventory, including wildlife habitat.
The process requires local governments to inventory wildlife habitat and determine which items
on the inventory are significant. For sites identified as significant, an Economic, Social,
Environmental and Energy (ESEE) analysis is required. The analysis leads to one of three
choices: preserve the resource, allow proposed uses that conflict with the resource or strike a
balance between the resource and the conflicting uses. A program must be provided to protect
the resources as determined by the ESEE analysis.
In considering wildlife habitat, counties rely on the expertise of the Oregon Department of Fish
and Wildlife (ODFW) and U.S. Fish and Wildlife Service (USFWS). Those agencies provide
information for the required wildlife inventory and recommendations on how to protect
wildlife habitat on private lands. Note that this section focuses on wildlife, while fish are
covered in the Water Resources section of this Plan.
Wildlife Designations
Comprehensive Planning for Wildlife
Plan 2000, the Comprehensive Plan adopted in 1979, included a Fish and Wildlife Chapter with
policies aimed at protecting wildlife. That Plan also noted the controversial nature of wildlife
protections. To implement the Plan policies, the Wildlife Area Combining Zone was adopted.
This overlay zone was intended to protect identified big game habitat through zoning tools such
as appropriate lot sizes and setbacks. In 1986 a River Study was completed and adopted into
the Resource Element. Goals and policies from that study, including wildlife goals, were added
to Plan 2000.
As part of State mandated Periodic Review, the County took another look at wildlife
protections to further comply with the requirements of Goal 5 and the then prevailing OAR
660-16. The County worked with the ODFW to obtain the most recent inventory information
on fish and wildlife resources in the county and to identify uses conflicting with those
resources. This information was used to update the inventories and amend the ESEE analyses.
DESCHUTES COUNTY COMPREHENSIVE PLAN - 20I I
CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.6 WILDLIFE
PAGE 1 OF I0 - EXHIBIT B TO ORDINANCE NO. 2018-002
In addition, ODFW provided information to support zoning ordinance provisions to resolve
conflicts between fish and wildlife resource protection and development. The County adopted a
Sensitive Bird and Mammal Combining Zone which identified and protected specific bird nests
or leks and bat hibernating or nursery sites.
Ordinances for Compliance with Goal 5
During periodic review in 1992, Deschutes County met the requirements of Goal 5 by:
• The adoption of Goals and Policies in Ordinance 92-040 reflecting Goal 5 requirements,
including a Sensitive Bird and Mammal Combining Zone to identify and protect specific
bird nests or leks and bat hibernating or nursery sites;
• The adoption of Ordinance 92-041 amended the comprehensive plan to inventory each
Goal 5 resource, analyze conflicting uses, and analyze the ESEE consequences of protecting
or not protecting inventoried fish and wildlife resources;
• The adoption of zoning ordinance provisions in Ordinance 92-042, as applied to
inventoried sites by the map adopted by Ordinance 92-046.
In 2015, the Land Conservation and Development Commission (LCDC) adopted rules to
Oregon Administrative Rule (OAR) chapter 660, division 23, to establish procedures for
considering development proposals on lands identified as Greater Sage -Grouse Area Habitat.
Deschutes County met the requirements by:
• Adopting the 2015 Goal 5 Greater Sage Grouse habitat Area Inventory Map into its
Comprehensive Plan and amending the Sensitive Bird and Mammal Habitat Inventory to
remove 1990 sage grouse lek and range data by Ordinance 2015-010 (Those maps are
incorporated by reference herein); and,
• Adopting sage grouse regulations as a Greater Sage Grouse Area Combining Zone by
Ordinance 2015-011.
Wildlife Snapshot 2008-2009
Source: County GIS data
• There are 816,649 acres in Deschutes County's Wildlife Area Combining Zone.
• There are 40 sites protected by the Sensitive Bird and Mammal Habitat Combining Zone.
• 76% of County land is owned and managed by the Federal government through the U.S.
Forest Service and Bureau of Land Management.
Source: Fishing, Hunting, Wildlife Viewing, and Shellfshing in Oregon, 2008 May 2009 Prepared for
Oregon Department of Fish and Wildlife by Dean Runyan Associates
• Nearly $70 million was spent in Deschutes County on travel generated expenditures on
wildlife viewing, fishing and hunting by people from over 50 miles away.
• Over 60% of the $70 million noted above was spent for wildlife viewing, with fishing
second with nearly 30% and nearly 10% on hunting.
• Over $8 million in revenue from fishing, hunting and wildlife viewing came from people
who live in the County or within 50 miles of the County.
• Over 60% of the $8 million noted above was spent on fishing, over 20% was spent on
hunting and under 20% was spent on wildlife viewing.
• All total, over $78 million was spent in Deschutes County on fishing, hunting and wildlife
viewing.
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.6 WILDLIFE
PAGE 2 OF I0 - EXHIBIT B TO ORDINANCE NO. 2018-002
Deer Migration Corridor
The Bend/La Pine migration corridor is approximately 56 miles long and 3 to 4 miles wide and
parallels the Deschutes and Little Deschutes Rivers. The corridor is used by deer migrating
from summer range in the forest along the east slope of the Cascades to the North Paulina
deer winter range. Deschutes County adopted a "Deer Migration Priority Area" based on a
1999 ODFW map submitted to the South County Regional Problem Solving Group. This
specific sub -area is precluded from destination resorts.
Deer Winter Range
The ODFW identified the Metolius, Tumalo and North Paulina deer winter ranges during
Deschutes County's initial comprehensive plan. The boundaries of these winter ranges are
shown on the Big Game Sensitive Area map in the 1978 Comprehensive Plan and have been
zoned with the Wildlife Combining Zone since 1979. The winter ranges support a population of
approximately 15,000 deer.
In 1992, ODFW recommended deer winter range in the northeast corner of the county, in the
Smith Rock State Park area, be included in the Deschutes County inventory and protected with
the same measures applied to other deer winter range. This area was officially included and
mapped on the Wildlife Combining Map when Ordinance 92-040 was adopted by the Board of
County Commissioners.
Elk Habitat
The Land and Resource Management Plan for the Deschutes National Forest identifies 6 key
elk habitat areas in Deschutes County. The ODFW also recognizes these areas as critical elk
habitat for calving, winter or summer range. The following areas are mapped on the Big Game
Habitat Area map and in the Deschutes National Forest Land and Resource Management Plan:
■ Tumalo Mountain
■ Kiwa
■ Ryan
■ Crane Prairie
■ Fall River
■ Clover Meadow
Antelope Habitat
The Bend and Ochoco District offices of the ODFW provided maps of the antelope range and
winter range. The available information is adequate to indicate that the resource is significant.
The antelope habitat is mapped on Deschutes County's Big Game Habitat -Wildlife Area
Combining Zone Map.
Sensitive Birds
Nest sites for the northern bald eagle, osprey, golden eagle, prairie falcon, great grey owl, and
great blue heron rookeries are inventoried in Ordinance No. 92-041. The area required for
each nest site varies between species. The minimum area required for protection of nest sites
has been identified by the ODFW in their management guidelines for protecting colony nesting
birds, osprey, eagles and raptor nests.
DESCHUTES COUNTY COMPREHENSIVE PLAN - 201 I
CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.6 WILDLIFE
PAGE 3 OF 10 - EXHIBIT B TO ORDINANCE NO. 2018-002
Federal and State Wildlife Protections
Federal Protections
The primary federal protection for wildlife is the Endangered Species Act (ESA), which sets the
preservation of biodiversity as its highest priority. Under ESA, National Oceanic Atmospheric
Administration (NOAA) Fisheries or the U.S. Fish and Wildlife Service (USFWS) list species as
threatened or endangered. ESA prohibits both federal actions that jeopardize listed species and
private actions that result in the "taking" of listed species. Court rulings have explicitly
determined that habitat modification can lead to a "taking," even if the modification does not
affect a specific individual member of the species. ESA authorizes civil and criminal suits be
brought against entities that violate its substantive or procedural provisions.
There are two fish species and one bird species listed as federally threatened or endangered in
Deschutes County. Fish are discussed under the Water Resources section of this chapter and
the bird, the Northern Spotted Owl, has not been found on private lands.
State Protections
It is Oregon's policy "to prevent the serious depletion of any indigenous species" (ORS
496.012). The Oregon Department of Fish and Wildlife maintains a list of fish and wildlife
species determined to be either threatened or endangered according to OAR 635. When a
species population is seriously depleted, recovery can be difficult and expensive as well as
socially and economically divisive. To provide a positive approach to species conservation, a
"sensitive" species classification was created under Oregon's Sensitive Specie Rule (OAR 635-
100-040). Table 2.7.1 lists species in Deschutes County that are listed by either federal or state
wildlife agencies under the above mentioned laws.
Besides the listings of endangered or threatened, species can be federally listed as candidate
species or species of concern. State listings include threatened, critical and vulnerable. Each
status has a definition specifying different actions.
DESCHUTES COUNTY COMPREHENSIVE PLAN - 201 1
CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.6 WILDLIFE
PAGE 4 OF 10 - EXHIBIT B TO ORDINANCE NO. 2018-002
Table2.6.1- Special Status of Select Mammals, Birds, Amphibians, and Reptiles in
Deschutes County 2009
Species 1 State Status
Mammals
California Wolverine
Fisher
Fringed Myotis
Long-eared Myotis
Long-legged Myotis
Pallid Bat
Preble's Shrew
Pygmy Rabbit
Silver-haried bat
Small -footed Myotis
Spotted bat
Townsends western big -eared bat
Yuma Myotis
Birds
American Peregrine Falcon
Bald Eagle
Black Tern
Black -backed Woodpecker
Ferruginous Hawk
Flammulated Owl
Great Gray Owl
Greater Sage Grouse
Lewis' Woodpecker
Loggerhead Shrike
Long -billed Curlew
Mountain Quail
Northern Goshawk
Northern Spotted Owl
Olive -sided Flycatcher
Pileated Woodpecker
Swainson's Hawk
Western Burrowing Owl
White -head Woodpecker
Willow Flycatcher
Yellow -breasted chat
Yellow -billed cuckoo
Amphibians and Reptiles
Cascades Frog
Coastal tailed frog
Northern Sagebrush Lizard
Oregon slender salamander
Oregon Spotted Frog
Western Pond Turtle
Western Toad
* listed only for the Basin and Range Ecoregion
Source: 2009 Interagency Report and ODFW
Threatened
Critical
Vulnerable
Vulnerable
Vulnerable
Vulnerable
Vulnerable
Vulnerable
Critical
Federal Status
Species of Concern
Species of Concern
Species of Concern
Species of Concern
Species of Concern
Species of Concern
Species of Concern
Species of Concern
Species of Concern
Vulnerable Delisted
Threatened Delisted
Species of Concern
Vulnerable
Vulnerable
Vulnerable
Vulnerable
Vulnerable
Critical
Vulnerable
Vulnerable
Vulnerable
Vulnerable
Threatened
Vulnerable
Vulnerable
Vulnerable
Vulnerable*
Critical
Vulnerable
Vulnerable
Vulnerable
Vulnerable
Vulnerable
Critical
Critical
Vulnerable
DESCHUTES COUNTY COMPREHENSIVE PLAN — 201
CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.6 WILDLIFE
PAGE 5 OF 10 - EXHIBIT B TO ORDINANCE NO. 2018-002
Species of Concern
Species of Concern
Species of Concern
Species of Concern
Species of Concern
Threatened
Species of Concern
Species of Concern
Species of Concern
Species of Concern
Species of Concern
Candidate
Species of Concern
Species of Concern
Species of Concern
Species of Concern
Candidate
Oregon Department of Fish and Wildlife
Oregon Conservation Strategy
In 2006 the Oregon Conservation Strategy (OCS) was adopted by Oregon's Fish and Wildlife
Commission for the state of Oregon. Wildlife and habitat issues are often crisis -driven and
focused on individual species. The OSC is intended to provide a Tong -term, big -picture look,
using the best available science, on how best to maintain and improve Oregon's species,
habitats and ecosystems.
This document is not intended to be a set of regulations, but rather it presents issues,
opportunities and recommended actions that can serve as the basis for regional collaborative
actions. The recommendations within the OCS can be used to address species and habitat
conservation needs, to expand existing partnerships and develop new ones, and to provide a
context for balancing Oregon's conservation and development priorities. The future of many
species will depend on landowners' and land managers' willingness to voluntarily take action on
their own to improve fish and wildlife habitat.
The OCS works by defining ecoregions and offering an overview of each region that covers a
variety of ecological, land use and economic issues. Parts of Deschutes County fall into three of
the ecoregions; East Cascade, Blue Mountains and Northern Basin and Range. For Deschutes
County this document offers a wealth of knowledge that can be used to inform fish and wildlife
habitat policies and protect and enhance ecosystems.
Fish and Wildlife Habitat Mitigation Policy
The ODFW's Fish and Wildlife Habitat Mitigation Policy provides direction for their staff to
review and comment on projects that may impact fish and wildlife habitat. This policy
recognizes six distinct categories of wildlife habitat ranging from Category I — essential, limited,
and irreplaceable habitat, to Category 6 — low value habitat. The policy goal for Category I
habitat is no loss of habitat quantity or quality through avoidance of impacts by using
development action if impacts cannot be avoided. The ODFW recommends avoidance of
Category I habitats as they are irreplaceable, and thus mitigation is not a viable option.
Categories 2-4 are for essential or important, but not irreplaceable habitats. Category 5 habitat
is not essential or important, but has high restoration potential.
Interagency Report
In 2009 the USFW, ODFW, U.S. Forest Service and the Bureau of Land Management
collaborated to provide a report on Wildlife in Deschutes County, Updated Wildlife Information
and Recommendations for the Deschutes County Comprehensive Plan Update (Interagency Report).
This report provided updated information to be used in revising the County Goal 5 inventory.
This update will be done as part of the Goal 5 review as described in Section 2.4 of this Plan.
The report also outlined numerous issues that the agencies believe are important for the
County to address. The Interagency Report generated debate over how best to protect wildlife
while also protecting the rights of property owners. Key issues from the report are touched on
below.
Economic benefits of fish and wildlife: The report notes the ODFW report by Dean Runyan
regarding the economic benefits of fishing, hunting and wildlife viewing, including that Deschutes
County generated more freshwater fishing revenue than any other county in Oregon.
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.6 WILDLIFE
PAGE 6 OF I0 - EXHIBIT B TO ORDINANCE NO. 2018-002
Oregon Conservation Strategy: The report discusses the Oregon Conservation Strategy described
above and recommends that the County use it as a guide and reference for the maintenance
and enhancement of wildlife resources.
Threatened and Endangered Species and Species of Concern: The report recommends developing
and adopting measures to protect federal and state listed threatened and endangered species to
limit conflicting use.
Riparian and wetland areas for wildlife and fish: The report recommends completing and adopting
a Local Wetland Inventory. The current National Wetland Inventory was done at a scale so
that wetlands under 5 acres are not identified. Yet, those wetlands provide significant habitat.
Deschutes County adopted a Local Wetland Inventory for South County in 2011.
Oregon Spotted Frog: The report recommends adding an Oregon Spotted Frog habitat area to
the wildlife area combining zone and provides some specific ideas for protecting those areas.
The Oregon Spotted Frog can be found in the floodplains and wetlands along the Deschutes
River and Little Deschutes River, south of Bend. Riverine oxbows are particularly key habitat.
This frog is listed as a Federal Candidate and State Critical Species.
Shrub -Steppe Habitat: The report recommends the County consider impacts to wildlife and
habitat when development will degrade shrub -steppe habitat. Shrub -steppe habitat provides
needed resources for numerous birds and mammals, including 12 Oregon listed sensitive
species, and one threatened species. Large blocks of un -fragmented habitat with low human
disturbance are needed to support shrub -steppe wildlife. If avoidance of these areas is not
possible, providing for "no net loss' and a "net benefit" (restoration) of shrub -steppe habitat
should be a vital component of any conservation plan.
Greater Sage Grouse: The report provides recommendations for limiting conflicting uses near
sage grouse leks and habitat. The population management objective for sage -grouse in this
region (Prineville District), which includes portions of Deschutes and Crook counties, is to
restore sage grouse numbers and distribution near the 1980 spring breeding population level,
approximately 3,000 birds. Many aspects of human development have impacted sage grouse
populations and can be considered conflicting uses. Conservation efforts focused on maintaining
large expanses of sagebrush habitat, enhancing the quality of existing habitat, and increasing
connections between suitable habitat patches would be most beneficial to maintaining healthy
sage -grouse populations. Breeding and nesting habitat is particularly important because it is
essential, limited and irreplaceable.
Critical Bird and Mammal Sites: The report does not recommend additional or modification of
existing protections for site specific sensitive bird and mammal sites, except for additional
protections for sage grouse. The report does provide a new inventory and site specific
recommendations that will be used to update the list of Goal 5 wildlife resources.
Game Species: The report does not recommend changes to the existing big game winter range
or migration corridor maps. It does recommend that the County revise the uses allowed in
those areas to prohibit the following uses that generate activity, noise and habitat alteration:
■ Guest ranch
■ Outdoor commercial events (i.e. Wedding Venues, Farmers Market)
■ OHV course
■ Paintball course
DESCHUTES COUNTY COMPREHENSIVE PLAN - 20 I
CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.6 WILDLIFE
PAGE 7 OF 10 - EXHIBIT B TO ORDINANCE NO. 2018-002
■ Shooting range
■ Model airplane park
■ BMX course
In 2017. stemming from a Land Use Board of Appeals decision. Deschutes County amended its
Wildlife Area Combining Zone to allow churches in deer winter range. elk habitat and antelope
range. The reason for the amendment stemmed from the Religious Land Use and
Institutionalized Persons Act of 2000 which protects individuals. houses of worship. and other
religious institutions from discrimination in zoning laws. Deschutes County determined that
allowing churches in the Wildlife Area Combining Zone should be allowed fully.
Sensitive Species: Table 2.7.2 shows species considered sensitive to human disturbance. Mule
deer are the only species in decline.
Table 2.7.2 - Big Game Population Estimates, Deschutes County (2009)
Species Population
Mule Deer 9,337*
Elk 1,500
Pronghorn 1,000
Cougar ( —150
Black Bear ( —150
Silver Grey Squirrel I —800
* The management objective for the Paulina and Upper Deschutes Wildlife Management Units, primarily
in Deschutes County, is an April adult population of 18,7000 mule deer.
Source: Interagency Report
Fish and Wildlife Habitat Mitigation Policy: The Interagency Report includes one recommendation
that is only from the ODFW. They recommend that the County require impact avoidance for
development that will impact Category 1 habitat and require a wildlife mitigation plan for
development that will impact habitat Categories 2-5, to limit conflicting uses.
The Interagency Report recommendations will be considered more closely when the Goal 5
review is undertaken.
Future of Wildlife and Habitat in Deschutes County
Coordination
Much of the wildlife habitat in Deschutes County is located on public lands. Federal lands make
up 76% of County lands with another 3% State or County owned. Federal lands are not subject
to County regulation but as noted in the Forest section of this Plan, they are important
economic generators that also contribute to the community's quality of life, providing ample
opportunities for wildlife viewing, fishing and hunting. It should be noted that not all federal
lands are managed for wildlife habitat.
Regarding public lands the County's role is to coordinate with the land management agencies to
ensure development approved by the County does not impact wildlife.
Another area for coordination is with the Trust for Public Lands (TPL). In 2009 this non-profit
group initiated a Greenprint effort that will identify specific areas needing protection, including
wildlife habitat. A survey done by this organization identified protecting wildlife habitat as
important to County residents.
DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011
CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.6 WILDLIFE
PAGE 8 OF 10 - EXHIBIT B TO ORDINANCE NO. 2018-002
Rural Development
The loss of wildlife species and habitat may lead to declining recreational opportunities, tourist
dollars and quality of life. Yet, many species are sensitive to human development, with some
species benefiting and some harmed by land disturbance. New structures or infrastructure can
fragment habitats. Barriers such as roads, dams or housing can interfere with migration routes
and connectivity leading to isolated and unhealthy populations. Development can also increase
non-native and invasive species. Most Deschutes County residents consider the local wildlife as
one of the benefits of living in this region. With careful planning, many of the impacts to wildlife
habitat can be mitigated.
DESCHUTES COUNTY COMPREHENSIVE PLAN - 201 I
CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.6 WILDLIFE
PAGE 9 OF 10 - EXHIBIT B TO ORDINANCE NO. 2018-002
Sectiow 2.0 Wil,dl,ife PoLici,es
Goals and Policies
Goal 1
Policy 2.6.1
Policy 2.6.2
Policy 2.6.3
Policy 2.6.4
Policy 2.6.5
Policy 2.6.6
Policy 2.6.7
Policy 2.6.8
Goal 2
Policy 2.6.9
Policy 2.6.10
Maintain and enhance a diversity of wildlife and habitats.
Goal 5 wildlife inventories, ESEEs and programs are retained and not repealed.
Promote stewardship of wildlife habitats and corridors, particularly those with
significant biological, ecological, aesthetic and recreational value.
Ensure Goal 5 wildlife inventories and habitat protection programs are up-to-
date through public processes and expert sources, such as the 2009 Interagency
Report.
Support incentives for restoring and/or preserving significant wildlife habitat by
traditional means such as zoning or innovative means, including land swaps,
conservation easements, transfer of development rights, tax incentives or
purchase by public or non-profit agencies.
Assist in providing information and education on wildlife and habitat protection.
Review the Oregon Conservation Strategy when amending the Wildlife section
of this Plan.
Use a combination of incentives, regulations and education to promote
stewardship of wildlife habitat and address the impacts of development.
Balance protection of wildlife with wildland fire mitigation on private lands in the
designated Wildland Urban Interface.
Promote the economic and recreational benefits of wildlife and
habitat.
Encourage wildlife related tourism.
Coordinate with stakeholders to ensure access to significant wildlife and riparian
habitat through public or non-profit ownership.
Goal 3 Support retaining populations of Federal and State protected
endangered species.
Develop local approaches, in coordination with Federal and State agencies, for
protecting Federal or State Threatened or Endangered Species or Species of
Concern.
Policy 2.6.1 I
Policy 2.6.12
Address potential conflicts between large-scale development and sage grouse
habitat using Ordinances Nos. 2010-010 and 2010-011, which are consistent
with OAR 660-023-01 15.
DESCHUTES COUNTY COMPREHENSIVE PLAN - 20I I
CHAPTER 2 RESOURCE MANAGEMENT REFERENCES
PAGE 10 OF 10 - EXHIBIT B TO ORDINANCE NO. 2017-016
secti,ow5.72 Leg%stati-ve I-tistoru
Background
This section contains the legislative history of this Comprehensive
Table 5.1 1.1 Comprehensive Plan Ordinance History
Date Adopted/
Effective
Ordinance
2011-003 8-10-1 1/ 1 1-9-1 1
2011-027 10-31-1 1/1 1-9-1 1
Plan.
Chapter/Section Amendment
All, except
Transportation, Tumalo
and Terrebonne
Community Plans,
Deschutes Junction,
Destination Resorts and
ordinances adopted in
2011
2.5, 2.6, 3.4, 3.10, 3.5,
4.6, 5.3, 5.8, 5.1 1,
23.40A, 23.40B,
23.40.065, 23.01.010
23.60, 23.64 (repealed),
2012-005 8-20-12/11-19-12 3.7 (revised), Appendix C
(added)
2012-012 8-20-12/8-20-12 4.1, 4.2
2012-016 12-3-12/3-4-13 3.9
2013-002 1-7-13/1-7-13 4.2
2013-009 2-6-13/5-8-13 1.3
2013-012 5-8-13/8-6-13 23.01.010
2013-007 5-29-13/8-27-13 3.10, 3.1 1
Page I of 3 - EXHIBIT C TO ORDINANCE NO. 2018-002
Comprehensive Plan update
Housekeeping amendments to
ensure a smooth transition to
the updated Plan
Updated Transportation
System Plan
La Pine Urban Growth
Boundary
Housekeeping amendments to
Destination Resort Chapter
Central Oregon Regional
Large -lot Employment Land
Need Analysis
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture to
Rural Residential Exception
Area
Comprehensive Plan Map
Amendment, including certain
property within City of Bend
Urban Growth Boundary
Newberry Country: A Plan
for Southern Deschutes
County
2013-016 10-21-13/10-21-13 23.01.010
2014-005 2-26-14/2-26-14 23.01.010
2014-012 4-2-14/7-1-14 3.10, 3.11
2014-021 8-27-14/11-25-14 23.01.010, 5.10
2014-021 8-27-14/11-25-14 23.01.010, 5.10
2014-027 12-15-14/3-31-15 23.01.010, 5.10
2015-021 11-9-15/2-22-16 23.01.010
2015-029 11-23-15/11-30-15 23.01.010
2015-018 12-9-15/3-27-16 23.01.010, 2.2, 4.3
Page 2 of 3 - EXHIBIT C TO ORDINANCE NO. 2018-002
Comprehensive Plan Map
Amendment, including certain
property within City of Sisters
Urban Growth Boundary
Comprehensive Plan Map
Amendment, including certain
property within City of Bend
Urban Growth Boundary
Housekeeping amendments to
Title 23.
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Sunriver Urban
Unincorporated Community
Forest to Sunriver Urban
Unincorporated Community
Utility
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Sunriver Urban
Unincorporated Community
Forest to Sunriver Urban
Unincorporated Community
Utility
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture to
Rural Industrial
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture to
Surface Mining.
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Tumalo
Residential 5 -Acre Minimum
to Tumalo Industrial
Housekeeping Amendments
to Title 23.
Comprehensive Plan Text and
2015-010 12-2-15/12-2-15 2.6 Map Amendment recognizing
Greater Sage -Grouse Habitat
Inventories
Comprehensive Plan Map
Amendment, changing
2016-001 12-21-15/04-5-16 23.01.010; 5.10 designation of certain
property from, Agriculture to
Rural Industrial (exception
area)
Comprehensive Plan
Amendment to add an
exception to Statewide
2016-007 2-10-16/5-10-16 23.01.010; 5.10 Planning Goal 11 to allow
sewers in unincorporated
lands in Southern Deschutes
County
Comprehensive Plan
Amendment recognizing non -
2016 -005 11-28-16/2-16-17 23.01.010, 2.2, 3.3 resource lands process
allowed under State law to
change EFU zoning
Comprehensive plan
2016-022 9-28-16/11-14-16 23.01.010, 1.3, 4.2 Amendment, including certain
property within City of Bend
Urban Growth Boundary
Comprehensive Plan Map
Amendment, changing
2016-029 12-14-16/12/28/16 23.01.010 designation of certain
property from, Agriculture to
Rural Industrial
Comprehensive Plan Map
Amendment, changing
2017-007 10-30-17/10-30-17 23.01.010 designation of certain
property from Agriculture to
Rural Residential Exception
Area
Comprehensive Plan
2018-002 1-3-18: TBD 23.01. 2.6 Amendment permitting
churches in the Wildlife Area
Combining Zone
Page 3 of 3 - EXHIBIT C TO ORDINANCE NO. 2018-002
FINDINGS
1. SUMMARY
Ordinance No. 2012-004 allows agri-tourism and commercial events and activities on
parcels zoned Exclusive Farm Use (EFU), with a Wildlife Area Combining Zone, subject
to time, place, and manner regulations. Deschutes County, through Ordinances Nos.
2018-002 and 2018-003, is amending the Comprehensive Plan and Deschutes County
Code (DCC) Chapter 18.88 to permit churches in the Wildlife Area Combining Zone in
order to comply with the Religious Land Use and Institutionalized Persons Act.
I1. BACKGROUND
A. Wildlife Area Combining Zone / Churches
During periodic review, to address wildlife protection, Deschutes County adopted
Ordinance Nos. 92-041 and 92-042 concurrently.' These ordinances amended the
Wildlife Chapter of the Comprehensive Plan, and DCC 18.88, Wildlife Area Combining
Zone. Ordinance 92-041 adopted deer winter range, antelope and elk habitat
boundaries based on an Economic, Social, Environmental and Energy (ESEE) analysis.
The conclusions, noted in Ordinance 92-041, Exhibit A, Pages 24, 34, and 40 found that
the identified deer winter range, elk and antelope habitat and other conflicting uses
within their ranges are important relative to each other, and that the conflicts should be
balanced by restricting or regulating certain uses and prohibiting others. The following
are relevant excerpts:
• Program to Achieve the Goal (Conserve Deer Winter Range): The Wildlife Area
Combining Zone, Title 18.88, (WA) is applied to all areas designated as deer
winter range on the Big Game Habitat Wildlife Area Combining Zone Map. The
WA zone requires a 40 acre minimum lot size for all new land divisions, prohibits
certain conflicting uses (i.e. golf course, churches, schools etc.), establishes
siting and fencing standards, and requires that all land divisions in the Rural
Residential (RR -10) or Multiple Use Agricultural (MUA-10) Zone be clustered or
planned development.
• Program to Achieve the Goal (Conserve Significant Elk Habitat): The WA Zone,
Title 18.88, will be applied to all areas identified as significant elk habitat. The
county WA Zone has been amended to require a 160 acre minimum lot size for
areas identified as significant elk habitat. Certain uses normally allowed in the
underlying zones are also prohibited in the WA zone, and siting standards to
minimize the conflict of residences with habitat protection are required.
• Program to Achieve the Goal (Conserve Antelope Habitat): Based on the ESEE
analysis the county finds that the uses conflicting with antelope habitat should be
1 Deschutes County completed period review on January 23, 2003.
PAGE 1 OF 14 — EXHIBIT "D" TO ORDINANCE 2018-002
#NQ632U630D1 CWVv1
specifically limited by the application of the WA Zone. This zone limits specific
conflicting uses including schools, golf courses and churches. In the antelope
range the minimum lot size is 320 acres.
Ordinance No. 92-042, amended DCC 18.88 by not permitting churches as a
conditional use in that portion of the Wildlife Area Combining Zone designated as deer
winter ranges, significant elk habitat or antelope range.2
B. Wildlife Area Combining Zone / Agri -tourism and Commercial Events
In 2011, the Oregon Legislature approved Senate Bill (SB) 960 allowing counties to
establish agri-tourism and other commercial events and activities that are related to and
supportive of agriculture. In 2012, the Board of County Commissioners adopted
Ordinance 2012-004 providing an opportunity for agricultural enterprises to apply for a
Limited Use Permit for agri-tourism and other commercial events and activities under
SB 960 on properties zoned EFU. The ordinance also permitted these opportunities in
EFU with a Wildlife Area Combining Zone, subject to time, place and manner
regulations. DCC 18.16.042(C)(13) states:
Agri -Tourism and other Commercial Events or Activities shall not be allowed:
a. Within the County adopted big game winter ranges during the months of
December through March.
b. Within the County adopted big game migration corridors during the month of April
and during the months of October and November.
c. Within the County adopted sensitive bird and mammal habitat areas as defined in
DCC 18.90.020, unless a site has had no nesting attempt or the nest has failed,
as determined by a professional wildlife biologist in May of the calendar year in
which the application is approved unless a site has had no nesting attempt or the
nest has failed which could be determined in May by a professional wildlife
biologist. 3
C. Religious Land Use and Institutionalized Persons Act (RLUIPA)
RLUIPA is a federal law designed to protect religious assemblies and institutions from
zoning and historic landmark laws that substantially interfere with the assemblies' and
institutions' religious exercise. It also protects individuals and religious institutions,
including churches, mosques, and synagogues, in their use of land and buildings for
religious purposes. RLUIPA was passed unanimously by Congress on July 27, 2000
and signed into law by President Clinton on September 22, 2000.
In a recent Land Use Board of Appeals (LUBA) opinion reversing a Deschutes County
Hearings Officer decision approving a church on a parcel zoned for EFU and within a
2 Ordinance No. 92-042, Exhibit A. Page 2. DCC 18.88.040(B). Uses Permitted Conditionally. The following uses are
not permitted in that portion of the Wildlife Area Combining Zone designated as deer winter ranges, significant elk
habitat or antelope range as conditional uses: 3) Church.
3 Ordinance 2012-004, Exhibit B. Pages 7-8.
PAGE 2 OF 14 — EXHIBIT "D" TO ORDINANCE 2018-002
Wildlife Area Combining Zone, LUBA ruled that the uses listed in DCC 18.88.040(B) are
deemed to be inherently incompatible with winter range and are uniformly prohibited on
winter range in all cases.4 LUBA also determined that the intervenor's (applicant)
RLUIPA argument was "undeveloped".5 RLUIPA prohibits a government from imposing
a land use regulation in a manner that treats a religious assembly or institution on less
than equal terms with a non -religious assembly or institution.6 RLUIPA also prohibits a
government from imposing or implementing a land use regulation in a manner that
imposes a substantial burden on the religious exercises of a person, religious assembly
or institution.'
III. PROPOSED PLAN AMENDMENT
Recognizing that Ordinance No. 2012-004 allows agri-tourism and commercial events
and activities in EFU with a Wildlife Area Combining Zone, subject to time, place, and
manner regulations, Deschutes County is amending the Comprehensive Plan and Title
18 to allow churches in the Wildlife Area Combining Zone. The purpose is to comply
with RLUIPA. The proposed amendments to the Comprehensive Plan and DCC 18.88
are described in Ordinance Nos. 2018-002, Exhibit B and Ordinance 2018-003, Exhibit
A, respectively. Added language is underlined and deleted shown as strikethrough
IV. REVIEW CRITERIA
Deschutes County lacks specific criteria in DCC Titles 18, 22, or 23 for reviewing a
legislative plan and text amendment. Nonetheless, because this is a Deschutes County
initiated amendment, the County bears the responsibility for justifying that the
amendments are consistent with the Statewide Planning Goals and its Comprehensive
Plan.
V. FINDINGS
A. CHAPTER 22.12, LEGISLATIVE PROCEDURES
1. Section 22.12.010.
Hearing Required
FINDING: The Planning Commission held a public hearing on September 28, 2017.
The Board held a public hearing on November 6, 2017. This criterion is met.
2. Section 22.12.020, Notice
Notice
4 Central Oregon Landwatch v. Deschutes County. LUBA No. 2016-103. Page 23.
5 Ibid. Page 24.
6 42 USC section 2000cc(b)(1).
7 42 USC section 2000cc(a)(1).
PAGE 3 OF 14 — EXHIBIT "D" TO ORDINANCE 2018-002
A. Published Notice
1. Notice of a legislative change shall be published in a
newspaper of general circulation in the county at least
10 days prior to each public hearing.
2. The notice shall state the time and place of the hearing
and contain a statement describing the general subject
matter of the ordinance under consideration.
FINDING: This criterion is met as notice was published in the Bend Bulletin newspaper
on August 27, 2017 and October 25, 2017.
B. Posted Notice. Notice shall be posted at the discretion of the
Planning Director and where necessary to comply with ORS
203.045.
FINDING: This criterion is met as notice was posted in the bulletin board in the lobby of
the Deschutes County Community Development Department, 117 NW Lafayette, Bend
as well as on the Planning Division website.
C. Individual notice. Individual notice to property owners, as
defined in DCC 22.08.010(A), shall be provided at the
discretion of the Planning Director, except as required by ORS
215.503.
FINDING: Individual notice was not initiated.
D. Media notice. Copies of the notice of hearing shall be
transmitted to other newspapers published in Deschutes
County.
FINDING: Notice was provided to the County public information official for wider media
distribution. This criterion is met.
3. Section 22.12.030 Initiation of Legislative Changes.
A legislative change may be initiated by application of individuals
upon payment of required fees as well as by the Board of County
Commissioners.
FINDING: The application was initiated by the Deschutes County Planning Division at
the direction of the Board. This criterion is met.
4. Section 22.12.040. Hearings Body
A. The following shall serve as hearings or review body for
legislative changes in this order:
1. The Planning Commission.
2. The Board of County Commissioners.
PAGE 4 OF 14 - EXHIBIT "D" TO ORDINANCE 2018-002
FINDING: This criterion is met as the Planning Commission held an initial public
hearing on September 28, 2017 followed by deliberations. The Board held its public
hearing on November 6.
B. Any legislative change initiated by the Board of County
Commissioners shall be reviewed by the Planning
Commission prior to action being taken by the Board of
Commissioners.
FINDING: This criterion is met as the Planning Commission public hearing preceded
the Board public hearing.
5. Section 22.12.050 Final Decision
All legislative changes shall be adopted by ordinance
FINDING: Land use applications 247 -17 -000702 -TA and 247 -17 -000703 -PA are
implemented by Ordinances Nos. 2018-002 and 2018-003. This criterion is met.
B. Statewide Planning Goals
The parameters for evaluating these specific amendments are based on an adequate
factual base and supportive evidence demonstrating consistency with Statewide
Planning Goals. The following findings demonstrate that Ordinances Nos. 2018-002
and 2018-003 comply with applicable statewide planning goals and state law.
• Goal 1, Citizen Involvement, is met through this adoption process because
these amendments received a public hearing before the Planning Commission
and the Board of County Commissioners, consistent with ORS 215.060 and DCC
22.12.010.
• Goal 2, Land Use Planning, is met because ORS 197.610 allows local
governments to initiate post acknowledgments plan amendments (PAPA). An
Oregon Department of Land Conservation and Development 35 -day notice was
initiated on August 23, 2017.8 This FINDINGS document provides the adequate
factual basis and documented analysis for this plan and zoning text amendment.
• Goal 3, Agricultural Lands, is met because churches are a use permitted in the
EFU zone under ORS 215.283(1).
• Goal 4, Forest Lands, is not applicable because churches are not allowed in
Deschutes County's Forest Use zones, consistent with state law.
• Goal 5, Natural Resources, Scenic and Historic Areas, and Open Spaces:
Local governments are required to apply Goal 5 to a PAPA when the amendment
8 See footnote 1.
PAGE 5 OF 14 — EXHIBIT "D" TO ORDINANCE 2018-002
allows a new use and the new use "could be" a conflicting use with a particular
Goal 5 resource site on an acknowledged resource list.9
Economic, Social, Environmental, and Energy Analysis
660-23-0030 — Inventory Goal 5 Resources
Finding: During periodic review, to address wildlife protection, Deschutes
County adopted Ordinance Nos. 92-041 and 92-042 concurrently. These
ordinances amended the Wildlife Chapter of the Comprehensive Plan, and DCC
18.88, Wildlife Area Combining Zone. Ordinance 92-041 adopted deer winter
range, antelope and elk habitat boundaries based on an Economic, Social,
Environmental and Energy (ESEE) analysis.
660-023-0250 — Applicability
(2) The requirements of this division are applicable to PAPAs initiated on or
after September 1, 1996. OAR 660, Division 16 applies to PAPAs initiated
prior to September 1, 1996. For purposes of this section "initiated" means
that the local government has deemed the PAPA application to be
complete.
Finding: Deschutes County initiated a PAPA in 2017. This rule applies.
(3) Local governments are not required to apply Goal 5 in consideration of
a PAPA unless the PAPA affects a Goal 5 resource. For purposes of this
section, a PAPA would affect a Goal 5 resource only if:
(b) The PAPA allows new uses that could be conflicting uses with a
particular significant Goal 5 resource site on an acknowledged resource
list;
Finding: Deschutes County is amending the Comprehensive Plan and
Deschutes County Code (DCC) Chapter 18.88 to permit churches in the Wildlife
Area Combining Zone in order to comply with RLUIPA. Deschutes County is
therefore required to apply Goal 5 in consideration of this PAPA.
660-23-0040 — ESEE Decision Process
(1) Local governments shall develop a program to achieve Goal 5 for all
significant resource sites based on an analysis of the economic, social,
environmental, and energy (ESEE) consequences that could result from
a decision to allow, limit, or prohibit a conflicting use.
(a) Identify the conflicting uses;
(b) Determine the impact area;
(c) Analyze the ESEE consequences;
9 OAR 660-023-0250(3)(b)
PAGE 6 OF 14 — EXHIBIT "D" TO ORDINANCE 2018-002
Finding: Deschutes County has developed a program to achieve Goal 5 for
significant sites related to deer winter range, elk habitat, and antelope range.
Through the findings below, Deschutes County has demonstrated that the
requirements of each step listed in the Oregon Administrative Rule have been
met.
660-023-0040(2)
Identify conflicting uses. Local governments shall identify conflicting uses
that exist, or could occur, with regard to significant Goal 5 resource sites.
To identify these uses, local governments shall examine land uses allowed
outright or conditionally within the zones applied to the resource site and
in its impact area. Local governments are not required to consider allowed
uses that would be unlikely to occur in the impact area because existing
permanent uses occupy the site.
Finding: The conflicting use is allowing churches within the Wildlife Area
Combining Zone. Specifically, churches and other similar uses like agri-tourism
and other commercial events, can but do not necessarily generate high levels of
public activity, noise and possibly habitat alteration.
660-023-0040(3)
Determine the impact area. Local governments shall determine an impact
area for each significant resource site. The impact area shall be drawn to
include only the area in which allowed uses could adversely affect the
identified resource. The impact area defines the geographic limits within
which to conduct an ESEE analysis for the identified significant resource
site.
Finding: The impact areas are the following designated Goal 5 inventories:
winter deer range, elk habitat, and antelope range.
660-023-0040(4)
Analyze the ESEE consequences. Local governments shall analyze the
ESEE consequences that could result from decisions to allow, limit, or
prohibit a conflicting use. The analysis may address each of the identified
conflicting uses, or it may address a group of similar conflicting uses. A
local government may conduct a single analysis for two or more resource
sites that are within the same area or that are similarly situated and subject
to the same zoning. The local government may establish a matrix of
commonly occurring conflicting uses and apply the matrix to particular
resource sites in order to facilitate the analysis. A local government may
conduct a single analysis for a site containing more than one significant
Goal 5 resource. The ESEE analysis must consider any applicable
statewide goal or acknowledged plan requirements, including the
requirements of Goal 5. The analyses of the ESEE consequences shall be
adopted either as part of the plan or as a land use regulation.
PAGE 7 OF 14 - EXHIBIT "D" TO ORDINANCE 2018-002
(a) Allow the conflicting use.
Finding: Under this scenario, Deschutes County would permit churches and
outdoor events and activities that remove vegetation and disturb mule deer, elk,
and antelope habitat without limitations.
Economic consequences: Permitting churches, consistent with RLUIPA, would
have positive consequences by allowing religious institutions, which are non-
profits, to establish a presence in certain areas of the rural county, where they
presently are not allowed, and to use land and buildings for religious purposes.
Churches also provide valuable contributions to communities in the areas of
direct economic contributions, social services and community volunteering,
education and civic skills training. Lastly, permitting churches alleviates the risk
that the County will be required to expend resources defending an unnecessary
RLUIPA lawsuit.
It could also have negative consequences based on testimony from the Oregon
Department of Fish and Wildlife (ODFW). In some parts of the county, mule deer
populations may have declined up to 70% since 2000. As a result, the
Department made adjustments to hunting seasons so as not to cause additional
declines through harvest. Their testimony identified other elements contributing
to reductions in mule deer populations tied to human caused habitat reduction,
fragmentation, and disturbance on winter range. But there was testimony of other
factors as well. ODFW estimates that hunting and wildlife viewing contributed
more than $50 million to the Deschutes County economy annually, but no
breakout was made to deer viewing or hunting.
Social consequences: Many residents testified during the Planning Commission
and Board of County Commissioner public hearings that permitting churches,
consistent with RLUIPA, would have positive consequences by preventing
discrimination on the face of zoning codes and also in the highly individualized
and discretionary processes of land use regulation. It is also recognized that
churches of all forms have long been recognized as central institutions within
American life, helping provide a sense of community and moral foundation.
Explaining why churches deserve special attention in the land use context,
Daniel Dalton's October 5th written comments quote RLUIPA's co-sponsors,
Senators Orrin Hatch and Edward Kennedy: "[t]he right to assemble for worship
is at the very core of the free exercise of religion. Churches and synagogues
cannot function without a physical space adequate to their needs and consistent
with their theological requirements. The right to build, buy, or rent such a shape
is an indispensable adjunct of the core First Amendment right to assemble for
religious purposes." Those foundational values have been codified in numerous
areas of both federal and state law, including the 1st Amendment of the U.S.
Constitution (U.S. Const. amend. 1), the aforementioned Religious Land Use and
Institutionalized Persons Act of 2000 (42 U.S.C. § 2000cc et seq.), ORS 215.441,
and ORS 215.283 (as interpreted by Brentmar v. Jackson, 321 Or 481 900 P2d
1030 (1995) and Lane County v. Land Conservation & Dev. Comm'n, 325 Or
PAGE 8 OF 14 - EXHIBIT "D" TO ORDINANCE 2018-002
569, 942 P2d 278 (1997), "subsection 1" uses — including "churches" — are
generally allowed "as of right" even in an Exclusive Farm Use zone).
It could also have negative consequences based on testimony from ODFW due
to the potential loss of wildlife habitat stemming from the possible removal of
habitat areas and potentially the construction of structures and their associated
human presence. Many residents testified during the Planning Commission and
Board of County Commissioner public hearings expressing their appreciation for
wildlife habitat and the importance of protecting it as a defining feature
contributing to Deschutes County's quality of life.
Environmental consequences: People testified that the actual impact on deer
populations from new churches would be minimal. Permitting churches could
result in further negative impacts to designated habitat for deer winter range, elk
habitat and antelope range. Based on testimony from ODFW, mule deer
populations have declined up to 70% since 2000. Their testimony identified other
elements contributing to reductions in mule deer populations tied to human
caused habitat reduction, fragmentation, and disturbance on winter range
Enerav consequences: Energy consumption is unlikely to be affected by this
scenario.
(b) Prohibit conflicting uses.
Finding: In this scenario, Deschutes County would continue to prohibit churches
within designated winter deer range, elk habitat, and antelope range.
Economic consequences: Prohibiting churches would have negative
consequences, not only because it prevents religious institutions from using their
land and building for religious purposes, but it could also subject Deschutes
County to a federal lawsuit for violating RLUIPA.
It could also have positive consequences based on testimony from ODFW.
Prohibiting churches could contribute to stabilizing mule deer populations,
thereby maintaining economic benefits from wildlife viewing or hunting.
Social consequences: Prohibiting churches would have negative consequences
because it could be viewed as discriminating against religious exercise of
churches or other religious assemblies or institutions in violation of RLUIPA due
to treating them on less equal terms with nonreligious institutions.
It could also have positive consequences. Many residents testified during the
Planning Commission and Board of County Commissioner public hearings
expressing their appreciation for wildlife habitat and the importance of protecting
it as contributing to Deschutes County's quality of life.
Environmental consequences: This scenario would continue to prohibit churches,
thereby preventing a use that can generate high levels of public activity, noise
and habitat alteration.
PAGE 9 OF 14 - EXHIBIT "D" TO ORDINANCE 2018-002
Enerav consequences: Energy consumption is unlikely to be affected by this
scenario.
(c) Limit conflicting uses.
Finding: In this scenario, habitat needs of mule deer, elk, and antelope could be
balanced with RLUIPA requirements for allowing churches in the WA Zone.
Economic consequences: Permitting churches subject to certain limitations,
consistent with RLUIPA, would have positive consequences by allowing religious
institutions, which are non -profits, to establish a presence in certain areas of the
rural county, where they presently are not allowed and to use land and buildings
for religious purposes. Churches also provide valuable contributions to
communities in the areas of direct economic contributions, social services and
community volunteering, education and civic skills training, and reduced levels of
deviance. Lastly, permitting churches alleviates the risk that the County will be
required to expend resources defending an unnecessary RLUIPA lawsuit.
Any limitations imposed on churches pursuant to this option, however, could
nevertheless still require the County to expend resources defending a lawsuit to
demonstrate that those limitations are consistent with RLUIPA, i.e. that the
limitations are equally imposed on nonreligious assemblies and institutions and
that the limitations do not imposes a substantial burden on the religious exercises
of a person, religious assembly, or religious institution. Likewise, allowing
churches even with limitations still could also have negative consequences
based on testimony from the Oregon Department of Fish and Wildlife (ODFW). In
some parts of the county, mule deer populations have declined up to 70% since
2000. As a result, the Department made adjustments to hunting seasons so as
not to cause additional declines through harvest. Their testimony identified other
elements contributing to reductions in mule deer populations tied to human
caused habitat reduction, fragmentation, and disturbance on winter range. ODFW
estimates that hunting and wildlife viewing contributed more than $50 million to
the Deschutes County economy annually.
Social consequences: Permitting churches subject to certain limitations,
consistent with RLUIPA, would have positive consequences by preventing
discrimination against on the face of zoning codes and also in the highly
individualized and discretionary processes of land use regulation. It is also
recognized that American constitutional founders and more recently federal
lawmakers in 2000, viewed churches as a central institution within American life,
because religion provided the moral foundation of self-reliance and community
awareness necessary for the success of republican self-government. Those
cultural values have been codified in numerous areas of both federal and state
law, including the 1st Amendment of the U.S. Constitution (U.S. Const. amend. I),
the aforementioned Religious Land Use and Institutionalized Persons Act of 2000
(42 U.S.C. § 2000cc et seq.), ORS 215.441, and ORS 215.283 (as interpreted by
Brentmar v. Jackson, 321 Or 481 900 P2d 1030 (1995) and Lane County v. Land
Conservation & Dev. Comm'n, 325 Or 569, 942 P2d 278 (1997), "subsection 1"
PAGE 10 OF 14 - EXHIBIT "D" TO ORDINANCE 2018-002
uses — including "churches" — are generally allowed "as of right" even in an
Exclusive Farm Use zone).
It could also have negative consequences based on testimony from ODFW due
to the potential loss of wildlife habitat stemming from potentially the removal of
hundreds of acres of habitat and construction of structures and their associated
human presence. Many residents testified during the Planning Commission and
Board of County Commissioner public hearings expressing their appreciation for
wildlife habitat and the importance of protecting it as a defining feature
contributing to Deschutes County's quality of life.
Environmental consequences: This scenario, while allowing churches in the deer
winter range, elk habitat, and antelope range, could mitigate for impacts
associated with churches and other similar uses like agri-tourism and other
commercial events, which can generate high levels of public activity, noise and
habitat alteration.
Energy consequences: Energy consumption is unlikely to be affected by this
scenario.
660-023-0040(5)
Develop a program to achieve Goal 5. Local governments shall determine
whether to allow, limit, or prohibit identified conflicting uses for significant
resource sites. This decision shall be based upon and supported by the
ESEE analysis. A decision to prohibit or limit conflicting uses protects a
resource site. A decision to allow some or all conflicting uses for a
particular site may also be consistent with Goal 5, provided it is supported
by the ESEE analysis. One of the following determinations shall be reached
with regard to conflicting uses for a significant resource site:
(a) A local government may decide that a significant resource site is of
such importance compared to the conflicting uses, and the ESEE
consequences of allowing the conflicting uses are so detrimental to the
resource, that the conflicting uses should be prohibited.
(b) A local government may decide that both the resource site and the
conflicting uses are important compared to each other, and, based on the
ESEE analysis, the conflicting uses should be allowed in a limited way that
protects the resource site to a desired extent.
(c) A local government may decide that the conflicting use should be
allowed fully, notwithstanding the possible impacts on the resource site.
The ESEE analysis must demonstrate that the conflicting use is of
sufficient importance relative to the resource site, and must indicate why
measures to protect the resource to some extent should not be provided,
as per subsection (b) of this section.
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Finding: Deschutes County has determined, consistent with subsection (c), that
allowing churches within a Wildlife Area Combining Zone should be allowed fully,
notwithstanding the possible impacts on the winter deer range, elk habitat and
antelope range.
As previously noted, LUBA Order No. 2016-103 interpreted the Deschutes
County Code ("DCC"), and specifically DCC 18.88.040(B), to not allow churches
in the portion of the Wildlife Area Overlay Zone designated as deer winter
ranges, significant elk habitat or antelope range. Despite state statutes such as
ORS 215.283 and ORS 215.441, and case law such as Brentmar v. Jackson
County, 321 Or 481, 900 P2d 1030 (1995) and Lane County v. Land
Conservation & Dev. Comm'n, 325 Or 569, 942 P2d 278 (1997), LUBA
determined that "the DCC 18.88 provisions that implement Goal 5 certainly could
limit or prohibit uses on winter range that would otherwise be authorized on
agricultural land under ORS 215.283(1)."
The Board of County Commissioners agrees with and intends for the Deschutes
County Code to mirror the cultural values underpinning numerous religious
protections codified in federal and state law as well as appreciation for a
significant and heathy wildlife presence in Deschutes County. Further, the Board
of County Commissioners does not agree with LUBA's interpretation contained in
Order No. 2016-103 that churches were intended to be prohibited in the Wildlife
Area Overlay Zone designated as deer winter ranges, significant elk habitat or
antelope range. Last, the Board finds that LUBA's interpretation of the
Deschutes County Code is contrary to the Board's intent, potentially contrary to
aforementioned state law and the federal RLUIPA statue, and thereby exposes
Deschutes County to unnecessary litigation and/or legal liability.
660-023-0050(1)
For each resource site, local governments shall adopt comprehensive plan
provisions and land use regulations to implement the decisions made
pursuant to OAR 660-023-0040(5). The plan shall describe the degree of
protection intended for each significant resource site. The plan and
implementing ordinances shall clearly identify those conflicting uses that
are allowed and the specific standards or limitations that apply to the
allowed uses. A program to achieve Goal 5 may include zoning measures
that partially or fully allow conflicting uses (see OAR 660-023-0040(5)(b)
and (c)).
Finding: As noted above, Deschutes County has determined that allowing
churches within a Wildlife Area Combining Zone should be allowed fully,
notwithstanding the possible impacts on the winter deer range, elk habitat and
antelope range. The Comprehensive Plan has been updated to reflect this
decision.
660-023-0050(2)
PAGE 12 OF 14 - EXHIBIT "D" TO ORDINANCE 2018-002
When a local government has decided to protect a resource site under OAR
660-023-0040(5)(b), implementing measures applied to conflicting uses on
the resource site and within its impact area shall contain clear and
objective standards. For purposes of this division, a standard shall be
considered clear and objective if it meets any one of the following criteria:
(a) It is a fixed numerical standard, such as a height limitation of 35 feet or
a setback of 50 feet;
(b) It is a nondiscretionary requirement, such as a requirement that grading
not occur beneath the dripline of a protected tree; or ...
Finding: Deschutes County has determined that allowing churches within a
Wildlife Area Combining Zone should be allowed fully, notwithstanding the
possible impacts on the winter deer range, elk habitat and antelope range.
660-023-0050(3)
In addition to the clear and objective regulations required by section (2) of
this rule, except for aggregate resources, local governments may adopt an
alternative approval process that includes land use regulations that are not
clear and objective (such as a planned unit development ordinance with
discretionary performance standards), provided such regulations:
(a) Specify that landowners have the choice of proceeding under either the
clear and objective approval process or the alternative regulations; and
(b) Require a level of protection for the resource that meets or exceeds the
intended level deter -mined under OAR 660-023-0040(5) and 660-023-
0050(1).
Finding: Deschutes County has determined that allowing churches within a
Wildlife Area Combining Zone should be allowed fully, notwithstanding the
possible impacts on the winter deer range, elk habitat and antelope range.
• Goal 6, Air, Water and Land Resources Quality and Goal 7, Natural Hazards
are met because the County has other code provisions pertaining to churches,
DCC 18.16.025, Uses Permitted Subject to Special Provisions; 18.116,
Supplementary Provisions; 18.124, Site Plan Review; and DCC 18.128
Conditional Use that are designed to protect air, water and land resources quality
and to assure that they are not approved in areas subject to natural resources
and natural hazards.
• Goal 8, Recreational Needs, is not applicable because churches are
institutional uses, not a recreational use or need.
• Goal 9, Economic Development, is not applicable because while a church can
lead to new construction, it is an institutional use, not a source of economic
development by providing a multitude of jobs.
PAGE 13 OF 14 - EXHIBIT "D" TO ORDINANCE 2018-002
• Goal 10, Housing is not applicable because, unlike municipalities,
unincorporated areas are not obligated to fulfill certain housing requirements.
• Goal 11, Public Facilities is not applicable because churches in the rural county
typically rely on domestic wells and onsite wastewater treatment systems. A Goal
11 exception would be required for a centralized sewer system.
• Goal 12, Transportation, is addressed during land use review for a church
proposal. The County has a code provision that pertains to Traffic Impact
Studies, DCC 18.116.310 and a Board Resolution, 2013-020, which sets a
transportation system development charge rate of $3,937 per peak hour trip.
• Goal 13, Energy Conservation, is addressed during land use review for a
church proposal through Deschutes County's Solar Height Restrictions, DCC
18.116.170 and the Uniform Building Code.
• Goal 14, Urbanization, is not applicable because no expansion of an urban area
is proposed with these amendments.
• Goals 15 through 19 are not applicable to any amendments to the County's
comprehensive plan because the county has none of those types of lands.
C. Deschutes County Comprehensive Plan
Chapter 2, Resource Management
Section 2.6, Wildlife Policies
2.6.3 Ensure Goal 5 wildlife inventories and habitat protection programs are up-to-date
through public processes and expert sources, such as the 2009 Interagency
Report.
FINDING: In a recent LUBA opinion reversing a Deschutes County Hearings Officer
decision approving a church on a parcel zoned for EFU and within a Wildlife Area
Combining Zone, LUBA ruled that the uses listed in DCC 18.88.040(B) are deemed to
be inherently incompatible with winter range and are uniformly prohibited on winter
range in all cases. LUBA also determined that the intervenor's (applicant) argument
was "undeveloped." RLUIPA prohibits a government from imposing a land use
regulation in a manner that treats a religious assembly or institution on less than equal
terms with a non -religious assembly or institution. Based on this analysis, the following
code amendments ensure compliance with applicable state law and RLUIPA.
D. Additional Findings
1 No provision in the Deschutes County Code, as currently existing or hereafter
amended, is intended to regulate or limit religious accessory uses to a residential
property such as "house church" activities, bible studies, scout meetings, etc.
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