Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
2018-10-Minutes for Meeting November 01,2017 Recorded 1/4/2018
i Recorded in Deschutes County CJ2018-10 Nancy Blankenship, County Clerk Commissioners' Journal 01/04/2018 11:41:33 AM 11111111111111111111111 1111 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 BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS Wednesday, November 1, 2017 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Tammy Baney, Phil Henderson and Anthony DeBone. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David Doyle, County Counsel; and Sharon Ross, Board Executive Secretary. Two representatives of the media were in attendance. CALL TO ORDER: Chair Baney called the meeting to order at 10:00 a.m. PLEDGE OF ALLEGIANCE CITIZEN INPUT: None was offered. CONSENT AGENDA: Before the Board was Consideration of Approval of the Consent Agenda. The item was pulled from the Consent Agenda to Action Items for discussion. Minutes of Board of Commissioners' Business Meeting November 1, 2017 Page 1 of 6 Consent Agenda Items: 1. Consideration of Board Signature of Order No. 2017-045, Declaring Certain Deschutes County Personal Property Surplus and Authorizing Sale. ACTION ITEMS Consent Agenda Item 1 as pulled for discussion: Consideration of Board Signature of Order No. 2017-045, Declaring Certain Deschutes County Personal Property Surplus and Authorizing Sale. Randy McCulley, Fleet Manager reviewed the items of the surplus list. DEBONE: Move approval. HENDERSON: Second. VOTE: DEBONE: Yes. HENDERSON: Yes. BANEY: Chair votes yes. Motion Carried 2. THE READING OF THE PROCLAMATION: Proclaming Deschutes County a Medal of Honor County County Administrator Anderson spoke on the inspiring story behind this Proclamation. Commissioner Baney read the proclamation into the record. DEBONE: Move approval. HENDERSON: Second. VOTE: DEBONE: Yes. HENDERSON: Yes. BANEY: Chair votes yes. Motion Carried Bill Maxwell, WWII Medal of Honor recipient along with Dick Tobiason, Chairman, Bend Heroes Foundation and Project Manager of the Oregon Medal of Honor Highway were present for the proclamation. Mr. Tobiason spoke on the Oregon Medal of Honor sign project. Mr. Maxwell autographed three Medal of Honor books to the Commissioners. Mr. Maxwell presented commemorative coins to the Commissioners, County Administrator and Board Executive Secretary. Minutes of Board of Commissioners' Business Meeting November 1, 2017 Page 2 of 6 Item 6 was moved next on the agenda: Consideration of First and Second Reading by Title Only, and Adoption by Emergency, of Ordinance No. 2017-007 and Ordinance No. 2017- 008, Approving a Plan Amendment and Zone Change Derek Hopp, Attorney and Carol Hopp presented information regarding House Bill 4079 Pilot Program. Discussion held on the land meeting or not meeting certain criteria. DEBONE: Move approval of first and second reading of Ordinance No. 2017-007 by title only and adoption by emergency HENDERSON: Second Chair Baney read into the record first reading only by title only. Chair Baney read into the record second reading only by title only. DEBONE: Move adoption of Ordinance No. 2017-007 HENDERSON Second VOTE: DEBONE: Yes HENDERSON: Yes BANEY: Chair votes yes. Motion Carried DEBONE: Move approval of first and second reading of Ordinance No. 2017-008 by title only and adoption by emergency HENDERSON: Second VOTE: DEBONE: Yes HENDERSON: Yes BANEY: Chair votes yes. Motion Carried Chair Baney read into the record first reading only by title only. Chair Baney read into the record second reading only by title only. Minutes of Board of Commissioners' Business Meeting November 1, 2017 Page 3 of 6 DEBONE: Move adoption of Ordinance No. 2017-008 HENDERSON: Second VOTE: DEBONE: Yes HENDERSON: Yes BANEY: Chair votes yes. Motion Carried 3. Consideration of Signature of Document No. 2017-679, Intent to Award to M.A. DeAtley Construction, Inc. Timm Schmike, Director of Solid Waste Operations presented the item for consideration. The project relates to the construction of the next cell at Knott Landfill. Six bids were received. MA DeAtley's bid is below the engineer's assessment. HENDERSON: Move approval DEBONE: Second VOTE: HENDERSON: Yes DEBONE: Yes BANEY: Chair votes yes. Motion Carried 4. Consideration of Board Signature of Ordinance 2017-015, Amending Deschutes County Code Title 18, Deschutes County Zoning; and Title 22, Deschutes County Development Procedures Ordinance and Declaring an Emergency Peter Gutowsky, Community Development and Adam Smith, Assistant Legal Counsel. To explain why the Ordinance was requested to be adopted by emergency, Mr. Gutowsky explained it would eliminate the need of 96% of the inquiries from the property owners affected by our current code. HENDERSON: Move approval of first and second reading of Ordinance No. 2017-015 by title only and declaring an emergency DEBONE: Second Minutes of Board of Commissioners' Business Meeting November 1, 2017 Page 4 of 6 VOTE: HENDERSON: Yes DEBONE: Yes BANEY: Chair votes yes. Motion Carried Chair Baney read into the record first reading only by title only. Chair Baney read into the record second reading only by title only. HENDERSON: Move adoption of Ordinance No. 2017-015 DEBONE: Second VOTE: HENDERSON: Yes DEBONE: Yes BANEY: Chair votes yes. Motion Carried 5. Consideration of Board Signature of Document No. 2017-652 an Outdoor Mass Gathering Permit (4 Peaks Music Festival) Cynthia Smidt, Community Development, presented this item for consideration. Ms. Smidt noted at the last hearing she presented some of the prominent issues that are also included in the agenda packet. Commissioner Henderson expressed his concerns with safety issues and the event and also requested a map showing the location where the canal crosses the property. Commissioner Henderson doesn't feel there is satisfaction of the complaints. Ms. Smidt spoke on the requirements of the County Code. Commissioner Henderson also proposed security posted on the perimeter at all times as a condition of approval. Ms. Smidt will revise with the condition of security plan subject to approval by the Community Development Department and the Sheriff's Office. Commissioner DeBone inquired on the hours of the silent disco portion of the event's activity and commented he is not inclined to support it but would support the yoga portion of the event activity. Asking for variance; Commissioner DeBone supportive of 8am vs 9am. Commissioner Henderson is OK with those hours as is Commissioner Baney. Minutes of Board of Commissioners' Business Meeting November 1, 2017 Page 5 of 6 Concern on extending the hours that would impact noise. Ms. Smidt will include conditions on decibel levels and hours. In the staff report there was concern about fire safety. Language was added to condition 19 regarding water supply available. There was concern of fires on site which are prohibited. The event organizer is also requesting a waiver for the ambulance requirement and will be using Adventure Medics. DEBONE: Move approval as amended. HENDERSON: Second VOTE: DEBONE: Yes HENDERSON: Yes BANEY: Chair votes yes. Motion Carried OTHER ITEMS: None were offered. ADJOURN: Being no further items to come before the Board, the meeting was adjourned at 11:55 a.m. DATED this II- Day of vdt Am of jr- 2017 for the Deschutes County Board of Commissioners. TTEST: kW. LUNiANW., ecordir' Secretary Minutes of Board of Commissioners' Business Meeting Tammy Baney, Chai Anthony DeBone, Vice Chair Philip G. H erson, Commissioner November 1, 2017 Page 6 of 6 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 AM, WEDNESDAY, NOVEMBER 1, 2017 Barnes and Sawyer Rooms - Deschutes Services Center — 1300 NW Wall Street — Bend Pursuant to ORS 192.640, this agenda includes a list of the principal subjects anticipated to be considered or discussed at the meeting. This notice does not limit the ability of the Board to address additional subjects. Meetings are subject to cancellation without notice. This meeting is open to the public and interested citizens are invited to attend. Business Meetings are usually recorded on video and audio, and can be viewed by the public live or at a later date; and written minutes are taken for the record. CALL TO ORDER PLEDGE OF ALLEGIANCE CITIZEN INPUT This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues that are not already on the agenda. Please complete a sign-up card (provided), and give the card to the Recording Secretary. Use the microphone and clearly state your name when the Board Chair calls on you to speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing not being conducted as a part of this meeting will NOT be included in the official record of that hearing. If you offer or display to the Board any written documents, photographs or other printed matter as part of your testimony during a public hearing, please be advised that staff is required to retain those documents as part of the permanent record of that hearing. CONSENT AGENDA 1. Consideration of Board Signature of Order No. 2017-045, Declaring Certain Deschutes County Personal Property Surplus and Authorizing Sale ACTION ITEMS 2. THE READING OF a PROCLAMATION: Proclaming Deschutes County a Medal of Honor County - Tom Anderson, County Administrator Board of Commissioners Business Meeting Agenda of 3 Wednesday, November 1, 2017 Page 1 3. Consideration of Signature of Document No. 2017-679, Intent to Award Contract to M.A. DeAtley Construction, Inc. - Timm Schimke, Director of Solid Waste 4. Consideration of Board Signature of Ordinance No. 2017-015, Amending Deschutes County Code Title 18, Deschutes County Zoning; and Title 22, Deschutes County Development Procedures Ordinance and Declaring an Emergency - Peter Gutowsky, Planning Manager 5. Consideration of Board Signature of Document No. 2017-652 an Outdoor Mass Gathering Permit (4 Peaks) - Cynthia Smidt, Associate Planner 6. CONSIDERATION of First and Second Readings by Title Only, and Adoption by Emergency, of Ordinance No. 2017-007 and Ordinance No. 2017-008, Approving a Plan Amendment and Zone Change - Chris Schmoyer, Associate Planner Add -On 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. At any time during the meeting, an executive session could be called to address issues relating to ORS 192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor negotiations; ORS 192.660(2)(b), personnel issues; or other executive session categories. Executive sessions are closed to the public; however, with few exceptions and under specific guidelines, are open to the media. ADJOURN To watch this meeting on line, go to: www.deschutes.orq/meetinqs Please note that the video will not show up until recording begins. You can also view past meetings on video by selecting the date shown on the website calendar. Board of Commissioners Business Meeting Agenda of 3 Wednesday, November 1, 2017 Page 2 ®®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 Business Meeting Agenda of 3 Wednesday, November 1, 2017 Page 3 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 Business Meeting of November 1, 2017 DATE: October 24, 2017 FROM: Tom Anderson, Administrative Services, 541-388-6565 TITLE OF AGENDA ITEM: THE READING OF a PROCLAMATION: Proclaming Deschutes County a Medal of Honor County For Recording Stamp Only BEFORE THE BOARD OF COMMISSIONERS OF DESCHUTES COUNTY, OREGON PROCLAMATION RECOGNIZING DESCHUTES COUNTY AS MEDAL OF HONOR COUNTY WHEREAS, the Medal of Honor is our nation's highest award for valor presented to an individual of our nation's Armed Forces for acting with conspicuous gallantry and intrepidity above and beyond the call of duty during combat and at the risk of death to oneself while saving others; and WHEREAS, Oregon has been home to 26 Medal of Honor recipients from the U.S. Army, U.S. Army Air Forces, U.S. Navy and U.S. Marine Corps who served in eight wars in ten countries during a period of 108 years beginning with the Civil War and ending with the Vietnam War; and WHEREAS, Mr. Robert D. Maxwell of Bend, a WWII Medal of Honor recipient and at the age of 97 is the oldest of all 73 Medal of Honor recipients of all wars living in our nation, resides in Deschutes County, is the only Medal of Honor recipient living in Oregon and is a Director of the non-profit Bend Heroes Foundation; and WHEREAS, during the 79th Legislative Assembly the Oregon Legislature and Governor Kate Brown, at the request of the Bend Heroes Foundation designated all 451 miles of US Highway 20 in Oregon between Newport and the Oregon/Idaho border as the "Oregon Medal of Honor Highway" (House Bill 2100), a first of a kind tribute in our nation to the "Bravest of the Brave" wartime veterans; and WHEREAS, Deschutes County is the only county in Oregon home to a living Medal of Honor recipient and will be the first "Medal of Honor County" so designated in the United States of America; and WHEREAS, Deschutes County citizens deeply appreciate the service and sacrifice of our nation's Medal of Honor recipients and the positive roles they have played in their communities across our nation for over 150 years. NOW THEREFORE, BE IT RESOLVED that the Deschutes County Board of Commissioners: hereby proudly proclaims Deschutes County as "Medal of Honor County". Dated this day of Board of Commissioners. ATTEST: Recording Secretary 20 by the Deschutes County Tammy Baney, Chair Anthony DeBone, Vice Chair Philip G. Henderson, Commissioner G w:,.,' N .0 -\ o4�tia K�,_ -< Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ -(ES AGENDA REQUEST & STAFF REPORT For Board of Commissioners Business Meeting of October 30, 2017 DATE: October 25, 2017 FROM: Chris Schmoyer, Community Development, 541-317-3164 TITLE OF AGENDA ITEM: Consideration of Board Signature of Ordinance No. 2017-007 and Ordinance No. 2017-008, Approving a Plan Amendment and Zone Change RECOMMENDATION & ACTION REQUESTED: CONSENT AGENDA ITEM: Consideration of signing Decision and ordinances 2017-007 and 2017-008 approving a plan amendment and zone change from Agriculture/EFU-TRB to Rural Residential Exception Area/MUA-10 for an approximate 35 acre parcel east of Bend. Applicant is Porter Kelly Burns Landholdings, LLC. Community Development Department Planning Division Huilding Safety Division Environmental Sods Division P,0, Bax 6005 117 NW Lafayette Avenue Bend; Oregon 97708-6C05 Phone: (541) 388-6575 Fax (541) 385-1764 http //w mdeschutes,orgicd MEMORANDUM DATE: October 24, 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 The applicant, Porter Kelly Burns Landholdings, LLC 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 subject property is approximately 35.32 -acres abutting the City of Bend Urban Growth Boundary. Its assigned address is 21455 Highway 20, Bend. It is also identified on County Tax Map 17-12-35 as Tax Lot 1500. I. BACKGROUND Stephanie Hicks, a County Hearings Officer, issued a decision of approval on November 22, 2016. The Board of County Commissioners (Board) held a de novo public hearing on Monday, June 5, 2017, deliberated on September 27, and voted to approve it. Staff was then directed to coordinate with the applicant's attorney to finalize a Board decision. It is included as Exhibit E to Ordinance 2017-007. 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. II. CONDITION OF APPROVAL AGREEMENT The Conditions of Approval Agreement limits future division of the property to a cluster development. The two existing irrigation ponds shall be included in the open space or common area of the cluster development. This condition remains in place as long as the subject property retains its MUA-10 zoning or other rural exceptions area zoning that allows cluster development. County legal counsel reviewed the agreement and found it to be acceptable. It is included as Exhibit F to Ordinance 2017-007. III. ORDINANCES NOS. 2017-007 / 008 Attached are two versions of Ordinances Nos. 2017-007 and 008. One set is formatted for adoption by emergency and the other includes first and second readings with dates to be determined. Liz Fancher, the applicant's attorney, respectfully requests the Board adopt the by emergency because the applicant recently discovered that the City of Bend plans to file an application with the State of Oregon Land Conservation and Development Commission seeking permission to participate in the UGB expansion pilot program. To be eligible the property must be zoned MUA-10; not EFU-TRB. The deadline for the City application is November 1, 2017. If Quality erviceti Per rine* rvitlz i'a at selected, the property would be developed with a mix of affordable and market rate housing. (See Attachment 1) Attachments: 1. Liz Fancher Letter. 2. 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" — Board Decision (includes HO decision as attachment) "F" — Conditions of Approval Agreement 3. Ordinance 2017-008 (Title 18 amendment) Exhibits: "A" — Zone Map "B" - Legal Description of Property NOTE: The complete written record is available on the Deschutes County Property Information website: http://dial.deschutes.orq/Real/DeveloomentDocs/119047 Staff Memo to BOCC, File Nos. 247-16-000317-ZC and 247 -16 -000318 -PA 2 LIZ FA N C H f2, ATTORNEY 1 iz 1 :lncher Sue Stinson, Paralegal October 18. 2017 BOARD OF COUNTY COMMISSIONERS DESCH1 )1'1::S COUNTY I'(7 BOX 6005 BENZ), OR 97708-61)05 Re: File No. 247 -16 -000317 -Z17247 -16 -000318 -PA Porter Kelly Burns Landholdings Plan Amendment and Zone Change from ITU to Not A 10/Agricultural to Exceptions Area 1 ant writing on behalf of Porter Kelly Burns Landholdings, LLC to ask that the Board adopt the plan amendment and zone change it recently approved by emergency ordinance. Porter Kelly burns has learned that the City of fiend plots to file an application with the State of Oregon Land Conservation and Development Commission seeking permission to participate in the tJ(rl expansion pilot program recently authorized by the Oregon .Legislature. 'lite city plans to list four properties as potential candidates for the program. To he eligible for inclusion in the UGI3 under rules for the program, the Porter Kelly Burns property must be coned MU A-10; not FFU-'I'RB, The deadline for the City application is November 1, 2017. A part ol'the Porter Kelly Bums property tahout 1.5 acres) i, located in the Bend LIG13. It is designated to be developed with RLI -density affordable housing, The approximately 35 - acre property you recently voted to approve for MUT-10 zoning is also a good candidate for the pilot program and for development with a mix of affordable housing and market rate housing. It is adjoins the Bend t'GB. has road frontage on highway 97 and Bear Creek Road and is in close proximity to public transit routes, grocery stores, and other commercial developments that offer services for Bend residents. Liz 1'aneher Cu: client 611 N\\` ril“).11)\\`,\1` �`I R1'li'1' • 131'.\1), (11t1.GON • 97-01 1'111}1.1:: 541- i55 itiG" • 1'.1\: 5-41 385 07o Attachment 1 to Staff Memo IEWED R / LEGAL COUNSEL For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Deschutes County Code, Title 23, and Amending Deschutes County Comprehensive Plan, Section 5.12 and to Change the Plan Designation for Certain Property From Agriculture to Rural Residential Exception Area. ORDINANCE NO. 2017-007 WHEREAS, Kelly Porter Burns Landholdings, LLC applied for a Comprehensive Plan Amendment to Deschutes County Code ("DCC"), Section 23.01.010, Introduction, and Deschutes County Comprehensive Plan, Section 5.12, Legislative History, to change the comprehensive plan designation of certain property from Agriculture to Rural Residential Exception Area; and WHEREAS, after notice was given in accordance with applicable law, a 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 Residential Exception Area; now therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. AMENDMENT. DCC Section 23.01.010, Introduction, is amended to read as described in Exhibit "A" attached and incorporated by reference herein, with new language underlined. Section 2. AMENDMENT. Deschutes County Comprehensive Plan Section 5.12, Legislative History, is amended to read as described in Exhibit "B," attached and incorporated by reference herein with new language underlined. Section 3. AMENDMENT. The Deschutes County Comprehensive Plan Map is amended to change the plan designation for certain property described in Exhibit "C" and depicted on the map set forth as Exhibit "D," with both exhibits attached and incorporated by reference herein, from Agriculture to Rural Residential Exception Area. Section 4. FINDINGS. The Board adopts as it findings in support of this Ordinance, a Board Decision and Hearings Officer Decision, Exhibit "E," and incorporated by reference herein. There is one exception with the Hearings Officer decision. The Board's approval recognizes that if the property is divided, it shall be developed as a cluster development. The two existing irrigation ponds shall be included in the open space or PAGE 1 OF 2 - ORDINANCE NO. 2017-007 common area of the cluster development. This condition remains in place as long as the subject property retains its MUA-10 zoning or other rural exceptions area zoning that allows cluster development. Section 5. CONDITION OF APPROVAL AGREEMENT. In lieu of the conditions recommended by the hearings officer, the Board has required the applicant to sign the Conditions of Approval agreement, "Exhibit "F," attached and incorporated by reference herein. This requirement has been imposed at the request of the applicant and 1000 Friends of Oregon to assure that future rural residential development of the property will be harmonious with existing development in the area and so that a part of the property may be developed at urban densities if and when the property is annexed to the City of Bend. Dated this of , 2017 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ATTEST: Recording Secretary TAMMY BANEY, Chair ANTHONY DeBONE, Vice Chair PHILIP G. HENDERSON, Commissioner Date of Is` Reading: day of , 2017. Date of 2"d Reading: day of , 2017. Record of Adoption Vote Commissioner Yes No Abstained Excused Tammy Baney Anthony DeBone Philip G. Henderson Effective date: day of , 2017. PAGE 2 OF 2 - ORDINANCE NO. 2017-007 For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Deschutes County Code, Title 23, and Amending Deschutes County Comprehensive Plan, Section 5.12 and to Change the Plan Designation for Certain Property From Agriculture to Rural Residential Exception Area. ORDINANCE NO. 2017-007 WHEREAS, Kelly Porter Burns Landholdings, LLC applied for a Comprehensive Plan Amendment to Deschutes County Code ("DCC"), Section 23.01.010, Introduction, and Deschutes County Comprehensive Plan, Section 5.12, Legislative History, to change the comprehensive plan designation of certain property from Agriculture to Rural Residential Exception Area; and WHEREAS, after notice was given in accordance with applicable law, a public hearing was held on September 27, 2016 before the Deschutes County I learings 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 Residential Exception Area; now therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. AMENDMENT. DCC Section 23.01.010, Introduction, is amended to read as described in Exhibit "A" attached and incorporated by reference herein, with new language underlined. Section 2. AMENDMENT. Deschutes County Comprehensive Plan Section 5.12, Legislative History, is amended to read as described in Exhibit "B," attached and incorporated by reference herein with new language underlined. Section 3. AMENDMENT. The Deschutes County Comprehensive Plan Map is amended to change the plan designation for certain property described in Exhibit "C" and depicted on the map set forth as Exhibit "D," with both exhibits attached and incorporated by reference herein, from Agriculture to Rural Residential Exception Area. Section 4. FINDINGS. The Board adopts as it findings in support of this Ordinance, a Board Decision and Hearings Officer Decision, Exhibit "E," and incorporated by reference herein. There is one exception with the Hearings Officer decision. The Board's approval recognizes that if the property is divided, it shall be developed as a cluster development. The two existing irrigation ponds shall be included in the open space or PAGE 1 OF 2 - ORDINANCE NO. 2017-007 common area of the cluster development. This condition remains in place as long as the subject property retains its MUA-10 zoning or other rural exceptions area zoning that allows cluster development. Section 5. CONDITION OF APPROVAL AGREEMENT. In lieu of the conditions recommended by the hearings officer, the Board has required the applicant to sign the Conditions of Approval agreement, "Exhibit "F," attached and incorporated by reference herein. This requirement has been imposed at the request of the applicant and 1000 Friends of Oregon to assure that future rural residential development of the property will be harmonious with existing development in the area and so that a part of the property may be developed at urban densities if and when the property is annexed to the City of Bend. Section 6. EMERGENCY. This ordinance being necessary for the preservation of the public peace, health and safety, an emergency is(declared to exist and this Ordinance takes effect on its passage. Dated this / of Ala I fixer, 2017 It:girding Secretary Date of 1S1 Reading: Date of 2nd Reading: Commissioner Tammy Baney Anthony DeBone Philip G. Henderson day of%JaJc.vn.k' , 2017. day of NoIt,r kr , 2017. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON TAMMY BA EY, C ANTHONY DeBONE, dice chair stJ PHILIP Record of Adoption Vote Yes No Abstained Excused x X Effective date: f day of JJ IM'.Le , 2017. PAGE 2 OF 2 - ORDINANCE NO. 2017-007 ENDERSON, Commissioner Chapter 23.01 COMPREHENSIVE PLAN Chapter 23.01 COMPREHENSIVE PLAN 23.01.010. Introduction. A. The Deschutes County and found on the Deschutes Co by reference herein. B. The Deschutes County 2011-027, are incorporated by C. The Deschutes County 2012-005, are incorporated by D. The Deschutes County 2012-012, are incorporated by E. The Deschutes County 2012-016, are incorporated by F. The Deschutes County 2013-002, are incorporated by G. The Deschutes County 2013-009, are incorporated by H. The Deschutes County 2013-012, are incorporated by I. The Deschutes County 2013-007, are incorporated by J. The Deschutes County 2014-005, are incorporated by K. The Deschutes County 2014-006, are incorporated by L. The Deschutes County 2014-012, are incorporated by M. The Deschutes County 2014-021, are incorporated by N. The Deschutes County 2014-027, are incorporated by O. The Deschutes County 2015-021, are incorporated by P. The Deschutes County 2015-029, are incorporated by Q. The Deschutes County 2015-018, are incorporated by R. The Deschutes County 2015-010, are incorporated by S. The Deschutes County 2016-001, are incorporated by T. The Deschutes County 2016-022, are incorporated by U. The Deschutes County 2016-005, are incorporated by Comprehensive Plan, adopted by the Board in Ordinance 2011-003 unty Community Development Department website, is incorporated Comprehensive reference herein Comprehensive reference herein Comprehensive reference herein Comprehensive reference herein Comprehensive reference herein Comprehensive reference herein Comprehensive reference herein Comprehensive reference herein Comprehensive Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance Plan amendments, adopted by the Board in Ordinance reference herein. Comprehensive Plan amendments, reference herein. Comprehensive Plan amendments, reference herein. Comprehensive Plan amendments, reference herein. Comprehensive Plan amendments, reference herein. Comprehensive Plan amendments, reference herein. Comprehensive Plan amendments, reference herein. Comprehensive Plan amendments, reference herein. Comprehensive Plan amendments, reference herein. Comprehensive Plan amendments, adopted by the Board in Ordinance reference herein. Comprehensive Plan amendments, adopted by the Board in Ordinance reference herein. Comprehensive Plan amendments, adopted by the Board in Ordinance reference herein. 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 PAGE 1 OF 2 — EXHIBIT "A" TO ORDINANCE 2017-007 V. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2016-027, are incorporated by reference herein. W. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2016-029, are incorporated by reference herein. X. 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.deschutcs.or/compplan) PAGE 2 OF 2 — EXHIBIT "A" TO ORDINANCE 2017-007 <Secti,ovA, 5.12 Le 1,sl,ative f--Fistoru Background This section contains the legislative history of this Comprehensive Plan. Table 5.1 1.1 Comprehensive Plan Ordinance History Date Adopted/ Effective Ordinance 2011-003 8-10-11/11-9-11 2011-027 10-31-11/11-9-11 2012-005 8-20-12/11-19-12 2012-012 8-20-12/8-20-12 2012-016 2013-002 2013-009 2013-012 2013-007 12-3-12/3-4-13 1-7-13/1-7-13 2-6-13/5-8-13 5-8-13/8-6-13 5-29-13/8-27-13 Chapter/Section Amendment All, except Transportation, Tumalo and Terrebonne Community Plans, Deschutes Junction, Destination Resorts and ordinances adopted in 2011 2.5, 2.6, 3.4, 3.10, 3.5, 4.6,5.3,5.8,5.11, 23.40A, 23.40B, 23.40.065, 23.01.010 23.60, 23.64 (repealed), 3.7 (revised), Appendix C (added) 4.1, 4.2 3.9 4.2 1.3 23.01.010 3.10, 3.11 Comprehensive Plan update Housekeeping amendments to ensure a smooth transition to the updated Plan Updated Transportation System Plan La Pine Urban Growth Boundary Housekeeping amendments to Destination Resort Chapter Central Oregon Regional Large -lot Employment Land Need Analysis Comprehensive Plan Map Amendment, changing designation of certain property from Agriculture to Rural Residential Exception Area Comprehensive Plan Map Amendment, including certain property within City of Bend Urban Growth Boundary Newberry Country: A Plan for Southern Deschutes County DESCHUTES COUNTY COMPREHENSIVE PLAN - 201 I CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.1 I GOAL 5 ADOPTED ORDINANCES Page 1 of 3 — EXHIBIT "B" TO ORDINANCE 2017-007 Ordinance Date Adopted/ Chapter/Section Effective 2013-016 10-21-13/10-21-13 23.01.010 2014-005 2-26-14/2-26-14 23.01.010 2014-012 4-2-14/7-1-14 3.10, 3.11 2014-021 8-27-14/11-25-14 23.01.010, 5.10 2014-027 12-15-14/3-31-15 23.01.010, 5.10 2015-021 11-9-15/2-22-16 23.01.010 2015-029 1 1-23-15/ 1 1-30-15 23.01.010 2015-018 12-9-15/3-27-16 23.01.010, 2.2, 4.3 2015-010 12-2-15/12-2-15 2.6 2 Amendment Comprehensive Plan Map Amendment, including certain property within City of Sisters Urban Growth Boundary Comprehensive Plan Map Amendment, including certain property within City of Bend Urban Growth Boundary Housekeeping amendments to Title 23. Comprehensive Plan Map Amendment, changing designation of certain property from Sunriver Urban Unincorporated Community Forest to Sunriver Urban Unincorporated Community Utility Comprehensive Plan Map Amendment, changing designation of certain property from Agriculture to Rural Industrial Comprehensive Plan Map Amendment, changing designation of certain property from Agriculture to Surface Mining. Comprehensive Plan Map Amendment, changing designation of certain property from Tumalo Residential 5 -Acre Minimum to Tumalo Industrial Housekeeping Amendments to Title 23. Comprehensive Plan Text and Map Amendment recognizing Greater Sage -Grouse Habitat Inventories DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.1 2LEGISLATIVE HISTORY Page 2 of 3 — EXHIBIT "B" TO ORDINANCE 2017-007 Comprehensive Plan Map Amendment, changing 2016-001 12-21-15/04-5-16 23.01.010; 5.10 designation of certain property from, Agriculture to Rural Industrial (exception area) Comprehensive Plan Amendment to add an exception to Statewide 2016-007 2-10-16/5-10-16 23.01.010; 5.10 Planning Goal 11 to allow sewers in unincorporated lands in Southern Deschutes County Comprehensive Plan Amendment recognizing non - 2016 -005 11-28-16/2- 16-17 23.01.010, 2.2, 3.3 resource lands process allowed under State law to change EFU zoning Comprehensive plan 2016-022 9-28-16/11-14-16 23.01.010, 1.3, 4.2 Amendment, including certain property within City of Bend Urban Growth Boundary Comprehensive Plan Map Amendment, changing 2016-029 12-14- 16/12/28/16 23.01.010 designation of certain property from, Agriculture to Rural Industrial Comprehensive Plan Map Amendment. changing 2017-007 10-30-17/10-30-17 23.01.010 designation of certain property from Agriculture to Rural Residential Exception Area DESCHUTES COUNTY COMPREHENSIVE PLAN - 201 I CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.1 1 GOAL 5 ADOPTED ORDINANCES Page 3 of 3 — EXHIBIT "B" TO ORDINANCE 2017-007 LEGAL DESCRIPTION A PARCEL OF LAND BEING A PORTION OF THE SOUTHWEST ONE-QUARTER OF THE SOUTHEAST ONE-QUARTER (SWI 4 SE1;4) OF SECTION 35, TOWNSHIP 17 SOUTH. RANGE 12 EAST OF THE WILLAMETTE INIERIDIAN BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: CONIMENCING AT THE SOUTHWEST CORNER OF THE SWI:4 OF THE SE1'4 OF SECTION 35. T 17S. R12E. W.NI.: THENCE NO0'40' I 3"W -- 30.00 FEET ALONG THE WEST LINE OF SAID SWI .1 SE 1.4 TO THE IRI;E POINT OF BEGINN1NCi BEING LOCA.TED O\ THE NORTHERLY RIGHT-C)F-WAY LINE FOR BEAR CREEK ROAD: THENCE CONTINUING N0040'13"W - 690.79 FEET ALONG THE wts-r LINE OF SAID SWI 4 SE1:4 TO A POINT LOCATED ON THE CURRENT CITY OF BEND URBAN GROWTH BOUNDARY LINE: THENCE Y25 4'13'L FELT ALONG SAID URBAN GROWTH BOUNDARY LINE TO THE SOUTHERLY RIGHT-OF-WAY LINE FOR U.S. 1-1I0HWAY 20: THENCE N89'50.12E. - 1030.08 FEET ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE TO THE EAST LINE OF SAID SW1/4 SEL4. THENCE S0(•3S'15"E 1225.72 FEET ALONG THE EAST LINE OF SAID SWI 4 SEL4 TO THE NORTHERLY RIGHT-OF-WAY LINE FOR BEAR t_ REEK ROAD: THENCE N8041 $4W - 1324.04 FEET ALONG SAID NORTHERLY RIGHT-OF-WAY LINE LOT HE TRUE POINT OF BEGINNING. PARCEL CONTAINS APPROXIMATELY 35324 ACRES SUBJECT TO ALL EASEMENTS, RESTRICTIONS. AND RIGHTS-OF-WAY OF RECORD PERTAINING TO TIE ABOVE DESCRIBED LANDS, Page 1 of 1 — EXHIBIT "C" TO ORDINANCE 2017-007 NE TIERRA RD NE MASON RD NE CORONA LN 1111111 NE HAMPTON LN U re ❑ J w a 2 = URA wu) ❑w O 2 a w 2 AG HWY 20 Plan Amendment From Agriculture (AG) To Rural Residential Exception Area (RREA) RREA BEAR CREEK RD AG PROPOSED PLAN AMENDMENT Legend Subject Property 17-12-35-00-01500 Bend Urban Growth Boundary Comprehensive Plan Designation AG - Agriculture RREA - Rural Residential Exception Area URA - Urban Reserve Area Porter Kelly Burns Landholdings, LLC 21455 Highway 20, Bend a Exhibit "D" to Ordinance 2017-007 V V 200 400 May 18, 2017 AG RREA BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON Tammy Baney, Chair Anthony DeBone, Vice -Chair Phil Henderson, Commissioner ATTEST. Recording Secretary 800 Feet Dated this day of June, 2017 Effective Date: . 2017 FILE NUMBERS: APPLICANT/ PROPERTY OWNER: REPRESENTATIVE: REQUEST: DECISION OF DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS 247-18-OUD317-ZCand 247-1G-O0O318-PA Porter Kelly Burns Landholdings, LLC Liz Fancher 644 N.W. Broadway Street Bend, Oregon 97703 Plan Amendment from Agriculture to Rural Residential Exception Area (RREA) and Zone Change from Exclusive Farm Use /EFUTRB) to Multiple Use Agricultural (MUA-10). - STAFF REVIEWER: Chris SchmoyerAssociate Planner HEARINGS OFFICER: Stephanie Hicks HEARINGS OFFICER'S DECISION: The Board of County Commissioners (Board) adopts the findings of HOfficer Stephanie Hicks attached with this decision asits findings insupport ofFiles 247-1 00317-ZC an247- 1O-000318-PAwith the following axcmpbon.1 The approval recognizes that if the property is dividod, it shall be developed as a cluster development. The two existing irrigation ponds shall be included in theopen space or common area of the cluster development. This condition remains in pJace as long as the subject property retains its W1UA-10 zoning or other rural exceptions area zoning that allows cluster development. Additionally, in lieu of the conditionrecommended by the hearings officethe Board required the applicant to sign the Conditions of Approval agreement (Exhibit F to Ordinance 2017-007). IL FINDINGS OF FACT: The Board adopts the following findings of fact in support of its decision: A. Procedural History: On November 18, 2016. Hearings Officer Stephanie Hicks issued a decision recommending that the Board approve the plan amendment and zone change requested by Porter KeIIy Burns Landholdings, LLC ("PKBL"). 1 The Board modifled the Hearings Officer's conditons of approvalB and D(b). PAGE 1 OF 2 - EXHIBIT E TO ORDINANCE 2017-007 On June 5, 2017, the Board of Commissioners held a hearing regarding the plan amendment and zone change applications. On September 27, 2017, the Board deliberated and voted to approve the applications for the reasons provided in the Hearings Officer's decision and directed staff to prepare written findings and revise the draft ordinance to reflect its decision. The Board also voted to adopt a condition of approval to require the applicant to develop the property as a cluster subdivision, if divided. This requirement was proposed by the applicant to address issues raised by opponents and was found acceptable to the Board. B. Conditions of Approval: The conditions of approval recommended by Hearings Officer Hicks have been met or rejected by the Board. A hearing was held by the Board as recommended by Condition A. The code violation case was closed by a County's code enforcement officer as recommended in Condition B. The applicant submitted a metes and bounds legal description of the subject property as recommended by Condition C. Condition D was not imposed as the zone and plan changes are not based on a specific use of the property and because one or more opponents objected to a requirement that would prohibit cluster or planned development of the subject property. When this matter was heard by the Board, the applicant and opponents reached an agreement that a condition of approval be imposed that requires the applicant to sign a conditions of approval agreement with Deschutes County that assures if the property is divided it will be developed as a cluster development and that the two existing irrigation ponds be included in the open space or common area. Cluster development may allow the property to be developed with up to six single-family dwellings on six residential lots. III. DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Deschutes County Board of Commissioners hereby APPROVES the zone change and plan amendment proposed in File Nos. 247-16-000317-ZC and 247 -16 -000318 -PA subject to the requirement that the applicant sign the Conditions of Approval Agreement that is attached as Exhibit F of Ordinance No. 2017-07. Attachment: Hearings Officer Decision: 247-16-000317-ZC / 318 -PA PAGE 2 OF 2 - EXHIBIT E TO ORDINANCE 2017-007 RVI '.V14:D r ._n.,f,._ 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 1 day of kDQUAber , 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 none change from EFU-TRB to MCJA-10 in File Nos. 247-16-000317-ZC and 247-16-000318- PA 47-16-000318- 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-l0; 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: 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 open space or 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 Exhibit "F" to Ordinance 2017-007 DATED this / day of !1[oticm6e , 2017. COUNTY BOARD OF COMMISSIONERS OF DESCFIUTES COUNTY TAMMY BANEY,CCyhair ANTHONY DEBONE, Vice -Chair PIIILIP I7x./I-IENDERSON, Commissioner ATTEST: Recording Secretary STATE OF OREGON )ss, COUNTY OF DESCHUTES This instrument was acknowledged before me on Ik,OJt,rril.et(` l , 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. OFFICIAL STAMP SHARON RENEE ROSS NOTARY PUBLIC.OREGON COMMISSION NO. a28178 M COMMISSION EXPIRES MAY 04, 2018 Notary Public ` -� Print Name 07A. 1�.L.ne e - My commission expires ,S_- 1/- ?.0/ Page 2 of 4- Conditions of Approval Agreeneent Exhibit "F" to Ordinance 2017-007 DATED this PKB clay of (/'• t z f), , 2017. y: `-' 1I. Porter Burns Its: Managing Member STATE OF OREGON ) ss. COUNTY OF DESCHUTES ) This instrument was acknowledged before me on C)(4rIX' C' �` , 2017 by H. Porter Burns as Managing Member of PORTER/KELLY BURNS LANDHOLDINGS, LLC, an Oregon limited liability corporation. 2 �. Notair 2113 Print tV 1 ne <1.)e.,--, Wori) My commission expires 1 44, %/ �1 (Use this space for notarial stamp/seal ) OFFICIAL STAMP DEREK E $ MOPP NOTARY PUBLIC -OREGON COMMISSION NO. 944754 M t OOMM1SSION EXPIRES DECEMBER 06, 2619 Page 3 of 4— Conditions of Approval Agreement Exhibit "F" to Ordinance 2017-007 EXHIBIT A PROPERTY DESCRIPTION A PARCEL OF LAND BEING A PORTION OF THE SOUTHWEST ONE-QUARTER OF THE SOUTHEAST ONE-QUARTER (SW1/4 SEI/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 SWI/4 OF THE SEI/4 OF SECTION 35, T I 7S, R12E, W.M.; THENCE N00°40'13"W - 30.00 FEET ALONG THE WEST LINE OF SAID SW 1/4 SE I /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 SW /4 SE I /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 SWI/4 SEIM; THENCE S00°38'15"E - 1225.72 FEET ALONG THE EAST LINE OF SAID SW1/4 SEI/4 TO THE NORTHERLY RIGHT-OF-WAY LINE FOR BEAR CREEK ROAD; THENCE N89"41'34W - 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 olApprovol Agreement Exhibit "F" to Ordinance 2017-007 DECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: HEARING DATE: APPLICANT/OWNER: ATTORNEY FOR APPLICANT: PROPOSAL: STAFF REVIEWER: RECORD CLOSED: 247-16-000317-ZC / 318 -PA September 27, 2016, 6:00 p.m. Barnes & Sawyer Rooms Deschutes Services Center 13OONVVWall Street Bend, OR 97708 Porter KeIIy Burns Landholdings, LLC 152 ChamparieUe 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'TFlB) to Multiple Use Agricultural (K8UA'10). Chris Schmoyer, Associate Planner October 11, 2016; Applicant's FirialArgumentdue 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 PIan 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 Ii 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-1O. 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 propertym*o 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 rnmter|a|o (Volume 80, Page 553 of the deed records of the Deschutes County Clerk). C. ZONING AND PLAN DESIGNATION: The subject 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 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 )nthe Bend urban growth boundary bythe City mfBend. The oubiectprupe�yie 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-aorae 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 34.88 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 the subject property or to another irrigation district customer. Vegetation on the property consists primarily of weeds, annual grasses, big sagebrush, and scattered juniper trees, with clusters of coniferous trees surrounding the dwelling and two ponds on the property. According to County GIS Mapping, based on the Natural Resource Conservation Service (NRCS) data, the subject property is predominantly comprised of Deskamp Loamy Sand soils, Unit 36A. NRCS Soil Unit 36A has an agricultural soil classification of IVS and is classified as high value where irrigated and a classification of VIS where unirrigated. The property is predominantly unirrigated and classified as non -high value farmland. To clarify the soils composition of the property, the applicant submitted a Soil Investigation Report ("Soils Assessment"), dated September 10, 2015, prepared by soil scientist Roger Borine, CPSC, CPSS, PWS of Sage West, LLC. Exhibit D to Corrected Burden of Proof. The Soils Assessment shows that 67% of the soils on Tax Lot 1500 are Class VII or Class VIII nonagricultural soils when not irrigated. These soils are not rated for irrigation as the soils are too poor to benefit from irrigation. The Land Capability Class of the soils will not improve when irrigated. Mr. Borine also determined that 67% of the subject property zoned EFU-TRB is LCC VII or VIII soil, Exhibit Q to Corrected Burden of Proof. Below is a recent aerial photograph of the subject property from the south: E. SURROUNDING LAND USES: The subject property lies between Highway 20 to the north and Bear Creek Road to the south. The western edge of the property borders the city limits for the City of Bend and land zoned UAR-10 that is a part of the legal lot of record that includes the subject property. Abutting the subject property to the west are small residential lots within the City Limits and UGB of Bend that are zoned Residential Urban Standard Density (RS). Zoning surrounding the property consists of UAR-10 and EFU-TRB to the north across Highway 20. The two adjacent properties to the east are 247-16-000317-ZC / 318 -PA 3 zoned EFU-TRB. To the south is EFU-TRB zoning, the southwest is UAR-10 and the southeast is MUA-10 (across Bear Creek Road). The applicant's Corrected Burden of Proof provides the following description of the development pattern in the area surrounding the subject property: West: Properties adjacent to the western edge of the subject property are zoned RS — Residential Urban Standard Density and are located within the city limits of the City of Bend. The south part of this area has been divided and developed with single-family homes on urban lots and the Light and Life Church. Three of the adjoining 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 properly. Landsystems Nursery sells its nursery stock from a property located directly across Highway 20 from this tax lot. Southwest: Properties located across Bear Creek Road to the southwest of the subject property are located within the UAR-10 (Urban Area FN'eserve) zone and all except one are developed with single-family residences. One tax tot 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 lax lot is located within the boundaries of one of these lots. They are zoned EFU-TRB. All four lots are developed with single-family dwellings. Tax Lot 201, Assessor's Map 18-12-02 received approval for a fann/rionfarm 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 properly. 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 lst 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 deve/oped with a manufactured home and Tax Lot 1601 is developed with a single-family residence. Neither tax lot appears to be irrigated nor employed ftp 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 fax lots is located within the UAR-10 zone. The remaining three (3) fax lots 247-16-000317-ZC / 318 -PA 4 are zoned EFU-TRB. Three of these four lots are developed with residences while the /burthone zoned EFU� is undeveloped. None appear to be used for �/muomor�have ted 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 N1UA'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 Iaw 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 auows 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 Aoaeoamant"), 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 Solis Assessment was prepared by soil scientist Roger Borine, CP8C|, CPSS, PWS of Sage VVaot, 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, thmrefona, 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 Vil and Vill 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 RunamU, Senior Transportation Planner provided the following comment: have reviewed the transmittal materials for 247-15-000317-ZC/318-PA for aplan amendment from Agriculture to Rural Residentia/ Exception Area and a rezone from 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 amendmenVzone 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 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 53. 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 53, 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 541-288-6309 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 Iost 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 Ietter has been entered into the record. JmneC|oavenoer: Separately submitted a Ietter 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: Emaied staif 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 Oreaon submitted a letter dated September 27, 2016 in opposition to the application. K8ehe\ 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 hem{th, 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 880-038-0020 and OAR 860'033'0030 because the subject property is agricultural land. 1000 Friends questions the conclusions of the applicant's 247-16-000317-ZO / 318 -PA 10 soils study. Each of these comments is addressed in the Findings bebw. 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 aqgunmert, 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. | find that such comments are untimely. Hovvmver, 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 22.23.030EA 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 pubUc 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(C). 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.' UV' 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 fore 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 emendnnerd, and filed the applications for a plan amendment and zone change. The applicant has filed the required Planning Division's land use application forms for the , A scanned document for the subject property account in Deschutes County DIAL includes documentation of an Oregon Department of Fish and Wildlife (ODFW) Land Use Compatibility Statement (LUGS) for fish propagation associated with the ponds on the property. Planning Division signed the form on 12-16-92. 247-16-000317-ZC / 318 -PA 11 proposal. The application has been reviewed utilizing the applicable procedures contained in Title 22 of the Deschutes County Code. 1 find that these criteria are met. 2. Section 18.136.020, Rezoning Standards The applicant for a quasi-judicial rezoning must establish that the public interest is best served by rezoning the property. Factors to be demonstrated by the applicant are: A. That the change conforms with the Comprehensive Plan, and the change is consistent with the plan's introductory statement and goals. FINDING: In previous decisions, the Hearings Officer has found this paragraph establishes two requirements: (1) that the zone change conforms with the plan; and (2) that it is consistent with the plan's introductory statement and the plan's goals. I find that each of these requirements is met, as discussed below. 1. Conformance with Comprehensive Plan. The applicant requests approval of a plan amendment to change the Comprehensive Plan designation of the subject property from Agriculture to Rural Residential. The proposed rezoning from EFU-TRB to MUA-10 will be required to be consistent with its proposed new plan designation. 2. Consistency with the Plan's Introductory Statement and Goals. In previous decisions, the Hearings Officer has made the following findings concerning this requirement: "Comprehensive plan statements, goals and policies typically are not intended to, and do not, constitute mandatory approval criteria for quasi-judicial land use permit applications. Save Our Skyline v. City of Bend, 48 Or LUBA 192 (2004). There, LUBA held: 'As intervenor correctly points out, local and statutory requirements that land use decisions be consistent with the comprehensive plan do not mean that all parts of the comprehensive plan necessarily are approval standards. [Citations omitted.] Local governments and this Board have frequently considered the text and context of cited parts of the comprehensive plan and concluded that the alleged comprehensive plan standard was not an applicable approval standard. [Citations omitted.] Even if the comprehensive plan includes provisions that can operate as approval standards, those standards are not necessarily relevant to all quasi-judicial land use permit applications. [Citation omitted.] Moreover, even if a plan provision is a relevant standard that must be considered, the plan provision might not constitute a separate mandatory approval criterion, in the sense that it must be separately satisfied, along with any other mandatory approval criteria, before the application can be approved. Instead, that plan provision, even if it constitutes a relevant standard, may represent a required consideration that must be balanced with other relevant considerations. [Citations omitted.]' LUBA went on to hold in Save Our Skyline that it is appropriate to 'consider first whether the comprehensive plan itself expressly assigns a particular role to some or all of the plan's goals and policies.' Section 23.08.020 of the county's comprehensive plan provides as follows: 247-16-000317-ZC / 318 -PA 12 The purpose of the Comprehensive Plan for Deschutes County is not to provide a site- specific identification of the appropriate land uses which _may take place on a particular piece of land but rather it is to consider the significant factors which affect or are affected by development in the County and Provide a 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 about specific sites (most often in zoning and subdivision administration) but the plan must also consider the sociological, economic and environmental consequences of various actions and provide .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 `(rjecognize 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 consideialion 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 PowelURamsey decision (file nos. PA-14-2/ZC-14-2), and found the above -referenced introductory statements and goals are not approval criteria for the proposed plan amendment and zone change. This Hearings Officer also adheres to the above findings herein. Nevertheless, depending upon their language, some plan provisions may require "consideration" even if they are not applicable approval criteria. Save Our Skyline v. City of Bend, 48 Or LUBA 192, 209 (2004). I find that the following amended comprehensive plan goals and policies require such consideration, and that other provisions of the plan do not apply: 247-16-000317-ZC / 318 -PA 13 Chapter 2, Resource Management 1. Section 2.2, Agricultural Lands Policies Goal 1, Preserve and maintain agricultural lands and the agricultural industry. FINDING: The Hearings Officer found in the Powell/Ramsey decision, and I agree in this Decision, that this is an aspirational goal and not an approval criterion. Nonetheless, I find that the subject property does not constitute "agricultural land" as defined in Goal 3, OAR 660-033- 0020(1) for the reasons set forth in this Finding and as discussed in additional findings below. Substantial evidence in the record supports a finding that the subject property does not constitute "agricultural land." The applicant's Order 1 soils study ("Soils Assessment") and the Agricultural Soils Capability Assessment information prepared by the Oregon Department of Land Conservation and Development, demonstrate that the subject property is not suitable agricultural land. The Soils Assessment shows that 67% of the subject property is Class VII and Class VIII soils. Contrary to the argument of 1000 Friends of Oregon, a property need not be comprised entirely (100%) of Class VII and Class VIII soils for a determination to be properly made that the property is not "agricultural land." Rather, it must be predominately (51%) comprised of soils that are not properly classified as Class 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 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. The subject application includes a more detailed Order 1 soils survey, Exhibit D to the Corrected Burden of Proof for the subject property based on specific soils sampling and testing of the subject property. Consistent with ORS 215.211, this survey has been approved for use by Deschutes County by DLCD. It provides Deschutes County with the information needed to conclude that the subject property does not qualify as "agricultural land" as defined by state administrative rule. When the County first implemented Statewide Goals, it applied resource zoning with a broad brush. Since that time, the County has rezoned properties from EFU to MUA-10 zoning and has applied a Rural Residential Exceptions Plan designation to lands found to be nonresource land. See Board of County Commissioners decisions in PA-07-1/ZC-07-1 (Pagel), PA-08-11ZC-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 1/4 mile from a large apartment complex development, the Stonebriar Apartments. The subject property is also close to Saint Charles Hospital, one of the largest employers in the region and the medical services area around the hospital. The applicant described the property, with two adjacent parcels of EFU-TRB zoned land as an "island of 80 acres of poor soils ringed by major roadways and the City of Bend." The applicant notes that lands in the "island" are not engaged in farm use, and that the subject property is not part of a farm unit on adjoining lands or other properties in the area, nor is it needed by any area farm property in order for those properties to continue in farm use. There is conflicting testimony in the record regarding the viability of farm use on the subject property and in the surrounding area. In particular, Mr. and Mrs. Cleavenger submitted letters and testimony that the property has pasture land, a livestock barn and a commercial fishing pond. They submitted that the property could be productive, but that investors have intentionally let it go fallow in anticipation of development. On the other hand, the information submitted by the applicant indicates that, in order to prepare the subject property for grazing (at a minimum) measures that are beyond accepted farming practices would be required. Evidence of other farming uses in the surrounding area consists of relatively small "hobby farms," and not commercial farm operations. Moreover, the fact the property is adjacent to high traffic on both Highway 20 and Bear Creek Road raises insurance issues for escaping livestock, in addition to difficulties moving farm machinery and grazing/herding cattle to different properties. Mr. Rob Marken and Mr. Harold Marken testified at the public hearing concerning the difficulties associated with farming the subject property. Rob Marken lives to the south and was friends 247-16-000317-ZC / 318 -PA 15 with the prior property owner of the subject . 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 solis are only 5-6 inches deep. Mr. Marken commented that "if you put water on it, you get gnaea." 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 snches of soil to grow crops. She also commented that multiple soils reports should be nsquinad, not just a single report prepared by the applicant's solis 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 resu|t, with a direct loss of land available for ranching and a loss of economies of scale. The applicant submitted evidence that the subject property does not currently have land use approval to use the ponds for fish propagation. No such approval is required as the use is permitted outri-hL Fish propagatiOregon Wildlife and must be renewed annually. See Exhibit A to Rebuttal argument, submitted C)otobe, 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 [>OFVV, and that fish propagation cannot occur without an ODFW license and none exists for the subject property. The record shows that the fish ponds were a hobby of the prior owners of the subject property and was not intended to make a profit in money. Accordingly, the Hearings Officer finds that the fish ponds do not constitute a farm use as defined by ORS 215.203(2)(a). The record also shows that other limited agricultural uses that occurred on the subject property were hobby farm uses, not conducted to make a profit in money. According to Leslie Clark, Water Right Manager for Central Oregon Irrigation District, "[i]t appears historically water was diverted for the purposes of filling the ponds, very little irrigation occurred. The transfers (of water rights) in 1996 and 2000 were done as part of a cleanup of water righto, removing them from lands that were not beneficially using water and transferring them to lands in need of water." See Exhibit 6 to Rebuttal argument, submitted October 11, 2016. The law does not require several "independent" soils reports to support a determination that o property is not "agricultural lands" due to the soils of which it is comprised. | find that OLCO'a 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 V||| soils and is unsuitable for farm use. The record shows that the land in the area is not commercial farmn|and, although there are some hobby farm uses. As the County stated in its approval of Mr. and Mrs. Cleavenger's LM site plan decioion, the property that adjoins the subject property ''ie surrounded by rural residential and some minor farm uses on 247-16-000317-ZC / 318 -PA 16 lands zoned EFU-TRB." Findings and Decision File Nos. 247-16-000071-AD/247-16-000072- LM (Exhibit K to Applicant's Response to Staff Report and Opponent Concerns). For all the foregoing reasons, i find that the Soils Assessment is adequate and reliable for determining whether the subject property is unsuitable for farm use, considering profitability and factors in the Goal 3 administrative rule, as set forth in additional findings below. The property is unsuitable for farm use considering, among other things, insufficient irrigation rights, the surrounding road network, impacts of nearby heavy traffic, the shallow depth of soils, the inability to employ the land for the primary purpose of obtaining a profit in money through specific farming -related endeavors, and the fact that the property has not been eligible for the farm tax deferral program, and the relatively small size of the parcel, which impacts economies of scale. The Hearings Officer finds that this goal does not apply. Policy 2.2.2 Exclusive Farm Use sub -zones shall remain as described in the 1992 Farm Study and shown in the table below, unless adequate legal findings for amending the sub -zones are adopted or an individual parcel is rezoned as allowed by Policy 2.2.3. FINDING: The applicant is not asking to amend the subzone that applies to the subject property; rather, the applicant is seeking a change under Policy 2.2.3 and has provided adequate findings to support rezoning the subject property MUA-10. The Hearings Officer finds that this policy is inapplicable. Policy 2.2.3 Allow comprehensive plan and zoning map amendments for individual EFU parcels as allowed by State Statute, Oregon Administrative Rules and this Comprehensive Plan. FINDING: The applicant's burden of proof states the following: In 1979, Deschutes County adopted its first comprehensive plan and zoning ordinance that implemented the Statewide Goals. The County's comprehensive plan map was developed without the benefit of reliable, detailed soils mapping information. The map was prepared prior to the USDA/NRCS's publication of the "Soil Survey of Upper Deschutes River Area, Oregon." This survey is more comprehensive than prior soils mapping efforts but continues to provide general soils information. This land application includes a more detailed and accurate Order 1 soils survey, Exhibit D, for the subject property based on specific soils sampling and testing of the subject property. Consistent with the requirements of ORS 215.211, this survey has been approved for use by Deschutes County by the Department of Land Conservation and Development. It provides Deschutes County with the information needed to conclude that the subject property does not qualify as "agricultural land" as defined by state administrative rule. When the County first implemented Statewide Goals, it applied resource zoning using a broad brush. Since that time, Deschutes County has rezoned properties from EFU to MUA-10 zoning and has applied a Rural Residential Exceptions Plan designation to lands found to be nonresource land. Recent examples include PA-07-1/ZC-07-1, Pagel (the hearings officer's decision adopted by the Board is Exhibit K), PA-08-1/ZC-08-1, The Daniels Group (Board Decision, Exhibit L) and PA-11-7/ZC-11-2 State of Oregon Department of State Lands (Board Decision, Exhibit M). 247-16-000317-ZC / 318 -PA 17 The Board's findings in Exhibit M conclude that the current comprehensive plan allows the county to approve applications to change the plan designation of nonagricultural land from Agricultural to RREA. The Board's findings also conclude that a goal exception is not required to allow the county to approve an RREA plan designation for nonagricultural land. The applicant is seeking a comprehensive plan amendment from Agriculture to RREA and a zone change from EFU-TRB and UAR-10 to MUA-10 for non -resource land. This is the same change approved by Deschutes County in PA-11-1/ZC-11-2 on land owned by the State of Oregon (DSL). In findings attached as Exhibit M of the applicant's burden of proof statement, Deschutes County determined that State law as interpreted in Wetherell v. Douglas County, 52 Or LUBA 677 (2006) allows this type of amendment. LUBA said, at pp. 678-679: "As we explained in DLCD v. Klamath County, 16 Or LUBA 817, 820 (1988), there are two ways a county can justify a decision to allow nonresource use of land previously designated and zoned for farm use or forest uses. One is to take an exception to Goal 3 (Agricultural Lands) and Goal 4 (Forest Lands). The other is to adopt findings which demonstrate the land does not qualify either as forest lands or agricultural lands under the statewide planning goals. When a county pursues the latter option, it must demonstrate that despite the prior resource plan and zoning designation, neither Goal 3 or Goal 4 applies to the property. Caine v. Tillamook County, 25 Or LUBA 209, 218 (1993); DLCD v. Josephine County, 18 Or LUBA 798, 802 (1990)." LUBA's decision in Wetherell was appealed to the Oregon Court of Appeals and the Oregon Supreme Court but neither court disturbed LUBA's ruling on this point. In fact, the Oregon Supreme Court changed the test for determining whether land is agricultural land to make it less stringent. Wetherell v. Douglas County, 342 Or 666, 160 P3d 614 (2007). In that case, the Supreme Court stated that: "Under Goal 3, land must be preserved as agricultural land if it is suitable for "farm use" as defined in ORS 215.203(2)(a), which means, in part, "the current employment of land for the primary purpose of obtaining a profit in money" through specific farming -related endeavors." Wetherell, 343 Or at 677. The Wetherell court held that when deciding whether land is agricultural land "a local government may not be precluded from considering the costs or expenses of engaging in those activities." Wetherell, 342 Or at 680. In this case, the applicant has shown that the subject property is primarily composed of Class VII 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-90 zoning in the Pagel decision, Exhibit K and that nothing in this plan policy prohibits that action. The County's interpretation of Policy 2.2.3 above, spells out when and how EFU parcels can be converted to other designations. The facts presented by this case merit conversion of the subject property to a new plan designation under the County's interpretation of Policy 2.2.3. 247-16-000317-ZC / 318 -PA 19 The Hearings Officer found in Powell/Ramsey, and I agree in this Decision, that this policy is directed at the county rather than at an individual applicant. Nonetheless, the Hearings Officer finds that the County has developed comprehensive policy criteria and code requirements that provide clarity on the conversion of EFU parcels to other designations. I further find that the applicant is entitled to file an application to rezone and change the plan designation of the subject property under this policy under the law and facts of this application. The Hearings Officer finds that the proposal is consistent with this policy. Policy 2.2.13 Identify and retain accurately designated agricultural lands. FINDING: The Hearings Officer found in Powell/Ramsey and I agree in this Decision, that this policy is directed at the County rather than the applicant. I find that this plan policy requires identification and retention of agricultural lands that are accurately designated. Based on my findings above, incorporated herein by this reference, I find that the subject property was not accurately designated as demonstrated by the applicant's Order 1 Soils Assessment and the Agricultural Soils Capability Assessment information prepared by the Oregon Department of Land Conservation and Development because the property consists of predominantly Class VII and VIII soils and is unsuitable for farm use considering profitability and factors in the Goal 3 administrative rule. This finding is also based on the shallow depth of soils, the inability to employ the land for the primary purpose of obtaining a profit in money through specific farming -related endeavors, and the fact that the property has not been eligible for the farm tax deferral program. Accordingly, as set forth in the findings herein, the subject property does not constitute "Agricultural Land." Several members of the public' testified at the public hearing that the parcel should not be rezoned because the City of Bend rejected including the parcel in its recent UGB expansion. However, the record does not support a determination that such decision was made due to the value of the property as "Agricultural Land." The City of Bend included the subject property in its original UGB proposal. However, the State of Oregon requires that resource lands, such as the subject property under its current zoning classification and plan designation, and exception lands not be included in a proposed UGB. The Hearings Officer further notes that the City of Bend UGB expansion process is not binding in any way on the subject application. The Hearings Officer finds that the proposal is consistent with this policy., 2. Section 2.5 Water Resources Policies Policy 2.5.24 Ensure water impacts are reviewed and, if necessary, addressed for significant land uses or developments. FINDING: The applicant's corrected burden of proof states the following. Comprehensive Plan Policy 2.5.24 requires the County to ensure that water impacts are reviewed and addressed for significant land uses or developments but it does not establish an approval criterion. It does not require that water impacts be considered when a plan amendment or zone change is proposed. This application does not propose a significant land use nor does it propose a development. 2 Jane Cleavenger, David Morman, Gavin Hepp referenced the Bend UGB decision in their testimony. 247-16-000317-ZC / 318 -PA 20 In its DSL findings, Exhibit M, Deschutes County found that impacts of any proposed future development of the DSL property on water resources would be reviewed by Deschutes County in future development applications. That finding was sufficient to demonstrate compliance with this plan policy. Together with the findings above and the later review by Deschutes County, this policy is satisfied. The subject property is served by 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 I agree in this Decision, that this policy is directed at the County. Hearings Officer Green stated in the Powell/Ramsey decision: "Nevertheless, in my decision in NNP I held it is not clear from this plan language what "water impacts" require review -- impacts to water supplies from use or consumption on the subject property, or impacts to off-site water resources from development on the subject property. As a result, I addressed both issues in that decision, and I do so here as well." This Hearings Officer likewise addresses both issues as set forth below. The Hearings Officer finds that it is premature to review "water impacts" because the applicant has not proposed any particular land use or development. Any subsequent applications for development of the subject property would be reviewed under the County's land use regulations which include consideration of a variety of on- and off-site impacts. Substantial evidence in the record shows that irrigation water rights are minimal on the subject property; pond water rights cannot be converted to other use. While there is no evidence in the record to support speculation as to the future of irrigation water rights if the subject property is annexed to the City of Bend, the Hearings Officer agrees that proposed water use for the development of the subject property would be reviewed under any necessary land use process for the site in the future. 1000 Friends of Oregon argues that rezoning the property to MUA-10 will increase the water usage over the baseline (currently one residence), allowing up to three residences to be permitted. However, the applicant correctly notes that the zone change in and of itself cannot authorize any additional residences on the subject property; there is no current proposal for any 247-16-000317-ZC / 318 -PA 21 subdivision or partition. 1000 Friends is correct that each lot that could be created in the future will have to establish water rights before it can be developed. DCC 17.22.020 requires the County to find, prior to approval of a partition, that all required utilities, public services and facilities are available and adequate for the uses proposed. DCC 17.16.100 similarly requires the County to find, prior to approval of a subdivision, that the subdivision will not create an excessive demand on public facilities and services and utilities required to serve the development. 1000 Friends also argues that the property has been proposed to be developed with up to 800 units, having a substantial impact on water resources. However, MUA-10 zoning does not allow development of apartments or other high density development. I find that the application is not proposing a "significant land use or development." The applicant submitted evidence that the amount of water use associated with two new residences on the subject property is lower than the water requirements for uses allowed outright and conditionally allowed uses in the EFU zone, including, but not limited to churches. The applicant also submitted evidence from Avion Water Co., LLC that it serves the part of the community in which the subject property is located and it is willing to provide water service to the subject property and to serve future development. Exhibit I to Corrected Burden of Proof. I find that future water impacts are not required to be reviewed at this time as there is no pending development proposal associated with the rezone application. The Hearings Officer finds that the proposal is consistent with this policy. Chapter 3, Rural Growth 1. Section 3.2, Rural Development Growth Potential As of 2010, the strong population growth of the last decade in Deschutes County was thought to have leveled off due to the economic recession. Besides flatter growth patterns, changes to State regulations opened up additional opportunities for new rural development. The following list identifies general categories for creating new residential lots, all of which are subject to specific State regulations. • Some farm lands with poor soils that are adjacent to rural residential uses can be rezoned as rural residential FINDING: The applicant's corrected burden of proof states the following: The County's Comprehensive Plan anticipates that EFU-zoned land with poor soils will be rezoned for rural residential development when it adjoins rural residential exceptions areas. The County's code provides mechanisms to amend the County's zoning maps when such changes are appropriate. The subject property has extremely poor soils. It is adjacent to the city limits for the City of Bend along its entire western boundary and adjoins a large area of properties in rural residential exception areas that are developed with rural residential uses at its southwest and southeast corners. The property adjoins land zoned UAR-10 (rural residential zoning) to the north. A part of the subject property is already zoned UAR-10. 247-16-000317-ZC / 318 -PA 22 The MUA-10 zone is a rural residential zone. It will provide for an orderly and efficient transition from rural to urban land use as intended by the purpose of the MUA-10 zone. As a result, rezoning the subject property MUA-10 is consistent with Section 3.2. The Hearings Officer finds that the County's Comprehensive Plan and County Code provisions anticipate the need for additional rural residential lots as the region continues to grow. The Plan and the Code provide for a mechanism to rezone farm lands with poor soils to a rural residential zoning designation. For the reasons set forth above, I find there is substantial evidence in the record to support a determination the subject property is comprised of poor soils and is adjacent to rurual residential uses. The MUA-10 zone is a rural residential zone. Rezoning the subject property will provide additional rural residential lots in the County and is appropriate where, as here, the subject property is comprised of poor soils, as specified in the policy above. Ms. Cleavenger argued that rezoning the subject property will devalue surrounding properties and erode home equity. No evidence was submitted to support this assertion, however. Nor is this argument evidence that the subject property, with poor soils that is adjacent to rural residential uses, cannot be rezoned to MUA-10, a rural residential designation under this policy. The MUA-10 zone will not permit urban residential development of the subject property. The Hearings Officer finds that the proposal is consistent with this policy. 2. Section 3.3, Rural Housing Rural Residential Exception Areas In Deschutes County most rural lands are designated for farms, forests or other resources and protected as described in the Resource Management chapter of this Plan. The majority of the land not recognized as resource lands or Unincorporated Community is designated Rural Residential Exception Area. The County had to follow a process under Statewide Goal 2 to explain why these lands did not warrant farm or forest zoning. The major determinant was that many of these lands were platted for residential use before Statewide Planning was adopted. In 1979 the County assessed that there were over 17,000 undeveloped Rural Residential Exception Area parcels, enough to meet anticipated demand for new rural housing. As of 2010 any new Rural Residential Exception Areas need to be justified through taking exceptions to farm, forest, public facilities and services and urbanization regulations, and follow guidelines set out in the OAR. FINDING: In response to this section, the applicant's burden of proof provides the following: The quoted language is a part of the background text of the County's comprehensive plan. it is not a plan policy or directive and it is not an approval standard for this application. This fact was confirmed by former Deschutes County Senior Planner Terri Hansen Payne, AICP during the County's review of the DSL rezoning and plan amendment application. See Exhibit M. Nonetheless, given the fact that the above - quoted text was discussed in the context of that application, the applicant has elected to address it in the context of this application. 247-16-000317-ZC / 318 -PA 23 This plan language does not bar application of the RREA plan designation to non - resource land. It does not require that an exception be taken to apply the RREA designation to non -resource land. Instead, as stated by the Board's findings in Exhibit M, the language "appears to be directed at a fundamentally different situation than the one presented in this application." The text is written to require that exceptions be taken for resource lands that require an exception; not to require goal exceptions for non -resource lands that do not require such exceptions. As LUBA and the Oregon Supreme Court recognized in the Wetherell decision, there are two ways a county can justify a decision to allow non -resource use of land previously designated and zoned for farm or forest uses. The first is to take an exception to Goal 3 and Goal 4 and the other is to adopt findings that demonstrate the land does not qualify either as forest lands or agricultural lands under the statewide planning goals. Here, the applicant is pursuing the latter approach. The quoted plan text addressed the former. If the quoted plan text were read to require an exception to Goal 3 or 4 where the underlying property does not qualify as either Goal 3 or Goal 4 resource land, such a reading would be in conflict with the rule set forth in Wetherell and Policy 2.2.3 of the Comprehensive Plan. Deschutes County has interpreted its RREA plan designation to be the proper "catchall" designation for non -resource land. As a result, the RREA plan designation is the appropriate plan designation for the subject property. The Hearings Officer finds that the language set forth above under Section 3.3 of the County Comprehensive Plan is background text and not a plan policy or directive. As set forth in the findings above, incorporated herein by this reference, no goal exception is required for the subject application because the Hearings Officer has made findings that the land does not qualify as forest lands or agricultural lands under the statewide planning goal. The Hearings Officer relies in part on the Hearings Officer's decision for PA-11-17/ZC-11-2 concerning this language of Section 3.3 in which, Hearings Officer Kenneth Helm, states at page 11 of the decision: To the extent that the quoted language above represents a policy, it appears to be directed at a fundamentally different situation than the one presented in this application. The quoted language addresses conversions of "farm" or "forest" land to rural residential use. in those cases, the language indicates that some type of exception under state statute and DLCD rules will be required in order to support a change in Comprehensive Plan designation. See ORS 197.732 and OAR 660, Division 004. That is not what this application seeks to do. The findings below explain that the applicant has been successful in demonstrating that the subject property is composed predominantly of nonagricultural soil types. Therefore, it is permissible to conclude that the property is not "farmland" as defined under state statute, DLCD rules, and that it is not correctly zoned for exclusive farm use. As such, the application does not seek to convert "agricultural land" to rural residential use. If the land is demonstrated to not be composed of agricultural soils, then there is no "exception" to be taken. There is no reason that the applicant should be made to demonstrate a reasons, developed or committed exception under state law because the subject property is not composed of the type of preferred land which the exceptions process was designed to protect. For all these reasons, the Hearings Officer concludes that the applicant is not required to obtain an exception to Goal 3. There is one additional related matter which warrants discussion in connection with this issue. It appears that part of Staff's hesitation and caution on the issue of whether an 247-16-000317-ZC / 318 -PA 24 exception might be required is rooted in the title of the Comprehensive Plan designation that would ultimately apply to the subject property — which is "Rural Residential Exception Area." There appears to be seven countywide Comprehensive Plan designations as identified in the plan itself. These include "Agriculture, Airport Development, Destination Resort Combining Zone, Forest, Open Space and Conservation, Rural Residential Exception Area, and Surface Mining." Of the seven designations, only Rural Residential Exception Area provides for associated zoning that will allow rural residential development. As demonstrated by reference to the Pagel decision discussed above, there appears to be instances in which rural residential zoning has been applied without the underlying land necessarily being identified as an exception area. This makes the title of the "Rural Residential Exception Area" designation confusing, and in some cases inaccurate, because no exception is associated with the underlying land in question. However, it is understandable that since this designation is the only one that will allow rural residential development, that it has become a catchall designation for land types that are authorized for rural residential zoning. That is the case with the current proposal, and again, for the same reasons set forth in Hearings Officer Green's decision in Pagel, I cannot find a reason why the County would be prohibited from this practice. (emphasis added). I find that Deschutes County has interpreted the RREA plan designation as the proper "catchall" designation for non -resource land. As a result, the Hearings Officer finds that the RREA plan designation is the appropriate plan designation for the subject property. Section 3.7, Transportation Appendix C — Transportation System Plan ARTERIAL AND COLLECTOR ROAD PLAN Goal 4 4. Establish a transportation system, supportive of a geographically distributed and diversified economic base, while also providing a safe, efficient network for residential mobility and tourism. Policies 4.4 Deschutes County shall consider roadway function, classification and capacity as criteria for plan map amendments and zone changes. This shall assure that proposed land uses do not exceed the planned capacity of the transportation system. FINDING: The Hearings Officer finds that this policy applies to the County and advises the County to consider the roadway function, classification and capacity as criteria for plan map amendments and zone changes. The County has complied with this direction by determining compliance with the Transportation System Planning Rule. B. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone classification. 247-16-000317-ZC / 318 -PA 25 FINDING: In response to subsection (B) of this policy, the the following: The approval of this application is consistent with district which stated in DCC 18.32.010 as follows: applicant's burden of proof provides the purpose of the MUA-10 zoning "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. 247-16-000317-2C / 318 -PA 26 1000 Friends of Oregon comments that the applicant intends to develop the property into a high-density housing oonlpkmx, 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 KAUA,10 zone. Socond, the applicant has not submitted any development application with its rezone application, nor has it requested a partition or subdivision. The Hearings Officer firtds 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.G. 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 (LVV|)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 Iife 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 NWIMaps 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 purposea, its small scale, accuracy |innitaUuno, errors of omission that range up to 55 percent (existing wetlands now shown on NWI), age (1980u)' and absence of property boundaries make it unsuitable for parcel -based decision making. With the exception of narrowly defined riparian buffers M00 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 ragu|adona, no person shall fill or remove any material or remove any vaQetmUon, within the bed and banks of any stream or river or in any vvet|and, 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 11 and 1 of this application show that electric power and water services are available to serve the property. The subject property adjoins two major roadways: Highway 20 and Bear Creek Road. The impact of rezoning the subject property will be extremely minor. With its current zoning, it is theoretically possible to divide the property into a farm and nonfarm dwelling parcel if 23 acres of irrigation water rights were purchased. This would allow two dwellings on the subject property. MUA-10 zoning and a standard subdivision would allow the creation of three residential lots — an increase of one home. The applicant has agreed that cluster and planned development approvals should be prohibited to assure that no new lot is less than 10 acres in size. As a result, the higher density of development allowed in those developments will not be allowed to occur on the subject property. The property receives police services from the Deschutes County Sheriff. The property is in a rural fire protection district and the nearest fire station is nearby. It is efficient to provide necessary services to the property because the property is already served by these service providers and the property is close to the corporate limits of the City of Bend and adjacent to large tracts of land zoned MUA-10 and UAR-10 that has been extensively developed with rural and urban density residences. Mr. and Mrs. Cleavenger submitted letters and testified that the County should consider the over -taxed sewage system in the area and alleged that the County is not prepared to administer urban development. They note that there is a sewer project underway to replace the over -taxed 27th Street sewer line that will take two years to complete and that the applicant has not requested pre -approval to connect to City services. With respect to urban development in the County, the Cleavengers assert that the County's fee structure is not sufficient to cover 247-16-000317-ZC / 318 -PA 28 administration of higher density development to support additional burdens of such development including traffic, parks, open space, trails and libraries. The Hearings Officer rejects the arguments regarding septic capability because the property would be rezoned to MUA-10, which does not allow it to be served by City sewer. MUA-10 development is served by septic systems. I further reject the argument regarding insufficiency of fees to administer "higher density development," not only because there is a lack of proof on this issue, but because approval of the application does not constitute approval of any development, let along "higher density" development. With respect to transportation impacts, I find that substantial evidence in the record supports a determination that the proposed rezone will have minimal impact to the road system. Because the property would generate less than 50 trips, a traffic impact letter is acceptable. Senior Transportation Planner Peter Russell mistakenly interpreted DCC 18.116.310(E) to require a Transportation Impact Analysis for all rezones. DCC 18.116.310(D) only requires a TIA for proposals that generate at least 50 trips, among other things. I find that no TIA is required. The applicant's traffic impact letter constitutes the required traffic analysis under DCC 18.116.310 and OAR 660-012-0060. The Hearings Officer finds that two or three new homes is the worst case scenario for the subject property and that there will be no significant effect on Highway 20. I also find that the circumstances in this case are similar to those in the Pagel decision, PA -07-1, ZC-07-1, in which the property owner requested rezoning a parcel from EFU to MUA-10 and such property had already been developed with a single-family home. There, Mr. Russell advised that the applicants should compare the traffic generating potential of the uses permitted outright in EFU and MUA-10 zones. In so doing here, a comparison of traffic that would be generated by a church, for example that could be permitted in the EFU zone, but not in the MUA-10 zone, with traffic that would be generated by no more than 5 additional homes on the subject property is appropriate. Finally, I find that the Transportation Systems Plan includes planned improvements including additional lanes on Highway 20, upon which the applicant can rely as mitigation. With respect to the comments from ODOT, I agree with Mr. Russell that the agency's suggested condition of approval cannot be imposed by the County in this case. The County has no authority to close a private approach to the State highway system. Moreover, the County cannot require conditions of approval over which it does not have control, or which require action by another entity. The Hearings Officer finds that substantial evidence in the record shows that necessary public facilities and services are available to serve the subject property, including but not limited to electric power, water service and police and fire protection services. The Hearings Officer further finds that transportation services required to serve the subject property will be adequate given the small increase in potential Tots 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 : The &YU4-10 zoning is consistent with the specific goals and policies in the comprefierisive plan discussed above. The MUA-1O 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 arid 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 polic;es of the Comprehensive Pan, The Hearings Officer further finds that rezoning the subject property to MUA'1O will not result in new impacts on EFU-zoned farm and 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 af new Iots that could be created on the subject property under W1U/\'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. \ note that, a maximum of 2-3 new lots could potentially be created in the future out of the approximately 35 - acre povoe|, 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 \ntanaots, but they are not required considerations for a rezone application. /\gein, if the property is reclassified to K8U/\'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 K8U/\'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 PIan, as wefl 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! This allows urban density residential housing along west boundary of the property. That type of housing has been built along the south half of the boundary. Traffic along Highway 20 and Bear Creek Road has increased dramatically since the property was designated EFU making it impractical to operate farm equipment on either road or to allow cattle to use these road to travel to other agricultural lands in the area that might be used for grazing.4 Since the property was zoned, it has become evident that farm uses are not viable on the property or on other area properties. The economics of farming have worsened over the decades making it virtually impossible for a Deschutes County property owner to make money farming good ground. Central Oregon irrigation District has provided us with an irrigation map prepared by the State Engineer/Surveyor around 1945 to 1948, attached as Exhibit N of this burden of proof. It shows that lands in the area of the subject property had extensive water rights. Since that time, almost none of the lands shown continue to irrigate their properties. Between 2007 and 2012, the number of farm operations in the county dropped from 1405 to 1283 farms (8.68% decrease). This is not surprising as only 16.45% of farm operators achieved a net profit from farming in 2012 (211 of 1283 farm operations). That figure was 17% in 2007 (239 of 1405 farm operations). A copy of the Table 4, Net Cash Farm income of the Operations and Operators: 2012 and 2007 from the 2012 US 3 The City's general plan map from 1994 shows that the subject property was designated RL. 4 There are currently no properties in the surrounding, nearby area that are currently available for this type of use. 247-16-000317-ZC / 318 -PA 31 Census of Agriculture, the source of this information, is Exhibit 0 of this burden of proof. The vast majority of farms in Deschutes County have soils that are superior to those found on the subject property. As farming on those soils is problematic and generally not profitable, it is reasonable to conclude that no reasonable farmer would purchase the subject property for the purpose of attempting to earn a profit in money from agricultural use of the land. In 1979 and 1980, lands that contained poor soils but were mostly undeveloped were zoned EFU without regard to the specific soil characteristics of the property. Land owners were required to apply for a zone change to move their unproductive EFU properties out of the EFU zone. The County's zoning code allowed these owners a one-year window to complete the task. The zone change approach in 1979 and 1980 recognized that some properties would be mistakenly classified EFU even though soils and other conditions did not merit inclusion of the property in the EFU zone. Other property owners of lands east of Bend received approval to rezone their properties from EFU to MUA-10 because their properties contained poor soils and were improperly included in the EFU zone. The soils on the subject property are similarly poor and also merited MUA-10 zoning to correct the broad brush mapping done in 1979 and 1980. Furthermore, there is a change of circumstances since the application of EFU zoning — the County's comprehensive plan was amended to specifically allow individual property owners to, again, have improperly classified land reclassified. 1. Mistake. I find that the original EFU zoning of the subject property was not a mistake at the time of its original designation. The property's EFU designation and zoning were appropriate in light of the minimal soil data available to the county in the late 1970s when the comprehensive plan and map were adopted. 2. Change in Circumstances. In ZC-01-1, the Hearings Officer found that, "...any change in circumstance justifying a zone change must be to the subject property or other property in the vicinity and not to the property owner's circumstances or needs." I find that the record shows that the following general circumstances have changed with respect to the subject property and/or to other property in the vicinity since the property was originally zoned by the County and are not representative of a change in the property owner's circumstances or needs: • A significant increase in traffic along Highway 20 and Bear Creek Road over the past 35 years, has transformed the area from a quiet, rural farming community to one in which it is increasingly difficult to operate farm equipment and graze cattle. • Farming economics in Central Oregon have significantly changed; the evidence is clear that it is difficult to make a profit in farming, particularly on smaller parcels such as the subject property. • Farm uses are not viable on the property or on other area properties and, as a result, many property owners are choosing to forego irrigating their properties. • Farm operations have steadily declined in Deschutes County between 2007 and 2012, with only a small fraction of farm operators achieving a net profit from farming in 2011. • The encroaching development in the City of Bend, immediately to the west of the subject property has brought both traffic and higher intensity commercial uses to this area. 247-16-000317-ZC / 318 -PA 32 • The recent rezoning by the City of Bend of property to the west of the subject property from residential low density (RL) to residential standard density (RS), now allows urban level residential density development adjacent to the subject property. 1000 Friends of Oregon argues that the "vast majority of rural Deschutes County contains soils of the same classes" as on the subject property, and that "much of that land has been actively and successfully used as farmland or ranchland." There is no evidence in the record to support this argument, however. Furthermore, evidence in the record shows that the subject property is predominately comprised of soils rated VII and VIII, which do not constitute "agricultural lands" under OAR 660-033-0020(1)(a), as discussed in detail in the findings above, incorporated herein by this reference. For all the foregoing reasons, I find that the Applicant has established the public interest is best served by rezoning the property under the criteria set forth in DCC 18.136. The criteria are met. C. STATE LAW 1. Statewide Goal 3 The applicant's corrected burden of proof provides the following: State law requires the County to determine if the subject property has resource values that merit protection under State law. In 1979, Deschutes County applied agricultural plan designation to the property based on limited and general information about the nature of the soils found in the area of the property. The County has also implemented Goal 5 resource protection programs throughout Deschutes County. No Goal 5 resources were identified and protected on the subject property. The question before the County, at this time, is whether the subject property meets the definition of Agricultural land and, if not, whether it merits protection under Goal 3. The County must also determine if the property has forest resources that merit protection under Goal 4. In this case, it is clear that the subject property is not Goal 4 forest land. The requirements of Goal 4 are addressed near the end of this document. Goal 3 provides that it is a Statewide Goal (t]o preserve and maintain agricultural lands." The Goal states that "Agricultural lands shall be preserved and maintained for farm use, consistent with existing and future needs for agricultural products, forest and open space and with the state's agricultural land use policy expressed in ORS 215.243 and 215.700." Farm use is an activity undertaken for the purpose of making a profit in money. Goal 3 defines agricultural land as follows: Agricultural Land — in western Oregon is land of predominantly Class 1, I!, ill and iV soils and in eastern Oregon is land of predominantly Class 1, II, !!I, 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 VII and VIII soils as identified in the Order 2/3 Soil Capability Classification System of the United States Soil Conservation Service. This is more detailed soil data than provided by the NRCS soil surveys and should be utilized as it provides information at a level of detail appropriate for making land use decision on a property -by -property basis. That system is the Land Capability Classification system of placing soils into classes 1- Vi/l 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 / 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 VIIi soil 247-16-000317-ZC / 318 -PA 34 when not irrigated and is not rated for irrigation use due to its unsuitability for that purpose. Goal 3 and OAR 660-033-0030(5) allow the County to rely on the more detailed and accurate information provided by the Exhibit D study. 1000 Friends of Oregon has made a lay challenge to the soils report claiming that wetlands and ponds on the subject property should be classified LCC VI rather than LCC VIII because the term "current employment" of land for farm use is defined by ORS 215.203(2)(b) to include wasteland not engaged in farm use if in common ownership with land in farm use.5 The definition of "current employment" is clearly not relevant to answering the question of whether land is "agricultural land" because "in eastern Oregon (it] is land of predominately Class 1, I1, iIi, IV, V and VI soils as identified in the Soil Capability Classification System of the United States Soil Conservation Service." As explained by Mr. Borine, water bodies or ponds are considered Miscellaneous Areas and classified LCC 8 by the Soil Survey Manual and Ag Handbook 210. As set forth in the findings above, incorporated herein by this reference, the Hearings Officer finds that the subject property, consisting of soils that are not classified as Class I -VI (whether irrigated or not), is not properly classified as Agricultural Land, and that it does not merit protection under Goal 3. It is proper for the County to rely on the Soils Assessment included as Exhibit D to the applicant's burden of proof. 1000 Friends of Oregon argues that the County should not rely on the Soils Assessment because OAR 660-033-0020(1) does not permit the County to substitute the Capability Classification assigned by the soil scientist for the Classification assigned by NRCS. For the reasons set forth in findings above, incorporated herein by this reference, I reject this argument. Specifically, OAR 660-033-0030 permits the use of more detailed data on soil capability than provided by NRCS soil maps to define agricultural land. Here, this more detailed information shows that the subject property has a lower soil capability than indicated by NRCS maps. As stated by the NRCS itself in NRCS General Manual Part 402.6 — Limitations on the Use of Soil Survey Information, "Soils Surveys seldom contain detailed site specific information and are not designed to be used as primary regulatory tools in permitting decisions, but may be used as reference sources." OAR 660-003-0030(5)(e), cited by 1000 Friends of Oregon, states: This section and OAR 660-033-0045 authorize a person to obtain additional information for use in the determination of whether a lot or parcel qualifies as agricultural land, but do not otherwise affect the process by which a county determines whether land qualifies as agricultural land as defined by Goal 3 and OAR 660-033-0020. The Hearings Officer finds that this part of the rule must be read in context. The rule allows more accurate soils information to be used for property with soils that are LCC 1 -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. I find that Mr. Borine properly classified the wetlands/ponds as LCC VIII (water bodies or ponds are Miscellanous and classified LCC VIII), consistent with the Soil Survey Manual and Ag Handbook 210. For all the foregoing reasons, the Hearings Officer finds that the application complies with this subsection. (B) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a), taking into consideration soil fertility; suitability for grazing; climatic conditions; existing and future availability of water for farm irrigation purposes; existing land use patterns; technological and energy inputs required; and accepted farming practices; and FINDING: In response to subsection (1)(a)(B) above, the applicant's corrected burden of proof provides the following: This part of the definition of "Agricultural Land" requires the County to consider whether the Class VII and VIII soils found on the subject property are suitable for farm use despite their Class VII and VIII classification. The Oregon Supreme Court has determined that the term "farm use" as used in this rule and Goal 3 means the current employment of land for the primary purpose of obtaining a profit in money through specific farming -related endeavors. The costs of engaging in farm use are relevant to determining whether farm activities are profitable and this is a factor in determining whether land is agricultural land. Wetherell v. Douglas County, 342 Or 666, 160 P3d 614 (2007). The subject property was owned by John A. and Chrissie Ensworth from 1961 through 1994. Mr. Ensworth owned the property from 1994 until 2002. Internet research revealed that John A. Ensworth was a public school teacher at Kenwood Elementary School who received the 1973 National Teacher of the Year Award. According to an application filed with the County, starting around 1978 Mrs. Ensworth raised bass and crappies in the two ponds that are located on the property. The fish were sold to the owners of private ponds for fishing by their family and Mr. Ensworth's students. This operation is described in a letter to David Leslie, a Deschutes County Planner, in 1992, 247-16-000317-ZC / 318 -PA 36 Exhibit P. This use was abandoned long ago, and was not, according to Mr. Ensworth, profitable. Using the subject property to raise bass and crappies would not provide sufficient income to achieve a profit in money. The fish ponds were a hobby; not a farm use as defined by ORS 215.203(2)(a). Mr. Ensworth told H. Porter Burns that the ponds were used by him, his family and students for fishing and were a tax write-off. As the sales of fish did not cover fhe 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 VIII soils. it is unknown whether any other activity that might qualify as farm use occurred on the property during the time the property was owned by the Ensworths but it is known that they would have lost water rights due to nonuse for a period of at least five years, but for a law that allowed them to transfer their lapsed water rights. The Ensworths had sheep at one time and a family cow that they milked but they were not farming the land to make a profit in money and, therefore, not a farm use. The extremely poor soils found on the property prevent it from providing sufficient feed for livestock for dryland grazing. The dry climate, the proximity to US Highway 20 and area development prevent grazing from being a viable or potentially profitable use of the property. The soils, also, are so poor that they would not support the production of crops for a profit, assuming irrigation water rights could be obtained for that purpose. The primary agricultural use conducted on properties with poor soils is grazing cattle. Given the high cost of irrigating and maintaining the property as pasture or cropland (high labor costs, labor-intensive, high cost of irrigation equipment and electricity, high cost of fertilizer, etc.), dry land grazing is the accepted farm use of poor soils in Deschutes County. This use can be conducted until the native vegetation is removed by grazing (see the discussion of the suitability of the property for grazing, below). When assessing the potential income from dry land grazing, Deschutes County uses a formula and assumptions developed by the OSU Extension Service. This formula is used by the County to decide whether EFU-zoned land is generally unsuitable for farm use. • One AUM is the equivalent to the forage required for a 1000 Ib. cow and calf to graze for 30 days (900 pounds of forage). • On good quality forage, an animal unit will gain 2 pounds per day. • Two animal units will eat as much in one month as one animal unit will eat in two months. • Forage production on dry land is not continuous. Once the forage is eatern, if generally will not grow back until the following spring. • An average market price for beef is $1.20 per pound. Based upon these assumptions, the value of beef production on the entire subject property can be calculated using the following formula: 247-16-000317-ZC / 318 -PA 37 30 days x 2#/dav/acre= 60.0 lbs. beef/acre (1 acre per AUM) 60.0 lbs. beef/acre x 36,39 acres x $1 .20/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, "[Nigh 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 "Iljo maintain a minimum level of essential nutrients for proper crop growth multiple yearly application of very high rates of fertilizer and soils amendments are required." The fact that the soils are infertile unless made fertile through artificial means supports the applicant's position that the Class VII soils and the entire property is not suitable for farm use. The costs to purchase and apply fertilizer and soil amendments and the costs to sample and test soils are a part of the reason why it is not profitable to farm the subject property. This claim is consistent with data provided by the 2012 Census of Agriculture that shows that 83.55% of farms in the County loss money from farming, Exhibit 0. Suitability for Grazing: The climate is cold and d . The growing season is very short — just half the length of the growing season in the more temperate Madras region of Central Oregon. The average annual precipitation is only 11.7 inches. This means that the amount of forage available for dry land grazing is low. This also means that a farmer has a short period of amount of time to irrigate pastures. This makes it difficult for a farmer to raise sufficient income to offset the high costs of establishing, maintaining and operating an irrigation system. 247-16-000317-ZC / 318 -PA 38 Existing and Future Availability of Water for Farm Irrigation Purposes: No new irrigation water rights are expected to be available to the Central Oregon Irrigation District (COID) in the foreseeable future. In order to obtain water rights, the applicant would need to convince another COLD 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 CO/D, 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 VIII 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, "pis 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 111 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 farminq_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, fax lot 900, Assessor's Map 17-12-35 is zoned UAR-10 and designated URA (Urban Reserve Area) on the comprehensive plan map. The properties to the north that are zoned EFU-TRB and that are not employed in farm use are mapped by the NRCS as being located in Mapping Unit 58C. The vast majority of the soils in this mapping unit are nonagricultural soils (Class VII and VIII). Mapping unit 58C contains Gosney-rock outcrop-Deskamp complex soils. The Gosney soil is rated Class VII and is 50% of the mapping unit. Rock outcrops are rated Class 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 fax lots adjoin the eastern boundary of the subject property. Both fax lots are developed with residences. Tax Lot 1600 has a double -wide manufactured home with a hay cover and machine shed. Tax Lot 1601 has a one-story residence built in 1935 and 247-16-000317-ZC / 318 -PA 42 appears to be vacant at this time. Neither of these tax lots is currently engaged in any farm use. According to information provided by the NRCS Soil Survey of the Upper Deschutes River Area, both of these tax lots are comprised of the identical soil types identified on the subject property. Tax Lot 1600 is surrounded on three sides by major roads including Highway 20 to the north, Ward Road to the east and Bear Creek Road to the south. South: All of the land south of the subject property is separated from the subject property by Bear Creek Road, a major rural collector, and is zoned EFU-TRB. Bear Creek Road is a major road that provides access to businesses, schools and commercial businesses located within the City of Bend. It is not practicable to operate these properties as a single farm unit due to this separation. The subject property, also, is not needed to permit farm practices to be undertaken on any of the lands found south of Bear Creek Road. These farm operations, are independent operations that can continue to operate after the subject property is zoned MUA-10 to match other MUA-10 zoning that adjoins EFU property that is south of the subject property. The above analysis and the more detailed inventory and photographs provided by the applicant after the application was filed show that the subject property is not land "necessary to permit farm practices to be undertaken on any adjacent nearby lands." The Hearings Officer finds that substantial evidence in the record supports a determination that the subject property is not land that is "necessary to permit farm practices to be undertaken on any adjacent nearby lands." In other words, the subject property is not land necessary to permit farm practices to be undertaken on adjacent or nearby lands because none of the identified farm uses on those lands is dependent upon the subject property. The information set forth in the applicant's burden of proof on this subsection was not refuted by other testimony or persuasive evidence. As set forth in the findings above, incorporated herein by this reference, land to the west of the subject property is primarily urban residential development or zoned for such uses in the City of Bend. Land to the north of the subject property is separated by Highway 20 and is not currently engaged in farming operations. The two lots to the east of the subject property are developed with single-family residences and are not engaged in farm use. Land to the south of the subject property is separated from the site by Bear Creek Road, such that the subject property cannot be used for operation of any single farm use. Independent farming operations to the south will be able to continue if the subject property is rezoned to MUA-10. For these reasons, the Hearings Officer finds that the application complies with this subsection of the rule. (b) Land in capability classes other than I-IV/I-VI that is adjacent to or intermingled with lands in capability classes 1-IV/I-VI within a farm unit, shall be inventoried as agricultural lands even though this land may not be cropped or grazed; FINDING: In response to subsection (1)(b) above, the applicant's corrected burden of proof provides the following: Goal 3 applies a predominant soil type test to determine if a property is "agricultural land." if a majority of the soils is Class i-Vl in Central or Eastern Oregon, it must be classified "agricultural land." 1000 Friends position is that this test is a 100% Class VII - VIII soils test rather than a 51 % Class Vil and VIII soils test because the presence of any Class I -VI soil requires the County to identify the entire property "agricultural land." Case 247-16-000317-ZC / 318 -PA 43 law indicates that the Class 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 property 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 VIII nonagricultural soils as shown by the Borine soils report 6 Additionally, in 1979, the Ensworths sold then repurchased the property a few months later. The Hearings Officer notes that the references to Exhibit C and D in this paragraph are to the Exhibits submitted with the applicant's Rebuttal argument on October 11, 2016. 247-16-000317-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 Vlll, nonagricultural land (.59 acres Class VII/VII; .54 acres Class I -VI or 47.8%). When the subject property and this area are considered as a single property, 67% of the property is Class VII and VII. Exhibit D (Table 3). Class VI soils are found on the subject property but they are in the minority. The predominance test says that the subject property is not agricultural soil and the farm unit rule does not require that the Class VIINIII soils that comprise the majority of the subject property be classified as agricultural land due to the presence of a small amount of Class I -VI soils on the subject property that are not employed in farm use and are not part of a farm unit. As a result, this rule does not require the Class VII and VIII soils on the subject property to be classified agricultural land because a minority of the property contains soils rated Class VI. The Hearings Officer finds that substantial evidence in the record supports a determination that the subject property is not adjacent to or intermingled with any lands in capability classes I -VI within a farm unit. The evidence shows that the subject property is not and has never been part of a farm unit that includes other lands not currently owned by the applicant. The subject property has no known history of commercial farm use and contains soils that make it generally unsuitable for farm use as defined in state law. I also find that Goal 3 applies a predominant soil type test for determining "agricultural land." If a majority of the soils is Class VII and/or Class VIII, e.g., 51% of the soils, the County may determine the property is not agricultural land. Based on the evidence in the record, I find that there is no basis to inventory the subject property as agricultural lands. The Hearings Officer finds that the application complies with this subsection of the rule. (c) "Agricultural Land" does not include land within acknowledged urban growth boundaries or land within acknowledged exception areas for Goal 3 or 4. FINDING: The Hearings Officer finds that the portion of Tax Lot 1500 west of the COID canal is part of the legal lot of record for the subject property and is also owned by the applicant. It is zoned UAR-10. The applicant indicates that this is an acknowledged exceptions area for Goal 3 and is not "Agricultural Land". However, the Deschutes County Comprehensive Plan Map reveals a designation of Agriculture has been applied to that portion as well. As discussed in the findings above, incorporated herein by this reference, this portion of the property has been included in the new Bend UGB. The Hearings Officer finds that, for the same reasons that the remainder of the subject property has been determined not to consist of 'agricultural land," the portion of Tax Lot 1500 west of the COID property also is not "agricultural land." 247-16-000317-ZC / 318 -PA 45 OAR 660-033-0030 Identifying Agricultural Land (1) All land defined as ''agricultural land" in OAR 660-033-0020(1) shall be inventoried as agricultural land. (2) When a jurisdiction determines the predominant soil capability classification of a lot or parcel it need only look to the land within the lot or parcel being inventoried. However, whether land is "suitable for farm use" requires an inquiry into factors beyond the mere identification of scientific soil classifications. The factors are listed in the definition of agricultural land set forth at OAR 660-033-0020(1)(a)(B). This inquiry requires the consideration of conditions existing outside the lot or parcel being inventoried. Even if a lot or parcel is not predominantly Class NV 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, ll, 111, !V, 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 213 soils maps. Mr. Borine assigned the name "Zeta" to an unidentified soil that is shallow and is in land capability class VII. This is consistent with the NRCS soils data from the Soils Survey for the Upper Deschutes River Area, Oregon that shows that the 58C Gosney-Rock outcrop-Deskamp soil unit found on the subject property contains a contrasting inclusion of unidentified "soils that are very shallow to bedrock." Exhibit J (description of 58C soil unit found on subject property from NRCS publication, "Soil Survey of Upper Deschutes River Area, Oregon'). Rather than referring to this shallow soil as "shallow soil," Mr. Borine referred to as "Zeta." Mr. Borine assigned an NRCS Land Capability Classification (LCC) rating of VII to the Zeta soil. The NRCS provides Mr. Borine a system that he used to apply the correct soil classification to soils found on the subject property. Mr. Borine has used the NRCS classification system to apply a rating to the unknown "Zeta" soil. Mr. Borine is a certified professional soil classifier and soil scientist who is trained to determine the correct LCC rating for soils and his determination of the correct rating for the unknown soil (Zeta) is reliable. The Sage West soils assessment, prepared by Roger Borine, Exhibit D provides more detailed soils information than contained on the Web Soil Survey, the Internet soil survey of soils data and information produced by the National Cooperative Soil Survey. Those sources provide general soils data for large units of land. The Sage West, LLC soils assessment provides detailed and accurate information about a single property based on numerous soil samples taken from the subject property. 247-16-O00317-ZC / 318 -PA 47 Mr. Borine is one of five soils scientists in the State of Oregon DLCD has determined is qualified to conduct a soil survey to help counties determine whether land is or is not agricultural land. His review was submitted to and reviewed by DLCD and found to comply with its rules for such a report. Mr. Borine has worked for the NRCS and is eminently qualified to complete this assessment as shown by his certifications and work experience. The NRCS intends that its maps be used at higher landscape level, not on a property by property basis. They include the express statement: "Warning: Soil Rating may not be valid at this scale," on their maps. As stated by the NRCS itself in the NRCS General Manual Part 402.6 -Limitations on the Use of Soil Survey Information, "Soils Surveys seldom contain detailed site specific information and are not designed to be used as primary regulatory tools in permitting decisions, but may be used as reference sources." As Mr. Borine has explained NRCS maps may be perfectly correct at the landscape level while a tax lot may be in part or entirely a contrasting inclusion. An Order 1 soil survey is prudent to accurately identify soils, mapping units, and miscellaneous area and to accurately locate their boundaries. It provides more detailed information about the soils within the large mapping units used in the NRCS Soil Survey of the Upper Deschutes River Area. The depth of these soils was also determined. The soil samples taken from the subject property were tested to determine soil type and water -carrying capacity of the soils. The results of this analysis were used to develop an accurate soils map of the subject property. The Sage West, LLC soils assessment is related to the NCRS land capability classification system that classified soils Class 1 through 8. An LCC rating is assigned to each soil type based on rules provided by the NRCS. 1000 Friends claims that LCDC's rules and Goal 3 prevent Mr. Borine from assigning a different land capability classification to the soils found on the subject property. This claim, however, is inconsistent with LCDC's rules because it is expected Order 1 soils reports will show that soils have a different classification than shown by the NRCS maps. Otherwise, an applicant would simply rely on the NRCS maps. This fact is recognized by DLCD in its description of its review of soils reports. It states that LCDC may choose to audit soils reports if "soils are shown to be more than one capability classification lower than that of the NRCS Internet Soil Study." See, DLCD Website "Agricultural Soils Capability Assessment." As set forth in the findings above, incorporated herein by this reference, the Hearings Officer finds that the applicant has submitted more detailed data on soil capability than is contained in the USDA Natural Resources Conservation Service soil maps and soil survey in the Soils Assessment prepared by Mr. Borine of Sage West, LLC, and that the Soils Assessment relates to the NRCS land capability classification system. The Soils Assessment is presented to assist the County in making a better determination of whether the subject property qualifies as "agricultural land." I have previously determined in findings above that the County is authorized to rely on the more detailed soil capability data prepared by Mr. Borine and that his report and analyses meet all requirements of state laws and regulations. The Order 1 soils report is sufficient for the County to determine that the subject property is not "agricultural land." 247-16-000317-ZC / 318 -PA 48 The Hearings Officer finds that the application complies with this subsection of the rule. (c) This section and OAR 660-033-0045 apply to: (A) A change to the designation of land planned and zoned for exclusive farm use, forest use or mixed farm -forest use to a non -resource plan designation and zone on the basis that such land is not agricultural land; and FINDING: The Hearings Officer finds that the applicant is seeking approval of a non -resource plan designation on the basis that the subject property is not agricultural land. The application complies with this subsection of the rule. (d) This section and OAR 660-033-0045 implement ORS 215.211, effective on October 1, 2011. After this date, only those soils assessments certified by the department under section (9) of this rule may be considered by local governments in land use proceedings described in subsection (c) of this section. However, a local government may consider soils assessments that have been completed and submitted prior to October 1, 2011. FINDING: The Hearings Officer finds that the applicant's soil assessment has been certified by DLCD as required by this rule. The application complies with this subsection of the rule. (e) This section and OAR 660-033-0045 authorize a person to obtain additional information for use in the determination of whether land qualifies as agricultural land, but do not otherwise affect the process by which a county determines whether land qualifies as agricultural land as defined by Goal 3 and OAR 660-033- 0020. FINDING: As discussed in the findings above, incorporated herein by this reference, above, the Hearings Officer finds that the applicant has provided DLCD's certification of its soils analysis with the submitted application materials and has complied with the soils analysis requirements of OAR 660-033-0045 in order to obtain that certification. I find that DLCD's certification establishes compliance with OAR 660-033-0045. This information can be used to determine whether land qualifies as agricultural land. I find that the process for review, using that information, is not changed. I reject the arguments of 1000 Friends of Oregon and find that the process does not preclude the County from using the soils capability ratings determined by Mr. Borine using the LCC system of the NRCS (Soil Classification Service). Goal 3 bases the determination of class on that system, and not on the LCCs applied by NRCS soils surveys. Consistent with the administrative rules, the applicant has provided more detailed information that shows the subject property is not "agricultural land." The application complies with this subsection of the rule. 3. OAR 660, DIVISION 12, TRANSPORTATION RULE OAR 660-012-0060 Plan and Land use Regulation Amendments (1) If an amendment to a functional plan, an acknowledged comprehensive plan, or a land use regulation (including a zoning map) would significantly affect an existing or planned transportation facility, then the local government must put in place measures as provided in section (2) of this rule, unless the amendment is allowed under section (3), (9) or (10) of this rule. A plan or land use regulation amendment significantly affects a transportation facility if it would: 247-16-000317-ZC / 318 -PA 49 (a) Change the functional classification of an existing or planned transportation facility (exclusive of correction of map errors in an adopted plan); (b) Change standards implementing a functional classification system; or (c) Result in any of the effects listed in paragraphs (A) through (C) of this subsection based on projected conditions measured at the end of the planning period identified in the adopted TSP. As part of evaluating projected conditions, the amount of traffic projected to be generated within the area of the amendment may be reduced if the amendment includes an enforceable, ongoing requirement that would demonstrably limit traffic generation, including, but not limited to, transportation demand management. This reduction may diminish or completely eliminate the significant effect of the amendment. (A) Types or levels of travel or access that are inconsistent with the functional classification of an existing or planned transportation facility; (B) Degrade the performance of an existing or planned transportation facility such that it would not meet the performance standards identified in the TSP or comprehensive plan; or (C) Degrade the performance of an existing or planned transportation facility that is otherwise projected to not meet the performance standards identified in the TSP or comprehensive plan. FINDING: In response to this criterion, the applicant's corrected burden of proof provides the following: The proposed rezoning and change in plan map designation will not significantly affect any existing or planned transportation facility, as documented by the transportation impact analysis prepared by Chris Clemow, PE and by comments provided by Transportation Planner Peter Russell. As a result, this application complies with the TPR. The County code does not impose a requirement of a transportation impact analysis for all zone changes. DCC 18.116.310(C) says that no transportation analysis is required for proposals that generate fewer than 50 trips per day. The proposed zone change will not result in an increase in vehicle trips as uses that do not require conditional use approval in the EFU zone generate more vehicle trips than similar uses in the MUA-10 zoning district. If an analysis is required by DCC 18.116.310(C), DCC 18.116.310(E) requires that a 20 -year study period be used in the analysis. it does not require that a TIA be performed. At the request of the County Senior Transportation Planner, Peter Russell, the applicant submitted a transportation memo, dated September 9, 2016, which was received on September 10, 2016. In response to the letter, Mr. Russell provided the following comments: / 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 Tots. 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 [w/here **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 on the current National Wetlands Inventory prepared by the US Department of Fish and Wildlife. The National Wetlands Inventory inventories the large pond on the subject property as an excavated wetland (man-made). In 1992, Deschutes County protected all wetlands shown on NWI inventor maps in effect in 1992 as a Goal 5 resource. This fact is discussed in Section 5.3, Goal 5 Inventory of 247-16-000317-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 Go& 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 "Rio 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 "No 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 '9. 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 foliowing conditions of approval: a. This approval is based upon the app|ication, site plan, mpenificadiono, 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 Cuunty, shall not be allowed on the subject property as long as the property is zoned MUA-1O. A notice of this restriction shall be recorded in the chain of title on the subject property. Dated this } / �`.o. Shaohan' �»ir"hmU Hicks, Hearings Officer day of November, 2016 Mailed this day of November2016 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 Exhibit "E," attached to Ordinance 2017-007. /// PAGE 1 OF 2 - ORDINANCE NO. 2017-008 Dated this of , 2017 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON TAMMY BANEY, Chair ANTHONY DeBONE, Vice Chair ATTEST: Recording Secretary PHILIP G. HENDERSON, Commissioner Date of 1st Reading: day of , 2017. Date of 2"d Reading: day of , 2017. Record of Adoption Vote Commissioner Yes No Abstained Excused Tammy Baney Anthony DeBone Philip G. Henderson Effective date: day of , 2017. PAGE 2 OF 2 - ORDINANCE NO. 2017-008 NE MASON RD NE CORONA LN 0 J w a. z = Z _ rn O w > z a w z NE HAMPTON LN 1- U HWY 20 Zone Change From o EFU Tumalo/Redmond/Bend (EFUTRB) To a Multiple Use Agricultural(MUM 0 I I II I 111111 I 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. MUA10 , !hall,lale, 4„1,11, H1,1,I,„,I111o1111111 111111111.1,11BEARCREEK RD"I���,�������,�,�������,,,�����,��- EFUTRB PROPOSED ZONING MAP Porter Kelly Burns Landholdings, LLC 21455 Highway 20, Bend Exhibit "A" to Ordinance 2017-008 200 400 May 18, 2017 LI EFUTRB MUA10 \BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON Tammy Baney, Chair Anthony DeBone, Vice -Chair Phil Henderson, Commissioner ATTEST. Recording Secretary 800 ,Feet 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 HEAST ONE-QUARTER (SW114 SE1'4) OE SECTION 35. TO\UNSHIP I' SOUTH. RANCiE 1= EAST OF THE WILLA\TETTE MERIDIAN BEING \TORE. PARTICULARLY DESCRIBED AS FOLLOWS. COMMENCING AT THE SOUTHWEST CORNER OF THE SW1.4 OF THE SEI 4 OF SECTION RI2E. \\',M.: THENCE NOD -40'1 a"\V •- 30.00 FEET ALONG THE WEST LINE OF SAID S\V1i4 SEI -4 TO THE TRUE POINT OF BEGINNING BEING LOCATED ON THE NORTHERLY RIGHT -OF -WAV LINE FOR BEAR CREEK ROAD: THENCE CONTINUING N001-10'13,.\\. — (O.79 FEET ALONG THE WEST LINE OF SAID SW1,-1 :SET 4 TO A POINT LOCATED ON THE CURRENT CITY OF BEND URBAN GROWTIi BOUNDARY LINE: THENCE N2S-1—`13.E — 59$.87 FEET ALONG SAID URBAN GROWTH BOUNDARY LINE TO THE SOUTHERLY RIGIHT-OF-WAY LINE FOR L.S. HIGII\\'AY 20: THENCE NS9'50.12'"E — 1030.05 FEET ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE TO THE EAST LINE OF SAID S\\' 1 `-4 SEI I: THENCE SO0US'I5"E .-- 111. 71 FEET ALONG THE EAST LINE OF SAID SWI:4 SEI -'-I TO THE NORTHERLY RIGHT-OF-WAY LINE FOR BEAR CREEK ROAD. THENCE NS9'41'34"\\' — 1324.04 FEET ALONG SAID NORTHERLY RIGHT-OF-WAY LINE TO THE TRUE POINT OF BEGINNING. PARCEL C"ON' AINs APPROXIMATELY 5 3 :-1 ACRES SUBJECT TO ALL EASE\LENTS, RESTRICTIONS. AND RIGHTS-OF-R'AY OF RECORD PERTAINING i TC) THE ABOVE DESCRIBED LANDS. Page 1 of 1 - EXHIBIT "B" TO ORDINANCE No. 2017-008 Submitting written documents as part of test n ony? If so, please give a::copy to the Recording Secretaary:fo; HB 4079 Pilot Program Pre -Application Form Background In 2016, the Oregon Legislature passed House Bill 4079 (HB 4079). HB 4079 aims to boost affordable housing by allowing two cities to develop affordable and market rate housing on lands currently outside urban growth boundaries (UGBs) without going through the normal UGB expansion process. LCDC has adopted rules to implement HB 4079. The rules, a webinar explaining the program, and more materials are available at https1/www.orego n.gov/LCD/Pages/H B4079p_ilotprggra m.aspx Please review the on-line materials carefully before completing this pre -application. If you have questions, please contact us — we are eager to help you apply. To be eligible for the program, you must submit a pre -application. After receiving pre -applications, DLCD staff will contact each applicant to request any missing information and to provide advice on submitting a complete and competitive final application. The pre -application process is a chance for cities to indicate interest in the program and to obtain input from the Department. We understand proposals may change between the pre -application and full application. Note: At least 30% of the total proposed housing units must be affordable. Affordable housing units must be affordable to households earning no more than 80% of the area median income, or no more than 100% of area median income for spaces in manufactured dwelling parks. To Pre -Apply To pre -apply, fill out the form below and attach the three attachments listed on page 3, creating a single PDF. Submit that PDF to gordon.howard@state.or.us by 11:59 PM, Tuesday, September 5, 2017 November 1, 2017 (new deadline). Questions/Contact Gordon Howard Principal Urban Planner gordan.howard@state.or.us (971) 673-0964 HB 4079 Pilot Program Pre -Application — Page 1 Pre -Application The answer fields will expand as you type; it is fine for this form to expand to multiple pages. City applying CITY OF BEND, OREGON Contact person name and title Carolyn Eagan, Economic Development Department Director Site Contact phone (541) 693-2130 Contact e-mail ceagan@bendoregon.gov General description of site location (attach site map) and name of site owner 1FIF 101I°WINO1ABI LSUS1THE `I "F>AI\II)OWNFRS01 11 I1,11 11i'. I YI`)(_0N,11)1 :lhi(. IN A I iNAi AF'i'i iCAi l0N UNDPk I IiI HI (,) L Site Number 1 Porter Kelly Burns/Pacwest 2 Central Oregon Irrigation District 3 CCCC LLC 4 Early Bronco LLC 5 Pacwest 6 Always Idle Too LLC/Pacwest Name Table 1: Proposed Sites with location, contact information, and plan designation/zoning Site Number 1 2 3 4 5 6 Address 21455 Highway 20 61781 Ward Road 62955, 62855 Skyline Ranch Rd 62385 Hamby Road 21420 Highway 20 62225 Hamby Road Map and Tax Lot # Plan Designation/Zoning 17-12-35 TL 1500 18-12-02 TL 1000 17-11-23 TL 503, 17-11-24 TL 600, 700 17-12-35 TL 1200, 1201 17-12-35 TL 900 17-12-35 TL 1202 Agriculture/EFUTRB Agnculture/EFUTRB Urban Area Reserve/Surface Mining (SM) Agnculture/EFUTRB Urban Area Reserve/UAR10 Urban Area Reserve/UAR10 Table 2: Property site data including size, water rights, soils, and presence of high value farmland Site size Water Rights Soil Mapping (Acres) (Acres) Units Agriculture/EFUTRB 35 32 10 36A, 58c Agriculture/EFUTRB 3665 1 8 36A 58c Urban Area Reserve/Surface Mining (SM) 120 0 72C. 157C Agriculture/EFUTRB 8856 0 58C Urban Area Reserve/UAR10 10 0 5 36A. 58c Urban Area Reserve/UAR10 10 0 58C Map and Tax Lot # 17-12-35 TL 1500 18-12-02 TL 1000 17-11-23 TL 503, 17-11-24 TL 600, 700 17-12-35 TL 1200, 1201 17-12-35 TL 900 17-12-35 TL 1202 Project Housing units Plan Designation/Zoning High value farmland when irrigated? Yes - 10 acres None None None None None Total acreage (must be 50 or less): See adjacent tables Final site will be 50 acres or less in size when proposed If the City of Bend is allowed to move forward with the pilot project, it will work collaboratively with affordable housing providers and the land owner to meet or exceed the minimum densities of 7 units per acre with 30 percent being affordable. The precise land use mix and number of total and affordable units is not known now, but the city has prepared a matrix of different land use mixes which are consistent with the overall policy direction provided in Chapter 11 (Growth Management) of the Comprehensive Plan. The matrix illustrates that a wide variety of land use designations applied to a 50 -acre site developed as a "complete community" which blend lower, medium, and high density plan designations with small amounts of commercial, and open space will meet and more likely, exceed the minimum requirements. HB 4079 Pilot Program Pre -Application — Page 2 The minimum density ranges of 7 units per gross acre with a minimum of 30% affordable can be met or exceeded with a range of entitlement options with the exception of a lower -density single-family dominant site design concept. Table 3 illustrates six different site development scenarios and estimates the acreages in rights-of-way, Residential Standard (RS), Residential Medium (RM), Residential High (RH), Commercial, and Open Space all totaling 50 acres. The site concept is briefly described to highlight the overall site concept. Table 3 Site Development Land Use Scenarios, Acreages by Use Acres of Land Use/Comprehensive Plan Designations Scenario ROW RS RM RH Commercial Open Space Gross Acres Site Concept A 11 19 8 3 5 5 50 Focus on single family and medium density complete community B 11 10 9 8 8 5 50 Focus on an equal blend of densities and commercial C 11 8 9 13 5 5 50 Focus on a high density and medium density D 11 22 5 5 3 5 50 Focus on single family, medium and high density blend E 11 15 10 5 5 5 50 Focus on single family and medium density housing F 11 5 15 10 5 5 50 Focus on medium and high density residential Table 4 details the anticipated minimum and maximum number of units of each scenario based on regulatory minimum and maximum densities of each plan designation. Table 4 sums these, calculates averages, and estimates the percentage of affordable units at different percentages between 30-40 percent. Assuming the rule requires a minimum of 350 units (7 -acre minimum density over 50 acres), and 105 affordable units (30% of total units), Table 4 demonstrates that all scenarios except Scenario A would exceed the minimums established through the pilot project. Small amounts of commercial use may be desirable to serve the pilot project site depending on the exact location and its suitability for commercial uses given the surrounding area both inside the current UGB and the pilot project site. In addition, the site will be subject to the City's Master Planning regulations, which require ten percent of the site to be in some form of public or private open space. Table 4: Total and Affordable Unit Estimates for Scenarios RS Units RM Units RH Units Scenario Total Housing Units Average Scenano HU Estimated Affordable Units by % Scenario Min Max Min Max Min Max Total Min HU Total Max HU Average Max/Min 30% 35% 40% A 74 135 59 174 65 129 199 438 318 95 111 127 8 38 69 67 195 174 344 279 609 444 133 155 178 C 32 58 67 195 273 538 371 791 581 174 203 232 D 86 157 37 109 109 215 232 480 356 107 125 142 E 60 110 74 217 98 194 232 520 376 113 132 150 F 20 37 111 326 207 409 338 771 554 166 194 222 Average Total Units 438 Average Affordable 153 Average Min Units 275 %Affordable Units 35% °/s Affordable Min Units 96 7 Units/acre x 50 acres 350 105 This initial approach to site planning is closely tied to the approach to the project. If allowed to move forward with an application, the city's approach will engage a number of property owners and affordable housing providers to create a customized proposal to meet or exceed the minimum requirements, find a "sweet spot" between property owner and affordable housing provider financial constraints and desires, and address the context of the site itself and its location and surrounding uses. What is clear from this initial entitlement testing in Table 2, is that blends of housing types represented through different acreages of plan designations can exceed density and affordability minimums with the minimum level of affordability (30%). This approach allows the city and its partners to "reverse engineer" entitlement to match the financial and experiential strengths of different affordable housing providers while still producing a UGB expansion which has a variety of use types to enhance the surrounding area. Proposed number and type of market rate units, if any. Estimated, with the information known at this time. See above data in Tables 3 and 4, along with response to previous question. HB 4079 Pilot Program Pre -Application — Page 3 Potential development partner(s) Name(s) of company and contact information for developer(s), housing sponsors, and other project partners, if known at this time (please contact potential partners prior to submitting this pre - application). Development partners who have been contacted and expressed an interest in this proposal cover both single family developers and multi -family developers. The multi -family developers that would potentially work with the City on this project are two experienced, knowledgeable and successful organizations who have done multiple affordable housing projects, including tax credit funded projects. These two developers are: Pacific Crest Affordable Housing, and our Central Oregon Regional Housing Authority, dba Housing Works. Both of these entities also have experience with single family development, as do two other developers we have worked with extensively in the past, Building Partners for Affordable Housing, and Bend Area Habitat for Humanity. These last two have done several subdivision developments in partnership with the City for provision of single family homeownership opportunities for working families. Building Partners for Affordable Housing has also worked extensively on projects where they provide the land and the infrastructure and the actual building of the workforce targeted houses is done by private homebuilders. All of these partners have expressed an interest in working with the City on this project, and all are very familiar with the concept of mixed -income, walkable and inclusive neighborhoods. Public facilities and services Explain briefly how the pilot project site will be provided with public facilities and services, including fire protection, streets and roads, mass transit, domestic water, sanitary sewers, parks, and recreation. List utility providers and any special districts who would provide service. The following lists the public facility providers for the areas the City is considering for this UGB proposal: 1. Fire Protection: Deschutes County Fire Protection District No. 2 2. Streets: City of Bend and Deschutes County 3. Transit: Cascades East Transit 4. Domestic Water: Avion Water Company or City of Bend 5. Sanitary Sewer: City of Bend 6. Parks and Recreation: Bend Parks and Recreation District Sites 1, 2, 4, 5, and 6 are due east of Bend and abut the Bend UGB. The areas due east of Bend are already under the Fire Protection District (See No. 1 above) and within the service area of the Avion Water Company (See No. 4). Streets due east of Bend are under the jurisdiction of Deschutes County; the City expects that any improvements to these roads will bring these roads to urban standards. These road standards are found in Chapter 3.4 of the Bend Development Code. Regarding sewer collection, a new sewer interceptor line is under construction in 27th street near Bend's eastern boundary, and has been HB 4079 Pilot Program Pre -Application — Page 4 sized to accommodate the expected growth in east Bend and in those areas recently included in the UGB expansion. Regarding parks and recreation, the areas east of Bend are already within the Bend Parks and Recreation District. Cascades East Transit (CET) provides transit service along 27' Street in Bend, which is part of CET's Routes 5 and 6. Site 3 is located on the west side of Bend and abuts the City along its western and northern boundaries. This site is also located within the boundary of the Fire Protection District. Any water service would be provided by the City of Bend; water service is currently not available to the site. The City also provides sanitary sewer to this area. CET provides transit service to Central Oregon Community College (COCC) through Routes 3 and 12, which are the routes closest to the CCCC LLC properties. However, the CCCC properties are not abutting a segment of Shevlin Park Road which already has service; service currently ends at Mt. Washington Drive, which is approximately one mile south and east of Site 3. Attachments — please attach the following documents in PDF form 1. Map of site 2. Map of current land use designations and zoning of site and surrounding land within a minimum half -mile radius. 3. If the land is zoned EFU or mixed farm/forest, documentation that the site does not include high-value farmland under ORS 195.300. Some of the data is available on Oregon Explorer. Should you require assistance with this documentation, DLCD staff can assist you. This should include: a. A soils map from the USDA Natural Resources Conservation Service or Soils Conservation Service and corresponding soils capability class. Information from the Web Soils Survey should not be submitted unless maps published before December 6, 2007 are unavailable. b. If outside the Willamette Valley, documentation the land does not include land growing specified perennials in the most recent aerial photography of the Agricultural Stabilization and Conservation Service of the United States Department of Agriculture taken prior to December 6, 2007. Specified perennials means those grown for market or research purposes including, but not limited to, nursery stock, berries, fruits, nuts, Christmas trees or vineyards but not including seed crops, hay, pasture or alfalfa. c. If west of the summit of the Coast Range, documentation on whether the tract was used in conjunction with a dairy operation on December 6, 2007. d. Documentation the site does not include land in an exclusive farm use zone or mixed farm and forest zone that on June 28, 2007, was: (A) Within the place of use for a permit, certificate or decree for the use of water for irrigation issued by the Water Resources Department; (B) Within the boundaries of a district, as defined in ORS 540.505; or (C) Within the boundaries of a diking district formed under ORS chapter 551. e. Documentation the land contains less than five acres planted in wine grapes. f. Documentation the land is not in an exclusive farm use zone at an elevation between 200 and 1,000 feet above mean sea level, with an aspect between 67.5 and 292.5 degrees and a slope between zero and 15 percent, and located within: (A) The Southern Oregon viticultural area as described in 27 C.F.R. 9.179; (B) The Umpqua Valley viticultural area as described in 27 C.F.R. 9.89; or (C) The Willamette Valley viticultural area as described in 27 C.F.R. 9.90. g. Documentation the land is not in an exclusive farm use zone and no more than 3,000 feet above mean sea level, with an aspect between 67.5 and 292.5 degrees and a slope between zero and 15 percent, and located within: HB 4079 Pilot Program Pre -Application — Page 5 (A) The portion of the Columbia Gorge viticultural area as described in 27 C.F.R. 9.178 that is within the State of Oregon; (B) The Rogue Valley viticultural area as described in 27 C.F.R. 9.132; (C) The portion of the Columbia Valley viticultural area as described in 27 C.F.R. 9.74 that is within the State of Oregon; (D) The portion of the Walla Walla Valley viticultural area as described in 27 C.F.R.,9.91 that is within the State of Oregon; or (E) The portion of the Snake River Valley viticultural area as described in 27 C.F.R. 9.208 that is within the State of Oregon. 4. Optional: Any additional materials required for finalgualification for the pro 7r 1m (under the full application) that you wish the Department to review at this time. For example, local measures adopted to encourage affordable and needed housing within its existing urban growth boundary. Response to #4 — Optional On October 13, 2017 the City of Bend responded to the Governor's Request for Information (RFI) on workforce housing. Attached is the City of Bend response to that request. The attached document outlines the full extent of the efforts of the City of Bend to continue to invest in affordable housing and the challenges that we face. HB 4079 Pilot Program Pre -Application — Page 6 Owner -ALWAYS DLETOOC 41,40 SzelOIAcres Suitable Potential Site HIGH VALUE SOILS (if irrigated) l:.<.. , 27A 36A 36B Transit Stop 3/4 Mile Buffer Transit Stop Transit Route • Collections System (— UGB Taxlots Zoning EFU - TUMALO / REDMOND / BEND SUBZONE Site Suitability Map 1 URBAN AREA RESERVE 10 ACRE MIN 0 250 500 ECONOMIC DEVELOPMENT 1,000 Feet Date: 10/20/2017 dwner:, PORTER KELLY., ity URNS L'ANDH.OLDINGS'LL•' f'Si e 35 2 Acr s Owner ,CENTRAL•OREGON //////./,‘,.7•67///..• IRRIGATION DISTRICT %�/ Size: 38 Acres Suitable Potential Site HIGH VALUE SOILS (if irrigated) �:✓; 27A Transit Stop Transit Route �• Collections System L—...I UGB Taxlots 36A •„' 36B Transit Stop 3/4 Mile Buffer Zoning EFU - TUMALO / REDMOND / BEND SUBZONE MULTIPLE USE AGRICULTURAL Site Suitability Map 2 URBAN AREA RESERVE 10 ACRE 0 350 700 MIN 1,400 Feet n ECONOMIC DEVELOPMENT Date: 10/20/2017 Owner:,CC.CC/LLC/�%/ /// // /�//,// / /Size:' 39:9 Acres/ Suitable Potential Site HIGH VALUE SOILS (if irrigated) 27A Transit Stop Transit Route Collections System L— UGB Taxlots 36A 36B Transit Stop 3/4 Mile Buffer Deschutes County Zoning RURAL RESIDENTIAL SURFACE MINING URBAN AREA RESERVE 10 ACRE MIN 0 250 500 Site Suitability Map 3 1,000 Feet n ECONOMIC DEVELOPMENT Date: 10/20/2017 LJregon Kate Brown, Governor Department of Land Conservation and Development Expanding UGBs for Affordable Housing HB 4079 Pilot Program Overview 635 Capitol Street NE, Suite 150 Salem, Oregon 97301.-2540 Phone: (503) 373-0050 Fax: (503) 378-5518 www.oregon.gov/LCD In 2016, the Oregon Legislature passed House Bili 4079 (HB 4079). HB 4079 aims to boost affordable housing by allowing two cities to develop affordable and market rate housing on lands currently outside urban growth boundaries (UGBs) without going through the normal UGB expansion process. The law directed the Land Conservation and Development Commission (LCDC) to set up a process and select two pilot projects, one for a city with a population up to 25,000, and one for a city with a population greater than 25,000. The proposed pilot project sites can be up to 50 acres, cannot be on high value farmland, and must meet other requirements. The pilot project cities must ensure the affordable housing on the sites remains affordable for the next 50 years, and must demonstrate efforts to accommodate and encourage needed housing within their existing UGBs. LCDC has adopted rules to implement HB 4079. This spring, DLCD will adopt a timeline for pre - applications and full applications for those cities interested in the program; we expect pre -applications to be due in September 2017. Eligible Cities The legislation limits which cities may apply. Eligible Cities over 25,000 Population: Albany, Bend, Corvallis, Eugene, Grants Pass, McMinnville, Medford, Redmond, and Springfield. Eligible Cities up to 25,000 Population: Incorporated cities except those in Clackamas, Marion, Multnomah, Polk, and Washington counties and cities in Jefferson County served by the North Unit Irrigation District. Additional Information The rule, a webinar explaining the program, and more materials are available at http://www.oregon.gov/LCD/Pages/HB4079 AHPP.aspx Questions/Contact Gordon Howard Senior Urban Planner gordan.howard@state.or.us (971) 673-0964 (a) Any incorporated city within Clackamas, Marion, Multnomah, Polk and Washington Counties; and (b) Culver, Madras, Metolius, or any other incorporated city within the portion of Jefferson County that is also within the boundary of the North Unit Irrigation District. (8) "Site" means one or more contiguous lots or parcels. 660-039-0020 Preliminary Application and Final Application Requirements (1) The director shall set deadlines for qualifying cities to submit: (a) A preliminary application for a pilot project site; and (b) A final application for a pilot project site. (2) The director may revise either deadline under section (1) as the director determines is appropriate to accomplish the purpose of the pilot program. (3) To participate in the pilot program, a qualifying city must submit a preliminary application for a pilot project site to the department. A preliminary application must include: (a) A map of the pilot project site; (b) The total acreage of the pilot project site; (c) The existing land use designation and zoning of the pilot project site, and surrounding land within a minimum one-half mile radius; (d) Demonstration that the pilot project site does not include high-value farmland; (e) The number and type of affordable housing units, and, if the pilot project is a mixed income project, the number and type of market rate housing units, to be developed on the pilot project site; (f) The identity of entities that may partner with the qualifying city in development of the pilot project site; and (g) A brief statement of how the pilot project site will be provided with public facilities and services. (4) The department will review a preliminary application submitted under section (3) to determine whether the preliminary application is complete. If the preliminary application is not complete, the department shall notify the applicant in writing of what information is missing within 30 days of receipt of the application and allow the applicant to submit the missing information. The department will contact each pre -applicant to discuss the proposed pilot project. (5) An applicant may revise information included in a preliminary application as part of a final application submitted pursuant to section (6). (6) In order to be selected as a pilot project, a qualifying city that submitted a complete preliminary application must submit a final application to the department that includes: (a) A map of the pilot project site; (b) The total acreage of the pilot project site; (c) The existing land use designation and zoning of the pilot project site, and surrounding land within a minimum one-half mile radius, including demonstration that the pilot project site does not include high-value farmland; (d) A concept plan narrative and map showing generalized land uses and public facilities that includes: (A) The number and type of affordable housing units; Submitting written documents as part of testimony`?, If so, please _give a copy the Recording Secretary for the recor Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Business Meeting of November 1, 2017 DATE: October 24, 2017 FROM: Cynthia Smidt, Community Development, 541-317-3150 TITLE OF AGENDA ITEM: Consideration of Board Signature of Document No. 2017-652 an Outdoor Mass Gathering Permit (4 Peaks) RECOMMENDATION & ACTION REQUESTED: Make a decision based on the existing record and written and oral testimony APPLICANT: 4 Peaks Presents, LLC (Stacy Totland) AGREEMENT TIMEFRAME: June 17, 2018 to June 26, 2018 INSURANCE: Fourteen days prior to the event, 4 Peak Presents, LLC shall obtain and provide the Community Development Director for approval a Special Events Insurance policy that provides general liability of $1,000,000 per occurrence naming Deschutes County, its officials, agents and employees as an additional insured on the endorsement. The policy shall provide payment of claims within the 180 - day period after the scheduled termination of the event. Insurance Review Required by Risk Management: Yes BACKGROUND AND POLICY IMPLICATIONS: Before the Board is the consideration of approval of Document No. 2017-652, an Outdoor Mass Gathering permit for the 2018 4 Peaks Music Festival on a Bend -area property. On October 23, 2017, the Board held a public hearing regarding an Outdoor Mass Gathering permit (File No. 247-17-000732-OMG) filed by 4 Peaks Presents, LLC. The Board conducted a hearing and closed the oral record at the end of the public hearing on October 23. The written record closed at 5:00 pm on October 27, 2017. FISCAL IMPLICATIONS: None ATTENDANCE: Nick Lelack or Cynthia Smidt Community Development Department Planning Division Building Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 Phone: (541) 388-6575 Fax: (541) 385-1764 http://www. d e s ch ute s. o rg/cd STAFF MEMORANDUM TO: Board of County Commissioners FROM: Cynthia Smidt, Associate Planner DATE: October 27, 2017 RE: Outdoor Mass Gathering permit (File No. 247-17-000732-OMG) Deliberation I. BACKGROUND The Deschutes Board of County Commissioners ("Board") is considering a proposal by 4 Peaks Presents, LLC for an Outdoor Mass Gathering ("OMG") permit (Attachment A). The applicant proposes to hold a music festival from June 17-26, 2018 on a 150 -acre parcel owned by DM Stevenson Ranch LLC (Attachment B). The 4 Peaks Music Festival would include RV and tent camping, parking, and food and drink for an estimated 3,000 people. On October 23, 2017, the Board conducted a public hearing and closed the oral record at the end of the meeting. The written record for new information closed at 5:00 p.m. on October 25. The written record for the applicant's rebuttal closed at 5:00 p.m. on October 27. The Board will deliberate on November 1, 2017 at 10:00 a.m. 11. SUPPLEMENTAL INFORMATION AND COMMENTS The following summarizes prominent themes presented at the October 23 public hearing or during the written record period. After the hearing, numerous written comments were received (Attachment C). Not all comments are discussed below but they are included for the Board's review. Fire Protection Standards. Fire protection is a continued concern in Central Oregon as indicated at the October 23 hearing. The Bend Fire Department identified certain conditions if the Board approves the OMG permit. . • All fire hydrants, fire sprinkler, and/or standpipe system connections are to remain readily visible, accessible, and unobstructed and shall be accessible with an unobstructed circumferential distance of three feet. • Fire and emergency access roads shall have an unobstructed width of not less than 20 feet and a vertical clearance of not Tess than 13 feet, 6 inches. Barricades shall be approved prior to erecting. The emergency access roads shall remain open at all times. Quality Services Performed with Pride • Vendors cooking outdoors shall comply with the Bend Fire Department and the City of Bend "Open Cookina Concession Reauirements." • Non -fixed food concession such as enclosed trailers, buses, and vans shall comply with the Bend Fire Department and the City of Bend "Non -Fixed Food Concession Requirements." • All tents, canopies, and temporary structures shall comply with the Bend Fire Department regulations. • Campfires, bonfires and other recreational open burning are prohibited. • The Outdoor Mass Gathering shall have at least one first aid station staffed by two adult individuals trained in first aid techniques for the duration of the event. The first aid station shall include an Automated External Defibrillator (AED) device with AED device trained staff. Ambulance service shall be provided by Adventure Medics, Bend Fire Station #303 located at 61080 Country Club Drive, approximately 2 miles from the event site, or the next available responding ambulance unit. • The applicant shall contact Bend Fire Department prior to OMG and obtain final site approval from the department no later than the Wednesday (June 20, 2018) before the festival. • If the irrigation pond located on-site is less than 50 percent full one-week prior to the event, the applicant shall provide a water truck at the event for fire suppression. • In addition, adequate on-site water supply should be available either in the irrigation pond or in a water tank Staff recommends adding the conditions noted above if the Board approves the OMG permit. Medical Service — Ambulance The applicant submitted a medical service plan, which includes the use of Adventure Medics, an event medical service. The applicant is requesting a waiver from DCC 8.16.240(B), which requires a minimum of one ambulance located on-site at the festival. The Board may waive the permit requirements upon showing good cause by the organizer as noted in DCC 8.16.150(B). Staff recommends the Board make a decision regarding the waiving the on-site ambulance requirement. Public Safety — Traffic Control The applicant proposed a traffic control plan, which was reviewed and accepted by the County Road Department and Senior Transportation Planner, Peter Russel. At the hearing on October 23, neighboring comments suggested additional signage placed further west of the festival entrance and along Knott Road. These additional signs provide direction to those festival patrons traveling west on Knott Road but who miss the entrance and thus require a U-turn maneuver. Placing signage or traffic control personnel at the entrance of Heidi Lane avoids traffic traveling down this private roadway. Staff recommends the Board make a decision regarding additional traffic control signage and/or personnel along Knott Road and at Heidi Lane. File No.: 247-17-000732-OMG Page 2 of 4 Public Safety — TransCanada Pipeline At the October 23 hearing, neighbors raised concerns about the TransCanada gas pipeline that crosses the subject property. The property owner, Tom Stevenson, communicated with TransCanada regarding the easement and its restrictions. Howard Koff, who is part of the festival organization, provided comments on October 25 regarding this correspondence (Attachment C).1 The applicant stated at the hearing that the pipeline easement is incorporated into the design layout of the festival by using it as a vehicle access aisle only. As indicated in the correspondence with TransCanada, vehicle access is an allowed use in the easement. Public Health — Air Quality Written comments and oral testimony, specifically by Kathy Minar and Roberta Nethercutt stated, possible health issues of "harmful aerosolizing of microorganisms into the environment" that could occur during the festival. On October 25, Howard Koff provided comments by property owner, Tom Stevenson, regarding the preparation of the site where the festival and vehicle maneuvering occurs (Attachment D). Associated with air quality concerns is the mitigation of dust produced on-site during the OMG. Staff recommends adding a condition requiring dust mitigation measures be in place at all times at the event site. Hours of Operation By definition, an OMG is allowed to continue for no more than 240 hours (10 days). 2 The applicant originally proposed the permit be from Saturday June 16 to Tuesday, June 26, 2018. Through correspondence on October 25, 2017, the applicant has revised the dates for the OMG permit as Saturday, June 16 to Monday, June 25, 2018, which includes set-up and removal of equipment, structures, and similar materials used for the festival (Attachment D). The actual music festival dates will remain as June 21 — 24, 2018. An OMG shall not occur between the hours of 12:01 a.m. and 9:00 a.m. when within 1,000 feet of any residence. The applicant proposes two sessions — the silent disco and yoga/kids activities — that will occur outside of the allowable hours of operation based on location of the closest residence. The silent disco is scheduled from 12:01 a.m. to 1:45 a.m. and the "yoga and kids activities" occur on Friday morning beginning at 8:00 a.m. The closest residence is approximately 650 to 750 feet from the tent in which these activities will be occurring. At the hearing, the applicant indicated the potential to move these uses beyond 1,000 feet from the neighboring residence. However, the applicant is seeking a waiver to these requirements by the Board (DCC 8.16.150). Staff recommends the Board make a decision regarding the extended hours of operation that are proposed within 1,000 feet of a residence. Noise — Animal Impacts Written comments and oral testimony by neighbors mentioned potential noise impacts on animals — livestock and wildlife. The applicant indicated at the hearing features of their proposed design layout help mitigate traveling sound. One includes the southern stage, which uses a natural earthen mound 1 The correspondence from TransCanada included three brochures. 2 Staff interprets this to be mean consecutive hours. File No.: 247-17-000732-OMG Page 3 of 4 as a backdrop and thus buffers any sound that may travel south.3 The main venue is in a depression, surrounded by slightly higher land that provides some absorption of sound in all directions. To the west of the main venue is higher terrain, which provides a buffer to any sound traveling west. The applicant also has repositioned the side stage to the west to lessen impacts to the east. If the Board approves the OMG permit, staff recommends noise levels of the festival meet the requirements of DCC 8.16.290, which includes the following: • A sound level in excess of 70 decibels prior to 10:00 p.m. and in excess of 50 decibels after 10:00 p.m. (as measured upon the A scale of a standard sound level meter on affected property) shall constitute a violation of the Deschutes County Code. Security — Enforcement Testimony by neighbors expressed concern over festival security. The designated contact person for the OMG is Stacy Totland, (541) 350-6474, of 4 Peaks Presents. In addition, Jef Hinkle, (541) 977-3266, will be the site manager and Donal Liebermann, (541) 693-3797, will be the security manager. Ms. Totland will be on-site during the entire festival. If the Board approves the OMG permit, staff recommends the following conditions ofapproval: • The burden of preserving order of the proposed OMG shall be with 4 Peaks Presents, LLC. • The applicant shall keep reasonable counts of persons and vehicles entering the festival. • The estimated number of persons attending the OMG is less than 3,000 (max 2,999). The number of attendees shall not exceed the estimated attendance by 10 percent. Therefore, the total number of attendees including musicians, vendors, staff, patrons, and security shall not exceed 3,299. • Security will be in place at all times. III. RECOMMENDATION Staff believes that 4 Peaks Presents, LLC demonstrates compliance with or has the ability to comply through conditions of approval the approval criteria outlined in Chapter 8.16 for Outdoor Mass Gatherings. As required in DCC 8.16.280, the applicant grants access to the premises for inspection purposes by law enforcement, public health, and fire control officers based on the terms and conditions of approval of the permit. If deficiencies are identified following an inspection, the inspector may return as often as needed until deficiencies are resolved. If deficiencies are not resolved, the County Sheriff may terminate the Outdoor Mass Gathering. Attachments A. OMG permit, Document No. 2017-652 B. Aerial Photo of Subject Property C. Public Comments Received by October 25, 2017 4 D. Applicant Comments Received by October 25, 2017 E. Steven Hultberg Letter Dated October 27, 2017 3 The applicant also indicated the southernmost stage does not use amplification. 4 Comments submitted by Kristin Wills included two videos and a photo. These three documents are not included with this memo. File No.: 247-17-000732-OMG Page 4 of 4 REVIEWED LEGAL COUNSEL For Recording Stamp Only OUTDOOR MASS GATHERING PERMIT DESCHUTES COUNTY COMMUNITY DEVELOPMENT DEPARTMENT BEND, OREGON 541/388-6575 LOCATION: 21085 KNOTT ROAD. BEND OWNER: D M STEVENSON RANCH LLC TYPE, DATES & TIME OF EVENT: MUSIC FESTIVAL. JUNE 16. 2018 — JUNE 25. 2018. 9:00 AM TO 10:00 PM OPERATOR: 4 PEAKS PRESENTS. LLC PHONE: 541 350-6474 1. PERMIT BECOMES NULL AND VOID IF EVENT OR GATHERING HAS NOT STARTED ON THE APPROVED DATE. 2. THE APPROVED PERMIT SHALL BE RETAINED ON-SITE UNTIL THE EVENT OR GATHERING IS COMPLETE. 3. BY ACCEPTANCE OF THIS PERMIT, OWNER OPERATOR CONSENT TO ALLOW LAW ENFORCEMENT, PUBLIC HEALTH AND FIRE CONTROL OFFICERS TO COME UPON THE PREMISES FOR WHICH THE PERMIT HAS/HAD BEEN GRANTED FOR THE PURPOSE OF INSPECTION AND ENFORCEMENT OF THE TERMS AND CONDITIONS OF THE PERMIT AS ALLOWED BY DCC 8.16, AND ANY OTHER APPLICABLE LAWS OR ORDINANCES. FILE NUMBER (247-17-000732-OMG) The Board of County Commissioners approves the 4 Peaks Presents, LLC application for an Outdoor Mass Gathering permit based upon the attached requirements incorporated by reference herein and subject to the following conditions. CONDITIONS OF APPROVAL 1. Fourteen days prior to the event, 4 Peak Presents, LLC shall obtain and provide the Community Development Director for approval a Special Events Insurance policy that provides general liability of $1,000,000 per occurrence naming Deschutes County, its officials, agents and employees as an additional insured on the endorsement. The policy shall provide payment of claims within the 180 - day period after the scheduled termination of the event. 2. The total number of attendees authorized by this permit is 2,999. A 10% variance is allowed meaning that under no circumstances shall the total number of attendees (to include patrons, musicians, vendors, staff, and security) exceed 3,299 total persons at any time during the course of the event. 3. The operator shall keep reasonable counts of persons and vehicles entering the event. 4. The operator shall provide one toilet per every 100 attendees. The operator has contracted with Little John's Portable Toilets to provide the required facilities. 4 Peaks Presents 247-17-000732-OMG Permit, Document 2017-652 (November 1, 2017) 1 5. Hand washing facilities shall provide running water, adequate soap, and paper towels. The operator has contracted with Little John's Portable Toilets to provide the required facilities. 6. The operator shall provide waste collection and removal. The operator has contracted with Bend Garbage and Recycling. 7. Thirty days prior to the event, the operator shall submit to the Community Development Director and County Health Director, the contracts for sanitation and waste collection and removal. 8. Drinking water shall be provided via private well. The water system shall meet all Drinking Water Program requirements. 9. Food service shall be provided by licensed vendors and restaurateurs. The operator shall ensue that each food vendor applies to the County Health Department for a temporary restaurant license at least one week in advance of the event. 10. The operator shall receive final approval by the Bend Fire Department after inspection no later than June 20, 2018. 11. All fire hydrants, fire sprinkler, and/or standpipe system connections are to remain readily visible, accessible, and unobstructed and shall be accessible with an unobstructed circumferential distance of three feet. 12. Fire and emergency access roads shall have an unobstructed width of not less than 20 feet and a vertical clearance of not less than 13 feet, 6 inches. Barricades shall be approved prior to erecting. The emergency access roads shall remain open at all times. 13. The operator shall ensue that vendors cooking outdoors comply with the Bend Fire Department and the City of Bend "Open Cooking Concession Requirements." 14. Non -fixed food concession such as enclosed trailers, buses, and vans shall comply with the Bend Fire Department and the City of Bend "Non -Fixed Food Concession Reauirements." 15. All tents, canopies, and temporary structures shall comply with the Bend Fire Department regulations. 16. Campfires, bonfires and other recreational open burning are prohibited. 17. The Outdoor Mass Gathering shall have at least one first aid station staffed by two adult individuals trained in first aid techniques for the duration of the event. The first aid station shall include an Automated External Defibrillator (AED) device with AED device trained staff. Ambulance service shall be provided by Adventure Medics, Bend Fire Station #303 located at 61080 Country Club Drive, approximately 2 miles from the event site, or the next available responding ambulance unit. 18. Adequate on-site water supply for fire suppression should be available either in the irrigation pond or in a water tank. If the irrigation pond located on-site is less than 50 percent full one-week prior to the event, the operator shall provide a water truck at the event for fire suppression. 19. The operator shall provide dust mitigation and control measures at the event site at all times. 20. Thirty days prior to the event, the operator shall submit to the Community Development Director, the names and qualifications for all individuals trained in first aid techniques and AED device trained staff for the duration of the event. 21. The operator shall provide on-site security at all times during the event. The operator has contracted with Dark Eden Inc. to provide the required security. 22. The operator shall provide one crowd control person for each 100 persons, expected or reasonably expected to be in attendance at any time during the Outdoor Mass Gathering. 23. The operator shall ensure that traffic control and crowd protection personnel provide certification of training or experience acceptable to the County prior to conduct traffic and or crowd -control duties. 24. Thirty days prior to the event, the operator shall submit to the County Road Department and Senior Transportation Planner for review and approval a detailed traffic control plan that includes traffic control signs, sign location and spacing plan, traffic control personnel certification, and a site plan drawn to scale illustrating adequate space (75 feet) for stacking of vehicles. 25. Thirty days prior to the event, the operator shall submit to the Community Development Director and County Sheriff, the names and necessary background information for all traffic -control and crowd - control personnel to be utilized during the Outdoor Mass Gathering. 26. Operator shall adhere to the proposed site plan that shows the parking area. 4 Peaks Presents 247-17-000732-OMG Permit, Document 2017-652 (November 1, 2017) 2 27. The operator shall post this permit in a conspicuous spot on the property during the course of the event. 28. The operator shall ensure that access is provide to the premises for inspection purposes by law enforcement, public health, and fire control officers based on the terms and conditions of the permit. If deficiencies are identified following an inspection, the inspector may return as often as needed until the deficiencies are cured. If the deficiencies are not cured or if the County determines that the deficiencies cannot be cured then the operator expressly consents that the County Sheriff is authorized to take any and all necessary actions to terminate the Outdoor Mass Gathering. 29. The burden of preserving order to the proposed event shall be with 4 Peaks Presents, LLC. 30. All debris will be removed within 72 hours after the event termination. All temporary structures shall be removed within 3 weeks of event termination. 31. No person shall be permitted to bring alcohol onto the premises. This shall not apply to the sale and consumption of alcohol from a State of Oregon licensed facility located on the premise. 32. No narcotic or illegal/dangerous drug use will be permitted at the premises. 33. The operator shall meet the requirements of DCC 8.16.250, Public Safety. 34. Parking services will be provided by 4 Peaks Presents, LLC and will include a minimum of six traffic control and parking monitors for each shift. 35. The amplified music shall meet the requirements of DCC 8.16.290. A sound level in excess of 70 decibels prior to 10:00 p.m. and in excess of 50 decibels after 10:00 p.m. (as measured upon the A scale of a standard sound level meter on affected property) shall constitute a violation of the Deschutes County Code. 36. The Outdoor Mass Gathering shall not be conducted, including set-up, placement, storage, staging, removal or similar action of any equipment, materials, structures, vehicles, supplies and so forth, in the unincorporated areas of the County within 1,000 feet of any residence between the hours of 12:01 a.m. and 9:00 a.m. and in all other areas between the hours of 2:00 a.m. and 9:00 a.m. Dated this of , 2017 BOARD OF COUNTY COMMISSIONERS TAMMY BANEY, Chair ANTHONY DEBONE, Vice Chair ATTEST: Recording Secretary PHILIP G. HENDERSON, Commissioner 4 Peaks Presents 247-17-000732-OMG Permit, Document 2017-652 (November 1, 2017) 3 21085 SE Knott Road, Bend Aerial Photo '¢ §ri; gigi,ta' is ' DIA; US'G Cynthia Smidt From: Erik Kropp Sent: Tuesday, October 24, 2017 11:33 AM To: Cynthia Smidt; Nick Lelack Cc: Sharon Ross Subject: FW: 4 peaks For the record -Erik Original Message From: Bill Powers[mailto:billpowers536@gmail.com] Sent: Tuesday, October 24, 2017 11:32 AM To: Board <board@co.deschutes.or.us> Cc: Tammy Baney <Tammy.Baney@deschutes.org> Subject: 4 peaks 111111111111111111111111111111111111111111111 1,11,111111111111111111 1111i1 I just want to write to express my hope that 4 peaks can continue in its current location- or some location at the least- I understand they went through proper channels and did what was asked - I've attended at the previous location and loved it there- and the new one us even better- I'm a musician and music lover and concert and festival attendee- I think these folks do a great job - very well run family friendly festival- I understand the neighbors aren't happy w noise and overall disturbance- That's unfortunate - but I think it should precede if they've done due diligence- it's one weekend out of the year- I think anyone should be able to handle that- and I understand the promoter can and us willing to shift the stage to try to mitigate sound levels- - 4 peaks us a good neighbor and just the kind of event we should be supporting and encouraging here in central oregon- it ads to the quality of life here- thanks- I'm a resident - I live at 20002 Powers Rd 970-270-2276 - thanks for your time- Bill powers Sent from my iPhone Cynthia Smidt 11111 PI 11111111111111111111111111 1111111111111111 11111 1 1111111111111 From: Erik Kropp Sent: Tuesday, October 24, 2017 11:42 AM To: Cynthia Smidt; Nick Lelack Cc: Sharon Ross Subject: FW: 4 Peaks Music Festival For the record. -Erik From: Jasmine Barnett [mailto:jasmine.barnett541@gmail.com] Sent: Tuesday, October 24, 2017 11:35 AM To: Board <board@co.deschutes.or.us> Cc: Tammy Baney <Tammy.Baney@deschutes.org> Subject: 4 Peaks Music Festival Dear County Commissioners, I am writing you regarding the matter concerning 4 Peaks Music Festival in Bend. 1 am also writing on behalf of myself as a citizen of Deschutes County for over 10 years. Music festivals and specifically 4 Peaks are not only good for the soul but for our local economy. 4 Peaks supports other local non profits and is extremely family friendly. We were able to take my son August this year and he has Beckers Muscular Dystrophy. Incorporating music and art into his therapy has changed his life. He was able to enjoy the festival, feel included and it was easy to get around and navigate. We documented our experience there this year with a short video from his perspective (which is linked below) We should be embracing this festival and giving it a home here and be proud of what this event brings to our county. I understand how some neighbors could be upset at the event "causing them harm" but from my perspective only positive came out of that weekend. We should not be waging wars with neighbors but including them. Which my understanding is that 4 peaks has done just that. I witnessed neighbors camping side by side with us, animals at peace and my son was able to go to sleep at 8pm every night we were there. I think nothing gets accomplished when people are over exaggerating and causing an uproar over what I experienced is the exact opposite. I am not sure if there is a vote but if there is I urge you to vote to keep 4 Peaks here in our county and vocally support this festival as it drives our economy and makes where we live a better place. https://www.facebook.com/FutureFilmworks/videos/65 86509443 3 9429/ Please feel free to contact me via email or phone if you have any questions! Sincerely, Jasmine Barnett 541.647.9133 1 Cynthia Smidt .111111111111111111 From: Erik Kropp Sent: Tuesday, October 24, 2017 1:25 PM To: Cynthia Smidt; Nick Lelack Cc: Sharon Ross Subject: FW: Regarding Four Peaks music festival For the record. -Erik From: Maria Simonton [mailto:chillable@gmail.com] Sent: Tuesday, October 24, 2017 12:03 PM To: Board <board@co.deschutes.or.us> Subject: Regarding Four Peaks music festival County Commissioners, Please allow the Four Peaks music festival to continue in its new location in Southeast Bend. This long-running festival, now in its 1 lth year, is a mainstay of the live music scene in Central Oregon. It brings nationally - known and respected acts to our area and provides an influx of visitors and money to our economy. It has helped put Bend on the map musically and culturally. It attracts a peaceful family -friendly crowd and has never caused any problems other than the occasional noise complaint by intolerant neighbors. Our family sincerely hopes you will show some leniency with the event organizers and allow Four Peaks to remain a part of our vibrant community. Thank you, Maria Simonton and family i Cynthia Smidt From: Erik Kropp Sent: Tuesday, October 24, 2017 1:26 PM To: Cynthia Smidt Cc: Nick Lelack; Sharon Ross Subject: FW: 4 Peaks For the record. -Erik From: Mary Kate Clason [mailto:katieclason@gmail.com] Sent: Tuesday, October 24, 2017 1:23 PM To: Board <board@co.deschutes.or.us> Subject: 4 Peaks Dear Commissioners, I'm a Bend resident, mom, lawyer, and live music fan writing to voice my support for the 4 Peaks Music Festival at its current location. I attended last year's festival at Stevenson Ranch with my husband, two children, and several friends. I found 4 Peaks to be an extremely family -friendly event in comparison to other festivals and believe that concerns about drug -use and loud partying until 3 a.m. are overblown. 4 Peaks has a friendly community atmosphere that I haven't encountered elsewhere. Furthermore, the festival is a great addition to the live music scene in Central Oregon. Since last June, I've seen several 4 Peaks bands play in Bend at either the Volcanic Theater Pub, Century Center, or Domino Room. 4 Peaks gives musicians the opportunity to see what a great place Central Oregon is to play music. In turn, those same musicians book dates in Central Oregon between tour stops in bigger markets like Portland, Seattle, and San Francisco. I understand that the Board must balance the interests of all Deschutes County residents, including the few 4 Peaks neighbors who complained about the event. My hope is that the board will choose to address those concerns with 4 Peaks staff while continuing to support this amazing event at its current location. Sincerely, Katie Clason i FW: 4Peaks Music Fest - Cynthia Smidt Page 1 of 1 FW: 4Peaks Music Fest Tammy Baney Tue 10/24/2017 5:07 PM _i a:Cynthia Smidt <Cynthia.Smidt@deschutes.org>; In service to our community- Tammy Baney 1 Deschutes County Commissioner Direct: (541) 388-6567 1 1300 NW Wall Street, Suite 200 1 Bend, OR 97701 tammvb@deschutes.org 1 www.deschutes.org From: Carol Carson [mailto:skimum.com@gmail.com] Sent: Tuesday, October 24, 2017 2:44 PM To: Tammy Baney <Tammy.Baney@deschutes.org> Subject: 4Peaks Music Fest Dear Ms. Baney, The 4 Peaks Music Festival is a family friendly music festival that was brought to Bend by Stacy Totlan 11 years ago. Stacy saw the need for a family oriented music festival to serve the community of Bend. In the 11 years of the festivals existence it has fostered local community, positive family activity, tourism and local business. I have attended the festival with my family for several years and have personally witnessed the gifts that it's occurrence brings the community. Additionally I have seen first hand the care and attention that is given to securing and ensuring a positive outcome for the adjacent neighbors, business', environment and roads. I request that you consider that the benefits for many that the 4 Peaks Music Festival creates. Sincerely, Carol Carson aka SkiMum WWW.SkiMum.com https://outlook.deschutes.org/owa/ 10/25/2017 FW: Seven Peaks Festival - Cynthia Smidt Page 1 of 2 FW: Seven Peaks Festival Tammy Baney Tue 10/24/2017 5:16 PM io.Cynthia Smidt <Cynthia.Smidt@deschutes.org>; In service to our community- Morg Tammy Baney 1 Deschutes County Commissioner Direct: (541) 388-6567 1 1300 NW Wall Street, Suite 200 1 Bend, OR 97701 tammvb@deschutes.org 1 www.deschutes.org From: Justin Rae [mailto:jrae@northlinewealth.com] Sent: Tuesday, October 24, 2017 4:37 PM To: Tammy Baney <Tammy.Baney@deschutes.org> Subject: Seven Peaks Festival Hello Tammy — I hope that the recent criticism by a few regarding the Seven Peak Music Festival does not overshadow the amazing and community focused event that Stacey has put on for years. My family and I have been attending for many years and look forward to this as an alternative to the more party atmosphere at the Les Schwab amphitheater. I hope that the county commission will hear the many positive aspects of this festival and know that the organizers of the festival are doing much to mitigate the concerns being brought up by a few neighbors. Thanks for your time. Justin W. Rae Principal 15 SW Colorado Avenue, Suite 4 Bend, Oregon 97702 888-407-5463 X101 Toll Free 541-639-3560 Direct 888-407-5435 Fax irNORTHLINE https://outlook.deschutes.org/owa/ 10/25/2017 FW: Seven Peaks Festival - Cynthia Smidt Page 2 of 2 This communication (including any attachments) contains confidential or privileged information intended only for the individual or entity named. If the reader of this communication is not the intended recipient (or the employee or agent responsible for delivering to the intended recipient), you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please disregard and delete this communication, and do not disseminate or retain any copy of this communication. For your protection, do not include account numbers, Social Security numbers, credit card numbers, passwords or other non-public information in your email. Investment advisory services offered through Northline Wealth Management, LLC, an SEC registered investment adviser. When securities are being offered, it will be offered through Mutual Securities, Inc., Member FINRA/SIPC. Supervisory office located at 807-A Camarillo Springs Road, Camarillo, CA 93012. Northline Wealth Management, LLC is not affiliated with Mutual Securities, Inc. Custody services and other brokerage services provided to clients of Northline Wealth Management, LLC are offered by Fidelity Brokerage Services LLC, Member NYSE/SIPC. Securities trade instructions sent via email will not be executed until our office has contacted you and confirmed the trade instructions. If you need immediate assistance, please telephone our office or our Trading Department at (800) 750-7862 for prompt attention to your securities trade instructions. https://outlook.deschutes.org/owa/ 10/25/2017 FW: 4 Peaks - Cynthia Smidt Page 1 of 1 FW: 4 Peaks Tammy Baney Tue 10/24/2017 5:16 PM 1 Cynthia Smidt <Cynthia.Smidt@deschutes.org>; In service to our community - Tammy Tammy Baney 1 Deschutes County Commissioner Direct: (541) 388-6567 11300 NW Wall Street, Suite 200 1 Bend, OR 97701 tammyb@deschutes.org 1 www.deschutes.org Original Message From: Christy Nickey rmailto:baskvsnst70a_ mail.coml Sent: Tuesday, October 24, 2017 4:54 PM To: Tammy Baney <Tammy.Baney@deschutes.org> Subject: 4 Peaks Hello! I am writing you today as a constituent and as a longtime supporter and sponsor of 4 Peaks Music Festival. I am wholly in support of the venue in 2017 and was in a position to witness the entirety of the festival beginning to end. I came and went as I set up, ran and tore down my booth. I have had the opportunity to go to a great many festivals of this kind- small, family oriented boutique festivals and let me be clear: this festival ran smoothly and made huge efforts to accommodate neighbors. I know how hard all of the staff worked to minimize impact and they succeeded. There was never a time I saw traffic backed up. The stages all closed on time. These folks did a great job. They deserve to be commended. The festival generates money for local businesses like mine. It brings musically inclined visitors to our area and provides for more opportunities for locals to enjoy music. A few embittered neighbors should not prevent 1000s from enjoying themselves. The claims of animal loss is suspect. Sierra Nevada Music Festival has often been held near farmland without such complaints. The natural gas pipeline worry presented is grasping at straws. Perhaps if the neighbors work with the 4 Peaks organization they are rallying against they could find a way for everyone to be satisfied. Please approve the permit for 4 Peaks. It is best for the whole of the community. Thanks for the consideration, Christy Nickey Sent from my iPhone https://outlook.deschutes.org/owa/ 10/25/2017 FW: 4 Peaks Music Festival - Cynthia Smidt Page 1 of 1 FW: 4 Peaks Music Festival Erik Kropp Wed 10/25/2017 9:07 AM 10:Cynthia Smidt <Cynthia.Smidt@deschutes.org>; c.c.Nick Lelack <Nick.Lelack@deschutes.org>; Sharon Ross <Sharon.Ross@deschutes.org>; Fyi. From: Laughing Planet [mailto:freeheeler46@gmail.com] Sent: Tuesday, October 24, 2017 7:35 PM To: Board <board@co.deschutes.or.us>; Tammy Baney <Tammy.Baney@deschutes.org>; Tony DeBone <Tony.DeBone@deschutes.org>; Phil Henderson <Phil.Henderson@deschutes.org> Subject: 4 Peaks Music Festival Dear County Commissioners, I am writing to encourage you to please allow 4 Peaks Music Festival to continue having its' annual event at their current location at the Stevenson Ranch on 21085 Knott Rd, Bend, OR 97702. I have been volunteering with this event for the last 5 years. I must say that this is one of the best music festivals in the nation, in my humble opinion. I love the family feel and the people of all ages who attend. The kids area is fantastic with arts and crafts, music and juggling lessons and sensory pools (big plastic pools filled with corn) for kids of all ages to enjoy. The music starts and ends at reasonable hours (starting in mid morning and ending around midnight). I have been to some festivals where bands start as early as 9 am with the last band starting at 2am. The camping is low key with most people heading to bed before the 1 am hour. Now if you have ever been camping around others in a campground, this is not always the case. 4 Peaks is a wonderful 3 day weekend where people (families, friends and tourists) come and gather. I have not yet heard of an incident, if any throughout the festivals history, where police and/or ambulance needed to be called. We usually take care of ourselves and help one another. It is a great social experiment for almost 2,600 people to gather peacefully and have fun without causing harm. How can we let 1 or 2 families change an experience which impacts thousands of people positively? Please vote in favor of allowing 4 Peaks to remain at the Stevenson Ranch in 2018 and beyond. I would also encourage you to visit the 4 Peaks website http://4peaksmusic.com/ - and see the pictures and read the testimonials for yourself. It truly is a special event. Thank you for your time. Please feel free to contact me with any questions and/or concerns. You can call me at 541 337 6615 or respond back to this gmail account. Laura Poueymirou Early Intervention/Early Childhood Special Education Specialist and Outdoor Enthusiast Never surrender your dreams. It is when we dare not live them that dreams become impossible Amazonian Oral Tradition https://outlook.deschutes.org/owa/ 10/25/2017 FW: 4peaks - Cynthia Smidt Page 1 of 1 FW: 4peaks Erik Kropp Wed 10/25/2017 9:07 AM ro Cynthia Smidt <Cynthia.Smidt@deschutes.org>; Nick Lelack <Nick.Lelack@deschutes.org>; Sharon Ross <Sharon.Ross@deschutes.org>; Fyi. Original Message From: Nicole frnailto:nicoleoneill0@amail coml Sent: Tuesday, October 24, 2017 7:12 PM To: Board <board@co.deschutes.or.us> Subject: 4peaks To whom it may concern, Four peaks was an amazing family experience this year right here in our backyard of bend Oregon! I can't stress the impact it had on my children seeing the music, art, and community. It is truly the exact type of event that should be encouraged and supported in Bend! Please keep it going! Nicole O'Neill Sent from my iPhone https://outlook.deschutes.org/owa/ 10/25/2017 Fwd: 4 Peaks Music Fest - Cynthia Smidt Page 1 of 2 Fwd: 4 Peaks Music Fest Tammy Baney Wed 10/25/2017 3 12 PM - Cynthia Smidt <Cynthia.Srnidt@deschutes org>, Ii Deschutes County Web Sae In service to our community - Tammy Baney I Deschutes County Commissioner Direct: (541( 588-6567 11300 NW Wall Street, Suite 200 I Bend, OR 97701 tammvb(�deschutes.ora I www.deschutes.ora Sent from my :Pad Begin forwarded message - From: Carlton Ward Date: October 24, 2017 at 7 SO49 PM PDT To: °Tarr,.,,. 3:0` <10>:>: ,.ar._.. , <88,1 H;>d o>c >,a:cirson,te; ora, Subject: 4 Peaks Music Fest Reply -To: Carlton Ward <roulisliv39ii> --.nco cern> .� De0on;, .o.: inures o:c >, r h:l He: seson 3 de.ci).e_ 0:0" Hello, I am a photographer who shoots a fair amount of festivals and events and 4 Peaks is a well managed, caring and fun event to be a part of. It has a great mix of young & old people, kids have so much fun and the music is a great mix of bluegrass, easy rock, a touch of funk and absolutely no rap or heavy metal. I know how hard everyone works to make this a fun event and watched them take decibel readings regularly for every artist playing. The main stage shuts down at 1 Opm and the tent stage is quiet enough I can sleep camped 300 feet away. There are always a few people that will complain about any and everything but this festival does not deserve the scrutiny it is being subjected to. My wish is for you all to come join us and see for yourself what a clean family atmosphere it is and I guarantee you will have fun too. Thank you for your time, Carlton 4 Peaks 2017 4 Peaks 2017 Carlton Ward Galleries/Prints htto://carltonward.zenfolio.com/ htto://carltonwardohoto com/ A photograph can be an instant of life captured for etemity that will never cease looking back at you. - Brigitte Bardot https://outlook.deschutes.org/owa/ 10/25/2017 FW: Letter in support of 4Peaks music festival - Cynthia Smidt Page 1 of 1 FW: Letter in support of 4Peaks music festival Erik Kropp Wed 10/25/2017 9:06 AM i o Cynthia Smidt <Cynthia.Smidt@deschutes.org>; c.:Nick Lelack <Nick.Lelack@deschutes.org>; Sharon Ross <Sharon.Ross@deschutes.org>; Fyi. Original Message From: Jayson Bowermanfmailto:iayson@bowermanauitars.coml Sent: Tuesday, October 24, 2017 8:50 PM To: Board <board@co.deschutes.or.us> Subject: Letter in support of 4Peaks music festival Esteemed Board of Deschutes County, this letter is written in support of a renewal of mass gathering permit for the 4Peaks Music festival held each Father's Day weekend in June. The festival organizers have done an admirable job in trying to meet the letter and spirit of the rules and regulations applied to mass gatherings by providing a safe, well organized and family friendly event unique amongst the numerous music related offerings which enrich Central Oregon each summer. While improvements could of course be made over the first event at this new venue, overall everything went pretty smoothly despite the best efforts of Mother Nature to blow down all of the tents on the first day. Parking was well organized and arriving vehicles never seemed to back into Knott Rd. There was more than enough space on the property for all of the campers, and the parking fee structure combined with shuttle busses greatly cut down on the in/out traffic. The location was scenic as well as sanitary and my 7 month old son as well as my 70+ year old father both really enjoyed their time at 4Peaks. One suggestion for improvement would be in limiting stage volumes (the speakers pointed back at the performers to create sonic reference on the main stage, not the "Front of House") to prevent unwanted sound from projecting towards Knott Rd. Sound Pressure (measured in Decibels) to the South of the stage (FOH) was well managed by the stage location in its natural amphitheater as the ranch is quite expansive in that direction. Many concerts at the LesSchwabb Amphitheater are significantly louder when measured at the edge of the property, or even a mile or more away. In closing, this festival is great addition to Deschutes County and a unique camping music festival that my family looks forward to attending for many years to come. Please renew the current permit application and allow slow managed growth as the festival's well deserved regional popularity expands. Warmest Regards - Jayson Bowerman 107 NW Riverfront Bend, Oregon 97703 https://outlook.deschutes.org/owa/ 10/25/2017 Fwd: 4 peaks - Cynthia Smidt Page 1 of 1 Fwd: 4 peaks Tammy Baney Wed 10/25/2017 3.20 PM - Cynthia Smidt <Cynthia Smidt@deschutes org>, Deschutes County Web Sae In service to our community - Tammy Baney l Deschutes County Commissioner Direct: 1541; 388-6567 11300 NW Wall S4eet, Surte 200 1 Bend, OR 97701 tammvb(c deschutes.ora I wvww.deschutes.orq Sent from my !Pad Begin forwarded message - From: °em;) - i->ascadecandid_ con» Date: October 24, 2017 at 94554 PM PDT To: >1 _ammo Bane., ''iaiescndta 7100, Gori,. L'ebone; ,'seschu:. scan ,endeuun,bcieschutc: arc> Cc: Kristen Bwdick «30uilc'rrn>3 n,onuCcurnall >on,, Case Bullock < cas:ahull,: c1c,—n cc con.> Subject: 4 peaks )see that smile- It's a 4 peaks kid smile.") Hello, Dust wanted to take a minute to tell you how wonderful 4 peaks music festival is My husband and I have only missed one year of this event, and that was because I was veq' pregnant and not feeling well I hear some of the neighbors concerns, and I feel like you need to hear from someone who takes their family and thinks they are really exaggerating My son is 8 and daughter is 7 4 peaks !s their favorite weekend of the entire summer (ours too) My brother bangs his 3 & 5 yr olds, my sister brings her 3 year old- so many of our friends come because this truly ISA FAMILY FRIENDLY EVENTI' We always feel safe We have never seen a pet son on site who made us feel otherwise I live with in a mile of the new site, my immediate nelghbots only knew about 4 because I told them, they didn't hear anything and they didn't see extra traffic We all have been dealing with the nightmare of 27th construction fiat a long time- 3 days of a little more traffic is seriously not a big deal One of the things that makes this a great event is that it's not just tilt own together at the fail grounds, the serene settings have been part of what it's all about We love 4 peaks and support it and it's location 100% Emily Schwarzenbetger Owner/photographer Cascade Candids Photography (541) 771-0112 https://outlook.deschutes.org/owa/ 10/25/2017 Re: 4 Peaks Music Festival - kids area - Cynthia Smidt Page 1 of 1 Re: 4 Peaks Music Festival - kids area Kristin Wills <kzwills@icloud.com> Tue 10/24/2017 10:05 PM -I-Tammy Baney <Tammy.Baney@deschutes.org>; Tony DeBone <Tony.DeBone@deschutes.org>; Phil Henderson <Phil.Henderson@deschutes.org>; Cynthia Smidt <Cynthia.Smidt@deschutes.org>; @J 6 att,chments Video.MOV; ATT00001.htm; Video_1.MOV; ATT00002.htm; imagel.JPG; ATT00003.htm; https://outlook.deschutes.org/owa/ 10/25/2017 Fwd: 4 Peaks Music Festival - Cynthia Smidt Page 1 of 1 Fwd: 4 Peaks Music Festival Tammy Baney Wed 10/25/2017 3 34 PM Cynthia Smidt <Cynthia.Smidt@deschutes org>, Ii Deschutes County Web Site In service to our community - Tammy Baney 1 Deschutes County Commissioner Direct: (541) 388-6567 11300 NW Wall Sueet, Suite 200 1 Bend, OR 97701 tammvib(6)deschutes.oro I www deschutes.ora Sent from my iPad Begin forwarded message: From: Sean Miller <,e„n;nske:•ccalle ccm» Date: October 25, 2017 et 12 23 07 AM PDT To: 1031c171 de;chute> Oro Subject: 4 Peaks Music Festival Board Members - Pm wilting you in support of the 4 Peaks Music Festival I watched the October 23rd permit proceedings online (which is a fantastic option, great Mobil and 1 would like to voice my opinion in favor of the festival I have attended the festival for the last 7 years and it's one of my favorite reasons of visiting the greater Bend area Not only has the festival become an annual pilgrimage for my family, but it has allowed us to discover what Deschutes County has to offer So when I saw the opposition speak their concerns about the 4 Peaks Festival I was moved to write you personally with mine. I'm in support of this festival It's a faintly festival where friends from all over the state come to the Bend to enjoy live music, friendship and create memories It's easy to point out the negatives, but what about all the positives that happened. It's beyond clear from the opposition's testimony that they're not happy with this event being held in such close proximity of their residence It's also clear that the 4 Peaks management addressed all of the requirements needed to obtain a permit for this festival But the simple fact that 4 Peaks is willing to address the concerns of a few home owners should speak volumes of the character of the people running this festival. The opposition's case is clearly emotional, circumstantial and totally misguided Instead of opening a dialog, looking for solutions or achieving compromises, they offer nothing mote than resistance armed to delay 4 Peaks from an already tight deadlines Over the last 7 years, I have witnessed 4 Peaks grow into an unbelievable event One that welcomes all, provides a family friendly environment, attracts great music, and all around great time In my opinion, not only should 4 Peaks be granted their permit because they met all of the requirements, but because Bend needs more festivals like 4 Peaks Thank you for your time and I look forward to this year's 4 Peaks cheers, Sean Miller spun"aherrcallc cern 201-600-6278 - mobile S03-388-7092 - OR Office 201-743-8033 - NJ Office https://outlook.deschutes.org/owa/ 10/25/2017 FW: 4 Peaks Music Festival - Cynthia Smidt Page 1 of 1 FW: 4 Peaks Music Festival David Doyle Wed 10/25/2017 12:45 PM _F p:Cynthia Smidt <Cynthia.Smidt@deschutes.org>; DAVID DOYLE Deschutes County Legal Counsel 1300 NW Wall Street, Suite 205 Bend, OR 97703 Telephone: (541) 388-6625 Facsimile: (541) 617-4748 Email: David.Doyle@deschutes.org The information in this email, including any attachment, is for the sole use of the intended recipient and contains information belonging to Deschutes County, which is confidential and/or legally privileged. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or taking of any action in reliance on the contents of this email information is strictly prohibited. If you have received this email in error, please immediately notify the sender by reply email and destroy all copies of the original message. Original Message From: Dylan Stoddard Finailto:dvlan.stoddC0cimail.cornl Sent: Wednesday, October 25, 2017 12:44 PM To: Board <board@co.deschutes.or.us> Subject: 4 Peaks Music Festival To Whom It May Concern, I am contacting you to implore that the 4 Peaks Music Festival be allowed to occur in 2018 on the same site it was held in 2017. Live Music is a major piece of our culture here in Central Oregon, especially Bend. This festival stimulates the local economy and keeps Bend on the map as a tourist destination. Maybe more importantly, it's a fantastic event for local citizens to enjoy. It brings together music lovers, artists, food vendors, etc. for an experience that screams Bend! These attacks against the live music community are ridiculous and unwarranted. Please do not allow a few to ruin things for the many. Thank you. Regards, Dylan Stoddard https://outlook.deschutes.org/owa/ 10/25/2017 Fwd: 4Peaks Music Festival - Cynthia Smidt Page 1 of 1 Fwd: 4Peaks Music Festival Tammy Baney Wed 10/25/2017 340 PM - Cynthia Smidt <Cynthia Smidt@deschutes org>, roDeschutes County Web Site In service to our community - Tammy Baney 1 Deschutes County Commissioner Direct: (541) 388-6567 11300 NW Wall Street, Suite 200 I Bend, OR 97701 tammvb8-odeschutes.ora 1 www.deschutes ora Sent from my iPad Begin forwarded message From: Mardy Hickerson andhict 6:um_.d cen:> Date: October 25, 2017 at 2 16 28 PM PDT To: «rnno. Banev/3'des_hute: otc Subject: 4Peaks Music Festival Hr Tammy, Please approve the 4 Peaks Music Festival permit It has a broad influence on our entertainment and tourism industry Larger music festivals bring musicians and bands that would not other wise come to Bend Smaller venues like The Old Stone can leverage that while attracting quality acts throughout the year. When musicians meet on the road and talk about the welcoming community in Bend, I get emails about booking dates at the venue We all prosper from the balance diversity brings to our community Take care, Maidy Hickerson 541-678-8990 https://outlook.deschutes.org/owa/ 10/25/2017 Four Peak - Cynthia Smidt Page 1 of 2 Four Peak Susan Long <26susanelong@gmail.com> Wed 10/25/2017 3:59 PM _.Cynthia Smidt <Cynthia.Smidt@deschutes.org>; Phil Henderson <Phil.Henderson@deschutes.org>; Tony DeBone <Tony.DeBone@deschutes.org>; Tammy Baney <Tammy.Baney@deschutes.org>; To you all, Our family could not attend the meeting Monday regarding the new permit for the Four Peaks Festival. 1 spoke before you all last June with the concert fresh in our minds. I sent letters before you regarding this new permit and after speaking with my neighbors and reading the article in the Bulletin on October 24th, I feel I must again state my concerns and that of my family. Those of us opposing this venue for this festival were called "NIMBYism" by the Festival organizers at the hearing as if this were a bad thing to be, per Webster " opposition to the locating of something considered undesirable (such as a prison or incinerator) in one's neighborhood ". I think it's a good thing to be when we have been met with frank hostility when we have expressed our concerns to Stevenson, The Totlands, and Mr Hinkle of OMG. To be brief, it seems blatantly unfair that we as property owners, some for decades here, have to provide the burden of proof that violations are occurring, prove that it was an intrusion to the quiet rural life we have and enjoy on acreage, Four Peaks began allowing campers in to camp early in the week, there we still RV's present the Wednesday following the event. Noise 24 hours a day from the venues as well as campers partying well into the night, no teeth in the permit and our sheriffs department had no authority to follow up on our complaints. Noise variability and their( Four Peaks) self policing, this clearly is not acceptable, nor is this truly how sound travels in an area. We had no one to call, no one to verify what was happening at the time, in real time. The low bass thumped from morning until late at night. And it does nothing to show good will from the festival organizers when they tell land owners to go inside and shut the door, seriously...we all have livestock, gardens, irrigation pipe to move, and its summer for us too. This attitude should be taken into account, as evidence of how belittling our interactions have gone with those associated with this event. Safety and volunteer security for an event this size is unacceptable. Alcohol, drug use, and lots of people make for a potential disaster. None of the volunteers I spoke with would go on the record for fear of reprisals but campers were not inspected for alcohol or drugs, parties at camp sites are the norm, the medical tent doesn't have to answer to anyone so how does Ms Totland even know what they treated, and at St Charles where I work, ER visits were up during the event, I have no evidence it was the festival ( HIPPA), but it was a busy few days. Close proximity to hazards, irrigation canal, a camper fell in as evidenced by pictures taken by the property owner that pulled her out, no security came to her aid. A large cannibus grow operation in close proximity to campers and venue that required the property owners to provide 24 hours security at their own expense during the event. The fire danger in southeast Bend is very real, a stray cigarette, joint, firework, or campfire spark could damage property or cost lives, again security was nonexistent as evidenced by us crashing the event without being questioned. And as a person on immune suppression, I am well aware of the dangers aerosolized cow manure in dust that can pose to ones health. The venue runs cattle and they were back within weeks after the festival. The dust was clearly visible from town on Sunday as people departed the event....this is not the lush pastureland the event had before, poor land management and overuse is preventing the thick root bed to take hold on that property and where the Stevenson's have grass is not where they are choosing to hold this event. State laws that allow this event don't supersede the laws that also protect agricultural land, it is up to Counties to sort it out and protect an areas livability. More and more groups will be asking for permits as a money makers for the property owner at the cost of lifestyle, production, property value in the future. This event is NOT a benefit for https://outlook.deschutes.org/owa/ 10/25/2017 Four Peak - Cynthia Smidt Page 2 of 2 Deschutes County, it is not charitable but a for profit production for a LLC that has failed to make a profit farming this property. The money doesn't go back into the community but is again a profit maker for the property owner( lives in Washington state), and Four Peaks. It is costing all of us in the surrounding area money from loss of livestock production from noise stress, we had to secure gates with locks and did have to check our property security during the week of the event, for our own personal liability, as we have a livestock protection dog that just did not understand the constant beating noise was not coming on our property, and if someone did trespass as Steve and Kathy Minar had, they could have been bitten. The gas pipeline concerns? What is fair, what is an acceptable land use, what should neighbors be required to put up with for a landowners profit or use near them and what is truly a benefit to an area or a community? We paid a tax levy for our beautiful fair grounds, the Rodeo grounds by Sisters also might be a consideration or Mt Bachelor, but Four Peaks wants to maximize their profit, so we just chase our tail. Please look at this with the area as a whole, in mind, the overall benefit and to whom, the risks and the management of the complaints or violations, and just how we as property owners near this can be better served or protected, and a neutral party that can monitor those concerns, if you allow this festival on that location. We ultimately want it moved, this is not a good venue and the impact to the area so near the Deschutes National Forest, wildlife habitat and property owners outweighs the benefit to a family's LLC. We should not have the burden of proof put on us to stop this, but be protected by those that manage land use. Susan ( and Jim) Long 60535 Bobcat Rd Bend, Or 97702 Sent from my iPad https://outlook.deschutes.org/owa/ 10/25/2017 4 peaks permit Rebuttal - Cynthia Smidt Page 1 of 1 4 peaks permit Rebuttal Kathy Minar <kathyminar@gmail.com> Wed 10/25/2017 4:29 PM 3:Cynthia Smidt <Cynthia.Smidt@deschutes.org>; �J "I attachment rebuttalcommissioner's meeting.docx; I would like this letter included in the packet for the commissioners to review prior to their voting. https://outlook.deschutes.org/owa/ 10/25/2017 Kathy Minar 60700 Heidi Lane, Bend, OR Since I was the first guest to speak, every one was able to comment on my statements but I did not get to refute theirs. Here are my thoughts on issues that were brought up and my concerns for public safety, or the lack of it. Animal Safety Bass sounds do travel farther and the animals do perceive this as a threat. I think the board's recommendation to rotate the stage was an excellent recommendation to protect the wildlife. The bass noise from the concert did cause the water in our horse's trough to vibrate, made or farm animals anxious, and scarred off wildlife, some of which have not returned. httos://www.westsoundwildlife.ora/wildlife/Coexistina/C0 Low frequencies are not absorbed as well. This means low frequencies will travel farther. Another effect that affects sound propagation, especially through walls, headphones, and other relative hard surfaces is reflection. Reflection is also frequency dependent. High frequencies are better reflected whereas low frequencies are able to pass through the barrier: httns: //physics.stackexchange.com /questions /87751 /do -low - frequency -sounds -really -carry -longer -distances Low Bass sounds are hard on animals and disrupts foraging, nursing and grazing. Low frequency sounds disrupts echo location in bats . Mockford E1, Marshall RC. Effects of urban noise on song and response behaviour in great tits. Proc Biol Sci. 2009;276(1669):2979-2985 Bunkley JP, McClure CJW, Kleist NJ, Francis CD, Barber JR. Anthropogenic noise alters bat activity levels and echolocation calls. Glob Change Biol. 2015;3(2015):62-71. EPA reports that Bass sounds are hard on farm and wildlife. Often driving wild animals to new breeding areas. https://www.faa.gov/documentLibrary/media/Advisory Circular/ AC 00-61.pdf Here is an article from the forestry service on the impact of noise on the reproductive effect on domestic and wild animals. Noise makes wild animals more sensitive to seizures, enlarged pituitary glands and teratogemic effects, decreases uterine and placental blood flow. Stress from noise during day 7-8 during pregnancy resulted in 100% reabsorption by day 18 in small animals. Vibration related to noise was evalutated in was shown to cause stress in animals if they could not hear the sound. httrs://www.fs.fed.us/ena/techdev/IM/sound measure/Dufour 1980.odf page 22- 25. The suggestions 4 peaks made to protect the animals did not address the issues and provided no additional protection. "I am a wild life advocate and love wild animals. I will do my best," is not a solution. I do not feel this was adequately addressed. A more detailed plan needs to be put into place to ensure the safety of wildlife. Prior to permitting this permit a well detailed plan needs to be written on how the issue of noise will be controlled, and how any loses due to the noise will be resolved in a manner that involves good farming practices in this EFU Zoned area. Send a copy of this plan to the Oregon LCDC and the Oregon Farm Bureau. Airport: Since the issue of an airport was brought up something needs to be written into the permit with a safety plan to keep people out of that area, fencing and an emergency plan in place. Perhaps the airport administrator should temporarily close the runway. The FAA should be notified if a permit is being considered. Has the FAA been notified that a permit includes 500 children, alcohol vendors and camping so close to the airport? What are the FAA regulations that pertain to the situation? Follow up needs to be done on if camping, selling of alcohol, and children events near a runway is permissible to make sure FAA regulations are not violated. Harmful aerosolizing of microorganisms into the environment Roberta Nethercut is a microbiologist and bore witness at the meeting that there is a risk of release of harmful microorganisms into the air. Another disease, that I forgot to include, is Cociella Buretti, also known as Q fever. This bacterium is found in birth products (placenta, amniotic fluid), urine, and feces. People can become infected by breathing in dust that has been contaminated by infected animals. According to the CDC, C. Burnetti can survive for long periods of time in the environment and may be carried long distances by the wind. (https://www.cdc.govicifever/stats/index.html) Oregon is one of the states with a higher number of reported incidences of Q fever. 4 Peaks claimed they used water trucks last year. You have the pictures of all the dust with their use of water trucks. If they did use water trucks last year it was not adequate to prevent dust. A better plan needs to be put in place than do the same as you did last year. With 808 students at the High Desert Middle School, just 1 mile from this cattle -holding area, it seems a more thorough investigation would be warranted. Or to not use this portion of the Stevenson's ranch. The flat land next to the emergency road (on the event map) would be a safer entrance to the event. It is a paved road with a huge flat pasture along the side of it where parking and staging could occur. This area connects directly to the main stage area. The farmland to the west of the large barn and farmhouse is all flat. There are at least two other suitable sites on this property for this event that would not involve the cattle holding area on the NE corner of the property. More investigation for public safety needs to be addressed, a better plan for dust control needs to be written, or the parcel on the NE corner should not be used. A plan of how this will be prevented needs to be publically announced and sent to the school district. Pipeline Yes we drive over segments of the pipeline but those were planned for by the company and were wrapped in cement casing and more durable material. The same expense to secure the pipe under freeways was not extended to farmland. Again the junior high school is just a mile away. And safety should be put before entertainment. The pipeline company should be contacted and allowed to have their say on the matter before a decision is made on the approval of the permit. Security Stacey stated that they had 15-18 security personnel on once, and that she had 30 names on her security roster. My understanding is that the permit says there should be 1 security person for each 100 people. I take that as 1 security person on duty and working to enforce rules and safety for each 100 people the entire time people are on the property. That would mean that the 30 people on Stacy's roster are staying up 24 hours a day for 3 days in order to meet this criterion in the permit. No wonder there was inadequate security at night. The security needs to not be left to interpretation. It needs to be detailed out. 30 security personnel are not adequate number for 3000 people for the 76 hours that the public is on the property. Stacey would need 90 people on her security roster to meet the criteria she has agreed to. Thirty is far too few. I also would like to see that the volunteers, who are security, sign a contract that they will not partake of alcohol or marijuana while at the event. And I would like documentation on all security personnel that they have some certificate of training. A more detailed outline needs to be placed into the permit to clarify qualification of personal and hours of security provided to ensure safety for the public and the adjoining neighbors. Alternative sites The Redmond Fairs ground or the Sister's rodeo grounds are viable alternative sites. The grounds (lawns) are in better condition than the Stevenson property. There are bathrooms and showers (which are not available at the Stevenson ranch). And there is overnight camping. And they can provide electricity to the campers in certain areas of the grounds. These sites are safe. Music can be played until later in the evening. A "silent disco" would bother no one. There are no animals to disturb. No neighbors. No landowners' property being devalued. Communication between the neighbors and 4 Peaks We did invite Howard (Stacey's dad) and Tom Stevenson into our home to come to some sort of friendly relationship. They basically told us that the event was happening too bad. The Long's also invited Tom and Howard to their ranch. Their reception was the same. Not really friendly. Before the event I contacted Stacey and tried to meet with her. I have her email, which stated that she had her permit and did not need to talk to me. I can provide you a copy of that email. Before the event started I called the head of security regarding the early camping. His response to us was, "We interpret the permit differently than you do. You need to stop calling us over all these petty issues. I know you are upset but Sorry this event is happening." So we did call the sheriff. The next day we tried Stacey about amplified music early in the morning, and she did not respond. We realized that we were getting nowhere with the 4 Peaks Presents staff. Our attorney told us to document everything so we did. Inannronriate Comments: Jeff Hinkle's comments were inappropriate; Regarding the " just 5 -acre farm owners" having any authority to boss around a "big property owner". If that were the case then the Pape family would trump the Stevenson ranch. That was a ludicrous statement. The Stevenson family never had anything to do with allowing our home to be built. A man in Arizona owned this property and another local man bought 5 acres from him and built this home. Neither the Stevenson nor our family was involved in the permits or building of the home on Heidi Lane. Jeff Hinkle is not an authority on the pipeline nor is he an expert on infectious disease. His comments were uneducated and pure speculation on his part. They should have no weight in the accumulation of accurate data. The comment that we should just to go in our house and close the doors was totally inappropriate. I am sorry but my garden needs to be watered and my dogs need to go to the bathroom. Our animals need to be fed twice a day. Our irrigation needs to be turned on and off. We have to get into our cars to go places. I need to go down the driveway to get my newspaper in the morning and again in the afternoon to get the mail. Yes I was out by the fence because my garden is there, our dog kennel is there, our drive way is there, our yard is there, our irrigation pond is there. Remember I live here. You put your festival in my backyard. I can't believe Jeffs solution is for us to go in our home and close the doors. By the way, we were in our home when the "silent disco" ended last year. But the people were so loud that it woke us up. Finally at 3 am we could no longer stand the noise so we called the Sheriff. In Summary: Our household and our neighbors take this as an attack on our homes, the environment, our safety, the community's safety and even the safety of the guests of 4 Peaks. This location is not appropriate for this event. The zoning of EFU is not consistent with mass gatherings. This Permit is wrong for the community and the property owners in this area. We ask that you take seriously the threats to the farm animals, wildlife in the area, the potential of the_aerosolizing of harmful microorganisms and the integrity of the pressurized gas pipeline. There should be no hurry in approving this permit if there is any concern for public safety. Public safety should be foremost in the minds of you as commissioners voted in by the public to ensure our well-being. Safety, health and environment should always take precedent over entertainment. Rebuttal and Additional Testimony regarding the 2018 4 Peak... - Cynthia Smidt Page 1 of 1 Rebuttal and Additional Testimony regarding the 2018 4 Peaks Festival permit Steve Minar <steveminar@gmail.com> Wed 10/25/2017 4:55 PM ro.Cynthia Smidt <Cynthia.Smidt@deschutes.org>; Lc:Phil Henderson <Phil.Henderson@deschutes.org>; Tony DeBone <Tony.DeBone@deschutes.org>; Tammy Baney <Tammy.Baney@deschutes.org>; @,1 attachment 2017-10-25 - Letter - Steve Mlnar - Deschutes County Commissioners - Rebuttal and Comments on 4 Peaks 2018 Permit Application.pdf; Hello Everyone, I was going to send this to Cynthia only, but I understand she may be out of the office. Thought I would get it to all of you before the Spm deadline. My rebuttal and comments are attached. Thanks, Steve Minar https://outlook.deschutes.org/owa/ 10/25/2017 Rebuttal and Additional Comments October 25, 2017 Deschutes County Commissioners RE: FILE NUMBER 247-17-000732-OMG, 4 Peaks Presents 2018 OMG Permit Dear Commissioners: It's unfair that the current hearing process for OMG permits does not allow those with opposing views to offer oral rebuttal testimony during the hearing. Having the applicant present first makes sense. Having opposition next, followed by supporting testimony and finally the applicant rebuttal leaves any opposition at a tremendous disadvantage as there's no oral/public/video recorded opportunity to correct statements by the applicant or answer questions raised in their testimony. On Monday, Oct 23, 2017, there was considerable testimony on behalf of the applicant that deserved attention and response. I thought it was clear before the 3 minute break that I wanted to respond and might be given an opportunity. But none was given to me. There were ludicrous statements made on behalf of the applicant. There were also accusations against me. I'd like to address these right off the bat. Comments made by Jeff Hinkle 1. "...in those 10 years, ..., there have been no violations or citations against 4 Peaks nor have we ever had a permit denied." a. Our research shows that there have been plenty of past complaints against 4 Peaks, despite their continued denial. We spoke with neighbors who opposed the event at their previous location. We also had conversations about 4 Peaks' history of complaints and Sheriff responses with most of the deputies that we've interacted with regarding the event. In every case, we were told the sheriff is well aware of and has responded to numerous complaints at the event's previous location. Given our experience in 2017, it would seem violations and citations are not given, despite clear evidence. 2. "Despite the accusations directed at us by one or two neighbors..." a. One or two neighbors? Please. There are dozens of close neighbors and many more Bend residents that don't support 4 Peaks at the Stevenson Ranch location, some publically vocal, some not. We have not accused you of taking no steps to mitigate the impact. We are aware of efforts taken and appreciate them. That said, it's a losing battle as there's little that can be done on your behalf to make the event happen at this site without causing harm to the neighbors. 3. "Last year on Saturday night we were asked to stop the performance 20 minutes early due to noise complaints. And we complied." a. This is not true. Permit and schedule called for music to be at or below 50db after 10 pm. The performer that was on stage at 10 pm continued at volumes well above 50 db. We waited about 15 minutes after 10 pm before calling the Sheriff for assistance. A deputy arrived at our home and observed sound levels peaking around 67 db. The deputy called the event staff and was told that there was 20 minutes more in the set before they would lower the volume. Sound level measured at 67 db at 10:49 pm with the deputy present. Video recordings are available. 4 Peaks did not comply with the permit or sheriff's request. Their actions showed little concern for neighbors. 4. "This is not about anything substantive, this is about NIMBYism." a. Thanks for the attack-the-man tactic. In most definitions of NIMBYism, someone moves in and tries to change something that's already established, like moving next to an airport then trying to shut it down. If 4 Peaks had been operating on the Stevenson Ranch prior to our moving from the west side of Bend to Heidi Ln in 2008 and we opposed the event, that would rightfully be labeled NIMBYism. I don't have a history of opposing things and I'm not against the festival, I'm for it: in an appropriate location. I have a right and obligation to seek justice and protect my family and property. 5. "... also harassing authorities..." a. None of the authorities were harassed. We almost always apologized for asking them for help and have expressed gratitude for their professionalism and courtesy. 6. "I am aware of the meeting last Friday in attempt to undermine the festival with Captain Garrison. We have already refuted their allegations with the facts. They have no new information." a. We did not meet with Captain Garrison to "undermine" the festival. We met to learn about his views on the festival, find out how much of our previous testimony he was aware of, share our experience from 2017, ask for help in improving the processes involved and to learn a little more about legal specifics. We learned a great deal and believe it was a fruitful meeting. b. You claim to have refuted allegations with facts but present no allegations and facts to refute them. 7. "...not moving closer to the other neighbors, we're moving west..." a. Of course you are moving closer to other neighbors. Pretty basic logic. The question is whether you are truly closer to the Brewers, the Longs and others along the SE corner. 2 I'd say yes. You are moving both S and W, and the overall impact is now heavier on the SE corner of the event site. 8. Pipeline testimony a. Campers are camped quite close to the pipeline. My understanding is the campers are not the concern regarding being above the pipeline, other than potential hazard should there be an issue. It's the traffic of trucks, tractors, fire equipment that's a problem. The 1000's of miles of pipeline argument is specious as the pipeline is rigorously protected in areas of regular traffic (under roads) and built to codes required for earthquake protection. This not the same requirements for pipeline in a right of way on agricultural land. 9. Drone flew 20' over my head during setup a. Not possible, at least not my drone. More on that later in the document. Be aware that other drones were operating inside the festival event and other neighbors were operating drones. Only way my UAV could have been 20' over Jeff's head would be if he were on my property. 10. Increase about 3000 patrons a. We were told at the end of this year's event by event staff that they would be asking for a permit for 5000 11. Bass concern a. Sound reverberates off of all surfaces, at different rates. Bass travels farthest and has tremendous impact. 12. "Just go inside the house" a. Seriously? Aside from the desire to use of OUR property, we were advised by counsel and one or members of the sheriff's department to observe and keep track of issues at the event. 13. Paraphrasing: "5 acres shouldn't have control over 150 acres, in fact 150 acres should have more say than the 5 acres" a. This is a ludicrous statement and shows a lack of understanding of why laws exist. The legal system, while not perfect, attempts to protect people from being taken advantage of by others. If this wasn't true, then nobody would stand a chance against those that have a lot of money and resources. We are constitutionally protected from government taking from its citizens. We have laws to punish those that steal. We have recourse against bullies and those that take advantage of others through civil action in court. b. We are not just 5 acres. There are numerous property owners against the festival site. Acreage totals among us likely exceed 700, possibly much more. 3 c. My response: neither should 150 acres have control over a neighbor's 5 acres. d. In addition, the applicant is NOT the landowner and is not a neighbor. Sadly, the landowner didn't feel that it was important enough to show up for the hearing or to send a representative to speak on Stevenson Ranch LLC's behalf. Howard Koff 1. "The first call was to the sheriff's office" a. Not true. More than one call had been made to event staff already and we had encountered rudeness and inaction. While I appreciate the phone numbers of several staff, I shouldn't have to call one after another to have concerns addressed. After our first call to the sheriff, the deputy suggested that we interact through the sheriff's office for several reasons. 2. "We have a situation here where I believe the pot is calling the kettle black. For Steve Minar to come up here to talk about permit violations, when he flew a drone, within 5 miles of a private airport, without the airport manager's permission, over people at heights that may have not been permissible, in my opinion could negate all of those photos that you have..." a. Let me address the drone usage accusation first. I am a licensed FAA pilot holding SEL, MEL, Glider ratings with instrument privileges, tailwheel and high performance endorsements. I also hold a drone registration from the FAA. I take those privileges seriously. Before flying my UAV Unmanned Arial Vehicle or utilizing my Unmanned Arial Systems (UAS) (the correct terminloogy for a drone) I obtained permission from all of the neighbors over whose property I flew, INCLUDING the Stevenson Ranch. The ranch is occupied by a couple that has a lease to the land and they gave me full permission to fly over the ranch. A UAV of the size and capability I use must be flown at or below 300' AGL. It also can't be flown over an event like the music festival while the festival is operating. I operated my UAS with sophisticated autopilot software, allowing me to control its path and operation with great precision. I also retain all GPS tracks, including all black box data for both my own records and for legal protection. 300' AGL is below legal operating height for general aviation aircraft except for emergencies, takeoffs and landings, with exceptions for helicopter use. The DM Stevenson Ranch private airstrip has seen no use to my knowledge in the 9+ years we've lived here and is likely in disrepair. b. We're not in a court of law with evidentiary rules. That said, to suggest that the photos be inapplicable or thrown out speaks highly of their concern for what they contain. I'd rather see the applicant examine the evidence and answer to it. 4 3. Howard's suggesting that we "owe" anything to the Stevenson family is unwarranted, untrue and unresearched. We are the 2nd owner of our property. The first owner purchased 5 acres from the SW corner of the property whose NE corner is roughly the intersection of Knott Rd and Rickard Rd. The easement was granted by the owner of that 40 acre parcel. The Stevenson Ranch LLC happened to purchase the remaining 35 acre parcel, so our Heidi Ln easement is now associated with their LLC. 4. I enjoyed meeting Howard and his wife and have appreciated their efforts. I appreciate his love for his daughter and pride in her success. Those factors don't make it right to impose upon my family or my neighbors for the benefit of his daughter and others. Again I say, hold the festival, just do it in a location that's appropriate. No need to cause harm to neighbors. Final Thoughts 1. It seems clear that at least some of the commissioners want to fast track this permit. I find this legally unnecessary. It's a clear disadvantage to those opposed. Even a handful of additional weeks would not significantly impact the applicant. They were successful after receiving a permit in January last year. I submit they would be similarly successful should a decision not be available until later this year. 2. I am surprised, that in light of all of the permit violations alleged, little has been done to ascertain the validity, despite having over 4 months of time to act. Nobody has asked me for further details to corroborate the allegations. I was careful to keep accurate records and take video to back up claims that were made. Why is this? 3. It seems clear that despite likely permit violations, significant opposition and reasonable alternative locations, the permit for 2018 will be granted. 4. I feel disenfranchised as a citizen of Deschutes County, property owner and tax payer. 5. I respectfully request you deny the permit and encourage the applicant to find a suitable location. 6. If you are not willing to deny the permit outright at this time, please delay the decision for 3-4 weeks or more. We need time to secure and educate counsel. Sincerely, Steve Minar 5 4 Peaks Festival - Cynthia Smidt Page 1 of 1 4 Peaks Festival Roberta Nethercutt <artist777@ykwc.net> Wed 10/25/2017 4:58 PM -1o.Cynthia Smidt <Cynthia.Smidt@deschutes.org>; Dear Ms. Scmidt: I was an attendee at the Monday County Commissioner's hearing re. the 4 Peaks Festival proposed for the Stevenson's Ranch in June 2018 and thereafter. This email is to document my opposition to this festival at that site. 1. There is no way to enforce the number of attendees, control the noise generated and the hours of activity. It wasn't done last year and there is no guarantee it will be done this year. 2. Last year's activities did not adhere to the permit requirements. 3. The festival activities negatively impact the neighboring properties (farm animals and property values) and the native animals that live the surrounding areas. Many of the native animals fled the area due to the loud bass sound and did not return. 4. There are health and safety issues brought out by the excessive amount of soil that the wind blows onto adjacent properties. 5. As a microbiologist I can state that there is a strong potential for the aerosolization of enteric pathogens like E. coli and Salmonella that can be difficult to diagnose and treat. 6. Coccidioidomycosis (Valley Fever) spores are endemic in the soil in the desert areas of western states, including Oregon. Stirring up the soil puts these spores into the air and they can be inhaled resulting in a systemic fungal mycosis. This illness can be more devastating than Tuberculosis, particularly in the elderly. 7. Many attendees over indulge in the mind altering substances and are not aware of what they are doing. The potential for attendees to start a fire is great if they are impaired by marijuana, LSD, alcohol or some other mind altering substance. Should a fire be started during one of our strong winds, a conflagration similar to those seen this past summer in Oregon is a strong possibility. Finally, more appropriate venues with proper sanitation facilities are available. Let's look at the Deschutes County fairground options for an event like what 4 Peaks is proposing. Thank you for your consideration in this matter. Roberta Nethercutt 22360 Rickard Rd Bend OR 97702 https://outlook.deschutes.org/owa/ 10/25/2017 FW: Entrance gate/car staging area - Cynthia Smidt Page 1 of 1 FW: Entrance gate/car staging area Howard Koff <HMK@westburyent.com> Wed 10/25/2017 12:17 PM :Cynthia Smidt <Cynthia.Smidt@deschutes.org>; Tammy Baney <Tammy.Baney@deschutes.org>; S Koff <stacy4peaks@gmail.com>; Jef Hinkle <jef4peaks@gmail.com>; Steven Hultberg (shultberg@radlerwhite.com) <shultberg@radlerwhite.com>; Cynthia: At the recent hearing, a question was raised regarding the previous use of the car staging area for 4 Peaks at Stevenson Ranch. The e-mail below from Tom Stevenson responds to that question. Please let me know if you need any additional information or clarification. Thanks. Howie Koff Original Message From: Tom Stevenson fmailto.tstevenson@ ciora_ e.net1 Sent: Wednesday, October 25, 2017 11:21 AM To: Howard Koff <HMK@westburyent.com> Subject: Entrance gate/car staging area Howie, This email is in response to concerns about the soil quality of the car staging area near the entrance gate to the four peaks festival. Two years ago, when we began talking about hosting the 4 Peaks festival on the ranch we cleaned up the flat area accessed by the gate in order to create a car staging area suitable for festival use. All we had to do was clean up the cattle manure that accumulated within the small area where the cattle had been contained in a fence on this flat area. Over the previous years we had been cleaning this area periodically and using a manure spreader to fertilizer our fields. This is standard practice for most cattle operations. The manure is spread on our pasture fields and, since it is biodegradable and high in nitrogen, it creates good natural organic fertilizer. When we realized we were going to use this area as a car staging area on a yearly basis we decided to eliminate the flat cattle pen and we cleaned up all of the manure in the area where the cars would be staged for the entrance to the festival. Two years of rain and snow has biodegraded any small amount of manure left on the ground and soaked into the sandy soil and has left a much healthier potentially grassy area for use as a car staging area. I think there should be no concern using this flat ground for three days as a car staging area for the festival. Please feel free to ask me anymore questions about this area. Thanks, Tom Stevenson DM Stevenson Ranch Sent from my iPhone https://outlook.deschutes.org/owa/ 10/25/2017 FW: Pipeline Safety concerns -Four Peaks Festival - Cynthia Smidt Page 1 of 3 FW: Pipeline Safety concerns -Four Peaks Festival Howard Koff <HMK@westburyent.com> Wed 10/25/2017 12:13 PM .Cynthia Smidt <Cynthia.Smidt@deschutes.org>; C:Tammy Baney <Tammy.Baney@deschutes.org>; S Koff <stacy4peaks@gmail.com>; Jef Hinkle <jef4peaks@gmail.com>; Steven Hultberg (shultberg@radlerwhite.com) <shultberg@radlerwhite.com>; g 1 attachnipnts stevenson Ranch 2.JPG; AffectedPublicBookletGasUS.pdf; ExcavatorsBookletGasUS.pdf; YourPipelineNeighbor_FactSheet_BordersWest_US_EN.pdf; Cynthia: At the recent hearing, a question was raised regarding the gas pipeline/easement that runs underground at Stevenson Ranch. The e-mail below from Steve McNulty to Tom Stevenson responds to that question. Please let me know if you need any additional information or clarification. Thanks. Howie Koff From: Mike Warby[mailto:mikewrubysinn@gmail.com] Sent: Wednesday, October 25, 2017 11:44 AM To: Howard Koff <HMK@westburyent.com> Subject: Fwd: Pipeline Safety concerns -Four Peaks Festival Forwarded message From: Tom Stevenson <tstevenson(gorge.net> Date: Wed, Oct 25, 2017 at 12:41 PM Subject: Fwd: Pipeline Safety concerns -Four Peaks Festival To: mikewrubysinn@gmail.com Sent from my iPhone Begin forwarded message: From: Steve McNulty <Steve McNulty@transcanada.com> Date: October 25, 2017 at 11:58:11 AM MDT https://outlook.deschutes.org/owa/ 10/25/2017 FW: Pipeline Safety concerns -Four Peaks Festival - Cynthia Smidt Page 2 of 3 To: "tstevenson(@gorge.net" <tstevenson@gorge.net> Cc: Steve McNulty <Steve McNultv(transcanada.com> Subject: Pipeline Safety concerns -Four Peaks Festival Good morning Tom, Thanks for the call to discuss pipeline/easement restrictions on the property off Knott Road. Please see the attached image that shows the pipelines crossing your property at the intersections of Knott Rd and Heidi Lane. As we discussed the easement contains two High pressure natural gas pipelines a (36 -inch A-line Blue and 42 -inch B-line Green) on a 100 foot right-of-way (row). The row is further described: from the center line of the 36 -inch (A-line) pipeline measured at a right angles, 30 feet to the west and 70 feet to east describes the 100 foot easement. The B-line is 20-30 feet east of the A-line. There is no problem crossing the pipelines with cars and Recreational vehicles and temporary parking on the easement is acceptable. Here is some additional information that might be useful. I have also included some electronic pipeline safety brochures for your information. No permanent structures of any kind are allowed on the 100 easement including buildings, wells, septic tanks/leach fields, pools, ponds, etc. Cover over the pipeline cannot be removed or added without permission. Things allowed on the row: fencing, horse corrals, gardens and crops, greenhouses, sheds (without permanent foundations that can be moved). The pipelines and easement can be crossed with access roads, underground and overhead utilities with a written "Crossing Agreement". Before conducting any excavation on or near the row TransCanada Field Representatives must be present to locate and protect the pipelines during the crossing. Oregon law mandates two (2) business days before digging a locate ticket must be requested by calling 811 the national "One Call System". All the utilities are required to mark the location of the underground utilities (water, power, gas, communication lines, sewer, etc.) within two business days. Regards! Steve McNulty Land Supervisor US Land Services West steve mcnultvPtranscanada.com 201 W. North River Drive, suite 505 Spokane, Washington USA 99201 Tel: 509.533.2833 Cell: 509.991.0804 Fax: 509.533.2825 https://outlook.deschutes.org/owa/ 10/25/2017 FW: Pipeline Safety concerns -Four Peaks Festival - Cynthia Smidt Page 3 of 3 TransCanada.com Linkedln I Twitter ( Facebook 1 Blog 1 YouTube We respect your right to choose which electronic messages you receive. To stop receiving this message and similar communications from TransCanada PipeLines Limited please reply to this message with the subject "UNSUBSCRIBE". This electronic message and any attached documents are intended only for the named addressee(s). This communication from TransCanada may contain information that is privileged, confidential or otherwise protected from disclosure and it must not be disclosed, copied, forwarded or distributed without authorization. If you have received this message in error, please notify the sender immediately and delete the original message. Thank you. Nous respectons votre droit de choisir quels messages electroniques vous desirez recevoir. Pour ne plus recevoir ce message et les communications similaires, de la part de TransCanada PipeLines Limited, veuillez repondre a ce message en inscrivant dans ('objet « SE DESINSCRIRE ». Ce message electronique et tous les documents joints sont destines exclusivement au(x) destinataire (s) mentionne(s). Cette communication de TransCanada peut contenir des renseignements privilegies, confidentiels ou par ailleurs proteges contre la divulgation; ils ne doivent pas etre divulgues, copies, communiques ou distribues sans autorisation. Si vous avez regu ce message par erreur, veuillez en avertir immediatement l'expediteur et detruire le message original. Merci https://outlook.deschutes.org/owa/ 10/25/2017 i;111 100m reauof Land Maratmerrfent, State of Orecon, State of Orecon DDT, S Part of Your Community Important Safety Information — Natural Gas Pipelines Know what's below. • Can 811 before you dlg. TransCanada Why are you receiving this brochure? This brochure contains important safety information about natural gas pipelines, and you live or work near a TransCanada pipeline. To help you understand the role you play in contributing to pipeline safety, we ask that you review the information provided. If you would like more information or have questions, please contact us at public_awareness@transcanada.com or call 1.855.458.6715. Please retain this booklet for your information. En caso de emergencia relacionacla con un oleoducto, Hanle al 1.800.447.8066. Si desea recibir informacidn de seguridad sabre los oleoductos en espanol, envie un email a public_awareness@transcanada.com o Ilame al 1.855,458.6715. - Wholly Owned Natural Gas Pipeline Partially Owned Natural Gas Pipeline Natural Gas Pipeline Under Construction �»m®- Natural Gas Pipeline In Development Liquids Pipeline Liquids Pipeline Under Construction Liquids Pipeline In Development Power Facility Gas Storage About Us TransCanada is a leading North American energy infrastructure company with an industry leading safety record. For more than 60 years, we have been building, operating, and maintaining pipeline systems in a responsible and reliable way to meet the energy needs of North America. What is Natural Gas? • Natural gas is an energy source composed mostly of methane. • Natural gas is said to be odorless, but some people detect a slight hydrocarbon smell. If the gas has been odorized, it could smell "skunk -like" or similar to rotten eggs. • Natural gas is highly flammable and explosive. Our Natural Gas Facilities TransCanada owns and operates pipeline and other associated natural gas facilities including meter stations and compressor stations. Pipelines Pipelines are the safest and most efficient method to transport energy to market. Our pipelines are built using industry best practices, which include using the highest quality materials during the construction and implementing routine quality inspections and 24 hour monitoring programs throughout the life of the pipeline. Meter Stations Meter stations are facilities necessary within a pipeline system that measure the volume of natural gas transported by a pipeline. Natural gas is measured at all locations where it either enters the pipeline (receipt station) or leaves the pipeline (sales station). Compressor Stations As natural gas flows along a pipeline, it slows due to friction between it and the pipeline. This results in a loss of pressure along the pipeline. In order to make the gas flow continuously at the desired flow rate, it is re -pressurized at suitable locations along the pipeline. This is done by mechanically compressing the gas at sites connected to the pipeline known as compressor stations. The location and quantity of compressor stations required in a pipeline system is dependent on a number of factors, including the operating pressure of the pipeline, the diameter of the pipe used, elevation changes along the pipeline route and the desired volume of gas to be delivered. Maintaining Pipeline Safety • TransCanada works to meet all applicable federal and state safety standards. • The pipeline facilities are constantly monitored to ensure safety and integrity of the entire system 24/7. • The pipelines are equipped with multiple vaives that can be closed manually or automatically, often within minutes, reducing the potential amount of product released. • TransCanada patrols pipeline rights-of-way to identify any unsafe or unauthorized activity within the rights-of-way which could damage the pipeline. • TransCanada's employees are trained to meet all mandated federal requirements for Pipeline Operator Qualifications in the U.S. • In accordance with federal regulations, some segments along TransCanada's pipelines have been designated as High Consequence Areas (HEAs), To maintain the integrity of these HCAs, TransCanada has developed supplemental hazard assessment and prevention programs called Integrity Management Programs (IMPs). These programs may include internal inspections, external evaluations and pressure tests. For information regarding these measures, contact TransCanada and ask to speak with the US MP Program Manager. 287. ner inquiries 4-“, Ydu can access further infQrination * hazardous liquids ior natural gas through Your Safety Unauthorized digging and crossing by contractors, farmers, landscapers and homeowners is a leading cause of pipeline incidents. Excavation Before conducting any excavation, either by hand or with machinery, contact your local One -Call center by calling '811' — America's national toll-free number for requesting underground utility location. The One -Call Center will notify owners of buried facilities in your area, who will send representatives to mark these facilities with flags, paint or other marks, helping you avoid damaging them. In most states, a notification to the One -Call center is required by law. The service is free and could prevent accidents, fines, injuries or deaths. Crossing and Encroachment A crossing or encroachment is a temporary or permanent structure across, on, along or under a facility or pipeline right-of-way. A crossing can also mean equipment or machinery crossing over the pipeline right-of-way or facility site. Like excavations, crossings and encroachments can pose a threat to the pipeline. If you think your activity requires a Crossing agreement with TransCanada, please contact us to better serve you and speed up your request, please provide the following information: • Proposed activity — what are you planning to do? • Location of proposed work (GPS coordinates are preferred) • Make(s) and model(s) of any of the equipment that will cross/encroach the Once you have received approval, the party completing the work must call '811' to request a locate of the pipelines at least three business days before beginning work. pipeline facilities • Proposed activity date • Axel load (weight) • Your name and phone number • Email address Pipeline Location • Most pipelines are buried underground in an area of cleared land often referred to as the "right-of-way". The area on either side of the pipeline within the right-of-way must be clear of trees, shrubs, buildings, fences, structures or any other encroachments. • Markers are used to indicate a pipeline's approximate location as well as the name of the pipeline and the operator's information. • Only a TransCanada representative can determine the location and depth of the pipeline. Pipelines may not follow a straight course between marker signs. • You can access further information regarding pipelines in your community transporting natural gas or other fuels through the National Pipeline Mapping System (N.P.M.S.) at www.npms.phmsa.dot.gov. Agriculture Safety TransCanada wants to ensure the safety of anyone living or working near our facilities, and that includes America's active farming community. Normal farming practices can be completed without notice to TransCanada or contacting '811' but ground disturbance and some other activities can pose a risk to underground utilities and may require permission or coordination. These include • Ground leveling • Sludge spreading • Clearing/Brushing/ Grubbing • Reducing or adding soil cover • Tiling • Trenching • Earth moving • Plowing • Disking • Drainage ditch clean out • Drain tile installation • Terracing • Fencing/Landscaping • Excavation • Augering • Stockpiling/Storage/ Parking • Blasting activities • Building construction • Operating B -Trains • Controlled burning allbefore you dfg s low requ,red time for markin kspect the rmar ksy Lines are marked by flags, paint or othet markers norma'Ilyyellow for pipelines) :xcavate carefully `When digging near underground utilities, be sure` to h nd digto detp.110ne their exact location Pipeline Incidents A pipeline incident could involve an uncontrolled or unplanned release of natural gas from the pipeline system. TransCanada's state-of-the-art leak detection systems, elevated safety features and specially trained staff make us confident leaks would be quickly identified and addressed. In the unlikely event an incident should occur, TransCanada would immediately respond by shutting down the pipeline and dispatching emergency personnel to the location of the incident. Remote controlled valves spaced at intervals along all TransCanada pipelines allow incidents to be quickly and effectively isolated. Trained crews dispatched to the site work to further isolate the area and coordinate a response with local emergency services. TransCanada will not restart the pipeline until the issue has been identified and it is safe to do so. TransCanada's policies and practices for emergency response planning go above and beyond the standard regulatory requirements for emergency response. WARNING I$IOH PRESSURE NATURAL GAS PIPELINE mod, 001101.11.11111111. _ WARNING • Warning Sign Line Marker Vent Marker Aerial Marker Pipeline Markers • Pipeline marker signs contain important information, including the owner of the pipeline, the product shipped in the pipeline and emergency contact numbers. • TransCanada uses a variety of markers and signs along rights-of-way to alert people to the general location of its pipelines. Markers are typically placed where the pipeline intersects streets, railroads, rivers, fence rows and in heavily congested areas. • Do not rely on pipeline markers or signs to show you the pipeline's location, path or depth. Instead call `811'. TransCanada and other utilities will send a representative to the proposed excavation site to mark buried utilities at no cost to you. • It is against the law to willfully and knowingly deface, damage, remove or destroy any pipeline sign. If these signs are missing, damaged or otherwise unreadable, please contact TransCanada to replace them. Safety in the Community Safety is a core value at TransCanada. We make safety — for ourselves, each other, our contractors and for members of our communities — an integral part of the way we work. TransCanada's operations extend across North America with established offices in key communities. Each region is fully staffed with qualified employees trained in pipeline safety and emergency response to ensure the safe and efficient operation of the facilities in the area. We view the communities in which we operate as emergency response partners. We work collaboratively with these stakeholders on a continuous basis, inviting them to participate in exercises and training. We work with emergency response officials to ensure everyone is familiar with local operations and is ready to respond in the event of an incident. What to do if you strike a pipeline A "strike" is any unauthorized contact with a pipeline and can include mechanical equipment like a backhoe or hand tools, such as a shovel. Whether or not the pipe appears to be damaged, if you strike a pipeline, it is important that you follow these steps: 1. Stop all excavation and construction. Shut off all machinery and move away from the area on foot — warn others to do the same. 2. Do not attempt to repair the pipe or operate any valves. 3. Call '911' as soon as you are in a safe location. Describe the situation and inform the operator of any injuries, leaking product or fire. 4. Call TransCanada's emergency number at 1.800.447.8066 and explain the incident. This number is available on all pipeline marker signs. 5. Do not continue your project until authorized by a TransCanada representative. The safety of the surrounding population dramatically decreases when a pipeline is damaged. Contact TransCanada as soon as possible so we can make any necessary repairs. Being a Partner in Pipeline Safety Although a pipeline leak is rare, it is important to know how to recognize the signs. Use your senses of smelling, seeing and hearing to detect a potential pipeline leak What you may smell • Natural gas is said to be odorless, but some people detect a slight hydrocarbon smell. If the gas is odorized, it may smell "skunk -like" or similar to rotten eggs. What you may see • Dead or dying vegetation on or near a pipeline in a normally green area • Water bubbling or blowing into the air at a pond, creek or river • Dirt being blown or appearing thrown into the air • Stained or melted snow/ice over pipeline areas. What you may hear • A hissing or roaring sound If You Suspect a Leak If you witness any of the typical signs listed or any othei unusual sights, sounds or smells near a pipeline location, it is important that you follow these steps: 1. Leave the area immediately on foot — do not use motor vehicles or any equipment that could be a potential ignition source. 2. Move to a safe location, call '911'. 3. CaII TransCanada's emergency number: '1.800.447.8066. This number can be found on all pipeline marker signs. 4. Warn others to stay away. 4 Please tear out and carry with you 0 0 Proposed Excavation Temporary Survey Markings (it. ,a) 0 =I to 70 C (0 01 00 8 _0 ro (OU E u0 o) 0 (a vi C 0 a) 7-:-C .4.:•2 c _c , --J E t... o (1) (0 0 -I-'0 47, RS ° > C t...) U 0 ro vl E ._ a.. c 8 .-,-- -- s m o • (J= b cu 0, .;:.; -0o L, 0 ,A. 0)0 ro -'ci, 0(0 Lii 0 0 0- UL) 0 0 0 1/1 0 0 0 C 0 0 00 (1J Ln ro _a -o 0) CIJ 00 (I) 0_ 0_ co • CIJ • Potable Water S Li I 7 I-1 n >3, Li [1111 n fl Natural Gas Pipelines Affected Public 1. Was the information provided in this brochure helpful in your understanding of pipeline safety? 2. Do you know how to recognize a pipeline right-of-way? 3. Do you know what number to call before you begin a digging project? 4. Do you know what to do in the event of a pipeline emergency? 5. Have you received information from any other sources about pipeline safety? Sewers and Drain Lines ,a) E 0) E E o co z Contact Info.. c uS C 0 0 0 (I) (a - CU -0 r0 E o 0- -0 -0 0 o (13 C t 0 ur0Lif C mv) 0 u Eo o -0 o r0 ,C2 0 — E o Ec 0 C 0- vl 0) 0) > E 0 (-0 a 0 Z8L LLSZLLW us_crossings@transcanada.com Crossing or Encroachment Agreements sap!nbui laumopuei Z8L L8Z-LLS' sap!nbui riaua9 S 119'8SIISS8' sapua6Jaui3 9908"LW008'1. Imoortant Contact One Call Center 00 Natural Gas Pipelines Excavation Information Please retain this booklet for your information Emergency Phone Number: 1.800.447.8066 Know what's below. Call 811 before you dig. TransCanada In business to deliver Why are you receiving this brochure? This brochure contains important safety information about natural gas pipelines, and you participate in excavation related activities near a TransCanada pipeline. To help you understand the role you play in contributing to pipeline safety, we ask that you review the information provided. If you would like more information or have questions, please contact us at public_awareness@transcanada.com or call 1.855.458.6715. Please retain this booklet for your information. En caso de emergencia relacionada con un oteoducto, !lame al 1.800.447.8066. Si desea recibir informacion de seguridad sabre los oleoductos en espahol, envie un email a public_awareness@transcanada.com o flame al 1.855.458.6715. North American Assets Wholly Owned Natural Gas Pipeline Partially Owned Natural Gas Pipeline Natural Gas Pipeline Under Construction Natural Gas Pipeline In Development Liquids Pipeline Liquids Pipeline Under Construction Liquids Pipeline In Development Power Facility Gas Storage fr. About Us TransCanada is a leading North American energy infrastructure company with an industry leading safety record. For more than 60 years, we have been building, operating, and maintaining pipeline systems in a responsible and reliable way to meet the energy needs of North America. What is Natural Gas? • Natural gas is an energy source composed mostly of methane. • Natural gas is said to be odorless, but some people detect a slight hydrocarbon smell. If the gas has been odorized, it could smell "skunk -like" or similar to rotten eggs, • Natural gas is highly flammable and explosive. Our Natural Gas Facilities TransCanada owns and operates pipeline and other associated natural gas facilities including meter stations and compressor stations. Pipelines Pipelines are the safest and most efficient method to transport energy to market. Our pipelines are built using industry best practices, which include using the highest quality materials during the construction and implementing routine quality inspections and 24 hour monitoring programs throughout the life of the pipeline. Meter Stations Meter stations are facilities necessary within a pipeline system that measure the volume of natural gas transported by a pipeline. Natural gas is measured at all locations where it either enters the pipeline (receipt station) or leaves the pipeline (sales station). Compressor Stations As natural gas flows along a pipeline, it slows due to friction between it and the pipeline. This results in a loss of pressure along the pipeline. In order to make the gas flow continuously at the desired flow rate, it is re -pressurized at suitable locations along the pipeline. This is done by mechanically compressing the gas at sites connected to the pipeline known as compressor stations. The location and quantity of compressor stations required in a pipeline system is dependent on a number of factors, including the operating pressure of the pipeline, the diameter of the pipe used, elevation changes along the pipeline route and the desired volume of gas to be delivered. Maintaining Pipeline Safety • TransCanada works to meet all applicable federal and state safety standards. • The pipeline facilities are constantly monitored to ensure safety and integrity of the entire system 24/7. • The pipelines are equipped with multiple valves that can be dosed manually or automatically, often within minutes, reducing the potential amount of product released. • TransCanada patrols pipeline rights-of-way to identify any unsafe or unauthorized activity within the rights-of-way which could damage the pipeline. • TransCanada's employees are trained to meet all mandated federal requirements for Pipeline Operator Qualifications in the U.S. • In accordance with federal regulations, some segments along TransCanada's pipelines have been designated as High Consequence Areas (HCAs). To maintain the integrity of these HCAs, TransCanada has developed supplemental hazard assessment and prevention programs called Integrity Management Programs (IMPs). These programs may include internal inspections, external evaluations and pressure tests. For information regarding these measures, contact TransCanada and ask to speak with the US IMP Program Manager. CaII Before You Dig mportant Cor tact Informat One Call Center 811 Online locate requests www ca11811 com1811your-state Emergencies General inquiries; Landowner Inquiries 1,800 447.8066 9i 1.855.458.67 i 1.877.287.1782 Crossing or Encroachment Agreements Email us crossings@transcanada corn;' Phone 1.877.287.1782 TransCanada is regulated by US Department of Transportation Pipeline and Hazardous Materials Safety Administration:(PHMSA) in the United States. National Pipeline Mapping System (NPMS} You can access further information regarding transmission pipelines located in your community transporting hazardous liquids or natural gas through the National Pipeline Mapping System at www npms pttmsa.dot gov Your Safety Unauthorized digging and crossing by contractors, farmers, landscapers and homeowners is a leading cause of pipeline incidents. Excavation Before conducting any excavation, either by hand or with machinery, contact your State One - Call center by calling '811' — America's national toll-free number for requesting underground utility location. Or visit your State One -Call website to enter locate requests online. The One -Call Center will notify owners of buried facilities in your area, who will send representatives to mark these facilities with flags, paint or other marks, helping you avoid damaging them. In all states, a notification to the One -Call center is required by law. The service is free and could prevent accidents, fines, injuries or deaths. Crossing and Encroachment A crossing or encroachment is a temporary or permanent structure across, on, along or under a facility or pipeline right-of-way. A crossing can also mean equipment or machinery crossing over the pipeline right-of-way or facility site. Like excavations, crossings and encroachments can pose a threat to the pipeline. If you think your activity requires a Crossing agreement with TransCanada, please contact us to better serve you and speed up your request, please provide the following information: • Proposed activity — what are you planning to do? • Location of proposed work (GPS coordinates are preferred) • Make(s) and model(s) of any of the equipment that will cross/encroach the Once you have received approval, the party completing the work must call '811' to request a locate of the pipelines at least three business days before beginning work. pipeline facilities • Proposed activity date • Axle load (weight) • Your name and phone number • Email address Pipeline Location • Most pipelines are buried underground in an area of cleared land often referred to as the "right-of-way". The area on either side of the pipeline within the right-of-way must be clear of trees, shrubs, buildings, fences, structures or any other encroachments. • Markers are used to indicate a pipeline's approximate location as well as the name of the pipeline and the operator's information. • Only a TransCanada representative can determine the location and depth of the pipeline. Pipelines may not follow a straight course between marker signs. Call 811 before you dig lA,llovv'' required time for markin respect the marks {' P Lines are marked by flags, paint or other markers (normally yellow for pipelines Excavate carefully When digging near underground utilities,be sure' to hand: dig to determine their exact location TC Pipeline Operations Inc. WARNING NATURAL GAS PIPELINE (,o) Trif110,11:14 WARNING Pipeline Marker Pipeline Marker Pipeline Markers Casing Vent Aerial Marker • Pipeline marker signs contain important information, including the owner of the pipeline, the product shipped in the pipeline and emergency contact numbers. • TransCanada uses a variety of markers and signs along rights-of-way to alert people to the general location of its pipelines. Markers are typically placed where the pipeline intersects streets, railroads, rivers, fence lines and in heavily congested areas. • BE AWARE: Pipeline markers will not designate the exact location, depth or number of pipelines in the area. Call '811' and TransCanada and other utility companies will send a representative to the proposed excavation site to mark buried utilities at no cost to you. • It is a federal offence to willfully and knowingly deface, damage, remove or destroy any pipeline sign. If these signs are missing, damaged or otherwise unreadable, please contact TransCanada to replace them. Pipeline Incidents A pipeline incident could involve an uncontrolled or unplanned release of natural gas from the pipeline system. TransCanada's state-of-the-art leak detection systems, elevated safety features and specially trained staff make us confident leaks would be quickly identified and addressed. In the unlikely event an incident should occur, TransCanada would immediately respond by shutting down the pipeline and dispatching emergency personnel to the location of the incident. Remote controlled valves spaced at intervals along all TransCanada pipelines allow incidents to be quickly and effectively isolated. Trained crews dispatched to the site work to further isolate the area and coordinate a response with local emergency services. TransCanada -will not restart the pipeline until the issue has been identified and it is safe to do so. TransCanada's policies and practices for emergency response planning go above and beyond the standard regulatory requirements for emergency response. What to do if you strike a pipeline A "strike" is any unauthorized contact with a pipeline and can include mechanical equipment like a backhoe or hand tools, such as a shovel. Whether or not the pipe appears to be damaged, if you strike a pipeline, it is important that you follow these steps: 1. Stop all excavation and construction. Shut off all machinery and move away from the area on foot — warn others to do the same. 2. Do not attempt to repair the pipe or operate any valves. 3. Call '911' as soon as you are in a safe location. Describe the situation and inform the operator of any injuries, leaking product or fire. 4. Call TransCanada's emergency number at 1.800.447.8066 and explain the incident. This number is available on all pipeline marker signs. 5. Do not continue your project until authorized by a TransCanada representative. The safety of the surrounding population dramatically decreases when a pipeline is damaged. Contact TransCanada as soon as possible so we can make any necessary repairs. Being a Partner in Pipeline Safety Although a pipeline leak is rare, it is important to know how to recognize the signs. Use your senses of smelling, seeing and hearing to detect a potential pipeline leak What you may smell • Natural gas is said to be odorless, but some people detect a slight hydrocarbon smell. If the gas is odorized, it may smell "skunk -like" or similar to rotten eggs. What you may see • Dead or dying vegetation on or near a pipeline in a normally green area • Water bubbling or blowing into the air at a pond, creek or river • Dirt being blown or appearing thrown into the air • Stained or melted snow/ice over pipeline areas. What you may hear • A hissing or roaring sound If You Suspect a Leak It you witness any -of -the -typical signs -listed, or any -other unusual sights, sounds or smells near a pipeline location, it is important that you follow these steps: 1. Leave the area immediately on foot -- do not use motor vehicles or any equipment that could be a potential ignition source. 2. Move to a safe location, call '911'. 3. Call TransCanada's emergency number: 1.800.447.8066. This number can be found on all pipeline marker signs. 4. Warn others to stay away. International Color'el('!.:d.'!',0111i,Iforlili Marking Un{erground Utilities proposed excavation temporary survey markings electrical gas, oil, steam (pipelines) phone, N, internet water sewers and drains Utilities must be hand exposed and visible before digging If You Suspect a Leak If you witness any of the typical signs listed on the right, or any other unusual sights, sounds or smells near a pipeline location, it is important that you follow these steps: 1. Leave the area immediately — do not use your motor vehicles or any equipment that could be a potential ignition source, including your cell phone. 2. Move to a safe location, call '911', and then call TransCanada's emergency number 1.800.447.8066. 3. Warn others to stay away. Being a Partner in Pipeline Safety To manage the natural gas pipeline safely, TransCanada applies industry-leading risk evaluation techniques, and conducts extensive pipe maintenance, testing, and inspection programs. Damage to the pipeline is prevented through implementation of forward -thinking urban development techniques, the company -wide Public Awareness Program. How You Can Help Be alert to activities happening near the pipeline area. Call before you dig and encourage your neighbors to do the same. Keep TransCanada's emergency phone number handy, and when in doubt about any activity near the pipeline ask us! What you may see • Dead or dying vegetation on or near a pipeline in a normally green area. • Water bubbling or being blown into the air at a pond, creek, or river. • Dirt being blown or appearing thrown into the air. • Fire coming from the ground or appearing to burn above the ground. What you may hear • A roaring, blowing, hissing or loud whistling sound. What you may smell • Natural gas is said to be odorless, but some people detect a hydrocarbon smell. If the gas is odorized, it may smell similar to rotten eggs. TransCanada In business to deliver Ji q"4 TransCanada Pdln. Ope�anans lnc WARNING HIGH PRESSURE NATURAL GAS PIPELINE Redmond Spokane%Sandpoint Portland Klamath Falls Borders West Region Wholly Owned Natural Gas Pipeline Partially Owned Natural Gas Pipeline Walla Walla Call Before You Dig - It's Free For Emergencies: 1.800.447.8066 For General Inquiries: Public Awareness 1.855.458.6715 For Crossing Pipelines: 1.877.287.1782 Email us_crossings@transcanada.com Landowner Inquiries: 1.877.287.1782 Contact your local One CaII Center: Call 811 Online locate requests www.caII811.com National Pipeline Mapping System (N.P.M.S.) You can access further information regarding pipelines located in your community through the Natural Pipeline Mapping System at www.npms.phmsa.dot.gov It moireinformation is require pease contact: TransCanada Borders West Region Suite 505, 201 West North RiverDrive Spokane,'WA 99201 pu llic awareness@transcanada.com winrw.transcatiada.com 072016 Know what's below. Call 811 before you dig. TransCanada's Emergency Number: 1.800.447.8066 Miaow what's hclow. Call 811 hefon: you dig. Qui TransCanada lir l;i,trn�.7,y fn CIEtilVer 4 Peaks OMG - Cynthia Smidt Page 1 of 1 4 Peaks OMG Steven Hultberg <shultberg@radlerwhite.com> Wed 10/25/2017 2:42 PM :;:Cynthia Smidt <Cynthia.Smidt@deschutes.org>; lc Peter Gutowsky <Peter.Gutowsky@deschutes.org>; Nick Lelack <Nick.Lelack@deschutes.org>; @.I .} attachment Pipeline Easement (00729689xC624A).pdf; Cynthia, Please add this email and the attachments to the record. There was testimony submitted at the public hearing regarding the existing pipeline easement and alleged safety issues with the easement. In short there are no safety or health issues associated with the easement. The easement expressly grants the property owner the right to use the easement area, provided that the property owner does not "erect or construct any building or other structure, or drill or operate any well, or construct any reservoir or other obstruction on said strip, or diminish or substantially add to the ground cover over said pipelines." By the express terms of the easement, the Stevensons have every right to utilize the area within the easement during the festival. The temporary placement of vehicles within the easement area does not violate the terms of the easement. Moreover, even if the placement of vehicles or tents did violate the terms of the easement, nothing in the County's OMG regulations provide any basis to exclude the pipeline area from the designated camping or other festival areas. Regards, Steve RA©LER WHITE PARKS ALEXANDER ;LP Steven P. Hultberg PO Box 2007 Bend, Oregon 97709 P 541.585.3697 C 541.420.1024 E shultberaradlerwhite.com https://outlook.deschutes.org/owa/ 10/25/2017 rrcE bD`J RIGHT OF WAY AGREEMENT ANGUS E. SPRANKLE and MARIE M. SPRANKLE, husband and wife hereinafter called first party, in consideration of value paid by PACIFIC GAS TRANSMISSION COM- PANY, a California corporation, hereinafter called second party, the adequacy and receipt whereof are hereby acknowledged, hereby grants to second party the right to excavate for, install, replace, maintain, use, and remove such pipeline or lines of any size as second party shall from time to time elect for conveying natural and artificial gas and other gaseous or liquid hydrocarbons and any products or by-products thereof, with necessary valves and other appliances and fittings, and devices for controlling electrolysis in connection with said pipelines, together with adequate protection therefor, and also a right-of-way one hundred feet in width within the hereinafter described strip of those certain lands which are situated in the......... , County of. . . ....DFSCRUM S....... , State of .................... OREGON , and ......................................................... described as follows, to wit: The Northeast Quarter (NES) of Section 22, Tormship 18, South, Range 12 East of the Willamette Meridian, Deschutes County, Oregon It is agreed between the parties that as soon as second party has completed the installation of the initial pipeline the aforesaid strip shall be restricted to the following: That portion of the said lands of fust party above described lying between lines parallel to and situate THIRTY (30) feet to the right and SEVENTY (70) feet to the left (going in a general southerly direction through the State of . 0 E+GON .. ) measured at right angles from the center line (or tangent thereof if a curve) of the initial pipe as actually laid by the second party across the said lands of first party, or adjacent thereto if the initial pipe is not actually laid on the said lands of the first party, such parallel line or lines being extended to the boundary lines of the said lands so as to enclose the right-of-way and easement. Second party may further define the location of said strip by recording a "Notice of Location" referring to this instrument and setting forth a legal description of the location of said initial pipe or said strip, which description may be set forth by map attached to said Notice. A copy of said Notice shall be delivered to first party. First party further grants to second party: (a) the right to use such portion of said lands adjacent to and along said strip as may be reasonably necessary in connection with the installation, repair and replacement of such pipeline or lines; (b) the right of ingress to and egress from said strip over and across said lands by means of roads and lanes thereon, if such there be, otherwise by such practicable route or routes as shall occasion the least damage and inconvenience to first party; (c) the right from time to time to trim and to cut down and to clear away any and all trees and brush now or hereafter on said strip and to trim and to cut down and to clear away any trees on either side of said strip which now or hereafter in the opinion of second party may be a hazard to second party's facilities or may interfere with the exercise of second party's rights hereunder; (d) the right to install, maintain and use gates in all fences which now cross or shall hereafter cross said strip; (e) the right to mark the location of said strip by suitable markers set in the ground, provided that said markers shall be placed at fence lines or other locations which will not interfere with any reasonable use first party shall make of said strip. TRANSMISSION PIPELINE LAI 7/69 6000 OPII vci 145 PACE Oti Second party hereby covenants and agrees: (a) second party shall pay to first party prior to the construction of the initial pipeline the sum of $ .... 65.Q0. .... . .. per acre of said lands contained within said strip; provided, however, that the obli- gation of second party to make any payment hereunder shall be satisfied by tender of such payment to any of the first parties for the benefit of all first parties; . (b) second party shall pay first party the reasonable amount of actual damages to crops, timber, livestock, fences, buildings, private roads, and other improvements caused by it on said lands in the construction or reconstruction of the pipeline or lines or in the exercise of the right of ingress or egress; (c) second party shall bury its pipe to a sufficient depth at time of construction so as not to interfere with fust party's cultivation of the soil at said time; (d) second party shall promptly backfill any trench made by it on said strip and if said lands shall then be cultivated, second party shall restore the surface of the ground, so far as is practicable, to its condition prior to second party's trenching operations; (e) second party shall indemnify first party against any loss or damage which shall be caused by any wrongful or negligent act or omission of second party or of its agents or employees in the course of their employment. First party reserves the right to use said strip for purposes which will not interfere with second party's full enjoyment of the rights hereby granted, provided that fust party shall not erect or construct any building or other structure, or drill or operate any well, or construct any reservoir or other obstruction on said strip, or diminish or substantially add to the ground cover over said pipelines. The provisions hereof shall inure to the benefit of and bind the heirs, successors, and assigns of the respective parties hereto, and all covenants shall apply to and run with the land. IN WITNESS WHEREOF the parties have executed these presents this , 19 ir.n... Executed in the presence of Witness Witness ?ZTNESS ACRNOIPLEDGMENT STATE OP OREGON G,„,tl,,, DESCHUTES oa this 5th 19....60. beAre sr. N.t c sad fir mid Gassy add State, ptrtesally amendLatca,3Ctl i' er ,bswa we t.Mthe 14X11 /Asea whaa aan;'ti ppeart .J the *min nesras.est as tsbtn$iag wAwts Oleo laid wiel eb.ie;i day tw.m acts.wlydto a,/ Art he raider eG $anti ' is the Gsagef ilescriutes sixt: f prbik wad YdrYb krrw for pans derrrikd is add who trended the fi(ipis,(yaFnnrnrrdad rb+e441 war priest and stets ties e/,�d beta eitbr >LP,II>I r . & Na a rlkle, NeraplPa Jnml s �n Expires Aug. 37, 1963• My (i wv a BPI / X-; Anguli E. Sprankle �t ( Marie M. Sprankle PAC day of Grantors MISSION COMPANY r ey in Fact. FOR RECORDER'S USE ONLY C STATE OF OREGON ! County of [)shut, 3 1 hereby certify that the within instrument of writing was rccei d for ' the . l0_-1� . day of.._.�.dR/� scn.gr�.t A. D. 19_faa. at..la.:43.(l,dock A. hl and recorded in book.... J.1 �.... oat Page _ Rtcord f _— t'1e-Qs-• d 144: mLm.-eme County Orr} 13y Dcput/ Re: 4 Peaks Site Schedule - Cynthia Smidt Page 1 of 2 Re: 4 Peaks Site Schedule Jef Hinkle <jef4peaks@gmail.com> Wed 10/25/2017 1:47 PM 10 Cynthia Smidt <Cynthia.Smidt@deschutes.org>; Ok that's fine, But how can you spend 240 hours over a 3 month period and remain consecutive? My main point is we need the weekend of the 16th and 17th for volunteers to preform there duties on non work days of the week. If that means we have to give up Tuesday the 26th then that is what we will have to do. To better explain our intentions; Our feelings are, it hurts volunteers who cannot afford to take off on a work day, therefore, must work there 2 day shift on the weekend. This arrangement that we have had for years helps low income families of Deschutes County afford the festival. Where, the mother and father can both volunteer for the weekend prier the festival to earn their tickets and with children under 10 free the whole family can have a weekend away without putting a strain on the budget. With out a full weekend, we lose help, we get a day behind, and longtime volunteers with families can no longer attend. Never the Tess, we will start at 9:00 am Saturday June 16th and finish by end of day on Monday June 25th. Jef Hinkle 4 Peaks Site Manager 541977-3266 On Wed, Oct 25, 2017 at 1:27 PM, Cynthia Srnidt <Cvnthia.Smidtdeschutes.ora> wrote: Jef, I'm checking in on interpretation. My thinking here is that a reasonable interpretation is consecutive. I hope to get back to you today. Cynthia From: Jef Hinkle <ief4peaks0amail.com> Sent: Wednesday, October 25, 2017 12:28 PM To: Cynthia Srnidt Subject: 4 Peaks Site Schedule https://outlook.deschutes.org/owa/ 10/25/2017 Re: 4 Peaks Site Schedule - Cynthia Smidt Page 2 of 2 Hi Cynthia Re: the start date and finish date. I hope it is not too late for us to clarify our Schedule. I believe we were both caught off guard about the 10 day window, and I answered too quickly. I have checked and According to the county website in the application process document for outdoor mass gatherings page 3, in the Definition Matrix Under the column heading "Criterion". It states; Duration is for more than 4 hours but less than 240 hours in a 3 -month period (duration includes all set up and all tear down and removal time). It does not specify 10 consecutive days. Does this mean we can start on the 16th take off Monday the 18th and finish on the 26th? If not, I would like to schedule a start on Saturday June 16th and finishing date on Monday the 25th. I would also like to point out that on the weekend of the 16th and 17th we are doing grounds maintenance and site laying out of fire lanes, along with other details 'not construction'. Actual construction starts on Tuesday June 19th when crews arrive to set up the stage and big tent. Thanks once again for your time. Jef Hinkle 4 Peaks Site Manager 541 977-3266 https://outlook.deschutes.org/owa/ 10/25/2017 w< Za X w p Q a Steven P. Hultberg shultbere® radlerwhite. com 541-585-3697 October 27, 2017 cry VIA EMAIL CI_ Cynthia Smidt Deschutes County Community Development Dept. 117 NW Lafayette Bend, OR 97701 � a RE: 4 Peaks Presents, LLC Ell 247-17-000732 OMG Dear Ms. Smidt: I represent 4 Peaks Presents, LLC in connection with its outdoor mass gathering permit. Please add this letter to the record in this matter. The applicant's outdoor mass gathering (OMG) permit request before the board is not a "discretionary" permit in the same manner as a conditional use or other discretionary land use permit. State law on this matter is clear. ORS 433.750(1) provides: The governing body of a county in which an outdoor mass gathering is to take place shall issue a permit upon an application when the organizer demonstrates compliance with or the ability to comply with the health and safety rules governing outdoor mass gatherings to be regulated according to the anticipated crowd and adopted by the Oregon Health Authority. Although state law defines an OMG as an "assembly of more than 3,000 persons," state law also provides that the statutory OMG provisions of ORS 433.735 to 433.770 apply to mass gatherings defined by county ordinance. ORS 433.735(1). ORS 433.767 also expressly states that the statutory provisions apply to "outdoor mass gatherings defined by county ordinance as well as those defined by ORS 433.735." Consequently, the statutory provisions apply to the County's OMG regulations as well. Although several neighbors have registered complaints regarding last year's event, no party has identified any applicable provision of state law, administrative rule or local law that the applicant has not met or is incapable of meeting. Because the applicant has satisfied, or is capable of satisfying, the health and safety rules governing mass gatherings, the County is obligated to issue the requested permit. The applicant understands the concerns raised by the neighbors, including the Minars. In response to their primary concerns, the applicant has made several adjustments to the layout of the. The tent has been repositioned to reduce noise impacts and camping will be moved further from their home. The Minar's request to relocate the festival elsewhere in the county is not a reasonable request. While we acknowledge that the festival may cause minor {00730381;1} October 27, 2017 Page 2 inconvenience to the Minars, three nights of music is a temporary use and far less impactful than many of the myriad of permanent uses that could be established on the subject property which could generate noise on a daily basis. The applicant has again offered to sit down with the Minars and any other neighbors to establish a clear line of communication to resolve any issues that may arise during the festival. We hope the above information satisfies the board's concerns. Very truly yours, /s/ Steven P. Hultberg {00730381;1}