2018-173-Minutes for Meeting April 18,2018 Recorded 5/22/2018USES C
Recorded in Deschutes County
BOARD OF CJ2018-173
QNancy Blankenship, County Clerk
COMMISSIONERS Commissioners' Journal 05/22/2018 9:44:36 AM
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1300 NW Wall Street, Bend, Oregon
(54 1 ) 388-65 70 2018-173
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1:30 PM WEDNESDAY, April 1a 2018 ALLEN CONFERENCE ROOM
Present were Commissioners Tammy Baney and Anthony DeBone. Commissioner Henderson was
absent. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County
Administrator; David Doyle, County Counsel; Tami Jo George, Risk Management Administrative Support
Specialist; Chris Ogren, Administrative Intern; and Sharon Keith, Board Executive Assistant. No
representatives of the media were in attendance.
CALL TO ORDER: Chair DeBone called the meeting to order at 1:30 p.m.
ACTION ITEMS
1. Consideration of Central Oregon Quality Health Alliance (COQHA) Grant
Kathleen Meehan Coop noted the District Attorney's Office has received
notification they have been awarded the grant for the Clean Slate program
and is here to request approval to accept the funding.
County Administrator Anderson mentioned the District Attorney has asked
for additional hours for Ms. Coop's job coverage for the program and asked if
clarification of the funding and grant program could be presented during the
budget hearings.
PAGE 1 OF 4
BAN EY Move approval
DEBONE Second
VOTE: BAN EY: Yes
HENDERSON: Absent, excused
DEBONE: Chair votes yes. Motion Carried
2. Consideration an Appeal of a Hearings Officer Denial for a Plan
Amendment and Zone Change from Surface Mining to Residential
Community Development Department staff Cynthia Smidt and Peter Russell
presented this issue. The appeals concern Tumalo Irrigation District (TID)
plan amendment zone change (from surface mining to residential)
application. The hearings officer approved most of the application except
the Transportation Plan. Appeals were received on behalf of both Central
Oregon LanclWatch and TID. Mr. Russell described the Transportation Plan,
and the basis for addressing the Plan in pending applications. Regarding
this application, staff did not analyze impacts associated with conditional
uses such as cluster developments. TID's appeal requests a limited de novo
review specific to TPR issues. TID is flexible with the clock. Bill Martin Road
goes across this property which needs to be noted. Commissioner Baney is
in favor of hearing the full appeal de novo; Commissioner DeBone is also in
support.
BAN EY: Move approval of Order No. 2018-024
DEBONE: Second
VOTE: BAN EY: Yes
HENDERSON: Absent, excused
DEBONE: Chair votes yes. Motion Carried
PAGE 2 OF 4
3. Hearing Preparation for Shepherd Church
This item of the agenda was audio recorded. Community Development
Department staff Will Groves reported that Mr. Shepherd submitted this
application subsequent to the recent wildlife combining zone test
amendment. The applicant is seeking to use the residence for church
services and a portion of the adjacent lawn area for weddings and other
church functions. Mr. Shepherd has agreed to a limit of 30 events per year.
The applicant is John Shepherd. Central Oregon LanclWatch believes the
applicant is applying not as a church but as an individual. Commissioner
Baney inquired if this is marketed through church activities or commercial
activity and requested clarity on that. Mr. Groves stated Central Oregon
LanclWatch sees this as a residential property and it is not appropriate use.
Concerns are this is a commercial property and not a church. Other items to
consider: the text amendment is pending at LUBA; impact, if any, of the
previous farm management plan. The public hearing is scheduled for
Monday April 23, 2018. Mr. Groves will convey the time expectations to the
applicant and appellant. Commissioners asked if there any thought on
perhaps delaying this appeal until after the LUBA decision. Will noted that
Mr. Shepherd prefers to proceed presently and not wait on the LUBA
decision.
COMMISSIONERS UPDATES:
Commissioner Baney will be attending the Habitat for Humanity panel
discussion on affordable housing on Friday. She will attend the
transportation meetings in Bandon tomorrow.
• County Administrator Anderson is meeting with the Sunriver Service District
tomorrow.
EXECUTIVE SESSION:
At the time of 2:08 p.m., the Board met under ORS 192.660 (2) (h) Litigation. The
Board came out of Executive Session at 3:05 p.m.
PAGE 3OF4
OTHER ITEMS: None were presented
Being no further items to come before the Board, the meeting was adjourned at 3:05 p.m.
DATED this Da of 2018 for the Deschutes Count Board of
Day v
Commissioners.
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RECORDING SECRE4RY
TAMMY Ai EY, CCtQjMISSIONER
PAGE 4OF4
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 — Fax (541) 385-3202 — https://vwvw.deschutes.org/
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DESCHUTES COUNTY BOARD OF COMMISSIONERS
1:30 PM, WEDNESDAY, APRIL 18, 2018
Allen Conference Room - Deschutes Services Building, 2ND Floor — 1300 NW Wall Street — Bend
Pursuant to ORS 192.640, this agenda includes a list of the principal subjects anticipated to be addressed at the
meeting. This notice does not limit the ability of the Board to address additional subjects. Meetings are subject to
cancellation without notice. This meeting is open to the public and interested citizens are invited to attend.
Work Sessions allow the Board to discuss items in a less formal setting. Citizen comment is not allowed,
although it may be permitted at the Board's discretion. If allowed, citizen comments regarding matters that are or
have been the subject of a public hearing process will NOT be included in the official record of that hearing. Work
Sessions are not normally video or audio recorded, but written minutes are taken for the record.
CALL TO ORDER
ACTION ITEMS
1. Consideration of Central Oregon Quality Health Alliance (COQHA) Grant - Kathleen
Meehan Coop, District Attorney's Office
2. Consideration of an Appeal of a Hearings Officer Denial for a Plan Amendment and
Zone Change from Surface Mining to Residential - Cynthia Smidt, Associate Planner
3. Hearing Preparation for Shepherd Church - William Groves, Senior Planner
COMMISSIONER'S UPDATES
EXECUTIVE SESSION
At any time during the meeting, an executive session could be called to address issues relating to ORS
192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor
negotiations; ORS 192.660(2)(b), personnel issues; or other executive session categories.
Executive sessions are closed to the public, however, with few exceptions and under specific
guidelines, are open to the media.
Board of Commissioners Work Session Agenda Wednesday, April 18, 2018 Page 1 of 2
10109AZAHATIP
These can be any items not included on the agenda that the Commissioners wish to discuss as part of
the meeting, pursuant to ORS 192.640.
ADJOURN
O® ®® 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.org/meetingcalendar
(Please note: Meeting dates and times are subject to change. All meetings take place in the Board of
Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions
regarding a meeting, please call 388-6572.)
Board of Commissioners Work Session Agenda Wednesday, April 18, 2018 Page 2 of 2
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Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners Work Session of April 18, 2018
DATE: April 12, 2018
FROM: Kathleen Meehan Coop, District Attorney's Office,
TITLE OF AGENDA ITEM:
Consideration of Central Oregon Quality Health Alliance (COQHA) Grant
RECOMMENDATION & ACTION REQUESTED:
Staff requests approval to accept the funds from COQHA to continue the Goldilocks Clean
Slate initiative, and to use the grant funding in the manner that was stipulated in the proposal.
ATTENDANCE: Kathleen Meehan Coop, Management Analyst, District Attorney's Office
SUMMARY: Grant funds will be used to support the program starting in June 2018, just as the
program's current MacArthur Foundation grant ends. The funds would help support the Clean
Slate program until the end of May 2019.
s
Jahn Hummel District Attorney
MEMO
Date: April 12, 2018
To: Deschutes County Board of Commissioners
From: John Hummel, Deschutes County District Attorney
RE: Central Oregon Quality Health Alliance (COQHA) Grant
Background
In February 2018, the DA's Office received permission from the Commissioners to submit a
grant proposal to the COQHA. The proposal was written to help support the continuation of the
Goldilocks Clean Slate program for an additional 12 months. The plan was to use the grant
funding to provide additional hours for Kathleen Meehan Coop to manage the program, hire a
part-time program development assistant, and to support the hours needed for Su -Chin Ward, the
program's substance use disorder (SUD) counselor. The grant funding would also be used to
cover the program's other expenses that include rental of meeting space and participant bus pass.
The total grant request was for $39,941.60.
Grant Update
The DA's Office was notified that our full request for funding was approved (email notification
attached). The grant funds will be used to support the program starting in June 2018, just as the
program's current MacArthur Foundation grant ends. The funds would help support the Clean
Slate program until the end of May 2019.
During the COQHA grant period, Meehan Coop's hours will increase to a 0.375 FTE (0.25
supported by the County, 0.125 by the grant), and Su -Chin Ward would continue as a 0.125 FTE,
which will be funded entirely through grant. The DA's Office will also hire a new grant -funded,
temporary, part-time (0.25 FTE) program development assistant to assist with Clean Slate
program activities.
Request
We are requesting approval to accept the funds from COQHA to continue the Goldilocks Clean
Slate initiative, and to use the grant funding in the manner that was stipulated in the proposal.
Project Lead
John Hummel, District Attorney
Group/Organization Name Deschutes County District Attorney's Office
Address 1164 NW Bond St.
Bend, OR 97703
Phone 541-317-3175
Email of Project Lead john.hummel@dcda.us
Name and Email of Additional Project Contact Kathleen Meehan Coop; kathleen.meehancoop@dcda.us
(If applicable)
Group/Organization Tax ID#
Payment Address
(If different)
93-6002292
Project Title: Goldilocks' Clean Slate
Funding Amount Requested: $39,941.60
Brief Project Summary:
pre -charge diversion program for PCs offenders that provides quick access to med
Goldilocks - Clean Slate
Medical focused pre -charge diversion
Mission Statement
The Deschutes County District Attorney's Office serves and enhances the lives of 180,000 Deschutes County
citizens through its commitment to keeping our community safe by working to reduce crime, and protecting and
supporting innocent victims. The Office's services are achieved through 1) evidence based crime prevention
programs; 2) representing the State in juvenile matters and mental health proceedings; 3) assisting with criminal
and civil proceedings; and 4) managing multi -disciplinary teams handling abuse and assault issues.
Team members and partners
The Goldilocks Clean Slate team at the DA's Office includes, District Attorney John Hummel, Chief Deputy
District Attorney Stephen Gunnels, Deputy District Attorney Errol LaRue, Management Analyst Kathleen
Meehan Coop, and a Clean Slate Substance Use Disorder (SUD) Counselor, and Program Development Assistant.
Hummel oversees the entire Goldilocks program and its impact to the Office's mission and goals. He presents the
program to each week's participants at the Clean Slate Orientation (CSO) meetings. Hummel took office in
January of 2015 following 20 years of legal, policy and conflict resolution professional experience. He has served
as the State and Federal Policy Director for the Oregon Primary Care Association, a non-profit that provides care
to low income Oregonians, as well as the Director of the Oregon Consensus Program at Portland State University.
In addition, Hummel was the Liberia Representative for the Carter Center, and has experience as a criminal law
defense attorney, professor, and Bend City Councilor.
Meehan Coop serves as the project manager overseeing the day-to-day operations of the program, coordinates
partner and staff activities, tracks and analyzes the program's impact and completes all required reporting. Prior to
joining the DA's Office, Meehan Coop was the Vice President at Challenger Center an international non-profit
STEM education organization. Meehan Coop has a MBA and MEd, and extensive experience managing grant -
funded collaborative programs.
Gunnel reviews all Clean Slate cases referred by law enforcement to determine eligibility. La Rue manages all the
Clean Slate cases and serves as the back-up presenter at the orientation meetings if Hummel is unavailable.
The Clean Slate SUD counselor meets with each eligible individual and administers the needs/ risk assessment for
the participants and makes a determination if the participant should be Clean Slate Level I or Level II. In addition,
the counselor provides our medical partners with a write-up on each participant. This position is currently open
and will be filled by the end of February.
The part-time Clean Slate program development assistant will assist with program coordination, data entry, and
scheduling of the medical appointments during the CSO. This is a new position for the program which was
deemed necessary during the initial phase of the pilot study.
The key partners under the Goldilocks Clean Slate team include:
1. Law Enforcement — Deschutes County Sheriff's Office, and the Bend, Redmond, Sunriver and Black Butte
Police Departments. Law enforcement officers are instrumental to the program as they identify individuals
suspected of a PCS (possession of a controlled substance) crime, inform them of the program, and when
appropriate, cite and release the individual rather than arresting and booking into jail for the offense.
2. Medical Providers — Mosaic Medical and La Pine Community Health Center, federally qualified health
centers, offer comprehensive medical care to the Clean Slate participants. The primary care providers (PCPs)
treat the individuals the same as they would any other patient. The only difference is that the PCP conducts a
substantial compliance assessment at the beginning and end of 12 months of care for each participant to
determine if improvements have been made to the individual's overall health and wellbeing.
3. Drug Treatment Providers — BestCare, Pfeifer &Associates, and Bend Treatment Center provide specialized
SUD treatments. These facilities provide drug treatment services to Clean Slate participants, referred directly
from the CSO and/or the PCPs. They keep the PCP informed of the Clean Slate participant's treatment
through the treatment signature card.
4. Public Defenders — Defense counsel meets with each potential participant at the CSO to discuss their
individual case, and reviews the program's participation & release of information form. They will also
recommend appropriate participants, who they represent in court that should participate in Clean Slate. If the
person enters Clean Slate during his/her arrangement and they meet all program requirements, defense
counsel files for an expungement of the case.
Behavioral Health Services — the Deschutes County Behavioral Health Services (BHS) works closely with the
PCPs to offer additional services associated with behavioral health issues for the Clean Slate participants.
They will work to keep the PCP informed of the participant's behavioral health treatment through cross -
organizational communication plans and through the program's treatment signature card.
Key project sponsor
The Clean Slate pilot program has been supported through the MacArthur Foundation Safety & Justice Challenge
Innovation Fund. The grant allowed the DA's Office to formalize a community-based partnership around the idea
of piloting a medical model pre -charge diversion program for PCS offenders. The support also enable us to
implement the six month pilot study by funding additional hours for the program manager, hiring a part-time SUD
counselor, creating and printing program materials, renting space for the CSO, and bus passes.
Project Description
In 2016 the White House reported that nearly 11 million people move through jail each year; many for low-level,
non-violent misdemeanors. This issue is not only costing local governments $22 billion annually, the
incarceration of these highly vulnerable individuals is resulting in a revolving door through our jails, ERs, shelters
and other public systems. It has created fragmented and uncoordinated care at a great cost to taxpayers, and has
resulted in poor outcomes. A data driven community approach is needed to address these problems, and diversion
programs with coordinated community-based services are showing promising results'.The DA's Goldilocks
program, a three -tiered initiative that identifies the best intervention for each individual based on his/her crime
and substance use disorder looks to address this issue directly through a collaborative community approach.
Clean Slate, the first tier of the Goldilocks program, focuses on providing medical treatment rather than jail for
individuals suspected of PCS. The second tier, Boost, provides more punitive actions and treatment oversight for
'FACT SHEET: Launching the Data -Driven Justice Initiative: Disrupting the Cycle of Incarceration https://www.whitehouse.gov.the-
press-office/216/06/30/fact-sheet-launching-data-driven-justice-initaitive-disrupting -cycle
Pa
individuals that have committed more serious drug-related crimes. The third tier, Deter, seeks enhanced
incarceration for certain people suspected of dealing and manufacturing drugs.
We are requesting support specifically for the Clean Slate tier to allow us to continue our pilot study and run the
program for a full 18 months. This additional funding will enable the Goldilocks team to fully assess the Clean
Slate program goals to: 1) improve the lives and long-term outcomes for a vulnerable population, 2) increase the
number of individuals that are able to gain access to healthcare, and 3) lower our county's drug crime recidivism
rate. The additional 12 months of program implementation will ensure we have enough individuals enrolled and
through the program to evaluate the impact. It will also provide the time needed to identify the best methods to
increase potential participant participation.
Clean Slate begins when an officer suspects someone of a PCS crime. The officer informs the individual of the
Clean Slate program — provides a brief program description, hands -out a Clean Slate card and offers a bus pass so
they may attend the CSO. The DA's Office then attempts to reach all eligible participants to remind them to
attend the CSO on the Friday immediately following the date of their citation. At the CSO, individuals receive a
program overview from Hummel, meet privately with a defense attorney, and a SUD counselor. The participants
completes a risk/needs assessment that includes the Texas Christian University Drug Screen (TCU), Connor -
Davidson Resiliency Test, and Adverse Childhood Experiences Survey (ACES), which are reviewed and scored
by the counselor to determine if the participant is Clean Slate Level I or Level II.
Individuals that are deemed Level I, based on their risk/needs assessment score are offered, but not required to
attend a medical appointment. These individuals are free to go and their criminal case is never charged. If the
participant is cited for another PCS crime within 12 months then s/he may participate in the Clean Slate program
again, but is automatically considered Level II.
Level II participants, individuals with a high risk/needs assessment score, are required to meet with a PCP and
must substantially comply with the doctor's advice regarding medical care and drug treatment. The required
medical and/or drug treatment appointments are made during the CSO. At the end of 12 months, if the participant
has substantially complied with medical advice and has not reoffended the individual will never be charged for
that crime.
We define substantial compliance as individuals, who over a 12 month period have made a significant effort to
follow the medical recommendation(s) of their PCP and have made progress on a life skills toward a clean and
sober life. This plan takes into account that participants may have relapses along the way. Individuals that don't
substantially comply with their prescribe medical/drug treatment recommendation(s) and/or are rearrested, are no
longer eligible for Clean Slate, and their cases is moved into the second tier of Clean Slate.
Project Objectives
Clean Slate is a community-based initiative focused on breaking the cycle of incarceration through a) pre -charge
diversion b) risk and needs assessments, c) medical care, drug treatment, and social service programs, and d)
varying levels of oversight to reduce the likelihood that PCS suspects will recidivate. The goal is to move people
with substance use disorders out of the criminal justice system and into a medical system that has the potential to
help them make positive life changes.
Target audience & benefits
In 2017, DeschutesSafe, a community advisory board determined that drugs were one of our county's top crime
problems. Through a community survey, DeshutesSafe also learned that county residents feel that drug use and
crimes were impacting their safety and the community's well-being. This evidence served as a key factor in
implementing the Goldilocks program, and identifying ways to help community members with substance use
disorders receive needed medical care and social services.
Clean Slate is currently only for adults (18+) who have been cited for PCS. These individuals are often members
of vulnerable populations due to trauma, mental health, and/or socioeconomic conditions.
Between 2012 and 2015, approximately 750 people were arrested annually on drug possession related charges in
Deschutes County. Of those individuals, over 400 were PCS only cases. The goal of Clean Slate is to help these
400 individuals quickly receive the medical care and/or drug treatment they need to be healthy and to stay out of
the criminal justice system. Another key factor is that helping community members avoid arrest prevents them
from experiencing the unintended consequences of a criminal record, which makes it harder to find employment
and housing. This effort also helps individuals that may not have healthcare enroll in OHP and and develop a
healthy relationship with a PCP.
Best practices
The Goldilocks initiative and Clean Slate program were developed using evidence -based practices for addressing
addictions and reducing recidivism. A sampling of research that helped influence the design and scope of Clean
Slate included the effective use of needs and risk assessmentsz, the negative impact of overprescribing
treatments3'4, the psychology of punishment and national incarceration data' '6, and the effectiveness of
incorporating medication assisted treatment (MAT) into drug -court diversion programs.
Existing similar initiatives or collaborations
There are a number of pre -charge diversion programs being implemented around the country that involve various
combination of criminal justice, law enforcement, behavioral health and/or drug treatment partners, but Clean
Slate is unique in that it involves all of those agencies, plus public defenders and medical primary care providers.
Goldilocks is also unique compared to other diversion programs in that it is tiered. It provides specific
interventions based on the crime and type of substance use disorder, allowing our community to easily move
individuals through the different tiers of the program when appropriate.
Unique organizational traits and capabilities
The DA's Office is the ideal organization to implement this type of initiative as the vision of our Office is to work
to reduce crime, protect innocent victims, and enhance the lives of district residents. Our role as the lead
organization enables us to carefully monitor participant's success in the program, and adjust the level of
intervention, if necessary to continue to protect public safety, while also ensuring that successful Clean Slate
participants are able to erase this mistake from their record. In addition, the DA's office has strong working
relationships with law enforcement and the medical community; believes in using evidence based research and
best practices to guide decisions; and is committed to seeing this program through by devoting staff time and
resources.
2 James, Nathan. October 13, 2015. Risk and Needs Assessment in the Criminal Justice System. Congressional Research Service. 7-5700
CRS Report.
3 National Association of Drug Court Professionals. October 2015. Doing Justice: The Executive Summit on Criminal Justice Reform.
Prepared for the Office of National Drug Control Policy, Executive Office of the President.
' Central Oregon Health Council. 2016. RHIP Substance Use & Chronic Pain Workgroup. Primary Care Substance Abuse Referral
Diagram.
5 James, Nathan. October 13, 2015. Risk and Needs Assessment in the Criminal Justice System. Congressional Research Service. 7-5700
CRS Report.
6 Latessa, Edward J. and Christopher Lowenkamp. 2006. What Works in Reducing Recidivism? A Report to the United States Congress.
Prepared for the National Institute of Justice.
' Nordstrom, Benjamin R. and Douglas B. Marlowe. August 2016. Drug Court Practitioner Fact Sheet: Medication —Assisted Treatment for
Opioid Use Disorders in Drug Courts.. National Drug Court Institute. Vol. XI, No 2.
4
Ways the community will share in the learning of your project
Regular meetings allow the team to share current results and provides an open forum to discuss challenges and
share success stories across organizations. To date these conversations have informed law enforcement of positive
feedback on their interactions with the participants, and have illuminated a challenge on tracking and monitoring
patients referred between primary care and behavioral health. Meehan Coop also frequently connects with the
different partnering agencies via email and phone to check-in, share agency specific data, and answer questions.
The DA's Office also plans to share a final report with the COHQA and the public detailing the results of the
program's impact.
Barriers to success
There are two current challenges that the initiative is facing include.
1. Improving the number of participants that attend the CSO.
a. It is difficult to connect with many of the potential participants as they often do not have a
permanent home or a reliable phone number to remind them to come to the meeting. We recently
learned that phones that can't receive messages can sometimes receive texts, so we have just
started trying to text individuals that we can't reach via voice.
b. We are asking BHS to reach out to any potential participants that are also current patients of
theirs to encourage them to attend the CSO.
c. In addition, we have begun allowing individuals to enter Clean Slate through a referral from their
lawyer at arraignment, rather than just requiring all participants to enter prior to their first court
date.
2. Reducing the time it takes to enroll participants into OHP.
a. Our medical partners do not have the capacity to get a Clean Slate participant an enrollment
appointment immediately. This not only delays those participants official entry into Clean Slate
by more than two weeks, but also their doctor's appointment.
b. We are working on establishing the DA's Office as an OHP enroller. It has initially proven
challenging since we are not a medical organization, but we are looking into possible solutions.
We will also address future challenges by taking advantage of peer advice and technical assistance offered
through the continued community support program provided by the MacArthur Foundation Safety & Justice
Challenge network.
Measurements
Measuring project objectives
During the development of our pilot plan, we establish a logic model, performance measures and key evaluation
questions that track critical data points. These points include, but are not limited to: how many individuals have
been cited for PC, demographic data on the participants, drugs of choice vs arresting drug, impact of the program
on the workload of each partner, and the success rates of Level 1 vs Level II.
Ultimately we are striving for 75% of individuals arrested for PCS crimes to participate in Clean Slate. We want
to reduce Deschutes County's one-year recidivism rate of 47.3%8 by: 30% for Clean Slate Level I participants,
and 25% for Clean Slate Level II participants. We also want to improve the number of participants that have
access to medical care by 30%.
8 Oregon Criminal Justice Commission http://www.oregon.gov/cjc/data/pages/main.aspx
Long-term we want to see at least 3% of Clean Slate participants be considered clean and sober for more than two
years.
Evidence -based care guidelines
Since the medical model approach to managing PCS cases is new, there aren't any current examples to directly
measure our model against. We worked closely with the Urban Institute to create our performance matrix,
leveraging their expertise in developing assessments for other programs related to both crime and health issues.
Data collection
Data will be obtained and tracked from and through participant intake forms, the DA's case management system,
police reports, substantial compliance letters from the PCP, and aggregated data on the Clean Slate participants
that can be shared by the medical, behavioral health and drug treatment providers. Meehan Coop will take the lead
in collecting and coordinating the data from each of the partnering agencies and the program participants. This
includes collecting data daily on new eligible individuals, weekly on new active participants, and monthly on any
inactive and successful participants. Each agency has provided a point of contact to assist with this process. Data
analysis will be conducted monthly for partner meetings and a more comprehensive analysis will be completed
each quarter.
Timeline
The Macarthur grant ends June 1, 208. We would like to officially begin the second phase of our pilot
immediately following on June 2, 2018. The second phase of the pilot will run through May 31, 2019. We would
ensure that our program development assistant was hired and ready to start at the beginning of June. We will host
the CSO meeting each week for the full year, hold partner meetings every four to six weeks, and conduct program
assessment at the end of each quarter.
l,4,,-.
The direct cost to run the program is minimal related to the potential impact and the overall savings of keeping
individuals out of the criminal justice system and the ER. Our biggest direct project expense is staffing, but even
with this cost the overall impact is only equivalent to a 1.5 FTE. The majority of that expense is being covered as
part of DA Office's staff regular responsibilities. The medical care and drug treatment expenses related to
program participants are being covered by participants' personal insurance plans or through enrollment in OHP.
The other expenses are rental space to move the program away from the criminal justice environment, and multi-
zone full day bus passes to get participants to the CSO and their medical appointments, if needed.
Sustainability
The goal of applying for this grant is to provide our collaborative team with the opportunity to prove our program
objectives over a full 18 month trial. Assuming the second phase of our pilot is successful we plan to work with
County officials, Behavioral Health Services and the Sheriff's Department about co -locating Clean Slate with the
County's future crisis stabilization center to maximize internal resources for space and counselor services. We
will also plan to apply for federal funding to support an expanded version of Clean Slate and to hire an external
evaluator to conduct a research study on the program. We would like to create a body of evidence on the true
impact Clean Slate is having on Deschutes County from enhanced access to medical care, improved community
health, reduced need for long-term social service programs, reduction of drug related criminal justice cases, and
overall cost savings to the county.
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Sharon Ross
From: Ashley Zeigler <azeigler@coipa.org>
Sent: Friday, April 06, 2018 12:46 PM
To: John Hummel; Kathleen Coop
Subject: Goldilocks Clean Slate proposal
Follow Up Flag: Flag for follow up
Flag Status: Flagged
Dear Mr. Hummel,
The COHQA grant committee met this week, and I am delighted to report that your proposal was accepted for full funding at a
level of $39,941.60. The grant committee was very excited to support the ongoing work of the Goldilocks Clean Slate project,
which we believe has a significant impact on the lives of a vulnerable and difficult population, and on our community as a whole.
A check for the full amount will be sent to you within the next few weeks.
Congratulations! COHQA is looking forward to working with you to make improvements in the health of our community.
ashley
Ashley Zeigler
Director of Data & Analytics
Central Oregon Independent Practice Association
1230 NE 3rd St., Suite A-200
Bend, OR 97701
541-280-8166
azeigler .coipa.org
Deschutes County Human Resources - Class Specification Bulletin
Program Development
Assistant
Bargaining Unit: The American Federation of
State, County and Municipal Employees Local
3997
DESCHUTES COUNTY HUMAN RESOURCES
Established Date: May 1, 2011
Revision Date: Jul 6, 2011
SALARY RANGE
$18.36 - $25.16 Hourly
$3,169.75 - $4,343.45 Monthly
$38,036.95 - $52,121.37 Annually
SUMMARY:
FLSA: Non-exempt
Grade: 14A
Class Code:
1265
Provides para -professional support to the department in the areas of office administration, social and
demographic data collection and analysis, monitoring of budget and contracts, and assistance to small
communities with projects, information, and resources.
NATURE AND SCOPE.
The specific job design is senior -level para -professional with entry-level professional components
requiring a technical command of office administration and social work. Under the general supervision of
the Director, the position carries out a variety of administrative functions including, but not limited to
statistical data gathering, advanced secretarial support, contract administration, budget administration
and some small group process facilitation of social service projects. Work includes using independent
judgment and skill in developing and sequencing multiple tasks. Work assignments require frequent
contact with community groups and individuals inside and outside of the County; occasional requirement
to prepare and deliver reports to small, informal groups. Work is performed in an office setting where
there are minimal health and safety issues.
DISTINGUISHING CHARACTERISTICS AND ESSENTIAL FUNCTIONS:
ESSENTIAL FUNCTIONS
Prepares statements of work and contracts for service providers. Meets providers to discuss and assist
with preparing of statements that include measurable service outcomes.
Monitors independent contractor (service provider) performance according to the dimensions set forth in
the statement of work. Receives operating information and prepares periodic reports summarizing
grantee performance.
Participates in the development of bi-annual budgets for services. Prepares the budget proposal from
instructions, notes, and required formats. Works with the department head and coordinates activities and
communications with elected officials and committees. Seeks approval from the department head and
submits recommendation to state offices according to required formats.
Compiles data on population demographics, social indicators, and service delivery outcomes. Prepares
summaries of data, looking for correlations between demographics, statistics, and services.
Informs community groups, special interest organizations, service clubs, educators, etc., of departmental
activities community-based projects, and community issues.
Serves as liaison to a small community in the county. Assists community leaders, groups, and individuals
with projects relating to children and families.
Provides office support of similar scope to that of an administrative secretary and oversees lower level
clerical employees and independent contractors. Leadership skills are applied to oversee work such as
https:llagency.govemmentjobs.com/deschutes/default.cfm?action=specbulletin&ClassSpeclD=812397&headerfooter=o 112
2/1/2018 Deschutes County Human Resources - Class Specification Bulletin
filing, copying, reception and data entry.
Provides advanced secretarial support to the Director and the advisory board.
Performs other related duties as necessary to carry out the objectives of the position.
QUALIFICATIONS:
Knowledge and Skills. Requires in-depth knowledge of office administration and basic knowledge of
social services and child behavior. Requires sufficient knowledge of statistical methods to develop
databases, gather data from the proper sources, perform basic statistical tests, and understand the
interrelationships of data and measurement of outcomes. Sufficient human relation's skills for
communicating technical concepts to others, basic process facilitating. Well developed writing skills to
prepare research reports, presentations.
Experience and Training. Incumbents typically have an Associate's degree in a business discipline and
have 2-5 years of experience in a youth and family oriented service such as child welfare, juvenile justice,
childhood development, and family support. Additional education in a social services field may be
substituted for experience.
Abilities. Requires the ability to perform the various aspects of the job, including the ability to
communicate effectively to individuals and groups, to write clearly, to facilitate administrative work
processes and give assignments, and instruct others. Sufficient hand -arm coordination to operate a
personal computer keyboard, ability to use presentation devices such as overhead projectors, chalk
boards, charts, etc.
https://agency.governmentjobs.com/deschutes/default.cfm?action=specbuiletin&CIassSpec[D=812397&headerfooter=0 2/2
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners Work Session of April 18, 2018
DATE: April 12, 2018
FROM: Cynthia Smidt, Community Development, 541-317-3150
TITLE OF AGENDA ITEM:
An Appeal of a Hearings Officer Denial for a Plan Amendment and Zone Change from Surface
Mining to Residential
BACKGROUND AND POLICY IMPLICATIONS: Before the Board of County Commissioners
is an appeal of the Hearings Officer's decision denying a plan amendment and zone change
from Surface Mining to Residential and proposed by Tumalo Irrigation District. Tumalo
Irrigation District and Central Oregon LandWatch filed a timely appeal of the Hearings Officer's
decision. The Board will consider Order No. 2018-024 and whether to hear the matter on
appeal.
See attached staff memorandum for further background information.
FISCAL IMPLICATIONS: None
ATTENDANCE: Cynthia Smidt, Associate Planner
MEMORANDUM
DATE: April 12, 2018
TO: Board of County Commissioners
FROM: Cynthia Smidt, Associate Planner
RE: Appeal of Hearings Officer Decision on a Tumalo Irrigation District Zone Change and Plan
Amendment (247-17-000775-ZC, 247 -17 -000776 -PA)
Before the Deschutes County Board of Commissioners (Board) is a timely appeal submitted in response to a
Deschutes County Hearings Officer's (HO) decision denying the applicant's request for a quasi-judicial plan
amendment and zone change (Attachment 1). Two appeals were submitted, one by the applicant, Tumalo
Irrigation District (TID) and the other by Central Oregon LanclWatch (LandWatch).
I. BACKGROUND
TID submitted a request for a Comprehensive Plan Amendment to change the designation of the 541 -acre
subject property from Surface Mine (SM) to Rural Residential Exception Area (Attachment 2). The request
includes removing Surface Mining Site No. 357 from the County's Surface Mining Mineral and Aggregate
Inventory and adding it to the Non -Significant Mining and Aggregate Inventory. The applicant also requests
approval of a Zone Change from Surface Mining to Multiple Use Agricultural (MUA) for the subject property.
The removal of the SM zoning on the also would remove the existing Surface Mining Impact Area Combining
Zone (SMIA) zoning on property located within one-half mile of the SM Zone.
The HO denied the plan amendment and zone change applications based on the applicant's failure to
demonstrate that the proposed change would not have a significant impact on transportation facilities as a
conditional use approval may authorize, such as a cluster development.'
TUMALO IRRIGATION DISTRICT APPEAL
The applicant/appellant, TID, appeals the HO decision and describes several assignments of error in their notice
of appeal (Attachment 3). The following briefly mentions their concerns:
'The HO cited the following: In Jaquo v City of Springfield, 193 Or App 573, 593,91 P3d 817 (2004) the court held that the Transportation
Planning Rule (TPR) does not permit deferral of a determination of whether the proposal would significantly impact transportation
facilities. This was reaffirmed and perhaps extended in Willamette Oaks, LLC, v City of Eugene, 232 Or App 29, 220 P.3d 445 (2009). This
effectively overruled a line of LUBA cases holding that it was permissible in some instances to condition a plan amendment or zone change
to prohibit development that could significantly impact a transportation facility. The court made it clear that there must be a finding on
this issue at the plan amendment/zone change stage.
1. The Hearings Officer erroneously concluded that Applicant failed to satisfy OAR 660-012-00602 and
DCC 18.136.020(C).
2. OAR 660-012-0060 requires the County to estimate traffic impacts under a reasonable "worst-case"
scenario.
3. The Hearings Officer indicates that in the decision that it is "likely that the applicant can
demonstrate compliance" with the criteria that formed the bases of the denial.
The applicant/appellant, TID, requests a limited de novo review; limited to new evidence to the basis of denial.
III. CENTRAL OREGON LANDWATCH APPEAL
LandWatch describes several assignments of error that are summarized in their notice of appeal and briefly
mentioned below (Attachment 4):
1. The Board of County Commissioners must hear the appeal de novo because a goal exception is
required.
a. DCC 22.28.030
b. Goal 3; the subject property is agricultural land for which no goal exception has been taken in
the Deschutes County Comprehensive Plan.
2. DCC 22.20.015; denial is appropriate because the subject property is in violation of applicable land
use regulations.'
3. Comprehensive Plan Section 2.10 Surface Mining
a. The subject property should not be placed on the non-significant mining and aggregate
inventory.'
b. DOGAMI's certification of the quality of reclamation of the site renders the site usable only for
the post -mining use of "open space/range."
4. Natural hazards.
a. Goal 7; an exception to Goal 7 Natural Hazards is required.
b. Several Comprehensive Plan policies relating to natural hazards have not been met.
The appellant, LandWatch, requests a de novo review.
Additionally, becausethe Board must hearthe appeal pursuantto DCC 22.28.030(C), Landwatch does not believe
they must appeal the plan amendment. Accordingly, they request reimbursement of the portion of the 20% of
the original application fee that is for the plan amendment.
2 OAR 660-012-0060, transportation planning for "Plan and Land Use Regulation Amendments."
3 According to Landwatch, the HO erred in finding that the subject property is not in violation of applicable County land use regulations.
Hearings Officer Decision page 9. The subject property is in violation because the road that passes through the subject property (Bill
Martin Road) was constructed in violation of DCC 17.16.105 and remains in violation of that code section.
4 According to Landwatch, the existence of the Non -Significant Mining and Aggregate Inventory at Comprehensive Plan Table 5.8.2 is an
error in the County's Comprehensive Plan. Only inventoried significant Goal 5 mineral and aggregate resources may be mined. See OAR
660-023-0180. As Table 5.8.2 has no legal value in the County's program to achieve the requirements of Goal 5, placing the subject
property on Table 5.8.2 with the comment "potential reservoir site" is a meaningless action. The Hearings Officer erred when deciding
that Table 5.8.2 should be amended to include the subject property.
-2-
IV. BOARD OPTIONS
There are two versions of Order No. 2018-024 (Attachment 5). In determining whether to hear an appeal, the
Board may consider only:
The record developed before the Hearings Officers
The notice of appeal; and
Recommendation of staff.'
In addition, if the Board decides to hear the appeal, it may consider providing time limits for public testimony.
If the Board decides that the Hearings Officer's decision shall be the final decision of the county, then the Board
shall not hear the appeal and the party appealing may continue the appeal as provided by law. The decision on
the land use applications becomes final upon the mailing of the Board's decision to decline review.
V. STAFF RECOMMENDATION
The HO decision makes an unusual finding regarding the TPR, basing the decision on something other than
mobility standards. This could then set precedent regarding required traffic analyses for plan amendment/zone
changes. In addition LandWatch arguments for a Goal 3 exception and processing the land use application while
the subject property is in violation of another land use action warrants consideration. For this reason, staff
recommends the Board hear the appeal either limited de novo or de novo.
VI. 150 -DAY LAND USE CLOCK
According to DCC 22.20.040, quasi-judicial plan amendment and zone change requests are exempt from the 150 -
day time limit. TID states that they are "willing to be flexible in the scheduling of any proceedings on appeal"
before the Board.
Attachments
1. Hearings Officer's decision
2. Map of subject property
3. Tumalo Irrigation District appeal
4. Central Oregon LandWatch appeal
5. Draft Orders, No. 2018-024
5 The record can be found at:.https://dial.deschutes.org/Real/DevelopmentDocs/150758.
' DCC 22.32.035(B) and (D)
-3-
Staff Memorandum
Attachment 1
Hearings Officer's Decision
Mailing Date:
Friday, February 23, 2018
HEARINGS OFFICER DECISION
FILE NUMBERS: 247-17-000775-ZC and 247 -17 -000776 -PA
HEARING DATE: December 12, 2017, 6:00 p.m.
APPLICANT/OWNER: Tumalo Irrigation District
c/o Bryant, Lovlien & Jarvis, P.C.
591 SW Mill View Way
Bend, Oregon 97702
ATTORNEY: Garrett Chrostek
Bryant, Lovlien & Jarvis, P.C.
591 SW Mill View Way
Bend, Oregon 97702
REQUEST: The applicant requests a Comprehensive Plan Amendment to
change the designation of the subject property from Surface Mine
to Rural Residential Exception Area, and a Zone Change from
Surface Mining to Multiple Use Agricultural.
The request includes removing Surface Mining Site No. 357 from
the County's Surface Mining Mineral and Aggregate Inventory,
adding Site No. 357 to the Non -Significant Mining and Aggregate
Inventory, and removing the associated Surface Mining Impact
Area Combining Zone.
STAFF: Cynthia Smidt, Associate Planner
HEARINGS OFFICER: Dan R. Olsen
SUMMARY OF DECISION: DENIED
APPLICABLE CRITERIA:
Title 18, Deschutes County Zoning Ordinance
Chapter 18.32. Multiple Use Agricultural Zone
Chapter 18.52. Surface Mining Zone
Chapter 18.56. Surface Mining Combining Zone
Chapter 18.136. Amendments
Title 22, Deschutes County Development Procedures Ordinance
Deschutes County Comprehensive Plan
Chapter 2, Resource Management
Chapter 3, Rural Growth Management
Chapter 5, Supplemental Sections
Appendix C, Transportation System Plan
Oregon Administrative Rules, Chapter 660
Division 12, Transportation Planning
Division 15, Statewide Planning Goals and Guidelines
Division 23, Procedures and Requirements for Complying with Goal 5
II. BASIC FINDINGS:
A. LOCATION: The subject property is located at 19300 and 19310 Tumalo Reservoir
Road, Bend and is identified on Deschutes County Assessor's map 16-11 (index map)
as tax lots 10300 and 10400 and map 16-11-36D as tax lot 100.
B. LOT OF RECORD: Pursuant to Hearings Officer's decision in file ZC-08-4, Belveron,
legal lot of record status is not applicable to a rezoning application. However, Deschutes
County has recognized the three tax lots — 100, 10300, and 10400 — that make up the
subject property as one legal Lot of Record based on land use development permits
(e.g. CU -08-81).
C. ZONING AND PLAN DESIGNATION: The Deschutes County Comprehensive Plan
designates the subject property as Surface Mine. Additionally, the subject property is
zoned Surface Mining (SM). The mine is designated as Site No. 357 in the County's
Goal 5 Surface Mining Mineral and Aggregate Inventory.
A small region in the northeastern corner of tax lot 10400 is also within the Landscape
Management (LM) Combining Zone associated with Highway 20. The proposal is not
subject to the LM site plan review as no development is proposed. The County will
review compliance with LM Zone regulations when development is proposed.
D. SITE DESCRIPTION: The subject property, as shown below in Figure 1, is comprised of
three tax lots equaling 541.23 total acres. Tax lots 10300 and 10400 (index map 16-11)
are approximately 40 acres and 424.56 acres, respectively. Tax lot 100 (map 16-11-
36D) is approximately 76.67 acres. The property has varying terrain that rises to Laidlaw
Butte in the northern region. Previously developed with mine Site No. 357, the surface
mine is no longer active and was ultimately reclaimed as documented in a September
2011 letter from Oregon Department of Geology and Mineral Industries (DOGAMI).
Since the property was previously used as a surface mine, most of it is devoid of
vegetation except in the northeast and southwest regions where native vegetation of
juniper trees, sagebrush, and groundcover exist. In addition, some of the disturbed areas
have been revegetated. The property does not contain water rights. At the top of Laidlaw
Butte, the site is developed with three wireless telecommunication towers and ground
equipment. Tumalo Reservoir Road and Mock Road are adjacent to the property's
southern and western boundaries. Mock Road intersects with Pinehurst Road near the
northwestern corner of the property. Bill Martin Road travels generally in a north to south
direction through the property. Access to the property appears to be taken from Tumalo
Reservoir Road, Mock Road, and Bill Martin Road. According to the Flood Insurance
Rate Map (FIRM) for Deschutes County and the National Wetlands Inventory,
respectively, the subject property is not located in the 100 -year flood plain and contains
no mapped wetlands.
247-17-000775-ZC and 247 -17 -000776 -PA, Tumalo Irrigation District - Hearings Officer Decision
Page 2
Tax map 16-11-00
Tax lot 10300
SUBJECT
PROPERTIES
Tax map 16-11-00
Tax lot 10400 Tax map 16-11-36D
Tax lot 100
2 "9
J ,r
O,
r
4"
t
FIGURE 1. Subject Property, consisting of three tax lots
E. SURROUNDING LAND USES: The area surrounding the subject property is a mixture
of Exclusive Farm Use (EFU) and Multiple Use Agricultural (MUA-10) properties and two
districts within the Tumalo Urban Unincorporated Community Zone. Farm -zoned parcels
are located to the northeast, southwest, north, and across Tumalo Reservoir Road to the
south. Residential properties, zoned MUA-10, are located to the northwest, southeast,
and further north beyond the farm -zoned parcels. Adjacent to the eastern boundary are
two zoning districts — Residential 5 -acre minimum (TuR5) and Research and
Development (TuRE) — that are within the Tumalo Urban Unincorporated Community
Zone. Tumalo Reservoir Road is adjacent to the property's southern boundary. Mock
road is adjacent to the western boundary and intersects with Pinehurst Road near the
northwestern corner of the property. Bill Martin Road travels through the property in a
north to south direction.
The applicant's burden of proof statement provides the following description of the
development pattern in the area surrounding the subject property:
South of the Subject Property, but north of Tumalo Reservoir Road are several
MUA-10 properties along Coyote Run Ln. and Quail Dr. These properties are all
in residential uses and are roughly 5 acres or smaller in size. Properties to the
immediate south, but across Tumalo Reservoir Road are zoned EFU-TRB.
247-17-000775-ZC and 247 -17 -000776 -PA, Tumalo Irrigation District - Hearings Officer Decision
Page 3
These properties exhibit a mix or irrigated and un -irrigated farming activities with
most properties less than 40 acres in size.
To the west and along the southern half of the Subject Property are EFU-TRB
properties north of Tumalo Reservoir Rd. There are no apparent agricultural uses
at these properties and these properties were previously part of mining
operations (Site Nos. 355 and 356). Along the northern half of the western
boundary are MUA-10 properties that are 5 to 10 acres in size. Some of these
properties demonstrate the use of irrigation, but most of the immediately adjacent
parcels are dry.
Immediately adjacent parcels to the north are zoned EFU-TRB. These properties
are 10-20 acres in size with only one adjacent parcel evidencing any irrigated
agriculture. Further north are properties zoned MUA-10 that are in a mix of
agricultural and residential uses. To the northeast is another SM zoned property
owned by Deschutes County.
Properties to the east and along the northern half of the Subject Property are un-
irrigated EFU-TRB parcels including property owned by the Applicant. Along the
southern portion of the eastern boundary are TUR5 parcels. Further east is the
Bend Research, Inc.'s Tumalo Site in the Tumalo Research and Development
District. Even further east is the unincorporated community of Tumalo.
F. SOILS: According to Soil Resource Inventory for Deschutes National Forest, there are
ten soil units mapped on the subject property, which are identified in the following table.
Mapping Unit Symbol
Mapping Unit Name
31 B
Deschutes sandy loam, 3 to 8 percent slopes
34C
Desch utes-Stukel complex, 0 to 15 percent slopes
36A
Deskamp loamy sand, 0 to 3 percent slopes
67A
Houstake sandy loam, very gravelly substratum, 0 to 3
percent slopes
72C
Laidlaw sandy loam, 0 to 15 percent slopes
101D
Redcliff-Lickskillet-Rock outcrop complex, 15 to 30
percent south slopes
141C
Stukel-Deschutes-Rock outcrop complex, 0 to 15 percent
slopes
151D
Tetherow-Clovkamp complex, 8 to 50 percent slopes
152A j
Tumalo sandy loam, 0 to 3 percent slopes
152B I
Tumalo sandy loam, 3 to 8 percent slopes
A small portion of 31 B, together with the 67A and 72C areas, is similar in shape to the
existing Surface Mining area. The 72C soil mapping units are nonhigh value soils. The
31 B and 67A soil is considered high value when irrigated.
G. SURFACE MINE DESIGNATION HISTORY: The subject property (approximately
541.23 acres) was identified as mining mine Site No. 357 on the County's Surface
Mining Mineral and Aggregate Inventory, and the site was zoned for surface mining in
1990 through the adoption of Ordinances 90-014, 90-025, 90-028, and 90-029. All four
247-17-000775-ZC and 247 -17 -000776 -PA, Tumalo Irrigation District - Hearings Officer Decision
Page 4
ordinances established an effective date of July 16, 1990. The applicant provides the
following site and mining history for the property:
The vesting deed is attached as Exhibit 3. The Applicant's predecessor
Deschutes County Municipal Improvement District acquired a very large tract of
land, including what is now the Subject Property, in the early 1900's. There have
been numerous deeds conveying out portions of the original acquisition leaving
the present configuration of approximately 541 acres.
Initial County Zoning Maps show the Subject Property as zoned SM. In the late
1980's the Land Conservation and Development Commission's (LCDC's)
acknowledgement of the County's Comprehensive Plan provisions addressing
mineral and aggregate resources under Goal 5 was reversed and remanded by
the Court of Appeals in Coats v. LCDC, 67 Or App 504 (1984). Pursuant to a
subsequent LCDC order, the County undertook a lengthy process to inventory
mineral and aggregate resources in the County, to develop a plan to preserve
and protect those resources, and to amend the County's Comprehensive Plan
and Zoning Ordinance to adopt the inventory and measures to protect sites.
These plans were implemented through several ordinances that (i) listed Site No.
357 on the Goal 5 inventory, (ii) adopted a site-specific ESEE (Economic, Social,
Environmental and Energy) analysis for Site No. 357, and (iii) imposed the SM
and SMIA zoning (Ordinance Nos. 90-014, 90-025, 90-028, and 90-029). In
1993, the County adopted Ordinance Nos. 93-021 and 93-022 to correct an error
in the acreage of Site No. 357.
Aside from the communications tower described above, the property has only
been used for mining purposes. In September of 2011, the Department of
Geology & Mineral Industries (DOGAMI) closed the permit (No. 09-0009) to Site
No. 357 following successful reclamation of the Subject Property. In total, 312.75
acres were reclaimed, which included re -contouring the disturbed area, adding 1
foot of topsoil, and drill -seeding the area with grasses.
H. PROPOSAL: The applicant is requesting a Comprehensive Plan Amendment to change
the designation of the subject property from Surface Mine (SM) to Rural Residential
Exception Area (RREA). The request includes removing Surface Mining Site No. 357
from the County's Surface Mining Mineral and Aggregate Inventory and adding it to the
Non -Significant Mining and Aggregate Inventory. The applicant also requests approval of
a Zone Change from Surface Mining to Multiple Use Agricultural for the subject property.
The removal of the SM zoning on the subject property also would remove the existing
Surface Mining Impact Area Combining Zone (SMIA) zoning on property located within
one-half mile of the SM Zone.
Regarding the request to move Site No. 357 to the Non -Significant Mining and
Aggregate Inventory, the applicant states the following:
Applicant anticipates that a portion of the Subject Property may be used as a
recharge reservoir for the various irrigation piping projects applicant is pursuing
in the area. A recharge reservoir assists in ensuring that there is sufficient water
pressure in irrigation pipe to supply water to all connections during periods of
joint use. To ensure applicant can construct and maintain these facilities, should
they be developed in the future, applicant desires to add Site No. 357 to the Non-
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Significant Mining Mineral and Aggregate Inventory contained within Table 5.8.2
of the Deschutes County Comprehensive Plan. (Footnote omitted) The
construction of irrigation reservoirs in the MUA-10 zone requires conditional use
approval. If applicant moves forward with developing the recharge reservoir,
applicant will seek conditional use approval.
I. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice to several
agencies and received the following comments:
1. Deschutes County Transportation Planner: Peter Russell, Senior Transportation
Planner, submitted the following comments on November 29, 2017.
I have reviewed the transmittal materials for 247-17-000775-ZC/776-PA,
which proposes changing the zoning from Surface Mining (SM) to Multiple
Use Agricultural (MUA-10) for approximately 541 acres at 19300 and 19310
Tumalo Reservoir Road, aka 16-11-00, Tax Lots 10300 and 10400 and 16-
11-36D, Tax Lot 100. I agree with the submitted traffic study's methodology,
conclusions, and recommendations. The submittal complies with the
Transportation Planning Rule (TPR) and demonstrates the land use would
have no significant effect upon Bill Martin Road, a local access road. The
study also complies with the requirements of Deschutes County Code (DCC)
18.116.310.
2. Deschutes County Road Department: Cody Smith, County Engineer, submitted the
following comments on November 29, 2017.
1 have reviewed the application materials for the above -referenced file
numbers, requesting a Zone Change, Comprehensive Plan Amendment, and
changes to the County's Surface Mining Mineral and Aggregate Inventory for
Tax Lots 10300 and 10400 on Tax Map 16-11 and Tax Lot 100 on Tax Map
16-11-36D. The subject properties have frontage to Tumalo Reservoir Road,
Mock Road, and Bill Martin Rd. Tumalo Reservoir Rd is a County -maintained
rural collector road, while Mock Rd is a County -maintained rural local road.
Bill Martin Rd is local access road under County jurisdiction but not County -
maintained.
Deschutes County Road Department has no comments regarding the burden
of proof findings or traffic study submitted by the applicant.
3. Oregon Department of Fish and Wildlife (ODFW): The following comments were
submitted by Andrew Walch, Wildlife Habitat Biologist, on November 16, 2017.
The Oregon Department of Fish & Wildlife (ODFA0 is submitting the following
comments regarding Tumalo Irrigation District's applications (File #247-17-
000775-ZC and 247 -17 -000776 -PA), located at 19300 and 19310 Tumalo
Reservoir Rd, Bend, OR 97701.
The area of the proposed Zone Change and Comprehensive Plan
Amendment is located just outside of the Wildlife Area Combining Zone, but
within biological winter range for mule deer. ODFW is concerned about the
continued loss and development of open spaces on biological winter range.
Due to multiple factors, including habitat loss/alterations, the Tumalo mule
247-17-000775-ZC and 247 -17 -000776 -PA, Tumalo Irrigation District - Hearings Officer Decision
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deer herd, the herd potentially affected by this proposal, is estimated at 28%
of its population management objective as of spring 2017.
Development of a 541.23 -acre property into 10 -acre minimum rural
residential properties would lead to miles of new fencing on the landscape.
To reduce impact to wildlife, ODFW urges Deschutes County planners to
ensure that any new fences constructed on the property are wildlife -friendly,
as outlined in county code 18.88.070.
As per ODFW wildlife damage policy, we will not respond to any wildlife
damage complaints within this potential rural residential development due to
the change in land use.
4. The following agencies did not respond or had no comments: Bend Fire Department,
Central Electric Cooperative, Deschutes County Assessor, Deschutes County Road
Department, Oregon Department of Environmental Quality, Oregon Department of
Geology and Mineral Industries (DOGAMI), Oregon Department of Land
Conservation and Development, PG&E Gas Transmission NW, Pacific Power and
Light, and Watermaster — District 11.
J. NOTICE REQUIREMENT: The applicant complied with the posted notice requirements
of Section 22.23.030(B) of Deschutes County Code (DCC) Title 22. The applicant
submitted a Land Use Action Sign Affidavit, dated November 15, 2017, indicating the
applicant posted notice of the land use action on November 15, 2017.
Notice of the public hearing was sent to all property owners within 750 of the subject
property on November 6, 2017. Notification of the public hearing was posted in the Bend
Bulletin newspaper on November 12, 2017.
K. REVIEW PERIOD: The applications for 247-17-000775-ZC and 247 -17 -000776 -PA were
submitted to the Planning Division on September 21, 2017. According to Deschutes
County Code (DCC) 22.20.040(D), the review of the proposed quasi-judicial plan
amendment application is not subject to the 150 -day review period.
L. HEARING: The hearing was opened at 6:00 pm. on December 12, 2017. 1 provided the
required statutory disclosures. I indicated that I had no conflicts of interest and had had
no ex parte contacts. I did not conduct a site visit. I asked for but received no procedural
or other objections to my conducting the hearing. A request to keep the written record
open was received and granted as follows, with all submittals to be actually received by
the County at close of business:
December 22, 2017 New submittals
January 2, 2018 Materials submitted in response to submittals during the
first open record period.
January 12, 2018 Applicant's final rebuttal but no new evidence.
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III. FINDINGS AND CONCLUSIONS:
Title 22, Deschutes County Development Procedures Ordinance
A. Chapter 22.20 Review of Land Use Action Applications
1. 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 conditions of approval of any
previous land use decisions... 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...
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...
D. A permit or other approval... may be authorized if. -
1. It results in the property coming into full compliance...
2. It is necessary to protect the public health or safety...
FINDING: Several commenters have alleged that the property is in violation of
applicable land use regulations or conditions of approval and, therefore, I am precluded
from approving any application or making a land use decision.
As I understand it, properties adjacent to the northern boundary of the subject property
were partitioned and sold. The current owners have filed an action in circuit court against
Deschutes County and TID alleging, among other things, that the partitions were, or
should have been, processed as a subdivision. Accordingly, Bill Martin Rd., should have
been constructed to County standards and accepted by the County for maintenance
pursuant to DCC 17.16.105. Central Oregon Landwatch (COLW) asserts that failure of
either TID or Deschutes County to maintain Bill Martin Rd., therefore, a violation. See
e.g., Jan. 2, 2018 submittal at 3-4, Holt hearing submittal H-4.
Bill Martin Road crosses a portion of the subject property. The County considers it to be
a local access road not maintained by the County. The County has not flagged the
subject property as a violation.
County Counsel responded to staff that there has been no decision that TID violated any
County land use regulation or approval. Further, neither the County nor TID believe any
violation occurred. He also states that the existence of a pending lawsuit does not
constitute a violation that would justify rejection of the current application.
I agree with COLW that DCC 22.20.015 generally authorizes the review authority to
determine whether a violation exists regardless of the County's position. But, for the
reasons stated below, I find that this provision does not preclude me from deciding the
application before me.
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As I understand it, the land use application(s) that are the subject of the lawsuit involve
adjacent property that happened to be owned by TID. Dec. 22, 2017 staff
memorandum. The lawsuit alleges numerous positions, including that the County did in
fact, establish Bill Martin Road as a county road and that the county had accepted
maintenance responsibility. It also alleges that TID has responsibility for maintenance or
had a duty to inform purchasers that they must maintain the road. It seeks a declaratory
ruling that TID must maintain the road and that the County had a non -discretionary duty
to treat the partition approvals as a subdivision and either maintain the road or require
TID to do the maintenance. As near as I can tell, it does not seek to invalidate the
partition approvals. See, Fourth Amended Complaint.
DCC 22.20.015 only references the property, which almost certainly means the subject
property. The subject property was not the one allegedly improperly divided. This section
does not appear to extend to other property owned by the applicant. To the extent, if
any, that a property is in violation it is the property now owned by plaintiffs and they do
not allege that they are unable to obtain building or other permits. At least some of the
allegations appear to be a collateral attack on the partition approvals which as far as I
can tell were not appealed and became final. To the extent, if any, that the IGA
referenced in the pleadings or some other source outside the Development Code
imposed a duty on TID or the County, that is beyond the scope of DCC 22.20.015. To
the extent the County, as alleged, breached some duty, that also is not within the scope
of this provision. Further, is not at all clear that I have jurisdiction on this issue given the
circuit court filing, otherwise, there could be two competing conclusions from two
different bodies. Finally, the record is not complete enough for me to reach a conclusion
— the allegedly improper land use decisions, for example, are not in the record. It is not
clear to me that the Code envisions the applicant's burden in this proceeding to extend
to proving the absence of a violation at least under these facts. Thus, it also appears that
the opponents have not raised this issue with enough specificity for me to decide. For
these reasons, I conclude that this section does not bar me from issuing a decision.
Deschutes County Comprehensive Plan
Before I may consider the zone change, the applicant must first demonstrate that it has
met its burden in satisfying the criteria for the requested plan amendment. COLW contends
that the applicant must apply for and obtain an exception to Goals 3, 4 and 14 and,
therefore, this application must be denied as no exception is sought. Accordingly, I am
reordering staff's approach to first address these issues.
A. CHAPTER 2 RESOURCE MANAGEMENT
1. Section 2.1 Introduction
Purpose
The concept of sustainability is that resources used today should be managed
so that there are still resources available for future generations. Sustainability
encourages balancing economic, environmental and social concerns. The
Deschutes County Comprehensive Plan has long acknowledged this through
policies that require new development to consider the carrying capacity of
environment.
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The purpose of the Resource Management chapter is to effectively manage
Deschutes County's agricultural, forest, natural and cultural resources to meet
the needs of today while retaining their value for future generations. These
resources include:
Other Resources
■ Goal 5 Overview (Section 2.4)
■ Mineral and Aggregate Resources (Section 2.10)
2. Section 2.4 Goal 5 Overview
Purpose of Goal 5
The purpose of identifying Goal 5 related lands is to effectively manage
Deschutes County's natural and cultural resources to meet the needs of today
while retaining their value for future generations....
Goals and Policies
Goal 1 Protect Goal 5 resources.
Policy 2.4.4 Incorporate new information into the Goal 5 inventory as
requested by an applicant or as County staff resources allow.
FINDING: The applicant is proposing to remove Surface Mining Site No. 357 from
the County's Surface Mining Mineral and Aggregate Inventory.
The request is based on new information regarding the reclamation of Site No. 357.
In addition, the request includes adding Site No. 357 to the Non -Significant Mining
and Aggregate Inventory.
3. Section 2.10 Surface Mininq
Background
Surface mining provides non-renewable resources, such as pumice, cinders,
building stone, sand, gravel and crushed rock. The extraction of these
materials provides employment as well as products important to local
economic development. Yet mining of mineral and aggregate resources
creates noise, dust and traffic and potential pollution that can conflict with
neighboring land uses, particularly residential uses. This conflict can be
aggravated by delayed or incomplete reclamation of the land. Surface mining
is protected through Statewide Planning Goal 5, Natural Resources, Scenic
and Historic Areas and Open Spaces and the associated Oregon
Administrative Rule (OAR) 660-023 (this rule replaced 660-016 in 1996). Mineral
and aggregate resources are included on the list of Statewide Goal 5 resources
that the County must inventory and protect...
Goals and Policies
Goal Protect and utilize mineral and aggregate resources while
minimizing adverse impacts of extraction, processing and
transporting the resource.
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Policy 2. 10.1 Goal 5 mining inventories, ESEEs and programs are retained and
not repealed.
Policy 2.10.2 Cooperate and coordinate mining regulations with the Oregon
Department of Geology and Mineral Industries.
Policy 2.10.3 Balance protection of mineral and aggregate resources with
conflicting resources and uses.
Policy 2.10.5 Review surface mining site inventories as described in Section
2.4, including the associated Economic, Social, Environmental
and Energy (ESEE) analyses.
Policy 2.10.6 Support efforts by private property owners and appropriate
regulatory agencies to address reclamation of Goal 5 mine sites
approved under 660-016 following mineral extraction.
FINDINGS: Staff states that an aggregate resource site may be placed on the non-
significant mining and aggregate inventory when the resource does not meet the
Goal 5 significance criteria listed in OAR 660-023-0180(3). Staff concluded that the
site is eligible to be removed from the Goal 5 inventory and placed on the non-
significant resource inventory.
The applicant states that the mining resources at Site No. 357 "have been
exhausted." The applicant submitted a geotechnical reconnaissance by Siemens &
Associates dated August 22, 2016. The report provides an "assessment of the type,
quality and quantity of the mineral resources that have been extracted from Site
357," which includes a review of the cinders, pumice, and crushed sand and gravel
extracted from the site. According to the report, mining activities occurred between
1993 and 2005.
The geotechnical reconnaissance evaluated the significant and non-significant
resources available at the site. The resources identified at Site No. 357 include
cinders, pumice, and sand and gravel ("S & G"). The report indicates that cinders
and pumice, are not considered significant (OAR 660-023-0180), because they "fail
to meet the identified ODOT specification for base rock since the particles are
weak...." Therefore, the identified significant resource for the site would be sand and
gravel. The following is the applicant's summary of the reconnaissance analysis:
Despite the indication of significant sand and gravel in the Goal 5 Inventory,
Mr. Siemens concludes that the geology of the Subject Property could only
have yielded trace amounts of sand and gravel. This conclusion is consistent
with mining activities as no significant sand and gravel was harvested from
the site despite the large percentage of the property subject to mining
activities.
Even if the pumice and cinders met ODOT standards, a sufficient amount of
these materials has been removed such that the site does not possess the
500,000 -ton significance threshold for sites outside of the Willamette Valley.
Based on aerial photographs, site geology, and on-site investigations, Mr.
Siemens estimates that approximately one million cubic yards of cinder and
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more than 2.8 million tons on pumice have been extracted from the site. This
is all of the cinder and substantially more of the pumice than was originally
thought to be contained at the site by the Goal 5 Inventory. To the extent the
site ever met the OAR 660-023-0180(3)(a) standard for significance, all
significant material has been removed such there is no longer a "deposit" on
the site.
The Oregon Department of Geology and Mineral Industries formally closed the
permit for Site No. 357 on September 13, 2011, after reclamation to DOGAMI
specifications was completed on the property.
The Holt's, COLW and others note that the September 13, 2011, DOGAMI report
designated post -mining use as Open Space/Range compared to the other choices
such as agriculture, recreation, wildlife/wetlands, or housing/construction. They
argue that a comprehensive plan amendment/zone change to something other than
open space or range would be inconsistent with that determination.
The Holt's also expressed concern about the environmental hazards such as "sink
holes and cave ins" that have occurred in the reclaimed area. Significant erosion and
sink holes where documented during the reclamation process (see DOGAMI
September 30, 2008 onsite inspection report). However, three years later, DOGAMI
issued a letter indicating reclamation was completed.
I do not find any evidence in the record contradicting the applicant's position that the
significant resource no longer exists. COLW, Nunzie Gould and others argue that
there must be significant resources left because the applicant intends to excavate a
portion of the property for a reservoir. I can find nothing, however, indicating that
such excavation necessarily means that a resource is present. It is likely that will be
removed is non -resource material. More importantly, the applicant is not applying for
a new mining operation or development of a reservoir. Any such proposal will need
conditional use approval if the requested plan amendment and zone change are
granted. As DOGAMI noted in its Dec. 19, 2017 email, sites previously mined could
be mined again with the appropriate land us approvals and permits, assuming there
is commodity available.
COLW asserts that termination of the Surface Mining Zoning and Surrounding
Surface Mining Impact Area Combining Zone may preclude mining for the reservoir,
citing Beaver State Sand and Gravel v Douglas County, 187 Or App 241 (2003). See
Dec. 22, 2017 submittal. That case interpreted ORS 215.298 and concluded that the
statute, in conjunction with the administrative rules, precluded use of a non-
significant aggregate site in county comprehensive plans. It also held that LUBA was
not premature in determining that nonsignificant aggregate sites are ineligible for a
conditional use permit under ORS 215.298(2). The applicant responds in its Third
Supplemental Burden of Proof that ORS 215.298(2), and Beaver State only apply to
EFU lands. I concur with the applicant. Beaver State involved EFU land. I do not
think the title of the statute is particularly relevant, but the statute expressly
references ORS 215.213 (2) and 215.283(2) which govern uses on EFU land. It must
be read in context with those statutes. I do not see how Beaver State precludes
listing non-EFU land on a nonsignificant inventory. Further, the facts in that case
clearly involved the ability to mine in the future. Although it appears that being on the
non-significant resource inventory for some reason is a prerequisite to excavation for
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a reservoir under the Deschutes Code, I have been cited to nothing that makes such
a proposal ipso facto mining. To be clear, COLW may be correct that listing the
property on the non-significant inventory may preclude the applicants potential use
for a reservoir, but nothing in Beaver State or the statute requires me to reach that
issue or a basis for denial. That is an issue for the applicant to address if or when it
seeks approval of such a use.
Regarding the DOGAMI open space/range classification, staff notes that the
designation on the DOGAMI application is the responsibility of the applicant. The
applicant submitted a December 19, 2017 email from DOGAMI confirming that
DOGAMI considers that to be related to reclamation standards, it is "not a restriction
on future use of the reclaimed property." Rather, DOGAMI acknowledges that the
decision on appropriate zoning and future uses is "solely vested" in the local
government. I have been cited to no authority in state law, administrative rules or the
Plan that is inconsistent with that position.
As staff notes, it appears that the Holt's and others have legitimate concerns about
continued subsidence, sink holes and related problems with the site. But DOGAMI
issued a reclamation determination and has not moved to revoke or otherwise exert
authority over the site. The applicant coordinated with DOGAMI and obtained final
closure. Again, any such issues would need to be addressed when actual
development is proposed.
The applicant and COLW appear to agree that this Non -Significant Mining Mineral
and Aggregate Inventory is not a Goal 5 provision. The County has retained it
apparently to address potential use for reservoirs which may or may not require
"mining" or extraction. COLW argues that the property must remain on the Significant
Resource inventory for reservoir excavation to occur. Other commenters are
concerned that placement on the Non -Significant Inventory will permit reservoir
excavation to which they object.
There do not appear to be any express criteria for inclusion on the Non-significant
inventory. As discussed above, the applicant has met its burden of demonstrating
that the Significant designation should be terminated. Any future proposal for a
reservoir will at a minimum require development review. I do not have a proposal for
such excavation before me and he issue of whether a new reservoir may be
excavated on a property not listed as a Significant Resource will be addressed if
such development is sought.
These Plan Policies have been met.
B. CHAPTER 3 RURAL GROWTH MANAGEMENT
1. Section 3.1 Introduction
Purpose
The purpose of the Rural Growth Management chapter is to coordinate with
other chapters of this Plan to maintain the quality of life enjoyed by rural
residents.
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2. Section 3.3 Rural Housing
Background
Housing is a basic need that provides not just shelter, but connection to a
wider community. A variety of housing types and price points ensures options
for people at different life stages and needs. Oregon's statewide planning
program directs cities to retain an adequate amount of land to accommodate
residential growth. Generally counties are directed to protect farms, forests
and other rural resources like wildlife while limiting new rural development.
This section of the Plan looks specifically at housing on existing and potential
new parcels and how the County can support a diverse and affordable housing
supply.
Goals and Policies
Goal Maintain the rural character and safety of housing in
unincorporated Deschutes County.
Policy 3.3.1 The minimum parcel size for new rural residential parcels shall
be 10 acres.
Policy 3.3.3 Address housing health and safety issues raised by the public,
such as:
a. The number of large animals that should be permitted on
rural residential parcels; or
b. The properties south of La Pine, in Township 22S, Range 10E,
Section 36, many of which are not in compliance with
planning and building codes.
Policy 3.3.4 Encourage new subdivisions to incorporate alternative
development patterns, such as cluster development, that
mitigate community and environmental impacts.
FINDING: The applicant is requesting to change the zone of the property from SM to
MUA-10. The MUA-10 provides alternative development patterns, such as cluster
development, that mitigate community and environmental impacts. The applicant is
not proposing a subdivision.
Policy 3.3.5 Maintain the rural character of the County while ensuring a
diversity of housing opportunities, including initiating
discussions to amend State Statute and/or Oregon
Administrative Rules to permit accessory dwelling units in
Exclusive Farm Use, Forest and Rural Residential zones.
FINDING: These policies are implemented by the zone change and development
standards in the County Zoning Ordinance. Future development on the property will
be subject to the applicable code restrictions. The applicant is proposing a zone
change from SM to MUA-10 and asserts that the MUA-10 Zone "best meets the
objectives of this policy as it maintains a more rural appearance while allowing
limited housing opportunities." Providing the option for additional housing appears to
further these policies, provided that all relevant criteria are met.
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Goal Support agencies and non -profits that provide affordable
housing.
Policy 3.3.6 Support Central Oregon Regional Housing Authority and other
stakeholders to meet the housing needs of all Deschutes County
residents.
a. Assist as needed in coordinating and implementing housing
assistance programs.
b. Support efforts to provide affordable and workforce housing
in urban growth boundaries and unincorporated
communities.
Policy 3.3.7 Utilize block grants and other funding to assist in providing and
maintaining low and moderate income housing.
FINDING: The policies identified under Goal 2 are not applicable to this application.
No one contends otherwise.
3. Section 3.4 Rural Economy
Background
Economic development is critically important to maintaining quality of life.
When the Statewide Planning system was initiated, farming and forestry were
strongly protected because they were the State's primary economic drivers.
Statewide Planning Goal 9, Economic Development and Oregon Administrative
Rule (OAR) 660-009 apply to areas inside urban growth boundaries and are
intended to ensure an adequate land supply for business and employment
growth. The Rule defines the preparation of Economic Opportunity Analyses
(EOA) to identify and promote a diverse economy.
Goal and Policies
Goal Maintain a stable and sustainable rural economy, compatible
with rural lifestyles and a healthy environment.
Policy 3.4.1 Promote rural economic initiatives, including home-based
businesses that maintain the integrity of the rural character and
natural environment.
a. Review land use regulations to identify legal and appropriate
rural economic development opportunities.
FINDING: The applicant provided the following response to this policy.
The Subject Property was previously capable of supporting rural economic
opportunities and the County complied with the provision by imposing the SM
zoning and designation. Now that the significant resource is exhausted it
cannot support such opportunities. Given the surrounding residential and
EFU lands and the Landscape Management overlay, it is not an appropriate
site for either rural commercial or rural industrial uses. The MUA-10 zone
allows for home occupations in accordance with this policy.
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Policy 3.4.2 Work with stakeholders to promote new recreational and tourist
initiatives that maintain the integrity of the natural environment.
Policy 3.4.3 Support a regional approach to economic development in
concert with Economic Development for Central Oregon or
similar organizations.
Policy 3.4.4 Support regional educational facilities and workforce training
programs.
Policy 3.4.5 Support renewable energy generation as an important economic
development initiative.
Policy 3.4.6 Support and participate in master planning for airports in
Deschutes County.
FINDING: The policies identified above are not applicable to this application. No one
contends otherwise.
Policy 3.4.7 Within the parameters of State land use regulations, permit
limited local -serving commercial uses in higher -density rural
communities.
FINDING: The applicant is proposing to rezone the property from surface mining to
residential. The subject property and the surrounding area is not a higher -density
rural community. These Policies have been met.
C. CHAPTER 5 SUPPLEMENTAL SECTIONS
1. Section 5.1 Introduction
Purpose
The purpose of this chapter is to provide a glossary, list all acknowledged
Goal 5 resources in one location (see Section 2.4) and list all Goal Exceptions
and Goal 5 inventories. The final section in this Chapter is a table to track all
amendments to this Plan. This table will ensure a clear legislative history is
maintained.
2. Section 5.8 Goal 5 Inventory Mineral and Aggregate Resources
Background
This section contains information from the 1979 Deschutes County
Comprehensive Plan as revised. It lists the surface mining resources in
Deschutes County. These inventories have been acknowledged by the
Department of Land Conservation and Development as complying with Goal 5.
No changes have been proposed for the 2010 Comprehensive Plan update.
Table 5.8.1 — Deschutes County Surface Mining Mineral and Aggregate
Inventory
# Taxlot Name Type Quantity* Quality Access/Location
357 Ter ale Seeders 4-M del�r}se eadi
x-0300 Tamale
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FINDING: As discussed above, the applicant has met its burden of demonstrating
that the property is eligible to be removed from this inventory.
Table 5.8.2 — Deschutes County Non -Significant Mining Mineral and Aggregate
Inventory
#
. •
Name
• -
A
A
�.�•.�C•T•Ff�il/�
161136 -DO -00100,
161136 -DO -00100,
Tumalo
Not
Potential reservoir
357
Johnson Road/
357
MRSEWSMPRPRM!
Irrigation
Cinders
1 M
10300
Tumalo
FINDING: As discussed above, the applicant has met its burden of demonstrating
that the property is eligible to be removed from this inventory.
Table 5.8.2 — Deschutes County Non -Significant Mining Mineral and Aggregate
Inventory
#
Taxlot
Name
Type
Quantity*
Quality
Access/Location
161136 -DO -00100,
161136 -DO -00100,
Tumalo
Not
Potential reservoir
357
Johnson Road/
357
161100-00-10400,
Irrigation
Cinders
1 M
10300
Tumalo
10300
161136 -DO -00100,
Tumalo
Not-
161136 -DO -00100,
Tumalo
161100-00-10400,
Irrigation
S & G
significant
357
161100-00-10400,
Irrigation
S & G
500,000
Good
10300
Tumalo
Not-
Potential reservoir
357
161100-00-10400,
161136 -DO -00100,
Tumalo
significant
site**
10300
357
161100-00-10400,
Irrigation
Pumice
500,000
Good
10300
In its First Supplemental Burden of Proof, the applicant raises a valid concern
regarding staffs proposed additions to this Table. Simply transferring the quantity
and quality figures from Table 5.8.1 is inaccurate and misleading as the property no
longer contains significant resources. The reconnaissance performed by Siemens &
Associates concludes that the site probably does not have and never had significant
sand and gravel resources and that the cinder and pumice largely are depleted.
Further, the proposed table does not follow the format of the existing table.
Accordingly, I find that Table 5.82 should be amended as follows:
#
Taxlot
Name
Type
Quantity*
- Comments
161136 -DO -00100,
Tumalo
Not
Potential reservoir
357
161100-00-10400,
Irrigation
Cinders
significant
site.**
10300
161136 -DO -00100,
Tumalo
Not-
Potential reservoir
357
161100-00-10400,
Irrigation
S & G
significant
site**
10300
161136 -DO -00100,
Tumalo
Not-
Potential reservoir
357
161100-00-10400,
Irrigation
Pumice
significant
site**
10300
** Subject to land use approval.
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D. APPENDIX C, TRANSPORTATION SYSTEM PLAN
Executive Summary
Deschutes County adopted its original Transportation System Plan (TSP) in
August 1998, encompassing 1996-2016. In the intervening years, the County and
its cities saw rampant population growth and associated increases on the State
highways and County road segments, particularly those near Bend and Redmond.
The County began a TSP update in 2007, incorporating changes in population,
traffic volumes, rise of non -automotive modes, and diminishing available funding
at the federal, state, and local levels for projects. The TSP update spans 2010-2030
and lists $306.2 million in projects.
The TSP provides a roadmap to meet the needs of air, automobile bicycle, freight,
pedestrian rail, transit and other modes. A combination of technical analysis,
coordination with Oregon Department of Transportation (OD07), coordination
with the four cities within the County, public outreach, and local knowledge
identified those needs. The TSP prioritizes projects into high (0-5 years), medium
(6-10 years) and low (11-20 years) categories and provides planning -level cost
estimates....
The goals and policies to coordinate and implement the TSP are as follows:
ARTERIAL AND COLLECTOR ROAD PLAN
Goal 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.
Policy 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: This policy requires the County to consider the roadway function,
classification, and capacity as criteria for plan map amendments and zone changes. The
applicant has submitted a transportation impact analysis (TIA) with the application. The
TIA was reviewed by the County Transportation Planner, who agreed with the traffic
study's methodology, conclusions, and recommendations and concluded that it
demonstrated compliance with the TSP. See, discussion below.
Oregon Administrative Rules, Chapter 660
A. DIVISION 12, TRANSPORTATION PLANNING (OAR 660-012)
1. 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
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rule. A plan or land use regulation amendment significantly affects a
transportation facility if it would:
(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.
(2) Where a local government determines that there would be a significant
effect, compliance with section (1) shall be accomplished through one or a
combination of the following:
(a) Adopting measures that demonstrate allowed land uses are consistent
with the planned function, capacity, and performance standards of the
transportation facility.
(b) Amending the TSP or comprehensive plan to provide transportation
facilities, improvements or services adequate to support the proposed
land uses consistent with the requirements of this division; such
amendments shall include a funding plan or mechanism consistent with
section (4) or include an amendment to the transportation finance plan
so that the facility, improvement, or service will be provided by the end
of the planning period.
(c) Altering land use designations, densities, or design requirements to
reduce demand for automobile travel and meet travel needs through
other modes.
(d) Amending the TSP to modify the planned function, capacity or
performance standards of the transportation facility.
(e) Providing other measures as a condition of development or through a
development agreement or similar funding method, including
transportation system management measures, demand management or
minor transportation improvements. Local governments shall as part of
the amendment specify when measures or improvements provided
pursuant to this subsection will be provided.
(3) Notwithstanding sections (1) and (2) of this rule, a local government may
approve an amendment that would significantly affect an existing
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transportation facility without assuring that the allowed land uses are
consistent with the function, capacity and performance standards of the
facility where:
(a) The facility is already performing below the minimum acceptable
performance standard identified in the TSP or comprehensive plan on
the date the amendment application is submitted;
(b) In the absence of the amendment, planned transportation facilities,
improvements and services as set forth in section (4) of this rule would
not be adequate to achieve consistency with the identified function,
capacity or performance standard for that facility by the end of the
planning period identified in the adopted TSP;
(c) Development resulting from the amendment will, at a minimum, mitigate
the impacts of the amendment in a manner that avoids further
degradation to the performance of the facility by the time of the
development through one or a combination of transportation
improvements or measures;
(d) The amendment does not involve property located in an interchange
area as defined in paragraph (4)(d)(C); and
(e) For affected state highways, ODOT provides a written statement that the
proposed funding and timing for the identified mitigation improvements
or measures are, at a minimum, sufficient to avoid further degradation
to the performance of the affected state highway. However, if a local
government provides the appropriate ODOT regional office with written
notice of a proposed amendment in a manner that provides ODOT
reasonable opportunity to submit a written statement into the record of
the local government proceeding, and ODOT does not provide a written
statement, then the local government may proceed with applying
subsections (a) through (d) of this section.
FINDING: Surface mining activities have ceased on the site and, thus, the traffic -
generated impacts associated with surface mining activities no longer exist. The
applicant is not proposing any development.
The applicant has submitted a transportation impact analysis. The TIA was reviewed
by the County Transportation Planner, who agreed with the report's methodology
and conclusions. Staff concluded that proposal is consistent with the identified
function, capacity, and performance standards of the County's transportation
facilities in the area, will not change the functional classification of any existing or
planned transportation facility or change the standards implementing a functional
classification system, not allow types or levels of land uses, which would result in
levels of travel or access, which are inconsistent with the functional classification of
nearby transportation facilities and will not reduce the performance standards of the
facility below the minimum acceptable level the County's transportation system plan.
As the applicant acknowledges in its initial burden of proof statement, the threshold
question is whether the proposal allows uses that would have a more significant
impact on a transportation facility than the uses allowed under the current plan and
zone designations. The applicant relies on its traffic analysis which concluded that
the "worst case scenario" for future development would be 54 dwellings generating
potentially 54 peak p.m. trips. In comparison development under the existing surface
mining designations would generate somewhere between 54 and 61 p.m. trips.
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Application at 20. The applicant correctly notes that the comparison is between the
property assuming use under its current designations and its maximum development
under the proposed designations. The applicant and staff appear to rely exclusively
on the conclusion that this proposal does not trigger the "threshold" for a significant
impact.
There is no contrary evidence regarding the impact of generating 54 trips and I find
that development at 54 dwelling units does not significantly impact transportation
facilities.
COLW notes that the MU -10 zone provides for cluster development as a conditional
use at one dwelling per 7.5 acres, for a total of 72 dwelling units and 72 p.m. peak
trips. See generally, Mason v. City of Corvallis, 49 Or LUBA 199 (2005) (Must
assume most traffic -intensive use allowed.) DCC 18.32.040 states that cluster and
planned development may have a density equivalent to one unit per seven and one-
half acres but DCC 18.128.200 limits each cluster development to 10 dwelling units
and 10 new lots. The applicant concedes that 74 dwellings are possible, but argues it
is not reasonable to assume that such development will occur because, the applicant
asserts, it would require 9 separate cluster conditional use approvals. See, PA -98-12
(1999) page 17. There is information in the record suggesting that the disturbed
nature and other features of this site make it a feasible, perhaps desirable, subject
for cluster or planned development housing. Absent more, I cannot conclude that it is
unreasonable to assume cluster or planned development approvals.
Counsel for the applicant also asserts in his Third Supplemental Burden of Proof that
the current designations really allow up to 2,418 p.m. peak trips. This is based on a
wide range of peak trips per acre resulting in the potential of 2,418 p.m. peak trips
from the site. As one lay person considering another lay person's traffic analysis, I
find this questionable. More importantly it is not the analysis used or endorsed by the
traffic expert.
Since the applicant and staff found that the threshold had not been triggered, there is
no information in the record, other than staff's conclusions, that I can find regarding
the carrying capacity of the impacted facilities or the minimum acceptable
performance standards. There is some accident data in the traffic study but no
information about the condition of the transportation facilities other than the
numerous comments that Bill Martin Rd. is in poor condition. In short, there is
nothing providing a basis for me to determine whether 72 trips, in fact, has a
significant impact. I suspect that it does not, but my supposition is insufficient to
support a finding that the applicant has met its burden on this issue. See generally,
Downtown Canby v City of Canby LUBA No. 2012-097 (2013) (Further and more
technical analysis is usually necessary to determine if the amendment significantly
affects a transportation facility and, if so, whether and what measures may be
required.)
In Jaqua v City of Springfield, 193 Or App 573, 593, 91 P3d 817 (2004) the court
held that the TPR does not permit deferral of a determination of whether the proposal
would significantly impact transportation facilities. This was reaffirmed and perhaps
extended in Willamette Oaks, LLC, v City of Eugene, 232 Or App 29, 220 P.3d 445
(2009). This effectively overruled a line of LUBA cases holding that it was
permissible in some instances to condition a plan amendment or zone change to
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prohibit development that could significantly impact a transportation facility. The court
made it clear that there must be a finding on this issue at the plan amendment/zone
change stage.
I find that, on this record, the applicant has failed to demonstrate that the proposal
will not have a significant impact on transportation facilities as a conditional use
approval may authorize more trips than the existing trips relied on by the applicant
(4) Determinations under sections (1)-(3) of this rule shall be coordinated with
affected transportation facility and service providers and other affected
local governments.
FINDING: Notice of the proposed plan amendment and zone change was sent to
several public agencies. Those agencies include Deschutes County Road
Department and County Transportation Planner, Bend Fire Department, Central
Electric Cooperative, Pacific Power, PG&E Gas Transmission NW, Oregon
Department of Fish and Wildlife, Oregon Department of Environmental Quality,
Oregon Department of Geology and Mineral Industries and the Oregon Water
Resources Department - District 11. The submitted responses are listed in the
foregoing Basic Findings section. Staff believes that this notice complies with the
requirement noted above. I concur.
B. DIVISION 15, STATEWIDE PLANNING GOALS (OAR 660-015)
1. Goal 1: Citizen Involvement
To develop a citizen involvement program that insures the opportunity for
citizens to be involved in all phases of the planning process.
FINDING: During the plan amendment and zone change process, public notice of
the proposal was provided to affected agencies and property owners in the
surrounding area. Planning staff mailed and published notice of the proposal and
public hearing. The County held a public hearing before the County hearings officer.
Goal 1 is met.
2. Goal 2: Land Use Planning
To establish a land use planning process and policy framework as a basis for
all decision and actions related to use of land and to assure an adequate
factual base for such decisions and actions.
FINDING: In accordance with Goal 2, the applicant applied for the plan amendment
and zone change. Staff believes the proposed plan amendment and zone change
satisfies this goal because the proposal has been reviewed in accordance with the
County's acknowledged planning review process. I concur, and no one argues
otherwise.
3. Goal 3: Agricultural Lands and Goal 4 Forest Lands
To preserve and maintain agricultural lands.
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FINDING: The subject property is not identified as agricultural lands on the
Deschutes County Comprehensive Plan map. It is identified as Surface Mine under
the County Comprehensive Plan.
COLW argues that an exception to Goal is required. As this was not sought, I either
do not have jurisdiction to issue a decision or must deny the applications. See,
December 12 and 22, 2017 submittals.
COLW contends that the soils on the site are rated by the NCRS as Class VI without
irrigation and Class III and IV when irrigated, so they are "categorically agricultural
lands." It provided evidence that DOGAMI has reported that 21% of mined lands
have been restored to agricultural use and that approximately 35% of the property
was not mined, so is undisturbed agricultural land. It states that the property is not
included on the Exceptions Area Maps produced by the County in 1977 or anywhere
else in the comprehensive plan.
The application states that the property is an exception area for purposes of Goal 3
and 4. This appears to be at least technically incorrect as there is no evidence of a
Goal 3 or 4 exception. More importantly, the applicant asserts that the property is not
agricultural land because it was planned and zoned for mining and has been since
the inception of County zoning.
The applicant cites Caldwell v Klamath County, 45 LUBA 548 (No. 2003-115, 2003)
for the proposition that Goal 3 does not apply to a post-acknowledgement plan
amendment to change the existing zone to another designation even if it is later
discovered that the property meets the definition of agricultural land. In Caldwell, the
County approved a plan map amendment from Non -Resource to Rural Residential
and a zone change from Non -Resource to Rural Residential-10. It was undisputed
that the property contained predominately Class II-IV lands and was partially
irrigated. No exception was taken during acknowledgment. LUBA affirmed, holding
that although the county and LCDC may have erred during acknowledgement, that
question may not be revisited and, therefore, Goal 3 was not implicated.
In its January 2, 2018 submittal COLW argues that Caldwell is inapplicable because
Klamath County had expressly designated the property as non-resource and that
designation was acknowledged. It argues that the subject property was never
designated non-resource in an acknowledged plan and that the surface mining
designations are transitional or temporary.
To my knowledge, nothing in the comprehensive plan references the Surface Mining
or zoning designations as temporal or anything other than alternates to other plan
and zone designations. In its ESEE Findings and Decision for this site the Board
found that it was "committed to surface mining" although the Board noted that
agricultural uses are allowed as they can occur without irretrievably committing the
property to uses other than surface mining. The Surface Mining Zone is not an
overlay, it is just as much a zone as any other. It is not clear to me how the
distinction cited by COLW makes Caldwell inapplicable. The fact is that the County
designation was acknowledged as something other than agricultural land.
DCC 18.52.200 states that "the property shall be rezoned to the subsequent use
zone identified in the surface mining element of the Comprehensive Plan." The
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County did not adopt a subsequent zone. One can argue that, had the County done
so, it and LCDC may have had a future exception area to review during
acknowledgement. But that did not occur and LCDC acknowledged this property as
something other than agricultural land and it appears that decision may not be
revisited.
COLW also notes the plan language in Section 3.3, Residential Housing, which
states under the heading "Rural Residential Exception Areas" that:
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.
COLW states, essentially, that this means what it says, and an exception is required.
It cites Cascade Pumice PA-02-8/ZC-02-04 which involved a plan amendment and
zone change from SM to EFU. The Hearings Officer questioned why the applicant
had not sought MUA-10 zoning as the applicant indicated an intent to apply for non-
farm dwellings. He noted, however, that there was significant opposition to that
option because of the large number of potential lots that could be created and stated
that such rezoning "would require a goal exception." The applicant declined to file for
MUA-10 zoning.
I concur with the applicant that this is, at best, dicta. It is clear that no one raised, and
the Hearings Officer did not consider the issues raised herein. The Hearings Officer
does not cite Section 3.3. Further, this decision was issued before Caldwell was
decided.
The applicant relies on PA -11-02 and ZC-11-2 a comprehensive plan text and map
amendment and zone change from Agriculture to Rural Residential Exception Area
and EFU to MUA-10. The Hearings Officer addressed Section 3.3 at length. He first
noted that is not a policy. He concluded that is a statement of how the County
desires to handle future conversion of agricultural land to designations that allow
rural residential development. (Emphasis added) He concluded that the applicant
had met its burden of demonstrating that the property was not, in fact, agricultural
land. Accordingly, no exception was required. The Board of Commissioners upheld
the decision. It is not clear to me whether the record contains the entire Board
decision (It is marked page 3 of 7) and the Board did not expressly address the
discussion of Section 3.3 in the pages in the record. But it did adopt Hearings
Officer's conclusions except as specifically amended. It is difficult to see how the
Board could have affirmed if it disagreed and, therefore, this appears to be the
interpretation and application endorsed by the Board.
That decision involved land designated agricultural that was found not to be, in fact,
agricultural. The present matter involves land not designated agricultural, but which
may, in fact, be agricultural. Under Caldwell, however, the result is the same — this is
not an application to go from agricultural to MUA-10 so Section 3.3. does not apply.
I find that an exception to Goal 3 is not required.
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4. Goal 4: Forest Lands
To conserve forest lands by maintaining the forest land base and to protect the
state's forest economy by making possible economically efficient forest
practices that assure the continuous growing and harvesting of forest tree
species as the leading use on forest land consistent with sound management
of soil, air, water, and fish and wildlife resources and to provide for
recreational opportunities and agriculture.
FINDING: The subject property is not identified as forest lands on the Deschutes
County Comprehensive Plan map. As indicated previously, the subject property is
identified as Surface Mine under the County Comprehensive Plan. COLW asserts a
Goal 4 exception is required but provides no authority or analysis. No one has
provided evidence that this property is or ever has been suitable for forest use. This
Goal is met, and no exception is required.
5. Goal 5: Natural Resources, Scenic and Historic Areas, and Open Spaces
To protect natural resources and conserve scenic and historic areas and open
spaces.
FINDING: Goal 5 resources are listed in the acknowledged Comprehensive Plan.
There is an identified Goal 5 resource on the site.
Mineral and aggregate resources: The applicant's proposal includes removing
Surface Mining Site No. 357 from the County's Surface Mining Mineral and
Aggregate Inventory and adding it to the Non -Significant Mining and Aggregate
Inventory. Compliance with OAR 660-023 is addressed below in this decision. The
benefits of rezoning the property to MUA-10, including potential additional homesites,
may accrue to the property and area.
Energy sources: The subject property is not known to have significant energy
resources, such as natural gas, oil, coal, or geothermal heat.
Fish and wildlife habitat: The subject property is located outside of and approximately
950 feet north of the County's Wildlife Area Combining Zone. The site has no
designated fish habitat. There are no identified threatened or endangered species
present at the site. Although the subject property is outside of the WA Zone, ODFW
did submit comments of concern regarding the proposed zone change and future
development. The area is within a "biological winter range for mule deer," according
to ODFW, and thus there is concern regarding continued loss from the development
of open spaces within this range. Rezoning the property to MUA-10 will not affect the
quality of the mule deer biological winter range. However, future development may
have impacts with deer travel and therefore, ODFW requests future development use
wildlife -friendly fencing (see DCC 18.88.070).
Ecologically and scientifically significant natural areas, including desert areas: There
are no identified ecologically or scientifically significant areas present on the subject
property.
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Outstanding scenic views: Nothing about the property indicates it has a significantly
better view than other sites in the vicinity.
Water areas, wetlands, watersheds, and groundwater resources: There are no
wetlands or watersheds within the subject site. There are no identified groundwater
resources present at the site. Some residents expressed concerns regarding wells
and water use. Neither the Oregon Water Resources Department nor the
watermaster expressed concerns. The applicant will need to address water in any
residential development application.
Wilderness areas: The subject property does not meet the definition of "wilderness
areas" as described within the Oregon State Goals and Guidelines.
Historic areas, sites, structures, and objects: The subject property does not have
structures listed on the National Register of Historic Places. No structures or places
of historical significance have been determined to exist on the property. The closest
historically significant sites are centrally located within the boundaries of the Tumalo
UUC and include the Laidlaw Bank and Trust, Tumalo Community Church, and
Pickett's Island, all of which are approximately 0.5 miles east of the property.
Cultural areas: The site has no known cultural resources. See, finding above.
6. Goal 6: Air, Water and Land Resources Quality
To maintain and improve the quality of the air, water and land resources of the
state.
FINDING: The subject surface mine has been reclaimed and mining activities have
ceased. Further, the applicant does not propose a use for the property. Rezoning the
property to MUA-10 will not affect the quality of the air, water, and land resources.
7. Goal 7: Areas Subject to Natural Hazards
To protect people and property from natural hazards.
FINDING: The site does not include areas subject to flooding or landslide activity.
The natural hazard of wildfire for the site is the same as other properties in this
geographic area. The subject property is not located in a known natural disaster or
hazard area. The Holt's and others expressed concerns regarding hazards (e.g. sink
holes) that have occurred in the reclaimed area of the property. In the decision of file
nos. ZC-08-1 and PA -08-1, the Hearings Officer found that environmental concerns
"can be addressed through compliance with applicable state health and
environmental quality regulations, or through compliance with the county's
development standards." I concur. The conditions were created by development.
They can, and likely only will, be addressed through future development.
8. Goal 8: Recreational Needs
To satisfy the recreational needs of the citizens of the state and visitors and,
here appropriate, to provide for the siting of necessary recreational facilities
including destination resorts.
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FINDING: This Goal is not applicable because the proposed plan amendment and
zone change do not reduce or eliminate any opportunities for recreational facilities
either on the subject property or in the area.
9. Goal 9: Economic Development
To provide adequate opportunities throughout the state for a variety of
economic activities vital to the health, welfare, and prosperity of Oregon's
citizens.
FINDING: This Goal is to provide adequate opportunities throughout the state for a
variety of economic activities. It is met because the subject property no longer
constitutes a significant mineral and aggregate resource, and thus by allowing it to
be re -designated and rezoned for rural residential development, it will not have
adverse economic impacts.
10. Goal 10: Housing
To provide for the housing needs of citizens of the state.
FINDING: The plan amendment and zone change do not reduce or eliminate any
opportunities for housing on the subject property or in the area. This goal is not
applicable. To the extent it is, the proposal provides the opportunity for additional
housing.
11. Goal 11: Public Facilities and Services
To plan and develop a timely, orderly and efficient arrangement of public
facilities and services to serve as a framework for urban and rural
development.
FINDING: The proposal will have no adverse effect on the provision of public
facilities and services to the subject site and will not result in the extension of urban
services to the subject site.
12. Goal 12: Transportation
To provide and encourage a safe, convenient and economic transportation
system.
FINDING: This goal is implemented through OAR 660-012, commonly known as the
Transportation Planning Rule, which is addressed in a previous finding. See
discussion above in which I concluded that, although it is likely that the applicant can
demonstrate compliance, it has failed to do so in this record. This Goal is not met.
13. Goal 13: Energy Conservation
To conserve energy.
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FINDING: Planning Guideline 3 of this Goal states "land use planning should, to the
maximum extent possible, seek to recycle and re -use vacant land...." Surface mining
activities have ceased on the subject property and it has been vacant for some
years. The applicant proposes re -use of the land consistent with this guideline, and
thus this proposal is consistent with Goal 13.
14. Goal 14: Urbanization
To provide for orderly and efficient transition from rural to urban use, to
accommodate urban population and urban employment inside urban growth
boundaries, to ensure efficient use of land, and to provide for livable
communities.
FINDING: COLW asserts that the proposals violate Goal 14 as the potential for up to
72 units of housing is a "significant urbanization of land." This appears to be more of
an argument with what the zone may allow. The comprehensive plan and zone
designations sought were acknowledged. The Mixed Use Agricultural Zone is just
what the name implies — one that permits a mixture of agricultural and relatively low-
density rural housing. As discussed above, the County has concluded that the "rural
residential exception area" plan designation does not require an exception to permit
MUA-10 development. The subject property is not in or near an urban growth
boundary. COLW provides no facts, authority or significant analysis in support of its
contention. The proposal complies with Goal 14 and no exception is required.
15. Goal 15: Willamette River Greenway
Goal 16: Estuarine Resources
Goal 17: Coastal Shorelands
Goal 18: Beaches and Dunes
Goal 19: Ocean Resources
FINDING: These Goals are not applicable because the proposed amendment and
zone change area is not within the Willamette Greenway, and does not possess any
estuarine areas, coastal shorelands, beaches and dunes, or ocean resources.
C. DIVISION 23, PROCEDURES AND REQUIREMENTS FOR COMPLYING WITH GOAL
5 (OAR 660-023)
1. OAR 660-023-0250. Applicability
(1) This division replaces OAR 660, division 16, except with regard to cultural
resources, and certain PAPAs and periodic review work tasks described in
sections (2) and (4) of this rule. Local governments shall follow the
procedures and requirements of this division or OAR 660, division 16,
whichever is applicable, in the adoption or amendment of all plan or land
use regulations pertaining to Goal 5 resources. The requirements of Goal 5
do not apply to land use decisions made pursuant to acknowledged
comprehensive plans and land use regulations.
(2) The requirements of this division are applicable to PAPAs initiated on or
after September 1, 1996. OAR 660, division 16 applies to PAPAs initiated
prior to September 1, 1996. For purposes of this section "initiated" means
247-17-000775-ZC and 247 -17 -000776 -PA, Tumalo Irrigation District - Hearings Officer Decision
Page 28
that the local government has deemed the PAPA application to be
complete.
(3) Local governments are not required to apply Goal 5 in consideration of a
PAPA unless the PAPA affects a Goal 5 resource. For purposes of this
section, a PAPA would affect a Goal 5 resource only if.
(a) The PAPA creates or amends a resource list or a portion of an
acknowledged plan or land use regulation adopted in order to protect a
significant Goal 5 resource or to address specific requirements of Goal 5;
FINDING: The requested plan amendment and zone change application is
considered a post -acknowledgment plan amendment or "PAPA," which will amend
the County's Goal 5 resource list. Therefore, the rules provided in OAR 660, Division
23 are applicable to this application. Moreover, since the County has not amended
its plan or land use regulations to incorporate the Goal 5 rules, per OAR 660-023-
0250(5), the rules apply directly to the subject application.
In the zone change and plan amendment decision for files ZC-98-6 and PA -98-12,
the Hearings Officer held that the provisions of OAR 660-023-0180, concerning
mineral and aggregate resources, apply to requests for de -listing and rezoning SM
sites to the extent they reasonably can be applied to a decision to remove a site from
the County's adopted inventory. The Hearings Officer further found OAR 660-023-
180(3) identifies the pertinent standards for determining "significance," addressed
below. I concur.
2. OAR 660-023-0180. Mineral and Aggregate Resources
(2) Local governments are not required to amend acknowledged inventories or
plans with regard to mineral and aggregate resources except in response
to an application for a post acknowledgement plan amendment (PAPA) or
at periodic review as specified in section (9) of this rule. The requirements
of this rule modify, supplement, or supersede the requirements of the
standard Goal 5 process in OAR 660-023-0030 through 660-023-0050, as
follows:
(b) Local governments shall apply the criteria in section (3) or (4) of this
rule, whichever is applicable, rather than OAR 660-023-0030(4), in
determining whether an aggregate resource site is significant;
(3) An aggregate resource site shall be considered significant if adequate
information regarding the quantity, quality, and location of the resource
demonstrates that the site meets any one of the criteria in subsections (a)
through (c) of this section, except as provided in subsection (d) of this
section:
(a) A representative set of samples of aggregate material in the deposit on
the site meets applicable Oregon Department of Transportation (ODOT)
specifications for base rock for air degradation, abrasion, and
soundness, and the estimated amount of material is more than
2,000,000 tons in the Willamette Valley, or more than 500,000 tons
outside the Willamette Valley;
(b) The material meets local government standards establishing a lower
threshold for significance than subsection (a) of this section; or
247-17-000775-ZC and 247 -17 -000776 -PA, Tumalo Irrigation District - Hearings Officer Decision
Page 29
(c) The aggregate site was on an inventory of significant aggregate sites in
an acknowledged plan on September 1, 1996.
(d) Notwithstanding subsections (a) and (b) of this section, except for an
expansion area of an existing site if the operator of the existing site on
March 1, 1996, had an enforceable property interest in the expansion
area on that date, an aggregate site is not significant if the criteria in
either paragraphs (A) or (B) of this subsection apply:
(A) More than 35 percent of the proposed mining area consists of soil
classified as Class I on Natural Resource and Conservation Service
(NRCS) maps on June 11, 2004; or
(B) More than 35 percent of the proposed mining area consists of soil
classified as Class ll, or of a combination of Class H and Class I or
Unique soil, on NRCS maps available on June 11, 2004, unless the
average thickness of the aggregate layer within the mining area
exceeds:
(i) 60 feet in Washington, Multnomah, Marion, Columbia, and Lane
counties;
(ii) 25 feet in Polk, Yamhill, and Clackamas counties; or
(in)17 feet in Linn and Benton counties.
FINDING: Staff provided the following analysis of this criterion.
The aggregate resource is significant if it meets any of the three criteria. Subsection
(b) is not applicable because the local government has not established lower
standards. The subject SM Site No. 357 appears to meet subsection (c) above
because it is included in the County's inventory of significant mineral and aggregate
sites and the inventory and site were acknowledged prior to the effective date of the
Goal 5 administrative rules in 1996. However, in the finding noted below by the
Hearings Officer, subsection (c) is not applicable to this PAPA because of the
requested removal of the site from the acknowledged inventory.
In the Hearings Officer's decision for files ZC-98-6 and PA -98-12, the Hearings
Officer made the following finding.
The subject site is included in the county's inventory of significant mineral and
aggregate sites. The Hearings Officer is aware this inventory was
acknowledged prior to the effective date of the new Goal 5 administrative
rules. Therefore, I find the subject site falls within the "significant" standard in
paragraph (c). Arguably that finding would end the inquiry since under this
provision a site is considered "significant" if it meets any of the three criteria.
However, I find such a result would create a "Catch-22" where, as here, the
applicant is seeking to remove a site from the inventory as no longer
"significant." Consequently, 1 find the "significant" standard in paragraph (c)
should not be applied to PAPAs requesting removal of a site from an
acknowledged inventory....
Thus, for the subject site to be "significant" it must meet the criterion in
paragraph (a) requiring that the resource consist of at least 100,000 tons of
material meeting ODOT specifications for road construction base rock. As
discussed above, the site was included in the inventory based upon the
previous owners' information that it contained 750,000 cubic yards of `good"
247-17-000775-ZC and 247 -17 -000776 -PA, Tumalo Irrigation District - Hearings Officer Decision
Page 30
quality rock. The applicant submitted evidence consisting of seven
documents and testimony in support of his argument that the quantity and
quality of the resource on the subject site no longer meets the administrative
rule standard....
I concur that, as in ZC-98-6 and PA -98-12, subsections (b) and (c) are not
applicable. Therefore, the aggregate resource is significant only if it meets all the
criteria in subsection (a).
The applicant submitted a geotechnical reconnaissance by Siemens & Associates,
which provides an assessment and review of the cinders, pumice, and crushed sand
and gravel extracted from the site. Stated previously, in part, the applicant provides
the following conclusion regarding subsection (a) and the aggregate resource on the
property.
The material at the site never satisfied the OAR 660-023-0180(3)(a) standard
for significance. According to the memo attached as Exhibit 8 from J.
Andrew Siemens of Siemens & Associates, a registered engineer specializing
in geologic engineering who performed material testing at the site when it
was operation, cinders and pumice are too brittle to meet ODOT standards.
This determination is consistent with prior decisions. See PA-02-8/ZC-02-4,
p.6 ("The Hearings Officer is aware that pumice does not meet ODOT
standards for base rock'; "In Central Oregon, aggregate resources meeting
ODOT standards typically consist of basalt').
Despite the indication of significant sand and gravel in the Goal 5 Inventory,
Mr. Siemens concludes that the geology of the Subject Property could only
have yielded trace amounts of sand and gravel. This conclusion is consistent
with mining activities as no significant sand and gravel was harvested from
the site despite the large percentage of the property subject to mining
activities.
Even if the pumice and cinders met ODOT standards, a sufficient amount of
these materials has been removed such that the site does not possess the
500,000 -ton significance threshold for sites outside of the Willamette Valley.
Based on aerial photographs, site geology, and on-site investigations, Mr.
Siemens estimates that approximately one million cubic yards of cinder and
more than 2.8 million tons on pumice have been extracted from the site. This
is all of the cinder and substantially more of the pumice than was originally
thought to be contained at the site by the Goal 5 Inventory. To the extent the
site ever met the OAR 660-023-0180(3)(a) standard for significance, all
significant material has been removed such there is no longer a "deposit" on
the site. (Footnote omitted)
Regarding subsection (d), the subject property does not contain any Class I, Class II,
or Unique soils as shown on the soil map included with the application materials.
The applicant is proposing to remove Surface Mining Site No. 357 from the County's
Surface Mining Mineral and Aggregate Inventory. In addition, the applicant requests
to move Site No. 357 to the Non -Significant Mining and Aggregate Inventory. Based
on the information above and elsewhere in this decision regarding the aggregate
resource being depleted and not meeting the Goal 5 significance criteria listed in
247-17-000775-ZC and 247 -17 -000776 -PA, Tumalo Irrigation District - Hearings Officer Decision
Page 31
OAR 660-023-0180(3), staff believes the site is eligible to be placed on the non-
significant resource inventory.
Except as discussed regarding excavation for the reservoir, no one has provided any
substantial evidence or argument to the contrary. Accordingly, I concur with staff that
this site is eligible for removal.
Title 18, Deschutes County Zoning Ordinance.
A. CHAPTER 18.52. SURFACE MINING ZONE
1. Section 18.52.200. Termination of the Surface Mining Zoning and Surrounding
Surface Mining Impact Area Combining Zone.
A. When a surface mining site has been fully or partially mined, and the
operator demonstrates that a significant resource no longer exists on the
site, and that the site has been reclaimed in accordance with the
reclamation plan approved by DOGAM/ or the reclamation provisions of
DCC 18, the property shall be rezoned to the subsequent use zone
identified in the surface mining element of the Comprehensive Plan.
FINDING: The applicant has requested to rezone the subject property from SM to
MUA-10.
Subsection (A) above requires the operator to demonstrate that 1) the site has been
fully or partially mined; 2) a significant resource no longer exists on the site; and 3)
that the site has been reclaimed in accordance with the reclamation plan approved
by DOGAMI or DCC 18.52.0130 standards. The applicant asserts that all three
conditions are satisfied.
The site has been fullv or partially mined:
According to the applicant, the mining resources at Site No. 357 "have been
exhausted." The geotechnical reconnaissance discussed above provides an
"assessment of the type, quality and quantity of the mineral resources that have
been extracted from Site 357," which includes a review of the cinders, pumice, and
crushed sand and gravel extracted from the site. According to the report, mining
activities occurred between 1993 and 2005. Staff found that based on the evidence
in the report, it appears that the site has been fully or partially mined and I concur.
A significant resource no longer exists on the site:
The significant and non-significant resources at the site were evaluated in the
geotechnical reconnaissance. The resources identified at Site No. 357 include
cinders, pumice, and sand and gravel ("S & G"). The report indicates that cinders
and pumice, are not considered significant (OAR 660-023-0180), because they "fail
to meet the identified ODOT specification for base rock since the particles are
weak...." Therefore, the identified significant resource for the site would be sand and
gravel. The applicant's summary of the reconnaissance analysis quoted above
supports this conclusion.
247-17-000775-ZC and 247 -17 -000776 -PA, Tumalo Irrigation District - Hearings Officer Decision
Page 32
Based on the evidence in the report, staff found that the applicant has demonstrated
that the significant resource no longer exists on the site. I concur as discussed
previously.
The site has been reclaimed according to DOGAMI specifications:
Oregon Department of Geology and Mineral Industries formally closed the permit for
Site No. 357 on September 13, 2011, after reclamation to DOGAMI specifications
was completed on the property. The DOGAMI documentation was provided by the
applicant.
According to DCC 18.52.200, the property shall be rezoned to the subsequent use
zone identified in the surface mining element. The surface mining element and the
ESEE analysis for Site No. 357 do not identify a subsequent use zone. The applicant
indicates that the property "can support some resource uses, but not any form of
commercial agriculture or forestry."
For the reasons discussed under Section 2.10 Surface Mining, this criterion is met.
B. Concurrent with such rezoning, any surface mining impact area combining
zone which surrounds the rezoned surface mining site shall be removed.
Rezoning shall be subject to DCC 18.136 and all other applicable sections
of DCC 18, the Comprehensive Plan and DCC Title 22, the Uniform
Development Procedures Ordinance.
This is more of a directive than a criterion. Staff states that, if the plan amendment
and zone change requests are approved, the surrounding Surface Mining Impact
Area Combining Zone should be removed as part of the adoption of Ordinances to
affect the changes. I concur.
B. CHAPTER 18.136. AMENDMENTS
1. Section 18.136.010. Amendments.
DCC Title 18 may be amended as set forth in DCC 18.136. The procedures for
text or legislative map changes shall be as set forth in DCC 22.12. A request by
a property owner for a quasi-judicial map amendment shall be accomplished
by filing an application on forms provided by the Planning Department and
shall be subject to applicable procedures of DCC Title 22.
FINDING: The applicant filed the appropriate applications for a plan amendment and
zone change. The proposal is being reviewed under the procedures of DCC Title 22.
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.
247-17-000775-ZC and 247 -17 -000776 -PA, Tumalo Irrigation District - Hearings Officer Decision
Page 33
FINDING: Staff notes that prior Hearings Officer's decision have concluded that
comprehensive plan goals and policies do not constitute mandatory approval criteria
for quasi-judicial zone changes. Instead, the goals and policies are implemented
through the zoning ordinance, and thus if the proposed zone change is consistent
with the applicable provisions of the zoning ordinance it also will be consistent with
the plan. Further, I made findings regarding the relevant plan policies and Goals
above.
B. That the change in classification for the subject property is consistent with
the purpose and intent of the proposed zone classification.
FINDING: The applicant is proposing a zone change from SM to MUA-10. According
to DCC 18.52.200, the property shall be rezoned to the subsequent use zone
identified in the surface mining element. As noted previously, the surface mining
element and the ESEE analysis for Site No. 357, probably erroneously, do not
identify a subsequent use zone. Therefore, the change in classification will be
reviewed for consistency with the purpose and intent of the proposed zone
classification.
The purpose of the MUA-10 Zone, set forth at DCC 18.32.010
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 applicant provides the following comments regarding how the zone change is
consistent with the purpose statement.
The MUA Zone is appropriate for the Subject Property because it is capable
of supporting some agricultural uses but will never be high quality agricultural
ground that could support full time commercial farming. Given the rural
character of the Tumalo area, a zoning designation that allows for more
intensive development would not be appropriate. The MUA-10 Zone provides
a middle ground between the EFU and Rural Residential zones by placing an
emphasis on agriculture, but not imposing regulations more appropriate for
high quality agricultural lands.
Although there is no development proposal at this time, it is anticipated that
the Subject Property will be developed with small scale agriculture, single-
family dwellings, and potentially irrigation infrastructure. These are permitted
or conditionally permitted uses within the MUA-10 Zone.
247-17-000775-ZC and 247 -17 -000776 -PA, Tumalo Irrigation District - Hearings Officer Decision
Page 34
Staff concurs with the applicant. The proposed zone change is consistent with the
purpose statement because the redevelopment of the former surface mining site will
preserve the rural character of the area while permitting development consistent with
that character and capabilities of the land and resources.
As noted in previous Hearings Officer's decision such as ZC-08-1 and PA -08-1,
where the request included rezoning a former mining site:
To the extent existing conditions affect the carrying capacity of the land, air
and water, those issues can be addressed through compliance with
applicable state health and environmental quality regulations, or through
compliance with the county's development standards.
I concur. It is evident that the applicant must address the safety, dust and other
issues to obtain development approval for dwellings. Future development of the site
is the most likely way that those conditions will be resolved. The designation allows
for clustering or planned development to maximize flexibility to minimize, for
example, placing structures in unstable areas. It promotes open space and permits a
wide range of uses. This seems particularly suitable for a degraded site that likely
has development challenges.
Mr. and Mrs. Holt also commented on DOGAMI's reclamation designation for post -
mine use. As noted above, I find that the designation on the DOGAMI has little, if
anything to do with the County's land use code and development standards.
This criterion is met.
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.
2. The impacts on surrounding land use will be consistent with the
specific goals and policies contained within the Comprehensive Plan.
FINDING: COLW and others argue that this standard is not met because the site is
unsafe, and Bill Martin Rd. is in poor condition. The sinkholes appear to present a
safety issue for many uses, including agriculture, grazing, recreational and
residential. It is unlikely that the economics of agriculture and grazing would generate
sufficient revenues to correct these issues. In contrast, the MUA-10 zone does allow
the type of development that would both require, and likely make feasible, such work.
The MUA-10 zone certainly would not make the situation worse.
Regarding Bill Martin Rd., and perhaps others, I have found that the applicant failed
to meet its burden of demonstrating that there is no potential significant detrimental
impact on transportation facilities. I think this criterion has a somewhat different
focus. Adopting a zone that permits some level of development likely promotes the
provision of adequate facilities because it can be conditioned to make improvements
and it likely would be financially feasible to make those improvements. Nevertheless,
I find this criterion is not met regarding transportation because, as stated above,
there is insufficient information about the impacts of potential development, the
247-17-000775-ZC and 247 -17 -000776 -PA, Tumalo Irrigation District - Hearings Officer Decision
Page 35
carrying capacity and condition of existing roads and what, if anything, can be done
to mitigate such impacts.
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: The significant resources have been mined and no longer are present.
DCC 18.52.200, envisions such property being rezoned to provide for productive use
of land. I concur with staff that this change represents a change in circumstances
under this criterion. I also note that many of the nearby residents have expressed a
desire to have the property converted to something other than mining as there has
been significant rural residential development in the area. Except for the argument
that there must be resources, or the applicant would not be considering a reservoir,
which I rejected, no one has argued that circumstances have not changed. This
criterion is met.
IV. CONCLUSION:
Based on the foregoing findings and conclusions, the applications are Denied for failure of
the applicant to meet its burden on the criterion identified above.
Dated this 22nd day of February 2018
i
Dan R. Olsen
Hearings Officer
THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY
APPEALED.
247-17-000775-ZC and 247 -17 -000776 -PA, Tumalo Irrigation District - Hearings Officer Decision
Page 36
Staff Memorandum
Attachment 2
Map of Subject Property
Deschutes County Files 247-17-000775-ZC & -000776-PA
19300 & 19310 Tumalo Reservoir Rd, Bend
TUMALO
BAILEY RD
HIGH MOWING LN 4� RIDGEWOOD DR
Deschutes County G;IS,y,Sources: Esd, USGS, NOAA
n
Staff Memorandum
Attachment 3
Tumalo Irrigation District Appeal
Manning Division 84Akfing SaWy Division Enviroornerdal "is Division
P,O. Box 6045 117 NW Lafayette Avenue Bend, Oregon 97708-6005
Phone: (541) 368-6575 Fax: (541) 3851764
http://www,deschutes.org/cd
APPEAL APPLICATION
FEE: $5,073.75
EVERY NOTICE OF APPEAL SHALL INCLUDE:
1. A statement describing the specific reasons for the appeal.
2. if the Board of County Commissioners is the Hearings Body, a request for review by the Board stating
the reasons the Board should review the lower decision.
3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request
for de novo review by the Board, stating the reasons the Board should provide the de novo review as
provided in Section 22.32.027 of Title 22.
4. If color exhibits are submitted, black and white copies with captions or shading delineating the color
areas shall also be provided.
It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code.
The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of
the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal.
Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC Section
22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues.
Appellant's Name (print):
Tumalo irrigation District, c/o Bryant, Lovlien & Jarvis, P.C. phone: ( 541) 382-4331
Mailing Address: 591 SW Mill View Way City/State/zip: Bend, OR 97703
Land Use Application Being Appealed:
Property Description: Township 1.-
Appellant's Signature:
247-17-000775-ZC/ 776 -PA
Range 1 1 Section 1
1611000010400,1611000010300,161136D000100
EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE
TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE
PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD).
APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE
CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR
ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS.
(over)
W`N1
Quality Services Performed with Pride
BEFORE THE DESCHUTES COUNTY COMMUNITY
DEVELOPMENT DEPARTMENT
247-17-000775-ZC/ 776 -PA
APPLICANT/OWNER:
} NOTICE OF APPEAL
}
Tumalo Irrigation District
c/o Bryant, Lovlien & Jarvis, P.C.
591 SW Mill View Way
Bend, Oregon 97702
ATTORNEY: Garrett Chrostek
Bryant, Lovlien & Jarvis, P.C.
591 SW Mill View Way
Bend, Oregon 97702
LOCATION: 19300 Tumalo Reservoir Rd., Bend, OR 97701 and further
identified as Tax Lots 300 and 400 on Deschutes County
Tax Map 16-11-10 and Tax Lot 100 on Tax Map 16-11-
36D.
REQUEST: Applicant requests a Zone Change and Comprehensive
Plan Map Amendment to rezone and re -designate 541.23
acres from Surface Mining to Multiple Use Agriculture -10
Acre Minimum/Rural Residential exception area, remove
Site No. 357 from the County's Surface Mining Mineral
and Aggregate Inventory (Comprehensive Plan Table
5.8.1), add Site No. 357 to the Non -Significant Mining
Mineral and Aggregate Inventory (Comprehensive Plan
Table 5.8.2), and remove the associated Surface Mining
Impact Area overlay.
I. STANDING:
Appellant Tumalo Irrigation District ("TID") is the Applicant in the matter that is the subject of
this appeal and appeared in proceedings below both in writing and at the public hearing.
Notice ofAppeal
Page] of 3 {00525058-00925332;1 }
II. STATEMENT DESCRIBING SPECIFIC REASONS FOR APPEAL:
Appellants concur with a majority of the Hearings Officer's decision in these proceedings.
However, Appellants object to the basis of the denial. Accordingly, Appellants assert that the
decision is in error for the following reasons:
The Hearings Officer erroneously concluded that Applicant failed to satisfy OAR 660-
012-0060 and DCC 18.136.020(C). The traffic analysis plainly identified that it utilized
an exceedingly conservative estimation of trip generation for a mining operation on 540
acres. Using a moderate estimation of trip generation, which was outlined in the
submitted traffic analysis along with applicable trip generation rates, the trip generation
of a mining operation on 540 acres exceeded that of a maximum worst case development
scenario under the MUA-10 zoning. Accordingly, there were no significant impacts on
transportation systems for purposes of the transportation planning rule and there was
sufficient evidence in the record to make such a determination.
2. OAR 660-012-0060 requires the County to estimate traffic impacts under a reasonable
"worst-case" scenario. See Barnes v. City of Hillsboro, 2010 WL 2655127, at * 15. The
hearings officer erroneously concluded that 74 dwelling units on the subject property,
which is only achievable if TID seeks and obtains 9 separate conditional use approvals
and 9 separate subdivision approvals, is a reasonable worst-case scenario. Even if the 74
dwellings were a reasonable worst-case scenario, the hearings officers had to be equally
"reasonable" in determining the trip generation potential of the mining use and applied
the moderate or maximum trip generation estimates identified in the transportation
analysis.
3. The Hearings Officer indicates that in the decision that it is "likely that the applicant can
demonstrate compliance" with the criteria that formed the bases of the denial.
III. REQUEST FOR REVIEW:
For the foregoing reasons, TID requests that the Board of County Commissioners review the
subject decision de novo, but limit new evidence to the bases of denial and not the remainder of
the decision. TID also requests that the Board affirm all interpretations of the Comprehensive
Plan and Deschutes County Code except that the Board should expressly reaffirm the
interpretations of Bend Comprehensive Plan, Policy 3.3 set forth in PA -11-02 and ZC-11-2.
The Board is authorized under DCC 22.32.027(2) and (3) to conduct a de novo review and
pursuant to DCC 22.32.027(4) may limit the scope of review to the issues listed in this notice of
appeal. De novo review is appropriate to allow introduction of additional evidence related to
transportation impacts, including additional testimony from County staff who had concurred with
TID's submitted transportation analysis, to address the issues identified by the hearings officer.
The Board should hear the appeal because it will resolve plain error in the hearings officer's
decision, clarify application of Comprehensive Plan policies, allow the subject property to be put
to beneficial use, and facilitate the funding on water conservation projects by TID.
Notice of Appeal
Page 2 of 3 {00525058-00925332; 1}
IV. SCHEDULING
TID is willing to be flexible in the scheduling of any proceedings on appeal before the
Commissioners including affording additional time for the Commissioners to hear the appeal.
SUBMITTED this 71h day of March, 2018.
BRYANT, LOVLIEN & JARVIS, P.C.
By:
GARRETT CHROSTEK, OSB#122965
Of Attorneys for Applicants
Notice of Appeal
Page 3 of 3 {00525058-00425332;1 }
Staff Memorandum
Attachment 4
Central Oregon LandWatch Appeal
P.O, Box 6005 117 NW Lafayette Avenue fiend, Oregon 977013-6005
Phone: (541) 333-6575 Fax: (541) 335-1764
http://www,deschutes.org/cd
APPEAL APPLICATION
FEE: $5,073.75
EVERY NOTICE OF APPEAL SHALL INCLUDE:
1. A statement describing the specific reasons for the appeal.
2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating
the reasons the Board should review the lower decision.
3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request
for de novo review by the Board, stating the reasons the Board should provide the de novo review as
provided in Section 22.32.027 of Title 22.
4. If color exhibits are submitted, black and white copies with captions or shading delineating the color
areas shall also be provided.
It is the responsibility of the appellant to complete a Notice of Appeal as set forth In Chapter 22.32 of the County Code.
The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of
the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal.
Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC Section
22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues.
Appellant's fume (print): Central Oregon LandWatch Phone: (541) 647-2930
Mailing Address: 50 SW Bond Street, Suite 4 city/State/zip: Bend/Oregon/97702
Land Use Application Being Appealed: 247-17-000775-ZC and 776 -PA
Property Description: Township16
Appellant's Signature:
Range l s Section l 0/36 Tax Lot 1611000010400/1611000010300/161136D000100
EXCEPT AS PROVIDtD IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE
TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE
PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD).
APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE
CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR
ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS.
(over)
10/15
salify ices Perfomwd zoith Pride
NOTICE OF APPEAL
See attached letter,
(This page may be photocopied if additional space is needed.)
March 6, 2018
Deschutes County Board of Commissioners
c/o Peter Gutowsky
Deschutes County Community Development Department
117 NW Lafayette Avenue Bend, OR 97708-6005
Re: Appeal of Hearings Dfficer'v Decision: 247-17-000775-ZC, 776 -PA
Via Hand Delivery
Dear Chair DeBone and Commissioners:
Central Oregon LandWatch is appealing the Hearings Officer's decision (decision) for File
No.s 247-17-000775-ZC and 776 -PA. This decision was issued on February 23, 2018 and denied an
application for a plan amendment and zone change for failure to comply with the transportation
planning rule (TPR) at OAR 660-012-0060. LandWatch respectfully appeals other portions of the
decision, as outlined below, and urges the Board to uphold the decision denying the applications,
although for different reasons.
I The Board of County Commissioners must hear the appeal de novo because a goal
exception is required
a. DCC 22.28.030
Because the application requires goal exceptions, the Deschutes County Code requires that
the Board hear the appeal de novo. The Hearings Officer found that "an exception to Goal 3 is not
required." Hearings Officer Decision at 24. The Hearings Officer erred in making this
determination because the subject property was never designated by the County as non -resource
land, its soils make it agricultural land, and the application seeks to re -designate the property to the
designation of Rural Residential Exception Area. DCC 22.28.030(C) states that
Plan amendments and zone changes requiring an exception to the goals or concerning lands
designated for forest or agricultural use shall be heard de novo before the Board of County
Commissioners without the necessity of filing an appeal, regardless of the determination of
2
the Hearings Officer or Planning Commission. Such a hearing before the Board shall
otherwise be subject to the same procedures as an appeal to the Board under DCC Title 22.
Because the current application for a plan amendment and zone change requires goal exceptions, the
Board of County Commissioners (Board) must hear the appeal de novo, regardless of the
determination of the Hearings Officer that the application does not require goal exceptions.
DCC 22.28.030(D) states that
Notwithstanding DCC 22.28.030(C), when a plan amendment subject to a DCC 22.28.030(C)
hearing before the Board of County Commissioners has been consolidated for a hearing
before the hearings [sic] Officer with a zone change or other permit application not requiring
a hearing before the board under DCC 22.28.030(C), any party wishing to obtain review of
the Hearings Officer's decision on any of those other applications shall file an appeal. The
plan amendment shall be heard by the Board consolidated with the appeal of those other
applications.
The application denied by the Hearings Officer was a consolidated plan amendment and zone change
application. Pursuant to DCC 22.28.030(D), LandWatch is appealing the zone change decision, and
the Board must hear that appeal consolidated with the appeal of the plan amendment decision, which
must be heard de novo by the Board.
b. Goal 3; the subject property is agricultural lana for which no goal exception has been
taken in the Deschutes County Comprehensive Plan.
The subject property is agricultural land and an exception to Goal 3 is required to re-
designate the land to any designation other than EFU. The soils of the subject property are classified
as U.S. Natural Resources Conservation Service (MRCS) Class I -VI, and therefore the subject
property is agricultural land by definition:
Agricultural Land -- in western Oregon is land of predominantly Class 1, 11, 111 and IV soils
and in eastern Oregon is land of predominantly Class 1, II, III, IV, V and. VI soils as
identified in the Soil Capability Classification System of the United States Soil Conservation
Service, and other lands which are suitable for farm use taking into consideration soil
fertility, suitability for grazing, climatic conditions, existing and future availability of water
for farm irrigation purposes, existing land -use patterns, technological and energy inputs
required, or accepted farming practices. Lands in other classes which are necessary to permit
farm practices to be undertaken on adjacent or nearby lands, shall be included as agricultural
land in any event.
3
Goal 3; OAR 660-015-0000(3). The County's Comprehensive Plan has never taken an exception to
Goal 3 for the subject property. The applicant seeks a designation of Rural Residential Exception
Area. Therefore, an exception to Goal 3 is required to approval the application, and the Hearings
Officer erred in deciding otherwise.
2. DCC 22.20.015; denial is appropriate because the subject property is in violation of
applicable land use regulations.
The Hearings Officer erred in finding that the subject property is not in violation of
applicable County land use regulations. Hearings Officer Decision page 9. The subject property is
in violation because the road that passes through the subject property (Bill Martin Road) was
constructed in violation of DCC 17.16.1051 and remains in violation of that code section. Neither
the applicant nor the County has taken responsibility for maintenance of Bill Martin Road through
the subject property, and thus the subject property is in violation of DCC 17.16.105. The Hearings
Officer noted that "the record is not complete enough for me to reach a conclusion — the allegedly
improper land use decisions, for example, are not in the record." Hearings Officer Decision page 9.
In its de novo appeal, the Board can accept additional materials into the record.
3. Comprehensive Plan Section 2.10 Surface Mining
a. The subject property should not be placed on the non-significant mining and
aggregate inventory.
The existence of the Non -Significant Mining and Aggregate Inventory at Comprehensive
Plan Table 5.8.2 is an error in the County's Comprehensive Plan. Only inventoried significant Goal
5 mineral and aggregate resources may be mined. See OAR 660-023-0180. As Table 5.8.2 has no
legal value in the County's program to achieve the requirements of Goal 5, placing the subject
property on Table 5.8.2 with the comment "potential reservoir site" is a meaningless action. The
Hearings Officer erred when deciding that Table 5.8.2 should be amended to include the subject
"Access to Subdivisions. No proposed subdivision shall be approved unless it would be accessed by roads constructed
to County standards and by roads accepted for maintenance responsibility by a unit of local or state government. This
standard is met if the subdivision has no direct access to such a collector or arterial, by demonstrating that the road
accessing the subdivision from a collector or arterial meets relevant County standards and has been accepted for
maintenance purposes."
4
property. Whether or not the property is added to Table 5.8.2, the land cannot be mined unless it
qualifies as a significant Goal 5 resource.
b. DOGAMI's certirication of the quality of reclamation of the site renders the site
usable only for the post -mining use of "open space/range. "
The Hearings Officer erred in ignoring DOGAMI's reclamation certification, which certified
all acreage of the former mining site on the subject property for the post -mining use of "open
space/range," and did not certify any acreage on the subject property for any other post -mining uses,
which include "agriculture, recreation, wildlife/wetlands, or housing/construction." Hearings
Officer Decision page 12. The Hearings Officer was correct in noting that "the designation on the
DOGAMI application is the responsibility of the applicant." Hearings Officer Decision page 13.
The Hearings Officer erred, however, by then deciding that the designation on the DOGAMI
application, which is the responsibility of the applicant, is irrelevant to the applicant's future
development plans. If the applicant has the responsibility to reclaim the subject property to a
standard appropriate for a certain post -mining use designation, then the applicant cannot seek to use
the subject property for any other use.
DCC 18.52.200 governs post -mining uses of surface mining sites, and states that "the
property shall be rezoned to the subsequent use zone identified in the surface mining element of the
Comprehensive Plan." The Comprehensive Plan does not identify a subsequent use zone for the
subject property. The only post -mining use identified anywhere is the use of "open space/range"
identified by the applicant and DOGAMI on DOGAMI's reclamation certification form.
Accordingly, the subject property should not be rezoned to MUM 0, and should be rezoned to a zone
and designation that comports with the quality of reclamation achieved on the site, which supports
only the uses of "open space/range," and the Hearing Officer erred in deciding otherwise.
4. Natural hazards.
a. Goal 7; an exception to Goal 7 Natural Mazards is required.
Compliance with Goal 7 is a principal issue in this case. The purpose of Goal 7 is to "protect
people and property from natural hazards." In planning for natural hazards, Goal 7 requires:
1. Local governments shall adopt comprehensive plans (inventories, policies and
implementing measures) to reduce risk to people and property from natural hazards.
2. Natural hazards for purposes of this goal are: floods (coastal and riverine), landslides,)
earthquakes and related hazards, tsunamis, coastal erosion, and wildfires. Local governments
may identify and plan,for other natural hazards. (Emphasis added.)
Evidence in the record indicates the applicant did not fill mined areas on the property in a
manner that permits subsequent use of the property for housing development. The record indicates
improperly filled areas on the property may place those who access the property in danger.
The County had no way of knowing prior to the hearing that the proposed use is inconsistent
with the way the applicant filled in the mined areas on the property. Now that the County knows
there are conditions on the property so potentially hazardous that the proposed land use may put the
public at risk, the I learings Officer erred in not recommending that the County conduct an evaluation
of the risk of sinkholes from improper fill. One such sinkhole already occurred on Bill Martin Road.
The Hearings Officer should have recommended that the County identify the nature of the dire
natural hazard on the property and plan for it, as provided in Goal 7 (supra). As explained in the
Goal 7 implementation guidelines:
"When reviewing development requests in high hazard areas, local governments should
require site-specific reports, appropriate for the level and type of hazard (e.g., hydrologic
reports, geotechnical reports or other scientific or engineering reports) prepared by a licensed
professional. Such reports should evaluate the risk to the site as well as the risk the proposed
development may pose to other properties."
The County's acknowledged Comprehensive Plan chapter on Natural Hazards, Section 3.5,
lists only wildland fire, severe winter storms, flooding, volcanic eruption, and earthquake. It is
undisputed that sinkhole formation and other severe erosion have routinely occurred on the subject
property over the past several years. These types of hazards are not normal in Deschutes County,
and thus are not included in the County's acknowledged comprehensive plan. Because the subject
property is likely to experience these natural hazards again in the future, the County must evaluate
and protect the public against natural hazards the application procedure has revealed on the subject
property.
b. Several Comprehensive Plan policies relating to natural hazards have not been met.
The application should be denied on the additional grounds of not meeting several
Comprehensive Plan goals and policies. Goal 1 of the Comprehensive Plan Section 3.5 Natural
2
u
Hazards Policies is to "protect people, property, infrastructure, the economy and the environment
from natural hazards." Comprehensive Plan Policy 3.5.5 states that "development should be
designed to minimize alteration of the natural land form in areas subject to slope instability, drainage
issues or erosion." Policy 3.5.11 directs the County to "review and revise County Code as needed
to... minimize erosion from development and ensure disturbed or exposed areas are promptly
restored to a stable, natural, and/or vegetated condition using natural materials or native plants,"
Policy 3.5.11(d), and "ensure drainage from development or alterations to historic drainage patterns
do not increase erosion on-site or on adjacent properties." Policy 3.5.11(e). As thoroughly
documented in the record, the subject property has experienced substantial drainage problems, slope
instability, and erosion over the past several years. To the extent that the Hearings Officer decided
that the proposed plan amendment and zone change complied with any of these goals and policies,
the Hearing Officer erred.
Conclusion
Thank you for your consideration of this appeal. Enclosed please find a check for the appeal
fee in the amount of $5,073.75.' LandWatch requests an on -the -record hearing. If several appeals
are filed, LandWatch requests that the fee be split among the appellants.
Thank you,
—T�– ,L�
Rory Isbell
Staff Attorney
Central Oregon LandWatch
' $2,665.00 appeal fee + 20%, or $2,408.75, of the original application fee ($12,043.75) _ $5,073.75.
Because the Board must hear the appeal pursuant to DCC 22.28.030(C), we don't believe we must
appeal the plan amendment. Accordingly, we request reimbursement of the portion of the 20% of the
original application fee that is for the plan amendment.
Staff Memorandum
Attachment 5
Order No. 2018-024
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Accepting Review of Hearings Officer
Decision in File Nos. 247-17-000775-ZC and * ORDER NO. 2018-024
247 -17 -000776 -PA (247-18-000241-A and 247-
18-000247-A)
WHEREAS, on March 6, 2018, Central Oregon LandWatch appealed (247-18-000241-A) the Hearings
Officer's decision on File No. 247-17-000775-ZC and 247 -17 -000776 -PA; and
WHEREAS, on March 7, 2018, Tumalo Irrigation District, appealed (247-18-000247-A) the Hearings
Officer's decision on File No. 247-17-000775-ZC and 247 -17 -000776 -PA; and
WHEREAS, Section 22.32.027 of the Deschutes County Code allows the Board of County
Commissioners (Board) discretion on whether to hear appeals of Hearings Officer's decisions; and
WHEREAS, the Board has given due consideration as to whether to review these applications; now,
therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. The Board will review/hear 247-17-000775-ZC and 247 -17 -000776 -PA (247-18-000241-A
and 247-18-000247-A) pursuant to Title 22 of the Deschutes County Code and other applicable provisions of the
County land use ordinances.
Section 2. The appeals shall be heard de novo in order to afford the Board the utmost discretion with
which to interpret the Deschutes County Code and any other land use criteria at issue.
Section 3. Staff shall set a hearing date and cause notice to be given to persons or parties entitled to notice
pursuant to DCC 22.24.030 and 22.32.030.
Dated this 181'' of April, 2018 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
Recording Secretary
PAGE 1 OF 1- ORDER N0.2018-024
ANTHONY DEBONE, Chair
PHILIP G. HENDERSON, Vice Chair
TAMMY BANEY, Commissioner
REVIEWED
LEGAL COUNSEL
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Declining Review of Hearings Officer
Decision in File Nos. 247-17-000775-ZC and * ORDER NO. 2018-024
247 -17 -000776 -PA (247-18-000241-A and 247-
18-000247-A)
WHEREAS, on March 6, 2018, Central Oregon LandWatch appealed (247-18-000241-A) the Hearings
Officer's decision on File No. 247-17-000775-ZC and 247 -17 -000776 -PA; and
WHEREAS, on March 7, 2018, Tumalo Irrigation District, appealed (247-18-000247-A) the Hearings
Officer's decision on File No. 247-17-000775-ZC and 247 -17 -000776 -PA; and
WHEREAS, Section 22.32.027 of the Deschutes County Code allows the Board of County
Commissioners (Board) discretion on whether to hear appeals of Hearings Officer's decisions; and
WHEREAS, the Board has given due consideration as to whether to review these applications; now,
therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. The Board will not hear 247-17-000775-ZC and 247 -17 -000776 -PA (247-18-000241-A and
247-18-000247-A) pursuant to Title 22 of the Deschutes County Code and other applicable provisions of the
County land use ordinances.
Section 2. The appellants shall be granted a refund of some of the appeal fees pursuant to DCC 22.32.015.
Dated this 18' of April, 2018 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
Recording Secretary
PAGE 1 OF 1- ORDER No. 2018-024
ANTHONY DEBONE, Chair
PHILIP G. HENDERSON, Vice Chair
TAMMY BANEY, Commissioner
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners Work Session of April 18, 2018
DATE: April 13, 2018
FROM: William Groves, Community Development, 541-388-6518
TITLE OF AGENDA ITEM:
Hearing Preparation for Shepherd Church
ATTENDANCE: Will Groves
SUMMARY: Before the Board of County Commissioners (BOCC) is an appeal filed by applicant John
Shepherd and opponent Central Oregon LandWatch. The appeal is submitted in response to a
February 9, 2018 administrative approval for a proposed church and associated church events in the
Exclusive Farm use zone. The BOCC agreed to hear this matter de novo on February 14, 2018, under
Order No. 2018-011. A public hearing is scheduled for April 23, 2018.
MEMORANDUM
DATE: April 10, 2018
TO: Board of County Commissioners
FROM: Will Groves, Senior Planner
RE: BOCC hearing of the Applicant's appeal of an administrative decision. File Nos.
247 -17 -000573 -AD and 574 -SP (247-18-000179-A and 182-A)
Before the Board of County Commissioners (BOCC) is an appeal filed by applicant John
Shepherd and opponent Central Oregon LandWatch. The appeal is submitted in response to a
February 9, 2018 administrative approval for a proposed church and associated church events in
the Exclusive Farm use zone.
The BOCC agreed to hear this matter de novo on February 14, 2018, under Order No. 2018-011.
A public hearing is scheduled for April 23, 2018.
BACKGROUND
Both the property and the applicant's efforts to establish a church and associated events on the
property have an extensive land use history.
CU-00-65/MA-01-9/A-01-15 (Farm Dwelling) - Conditional use approval to establish a farm -
related dwelling on the subject property and to site the dwelling more than 300 feet from a public
or private road in the WA Zone (CU -00-65). This approval included a Wildlife and Farm
Management Plan.
CU -13-13/ MA -13-3 (Private Park) — Hearings Officer denial of conditional use approval to
establish a private park on the subject property to be called "Shepherdsfield Park." The park would
host weddings, wedding receptions, special events and recreational activities. Denial was based
on several issues, including that the application did not include a site plan review application.
247 -14 -000401 -MC and 454-A (Modification of the Wildlife Management Plan) - The
modification wholly removed the Wildlife Management Plan (WMP) required under the previous
Farm Dwelling decision and replaced it with six conditions of approval designed to protect and
enhance deer habitat on the property.
247 -14 -000228 -CU and 229 -SP (Private Park) — The applicant applied again for a second land
use permit to establish a private park. Ultimately, the Court of Appeals (276 Or App 282 2016)
affirmed LUBA's reversal of the County approval. The Court concluded that hosting weddings
and similar events did not qualify as a private park. The court cited the determination by the
County that not all events would have a ceremony and when there is a wedding ceremony, it
would last for just a fraction of the time in which the event is held.
247 -16 -000159 -SP and 161 -AD (Church and Church Events) — The applicant tried again for a
land use permit allowing a church on the subject property. LUBA reversed the Hearings Officer
decision approving the use. LUBA found that the proposed church is a prohibited use in the
Wildlife Area Combining Zone that governs the subject property. LUBA also found that
intervenor's arguments regarding the Religious Land Use and Institutionalized Persons Act
(RLUIPA) were undeveloped. The Oregon Court of Appeals affirmed without opinion (A164877).
Following the Court's decision, the County initiated a text amendment to amending the
Comprehensive Plan and Deschutes County Code (DCC) Chapter 18.88 to permit churches in
the Wildlife Area Combining Zone for several reasons, including ensuring compliance with
RLUIPA. The Board adopted amendments on January 3, 2018, which is the basis for the present
application.'
II. PROPOSAL
The applicants are seeking permission to use their home for church services. The maximum
attendance at any one service will be 25 persons. The church also plans to use the existing 1.6 -
acre lawn area and gazebo near the church/residence for weddings and church functions allowed
by ORS 215.441. The applicants are agree to impose a limit on events to 30 per calendar year.2
The events will conclude no later than 10:00 p.m. A limit of 250 event guests will be enforced by
the applicants. The church also plans to use a 1.5 acre graveled parking area near the
church/residence for guest parking.
III. APPEAL
The administrative approval was appealed by the applicant John Shepherd and opponent Central
Oregon LandWatch.
Central Oregon LandWatch issues on appeal include:
The applicants are not applying on behalf of the church as church officers, but on their
own behalf as private citizens. The use that is allowed under DCC 18.16.025(C) is for
churches to operate as churches on farmland: the code does not permit individuals to
operate a for-profit event venue in the guise of a church on farmland. An application to
operate a church on farmland in an existing structure should come from the church, not
from a private individual on his own behalf.
• The church related to this matter is not a landowner in Deschutes County and is not the
applicant. The applicants are private individuals, one of which is an important employee
of a 501(c)(3) church. County and state code preclude events not associated with the
church. IRS code precludes proceeds of events accruing to an important employee, a
practice that will result in the loss of the 501(c)(3) status that is the basis for the approval.
• The decision misinterprets DCC 18.16.025 (C), which allows "churches and cemeteries in
conjunction with churches consistent with ORS 215.441 and OAR 660-033-0130(2) on
high value farmland." ORS 215.441 provides for the reasonable use of real property for
activities customarily associated with the practices of religious activity at nonresidential
1 Central Oregon LandWatch appealed Ordinance No. 2018-002 to LUBA. A decision is expected later this spring or
early summer.
2 This limitation is a change from the administrative approval and is self-imposed by the applicant to limit
infrastructure impacts.
-2-
places of worship. ORS 215.441 and DCC 18.16.025 do not apply to the farm dwelling
residence of the applicants. See Reed v. Jackson County, LUBA No. 2009-136 (2010)
and Bechtold v Jackson County, 42 Or LUBA 204, 211 (2002).
The proposed use of the property is properly characterized as a principal use for
commercial events. The proposed use for commercial events is on a much larger scale
than the associated church in terms of income and numbers of people. The County cannot
interpret its code to re -characterize the use as accessory to the church.
• The administrative decision did not note that the list of uses prohibited in winter range
relied upon in this decision is not acknowledged but is under appeal to the Land Use Board
of Appeals.
Under DCC 22.20.15, additional land use approvals for the property must wait until the
property comes into compliance with conditions of approval the County has already
issued. The applicant is in violation of the farm management plan that was required for
the dwelling.
Applicant issues on appeal include:
• Condition C limits "events" to the period of time between May 15th and Oct 15th. An
"event" is broadly defined in condition O as "any outdoor use of the property by non-
residents". Thus, condition C imposes a "seasonality" on religious freedom, something the
Commissioners specifically decided not to impose. There is no legal basis for this
restriction either in County code or State law.
Condition L reiterates the seasonal restrictions and adds a frequency restriction. Again,
there is no legal basis for such a restriction, either in County code or state law. The state
allows churches as a "use permitted outright", just like farming or ranching. The
Commissioners debated and agreed to add no restrictions on church use. Furthermore,
RLUIPA requires equal access and since similar restrictions are not imposed on similar
uses in Deschutes County EFU, they may not be imposed here either.
Condition M is unnecessary in that it defines "weekend day" as part of the restriction of
condition L. Since religious exercise should not be limited to weekends, this condition
should be removed.
• Condition P addresses the setup and take down of temporary structures. While it remains
the applicants intention and practice to complete any wedding setup the day before or the
day of the wedding and any cleanup the day of or immediately following the wedding, there
is no legal reason that this condition should be imposed.
Staff notes that the applicant provided a slight revision to the proposed operating characteristics
of the church in response to a meeting with staff in an email dated March 16, 2018 (attached).
IV. SECTION 22.20.040 AND THE 150 -DAY CLOCK
The 150th day for the County to take final action on this application is currently June 22, 2018.
(DCC Section 22.20.040), due to a 165 day toll of the 150 -day clock by the applicant.
-3-
Attachments -
1. Shepherd Email on operating characteristics dated March 16, 2018.
2. Full Record to Date (Will be attached to the Hearing Agenda Packet only)
Electronic Record available at: P:\CDD\Shepherd 2018\Record
-4-
William Groves
From: John Shepherd <shepherdsfield@gmail.com>
Sent: Friday, March 16, 2018 11:09 AM
To: William Groves
Subject: Agreed upon conditions for church permit
Follow Up Flag: Follow up
Flag Status: Completed
Thanks for running the meeting this morning, Will. I think it went well.
So, I'm willing to limit the number of outdoor gathering to 30 one day events per year, which constitutes 8% of
the days in a year, far below the 50% threshold for building and sanitation.
I'm also willing to have my domestic water system inspected and approved and will begin work with Jeff
Freund ASAP.
I think all the other concerns were addressed and resolved.
Is it possible to let me review your revised list of conditions before they become final? Specifically, I believe
that conditions C, L, M and P need to be either removed or revised. And you can add the condition about the
domestic water being tested and approved.
One more question: I want to submit written testimony and exhibits to the Commissioners to answer COLW's
charges before the April 23rd hearing. When is the deadline for written submissions?
Thanks,
John Shepherd
gliepliordaflie-L