2018-394-Minutes for Meeting July 30,2018 Recorded 9/24/2018OT E S CSG
BOARD OF
COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541) 388-6570
Recorded in Deschutes County CJ2018-394
Nancy Blankenship. County Clerk
Commissioners' Journal 09/24/2018 8:57:47 AM
2018-394
BARNES & SAWYER ROOMS
Present were Commissioners Tammy Baney, Phil Henderson and Anthony DeBone. Also present were
Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David Doyle, County
Counsel; and Sharon Keith, Board Executive Assistant. No identified representatives of the media were
in attendance.
CALL TO ORDER: Chair DeBone called the meeting to order at 10:00 a.m.
PLEDGE OF ALLEGIANCE
CITIZEN INPUT: None was offered.
CONSENT AGENDA: Before the Board was Consideration of Approval of the
Consent Agenda. Commissioner Henderson requested to pull Items 7 and 11 for
further review.
BAN EY: Move approval minus Consent Agenda Items 7 and 11.
HENDERSON: Second.
VOTE: BAN EY: Yes.
HENDERSON:
DEBONE:
Yes.
Chair votes yes. Motion Carried
BOCC BUSINESS MEETING JULY 30, 2018 PAGE 1 OF 6
Consent Agenda Items:
1. Consideration of Board Signature of Document No. 2018-287, Iris Telehealth
2. Consideration of Board Signature of Document No. 2018-329, Marc Williams
MD
3. Consideration of Board Signature of Purchase Agreement, Document No.
2018-542 and Acceptance of Deed Dedication, Document No. 2018-543;
Permanent Slope Easement, Document No. 2018-544; and Temporary
Construction Easement, Document No. 2018-545 from Russell D. Scott for
the Deschutes Market Road/Dale Road Intersection Improvement Project
4. Consideration of Board Signature of Document No. 2018-546, Acceptance of
Deed of Dedication from City of Bend for the Deschutes Market Road / Dale
Road Intersection Improvement Project
5. Consideration of Board Signature of Document No. 2018-551, an Exclusive
Access Easement at Lechner Lane
6. Consideration of Board Signature of Document No. 2018-552, Quitclaim
Deed for Brian and Kirsten Black
7. Approval of Minutes of the May 16, 2018 Work Session
8. Approval of Minutes of the May 21, 2018 Work Session
9. Approval of Minutes of the June 4, 2018 Business Meeting
10.Approval of Minutes of the June 6, 2018 Business Meeting
11.Approval of Minutes of the June 13, 2018 Work Session
12.Approval of Minutes of the June 25, 2018 Business Meeting
13.Approval of Minutes of the June 27, 2018 Business Meeting
14.Approval of Minutes of the July 2, 2018 Business Meeting
15.Approval of Minutes of the July 2, 2018 Work Session
ACTION ITEMS
16. Consideration of Board Signature of Document No. 2018-528, an
Addendum (First Addendum) to the Existing Lease Between Deschutes
County and Saving Grace
James Lewis, Property Manager presented the item for consideration for an
existing lease with Saving Grace and gave history on the lease agreement.
BOCC BUSINESS MEETING JULY 30, 2018 PAGE 2 OF 6
Commissioner Baney spoke on the importance of this space for the needs of
families to keep children safe.
HENDERSON: Move approval
BAN EY: Second
VOTE: HENDERSON: Yes
BAN EY: Yes
DEBONE: Chair votes yes. Motion Carried
17. Consideration of Chair Signature of Document No. 2018-564, Notice of
Intent to Award Contract to PBS Engineering Environmental Inc. For
Environmental Monitoring and Consulting Services
Timm Schimke, Director of Solid Waste presented this item for consideration
explaining the services involved in the contract. Three responses were
received on the request for proposals.
BAN EY: Move approval
HENDERSON: Second
VOTE: BAN EY: Yes
HENDERSON: Yes
DEBONE: Chair votes yes. Motion Carried
BOARD CONVENED AS THE GOVERNING BODY OF THE 911 SERVICE DISTRICT
18. Consideration of Board Signature of Document No. 2018-336,
Amendment to 911 Operating Agreement
County Administrator Anderson presented this item for consideration and
explained the details of the agreement.
BOCC BUSINESS MEETING JULY 30, 2018 PAGE 3 OF 6
County Administrator Anderson- explained the agencies involved and
communications have been provided. Commissioner Baney commented this
agreement further identifies the role of the user board and Deschutes
County in the performance of the 911 Director. Commissioner Henderson
would like to add revisions. The Board supports the amendment.
HENDERSON: Move approval with amended language
BAN EY: Second
VOTE: HENDERSON: Yes
BAN EY: Yes
DEBONE: Chair votes yes. Motion Carried
At this time, the Board reconvened as the GOVERNING BODY OF DESCHUTES
COUNTY
19. DELIBERATIONS: Kine Lot of Record
Will Groves, Community Development Department presented and explained
the deliberation process.
The Board reviewed the matrix for each item of issue areas.
• How many units of land existed prior to the 1990 Seventh Mountain Golf
Village Subdivision? Area the BLM parcels one or four units of land
• Did the BLM conveyance create lots of record in accordance with the
county lot of record definition
• Did the BLM conveyance regarding lots of record depend in whole or part
on the doctrine of federal supremacy and preemption
• Did the 1990 subdivision vacate property lines between the 4 original
units of land
Adam Smith, Assistant Legal Counsel asked for clarification from the Board's
decision in order to prepare the decision.
BOCC BUSINESS MEETING JULY 30, 2018 PAGE 4 OF 6
20. PUBLIC HEARING: DSL Plan Amendment & Zone Change at 21425
Stevens Road
Jacob Ripper, Community Development Department presented and outlined
the hearing procedures. Commissioner Henderson noted this is a property
that he walks his dogs but has no personal conflict. No challenges were
addressed.
Commissioner DeBone opened the public hearing. Mr. Ripper reviewed the
staff report.
John Swanson of DSL presented testimony and process involved with this
property. Matt Hasting consultant was also present for technical questions.
Question raised on the soils study and Mr. Ripper explained the process for
the property. Commissioner Henderson inquired on the communications.
The original notice was mailed to all properties within 750 feet of the
boundary.
Commissioner DeBone opened the public testimony period. Hearing none,
Commissioner DeBone closed the public hearing and the record as well.
Commissioner Baney noted she would support adopting the hearings
officer's decision.
BAN EY: Move to adopt the hearing officer's decision
HENDERSON: Second
Commissioner Henderson would support the decision and would hope for a
public park space on the property.
VOTE: BAN EY: Yes
HENDERSON: Yes
DEBONE: Chair votes yes. Motion Carried
BOCC BUSINESS MEETING JULY 30, 2018 PAGE 5 OF 6
OTHER ITEMS: None were offered.
Being no further items to come before the Board, the meeting was adjourned at 11:12 a.m.
DATED this _�Day of 2018 for the Deschutes County Board of
Commissioners.
ANTHONY DEBONE, CHAIR
PHILIP G. H4DERSON, VICE CHAT
TAMMY BANEY, C MISSIICER
e
BOCC BUSINESS MEETING JULY 30, 2018 PAGE 6 OF 6
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - www.deschutes.org
BUSINESS MEETING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
10:00 AM, MONDAY, JULY 30, 2018
Barnes Sawyer Rooms - Deschutes Services Center - 1300 NW Wall Street - Bend
This meeting is open to the public. To watch it online, visit www.deschutes.org/meetingss. Business Meetings are
usually streamed live online and video recorded.
Pursuant to ORS 192.640, this agenda includes a list of the main topics that are anticipated to be considered or
discussed. This notice does not limit the Board's ability to address other topics.
Meetings are subject to cancellation without notice.
CALL TO ORDER
PLEDGE OF ALLEGIANCE
CITIZEN INPUT
This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues
that are not already on the agenda. Please complete a sign-up card (provided), and give the card to the
Recording Secretary. Use the microphone and clearly state your name when the Board Chair calls on you to
speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing not
being conducted as a part of this meeting will NOT be included in the official record of that hearing.
If you offer or display to the Board any written documents, photographs or other printed matter as part of your
testimony during a public hearing, please be advised that staff is required to retain those documents as part of the
permanent record of that hearing.
CONSENT AGENDA
1. Consideration of Board Signature of Document No. 2018-287, Iris Telehealth
2. Consideration of Board Signature of Document No. 2018-329, Marc Williams, MD
(Renewal)
Board of Commissioners Business Meeting Agenda Monday, July 30, 2018 Page 1 of 3
3. Consideration of Board Signature of Purchase Agreement, Document No. 2018-542
and Acceptance of Deed of Dedication, Document No. 2018-543; Permanent Slope
Easement, Document No. 2018-544; and Temporary Construction Easement,
Document No. 2018-545 from Russell D. Scott for the Deschutes Market Rd / Dale
Rd Intersection Improvement Project
4. Consideration of Board Signature of Document No. 2018-546, Acceptance of Deed
of Dedication from City of Bend for the Deschutes Market Rd / Dale Rd Intersection
Improvement Project
5. Consideration of Board Signature of Document No. 2018-551, an Exclusive Access
Easement at Lechner Lane
6. Consideration of Board Signature of Document No. 2018-552, Quitclaim Deed for
Brian and Kirsten Black
7. Approval of Minutes of the May 16, 2018 Work Session
8. Approval of Minutes of the May 21, 2018 Work Session
9. Approval of Minutes of the June 4, 2018 Business Meeting
10.Approval of Minutes of the June 6, 2018 Business Meeting
11.Approval of Minutes of the June 13, 2018 Work Session
12.Approval of Minutes of the June 25, 2018 Business Meeting
13.Approval of Minutes of the June 27, 2018 Business Meeting
14.Approval of Minutes of the July 2, 2018 Business Meeting
15.Approval of Minutes of the July 2, 2018 Work Session
ACTION ITEMS
16. Consideration of Board Signature of Document 2018-528, an Addendum (First
Addendum) to the Existing Lease Between Deschutes County and Saving Grace.
James Lewis, Property Management
Board of Commissioners Business Meeting Agenda Monday, July 30, 2018 Page 2 of 3
17. Consideration of Chair Signature of Document No. 2018-564, Notice of Intent to
Award Contract to PBS Engineering Environmental Inc. for Environmental
Monitoring and Consulting Services. - Timm Schimke, Director of Solid Waste
18. Consideration of Board Signature of Document No. 2018-336, Amendment to 911
Operating Agreement - Tom Anderson, County Administrator
19. DELIBERATIONS: Kine Lot of Record - William Groves, Senior Planner
20. PUBLIC HEARING: DSL Plan Amendment & Zone Change at 21425 Stevens Road -
Jacob Ripper, Senior Planner
OTHER ITEMS
These can be any items not included on the agenda that the Commissioners wish to discuss as part of
the meeting, pursuant to ORS 192.640.
At any time during the meeting, an executive session could be called to address issues relating to ORS
192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation, ORS 192.660(2)(d), labor
negotiations, ORS 192.660(2)(b), personnel issues, or other executive session categories.
Executive sessions are closed to the public, however, with few exceptions and under specific guidelines,
are open to the media.
ADJOURN
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.or /� meetingcalendar
Meeting dates and times are subject to change. If you have question, please call (541) 388-6572.
Board of Commissioners Business Meeting Agenda Monday, July 30, 2018 Page 3 of 3
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - Fax (541) 385-3202 - https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners Business Meeting of July 30, 2018
DATE: July 26, 2018
FROM: William Groves, Community Development, 541-388-6518
TITLE OF AGENDA ITEM:
DELIBERATIONS: Kine Lot of Record
RECOMMENDATION & ACTION REQUESTED:
Deliberate on the application and provide staff direction on the decision.
BACKGROUND AND POLICY IMPLICATIONS:
Before the Board of County Commissioners (Board) are deliberations in an appeal filed by Larry Kine,
File Nos. 247 -16 -000408 -LR (247-17-000027-A). The appeal was submitted in response to a January
6, 2017 Deschutes County Hearings Officer's decision that the applicant has not met his burden of
demonstrating the lot of record status of the subject property.
At a work session with the Board on October 25, the Board reopened the record for additional
information under Order No. 2017-044. The open record period closed on November 15 and this
matter is before the Board for deliberations.
If the Board determines that the golf course is a single remainder lot, no further deliberation is required.
If the Board determines that the golf course is multiple remainder lots, Staff will return with several
additional questions for Board deliberation.
FISCAL IMPLICATIONS: None
ATTENDANCE: Will Groves, Legal
STAFF REPORT
DATE: July 26, 2018
TO: Board of County Commissioners
FROM: Will Groves, Senior Planner
RE: Deliberations on an appeal of Hearings Officer's Decision in File Nos. 247 -16-
000408 -LR (247-17-000027-A).
Background
Before the Board of County Commissioners (Board) are deliberations in an appeal filed by Larry
Kine. The appeal was submitted in response to a January 6, 2017 Deschutes County Hearings
Officer's decision that the applicant has not met his burden of demonstrating the lot of record
status of the subject property.
At a work session with the Board on October 25, the Board reopened the record for additional
information under Order No. 2017-044. The open record period closed on November 15 and this
matter is before the Board for deliberations.
Staff notes that these proceedings are conducted under the previous "Lot of Record" County code,
rather than the late -2017 amendments. The new amendments likely would not change the
outcome of this case because Kine elected to confirm the Lot of Record (LOR) status of the
subject unit(s) of land, an option likewise available under the new code provisions. Although the
procedures have changed dictating when a LOR analysis, the substantive standards have not.
If the Board determines that the golf course is a single remainder lot, no further deliberation is
required. If the Board determines that the golf course is multiple remainder lots, Staff will return
with several additional questions for Board deliberation.
Il. Executive Summary
The key issue to resolve at this point is:
1. How many units of land existed prior to the 1990 Seventh Mountain Golf Village
subdivision?
a. Are the BLM "parcels" one or four "units of land"?
Staff Recommendation: The BLM "parcels" are four "units of land".
- 1 -
b. Did the BLM conveyance create Lots of Record, in accordance with the
County Lot of Record definition?
Staff Recommendation: The Board should decline to answer this question because
it is irrelevant.
c. Did the BLM conveyance regarding Lots of Record depend in whole or part
on the doctrine of federal supremacy and preemption?
Staff Recommendation: The Board should decline to answer this question
because it is irrelevant.
If the Board determines instead that only one unit of land was created by the BLM, then there is
no need for the Board to answer the remaining question.
2. Did the 1990 subdivision vacate property lines between the 4 original units of land?
Staff Recommendation: Yes. The 4 parcels were not preserved by ORS 92.017,
as they were further divided. The golf course is a single remainder lot.
III. Key Issues / Questions
For each key issue, staff has provided a response and summarized responses from the Hearings
Officer, applicant, opponents, and Liz Fancher. Staff notes that this memo is responsive to the
last open record period and does not generally restate arguments presented in the Oct 25, 2017
work session staff memorandum.
Issue #1 How many units of land existed prior to the 1990 Seventh Mountain Golf Village
subdivision?
Background
The subject property, which ultimately became the Widgi Creek golf course, was conveyed from
the Bureau of Land Management into private ownership in 1984. This conveyance referred to a
BLM document entitled "Dependent Resurvey, Subdivision of Sections 22 and 23 and Survey"
("Dependent Resurvey") dated January 12, 1984. The Dependent Resurvey mapped Parcels A,
B, C, and D and these "parcels"' are used to describe the land subject to the 1984 Federal
conveyance.
These "parcels" were divided into residential lots by the 1990 Seventh Mountain Golf Village
subdivision. The subdivision plat identified the future golf course area as "not in plat". The Board
will need to interpret the County Code to determine if the golf course constitutes one, zero, or
many Lots of Record.
Question 1A. Are the BLM "parcels" one or four "units of land"?
1 The BLM survey describes the four units of land as "parcels", although state statue and county code would classify
them as lots or units of land.
-2-
Staff Response
Staff concurs with the applicant that the BLM conveyance created four "units of land". The Federal
Patent refers to the Federal Survey of "parcels" A, B, C and D.
Hearings Officer
I concur with the Hearings Officer in Thompson, and with the applicant, that the BLM has the
authority to create units of land and convey them without regard to the Oregon Revised Statutes
and the Deschutes County Code. Those units of land are lawful; they can be used and conveyed
by the grantee. But that only sets the stage for deciding whether those units of land are "lots of
record" that the Deschutes County Code recognizes as developable.
Applicant
The United States created four lawful parcels for purposes of conveyance. The hearings officer
in this case, relying on Thompson reached that conclusion. The Applicant previously submitted
an email from the BLM surveyor wherein he confirmed that the BLM described Parcels A, B, C,
and D for the purpose of creating non -aliquot parts to convey. No party has disputed, nor can
they, that the BLM could have conveyed each parcel to separate private owners independent of
the other Parcels. The BLM was able to do that because each parcel was separately surveyed
and had its own metes and bounds description.
The important point on the question of how many units of land the BLM created is that the BLM
prepared a survey plat that described four separate parcels of land each with individual legal
descriptions. That is objective evidence that the BLM intended to create four units of land. The
HOA's pure speculation that the BLM could have intended to create a single unit of land is
contradicted by the separate legal descriptions and does not overcome the objective evidence.
Opponents
Although Mr. Kine speculates that "the BLM could have conveyed each parcel to separate private
owners independent of the other parcels," the fact is the BLM did not do that. It conveyed the
property in a single patent to the private developer of Widgi Creek, which proceeded to develop
and subdivide the property pursuant to the Master Plan for Widgi Creek. Determining that the
patent conveyed one single unit of land - even if it were described, for convenience, in terms of
four "parcels" in separate sections - in no way "frustrates" the federal government's ability to
convey its lands. The land was in fact conveyed and Widgi Creek and Elkai Woods were
developed. Mr. Kine speculates about the BLM's intent in describing the four separate parcels as
separate "units" to convey separately, but that speculation is immaterial because they were not
conveyed separately. It is just as likely, as the HOAs have noted, that the federal government
intended to create and convey a single unit.
Fancher
The property conveyed by the USA is either one lawfully created unit of land created by patent or
four lawfully created units of land created by a subdivision. In both cases, the properties were
lawfully created by the USA and traded for other units of land that, presumably, were also lawfully
created. It appears likely the USA intended to create four units of land. A tax map included with
County files from 1990 shows each of the four units of land as units A, B, C and D.
-3-
Question 1 B. Did the BLM conveyance create Lots of Record, in accordance with the
County Lot of Record definition?
Staff Response
Although the parties briefed this issue and although the issue was dispositive for the HO, Staff
recommends that the Board find that the LOR status of the BLM parcels prior to the 1990 plat is
irrelevant. The Lot of Record definition references when a unit of land was "created." The unit(s)
of land currently under review were "created" by the 1990 Plat.
Although ORS 92.017 is not directly applicable to the County's Lot of Record definition, staff
recommends that the Board find that, for the purposes of the County Lot of Record definition,
"created" means when, "... lot or parcel lines are vacated or the lot or parcel is further divided, as
provided by law". "Created" is in opposition to "adjustment" which is defined in ORS 92.010(12)
as, "...a relocation or elimination of all or a portion of the common property line between abutting
properties that does not create an additional lot or parcel."
92.017 When lawfully created lot or parcel remains discrete lot or parcel. A lot or
parcel lawfully created shall remain a discrete lot or parcel, unless the lot or parcel
lines are vacated or the lot or parcel is further divided, as provided by law.
92.010(12) "Property line adjustment" means a relocation or elimination of all or a
portion of the common property line between abutting properties that does not
create an additional lot or parcel.
Staff again notes that these statutes are not directly applicable to the County's Lot of Record
definition and that they simply provide an existing, helpful, and consistent framework to define
"created" in this context.
In addition, staff concurs with the applicant and recommends that Board find that the Lot of Record
Status of the BLM "parcels" prior to 1990 is irrelevant, because Lot of Record (A)(5) remainders
need only act on "units of land", as described below.
Applicant
The Applicant agrees with Staff that this question is not relevant to its application. It is not
necessary to decide this issue because the four parcels did not have to be lots of record, when
the United States created them, for remainder parcels to be lots of record under DCC
18.04.030A(5). The plain text of DCC 18.04.030A(5) does not require that the parent parcel be a
lot of record for remainder lots or parcels to be lots of record. There is nothing for the Board to
interpret.
Fancher
There is no express requirement that a parent parcel from which a remainder is created be a lot
of record. To assure the orderly administration of the law, it seems appropriate to require that the
parent parcel have been created by some recognized method of lot or parcel creation - by land
sale contract, deed, partition plan or plat, subdivision or other means. Whether the unit of land
must be (a) lawfully created; or (b) meet all the additional requirements that apply to make the
-4-
parent parcel a lot of record appears to be subject to interpretation by the Board under the
"plausible interpretation" standard of Siporen v. City of Medford.
(Additional analysis under this question (113) was provided in the Oct 25, 2017 work
session staff memorandum. Staff incorporates this memo by reference in the event the
Board finds that the Lot of Record Status of the BLM "parcels" is found to be relevant to
this deliberation.)
Question 1C. Did the BLM conveyance regarding Lots of Record depend in whole or
part on the doctrine of federal supremacy and preemption?
Background
Analysis under this question (1C) was provided in the Oct 25, 2017 work session staff
memorandum. Staff incorporates this memo by reference in the event the Board finds that federal
supremacy and preemption is found to be relevant to this deliberation.
Staff Response
Staff recommends that the Board decline to answer this question because it is likely irrelevant.
Issue #2 Did the 1990 subdivision vacate property lines between the 4 original units of
land?
Background
Issue #2, is only relevant if the Board finds that there were 4 units of land (or lots of record) under
Issue #1. The 1990 Seventh Mountain Golf Village plat identified the golf course as "not in plat".
There is significant debate in the record if this plat had the effect of consolidating/vacating the
four BLM units of land. These debates fall under three theories of consolidation: 1) That ORS
92.107 does (or does not) protect the prior "units of land" from consolidation, 2) That consolidation
occurred as an effect of the plat under Weyerhaeuser, and 3) That the Lot of Record definition
(A)(5) specifies that a subdivision can leave "a remainder", not multiple remainders.
Staff Response
ORS 92.017: Staff believes ORS 92.017 normally protects lawfully created lots from
consolidation. However, ORS 92.017 also includes an exception when the lots are, "...further
acted upon by being vacated or be being further divided." In this case, the BLM units of land were
further divided by the 1990 Seventh Mountain Golf Village plat. As such, ORS 92.017 does not
protect the BLM units of land as discreet lots or parcels.
Weyerhaeuser. Staff concurs with the Homeowner's Association that Weyerhaeuser found that
historic lots may be consolidated as an effect of a plat. Although, the golf course was expressly
"not in plat" in this case, the 1990 Seventh Mountain Golf Village plat created the golf course lot
as a single lot. The BLM units of land were vacated as an effect of 1990 Seventh Mountain Golf
Village plat.
Lot of Record (A)(5): This code section describes remainder lots of record created as follows:
-5-
5. By the subdividing or partitioning of adjacent or surrounding land, leaving a
remainder lot or parcel.
Certainly, the 1990 Seventh Mountain Golf Village plat subdivided adjacent land. Staff concurs
with the HOA and Hearings Officer that DCC 18.04.030(A)(5), is written in the singular, "leaving
'a' remainder lot or parcel." So at most, it would recognize only one lot of record consisting of all
of the "not in plat" areas.
The applicant argues Board's T/D decision affirms the notion that a single partition -by -deed can
leave multiple discontiguous remainders. Staff is unable to identify an explicit finding on this issue
in the cited decision. It appears that the effect of the decision is to recognize partition -by -deed
with multiple discontiguous remainders, but staff is uncertain if the Board deliberated this issue.
Staff recommends the Board find that partition -by -deed is not at issue under this deliberation
topic. Staff further recommends that the Board find that Lot of Record (A)(5) was a part of the
County Code at the time of the 1990 Seventh Mountain Golf Village plat. This provision makes it
clear that, by default, any remaining land surrounding the plat would become a single lot of record.
The developer had the opportunity to show multiple remainders on the plat and thereby the
obligation to do so if the developer, wants multiple remainders.
Hearings Officer
ORS 92.017: The Hearings officer did not address this statute.
Weyerhaeuser. It is not clear how the Golf Village subdivision could create lots that explicitly are
marked "Not In Plat". Subdivision lots are created by inclusion in a plat. The plat does not label
them as "lots" or "parcels" and shows their "boundaries" only by dashed section lines. There
appears to be no reference to the BLM parcels on the plat. See DCC 18.04.030 B. 2 (section or
township lines do not create lot of record.) It is at least as likely that this means that listing these
as one "not in plat" area effectively consolidated those lawful parcels into one. See e.g.
Weyerhauser Real Estate Dev Co v Polk County, LUBA No. 2011-022 (2011)
Lot of Record (A)(5): As regards DCC 18.04.030(A)(5), note that it is written in the singular,
"leaving 'a' remainder lot or parcel." So at most, it would recognize only one lot of record consisting
of all of the "not in plat" areas. The only guidance I found on this provision is in Decision 247-15-
000633-A (2016) at page 6, in which the Board of Commissioners seems to state that this
provision recognizes only remainders created prior to "modern day" subdivisions. This is
consistent with my understanding of "modern" subdivision provisions, only those portions in the
plat become lots.
Applicant
ORS 92.017: The HOA cannot seriously claim that the boundary lines for Parcels A, B, C, and D
that were not platted as lots went away. They were described in the metes and bounds
descriptions of Parcels A, B, C, and D and are reflected on the plat. ORS 92.017 mandates that
the County continue to recognize them. The HOA failed to point to any formal action that could
have vacated those lines. The HOA tortures the plain text of the statute. ORS 92.017 states in
part: a lot or parcel lawfully created shall remain a discrete lot or parcel unless the lot or parcel
lines are vacated or the lots or parcel is further divided, as provided by law. The HOA argues that
this text does not apply here because the developer divided the property, not the County.
WE
Under the plain text of ORS 92.017 it does not matter who initiates the action. The text plainly
provides that the line remain unless vacated or further divided as provided by law. No developer
can take any action provided by law to vacate or divide anything. They are required to apply to
the local government. The statute clearly is directed at the process that results in the vacation or
subdivision and not on who may initiate it. The relevant case law makes that abundantly clear.
Apparently recognizing that, the HOA does not even discuss that case law.
Weyerhaeuser. As noted above, under the holding in Thomas, the legal boundary lines between
the lawfully created units of land had legal significance. ORS 92.017 precludes the County from
eliminating those boundary lines except for through a formal process. Weyerhaeuser does not
erode that conclusion. All Weyerhaeuser does is clarify that there may be more than one formal
process that results in boundary lines being vacated. In that case, a new partition plat was created
and the old lines were within newly created lots. LUBA held that the old lines within the new lots
did not have to be recognized. Although LUBA did not confine the types of processes that can be
used to vacate existing boundary lines, it was clear that there had to be some formal process that
had the effect of doing so.
Lot of Record (A)(5): Lastly, the HOA opponents argue that under DCC 18.04.030.A.5, the
Applicant can only have a single lot of record verified. The text of that provision, in context, informs
that it can be applied to any parcel that is created by subdividing adjacent or surrounding property.
The text refers to "a remainder" because the provision must be applied to each remainder parcel
in question. The HOA opponents' argument, if accepted, would lead to the inefficient and wasteful
process where an owner would have to file multiple applications for each remainder parcel.
Furthermore, the Board has previously confirmed that multiple remainder parcels can be verified
as lots of record under DCC 18.04.030(A)(5) Board's Decision in Tumalo Irrigation, p. 6.
HOA Opponents
ORS 92.017: Kine's argument that the plats for the Widgi Creek/Elkai Woods developments
observed the separate boundary lines of the 1984 BLM survey and left them intact after
subtracting the residential units ignores the true actions of the developer. The 1990 Widgi Creek
Plat created 107 residential lots from what had previously been described as BLM Parcels A, B,
C and D, and left the remainder property. Whatever is not platted into lots is remainder. Under
DCC 18.04.030A(5), the subdividing or partitioning of adjacent or surrounding land in a plat can
create only a singular remainder lot of record.
Mr. Kine's reliance on ORS 92.017 is misplaced. That statute provides that "a lot or parcel lawfully
created shall remain a discreet lot or parcel, unless the lot or parcel lines are vacated or the lot or
parcel is further divided, as provided by law." ORS 92.017. In this case, it is not the County that
vacated lot or parcel lines, and divided the parent property, it was the Widgi Creek developer.
There is no violation of ORS 92.017 because the developer's act of subdividing the property
resulted in changing the lot or parcel lines and leaving a remainder.
Under Mr. Kine's theory, the plat for 1990 Seventh Mountain Golf Village created not 107 but 118
lots of record that can be separately bought and sold. The Seventh Mountain Golf Village plat did
not identify separate remainder parcels, only the 107 residential units. The rest was identified as
"not in plat." Mr. Kine cannot have it both ways. A developer cannot create a subdivision that
completely overlays BLM parcels A, B, C and D without extinguishing those boundaries. The plat
reconfigured the lot lines for the property without regard to the BLM Re -Survey.
-7-
Weyerhaeuser: As the Hearings Officer property pointed out, Oregon courts have recognized that
a land owner or land use proceeding can consolidate lawful parcels into one, where a plat or
partition map does not indicate the continued existence of the lots that were [previously]
partitioned." Weyerhauser Real Estate Development Co. v. Polk County, 63 Or LUBA 393, affirm.,
246 Or App 548 (2011 ). In this case, the Widgi Creek developer created 107 residential lots
surrounding the golf course under MC -90-14 and the 1990 Seventh Mountain Golf Village plat.
(Exhibit 3). The plat showed the parent property as being either in the plat, or outside it ("not in
plat"). It made no reference to the "parcels" listed in the unrecorded and unfiled BLM resurvey
and did not indicate that any such parcels would continue to exist. Although the plat shows dashed
lines intersecting the property, it is only because they are intersecting section lines, not in relation
to the BLM resurvey. The plat created 107 residential lots, and 1 single remainder area,
designated "not in plat."
Lot of Record (A)(5): As the Hearings Officer pointed out, the ordinance provides for only one
single remainder lot or parcel ("a remainder lot or parcel'), not multiples. As the Board of
Commissioners found in its Decision in 247-15-000633-A (Tumalo Irrigation District), the intent of
subsection (5) was to recognize only those remainders that resulted from older subdivisions, and
that in "modern day" subdivisions "only those portions in the plat become lots."
COLW Opponents
ORS 92.017: ORS 92.017 does not apply to parcels created by deed. The legislative history of
ORS 92.017 in LUBA's Kishpaugh decision specifically states that ORS 92.017 does not apply to
lots of record, and so is inapplicable to this case. Kishpaugh v. Clackamas County, 24 Or. LUBA
164, 172 (1992).
Weyerhaeuser: The Golf Village subdivision could not have created lots that are explicitly marked
"not in plat." We agree with the Hearings Officer's conclusion that lots were not created thereby,
but could have been consolidated. See Weyerhaeuser Real Estate Development Co. v. Polk
County, 63 Or LUBA 393, aff'd 246 Or App 548 (2011).
Lot of Record (A)(5): Staff is unable to locate testimony specific to this issue.
Fancher
ORS 92.017: Beleveron disagrees with Mr. McGean's argument that the plat of the Seventh
Mountain Golf Village eliminated lawfully created lots. If the Board agrees with Mr. Kine's position
and finds that the BLM subdivision created four lots, the boundaries of those lots are protected
by ORS 92.017. The lots meet the definition of a "lot" provided by ORS 92.010 and the County's
codes. The materials I am filing with this letter (listed above) set out a similar argument for parcels
created by deed.
Weyerhaeuser: The Weyerhaeuser case cited by Mr. McLean stands for the proposition that
subdivision lots located within the boundaries of platted partition parcels are eliminated by the
partition plat. The legal effect of the plat is to eliminate old parcels where new ones are created.
Where, as here, the plat specifically states that certain land is not a part of the plat, no new lots
are created to eliminate lawfully established property lines.
Lot of Record (A)(5): The Seventh Mountain Golf Village subdivision, on its face, excluded a part
of the parent parcel or parcels from the land platted and this area is a remainder lot of record or
multiple lots of record.
Conclusion
The cumulative effect of the staff -recommended analysis is:
• To the extent multiple BLM "parcels" existed at the time of the 1990 plat, these parcels
were "further divided" and the status of the "parcels" before the 1990 plat is irrelevant.
• The subject property (the Widgi Creek golf course) was created by platting the
Seventh Mountain Golf Village on the BLM-conveyed lands.
• The golf course is the "not -in -plat" remainder left over from the 1990 plat. Under Lot
of Record section (A)(5) this land can only be a single remainder Lot of Record.
If the Board concurs with this analysis, staff can produce a draft decision with no further
deliberative direction. If the Board concludes otherwise, staff will return with the additional
deliberative matters to be resolved.
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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 Business Meeting of July 30, 2018
DATE: July 25, 2018
FROM: Jacob Ripper, Community Development, 541-385-1759
TITLE OF AGENDA ITEM:
PUBLIC HEARING: DSL Plan Amendment & Zone Change at 21425 Stevens Road
BACKGROUND AND POLICY IMPLICATIONS:
Preparation for a public hearing on July 30 to consider a Plan Amendment and
Zone Change for a Department of State Lands (DSL) property adjacent to the City of Bend's
UGB. This will be the second of two required public hearings. Following the first public hearing,
the Hearings Officer issued a recommendation of approval.
FISCAL IMPLICATIONS: None
ATTENDANCE: Jacob Ripper, Senior Planner
STAFF MEMORANDUM
Date: July 25, 2018
To: Board of County Commissioners
From: Jacob Ripper, Senior Planner
Re: Public Hearing following a Hearings Officer's Decision on a Zone Change and Plan
Amendment for the Oregon Department of State Lands (247 -17 -000726 -PA / 727-ZC).
The Board of County Commissioners (Board) is conducting a public hearing on July 30, 2018, to
consider a Plan Amendment and Zone Change for a Department of State Lands (DSL) property. The
applicant requests approval of a Comprehensive Plan Map Amendment to change a portion of the
subject property from an Agricultural designation to a Rural Residential designation. The applicant
also requests approval of a corresponding Zoning Map Amendment (Zone Change) to change the
same portion of the subject property from Exclusive Farm Use (EFU) to Multiple Use Agricultural
(MUA-10). This will be the second of two required public hearings.
The Hearings Officer's Decision recommending approval of the application is attached to this memo
(Attachment 3). There was no appeal filed. Staff has prepared a draft ordinance (Attachment 2) for
the Board's consideration, which will be updated and finalized to reflect the Board's decision
following the public hearing and deliberation.
I. STANDARDS & APPLICABLE CRITERIA
Deschutes County Code Title 18, County Zoning Ordinance
Chapter 18.04, Title, Purpose, and Definitions.
Chapter 18.16, Exclusive Farm Use Zones.
Chapter 18.32, Multiple Use Agricultural Zone.
Chapter 18.136, Amendments.
Deschutes County Code Title 22, Procedures Ordinance
Deschutes County Code Title 23, Comprehensive Plan
Chapter 2, Resource Management.
Chapter 3, Rural Growth Management.
117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
1 (541) 388-6575 cdc&deschutes.org www.des(@utes.org/cd
Appendix C, Transportation System Plan.
Oregon Administrative Rules (OAR), Chapter 660
Division 6, Goal 4 Forest Lands.
Division 12, Transportation Planning.
Division 15, Statewide Planning Goals and Guidelines.
Division 33, Agricultural Land.
Oregon Revised Statues (ORS)
Chapter 215.211, Agricultural Land, Detailed Soils Assessment.
11. BACKGROUND
The subject property (Stevens Road Tract, or "SRT") is part of Trust Lands that are managed by DSL
for the exclusive benefit of the Common School Fund (CSF) as directed by the State Land Board (the
Governor, Secretary of State, and the State Treasurer). CSF lands were granted to the state by the
federal government at statehood to support K-12 public schools throughout the state. The SRT was
acquired from the federal government in the mid-1990s to compensate for deficiencies in the
original land allocation at the time of statehood.
Previous land use actions relevant to this application are:
PA -11-7 and ZC-11-2: A Plan Amendment and Zone Change application which was approved for
the western portion of the subject property. The applicant was also DSL. This portion of the
property was included in the City of Bend's most recent Urban Growth Boundary (UGB) expansion.
247 -17 -000726 -PA and 727-ZC (subject application): The application now before the Board was
previously reviewed and approved by a Deschutes County Hearings Officer. A second de novo
hearing before the Board is required by the land use procedures of DCC Title 22 because the
subject property involves consideration of an agricultural land designation.
111. TIMELINE
This proposal is not subject to the statutory 150 -day timeline that applies to other land use actions.
IV. PUBLIC COMMENTS
The attached Hearings Officer's Decision includes two public comments that were received for this
application prior to the hearing. One additional comment letter was received in response to the
notice of this hearing and was provided to the Board at a work session on July 25. The main concerns
were directed towards the actual development of the subject property, a desire to preserve the land
for open space, and consideration of amending the Comprehensive Plan and Zoning Map for other
private properties nearby. Although the concerns expressed in written comments and in oral
testimony were reasonable, most were directed toward topics outside of the relevant approval
criteria.
247 -17 -000726 -PA / 727-ZC Page 2 of 3
V. STATEWIDE PLANNING GOAL 3 & SOILS
The applicant is not pursuing an exception to Goal 3 (Agricultural Lands) as the property does not
meet the requirements for an agricultural land designation, which is mainly defined as being
predominantly composed of class I -VI soils (OAR 660-033-0020). The application materials included
a soil study for the entire SRT, which was used as part of the previous proposal for the western
portion of the SRT. Initially, staff had some uncertainty regarding the submitted soil study. The soil
study demonstrates a greater predominance of class VII and VIII soils (87%) than the NRCS soil
survey map (67%). However, there is a requirement that soil studies be certified by the Department
of Land Conservation and Development (DLCD) when the county relies on that information for this
type of comprehensive plan amendment. The soil study was prepared prior to this state
requirement going into effect, but the application for the plan amendment for the western portion
of the SRT was submitted shortly after the requirement going into effect.
The Hearings Officer's Decision outlines this in detail. In summary, the Hearings Officer states:
In this case, staff analyzed the NRCS maps and demonstrated that, on their face, the maps
show that the property is at least 67% non-agricultural land on average. This is less than the
87% the applicant found based on its soil survey but nevertheless demonstrates that the site
consists of predominantly non-agricultural soils. This is evidence independent of the soil
survey. So, the soil survey confirms staff's map analysis and consideration of the soil survey
would, at most, be harmless error. The issue raised by the rule might be closer if anyone had
introduced evidence that the NRCS maps are inaccurate, that staff miscalculated or some
other evidence that the property consists predominantly of agricultural soils. (p. 34)
VI. RECORD
The record to date is available for inspection at the Planning Division and at the following link:
http://dial.deschutes..org/Real/DevelopmentDocs/151656. Moreover, the complete record will be
available at the public hearing. As a courtesy, staff has also prepared a printed copy of these
materials which have been and will continue to be available for review by the Board in the County
Commissioners' offices.
VII. CONCLUSION
The Hearings Officer's decision for this application identifies all applicable zoning ordinances and
evaluates compliance with the criteria and standards of those ordinances. The Hearings Officer
found the proposal meets all of the requirements and recommends approval.
Attachments:
1. Area Map
2, Draft Ordinance 2018-011
3. Hearings Officer's Decision
247 -17 -000726 -PA / 727-ZC Page 3 of 3
Attachment 1
Area Map
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247 -17 -000726 -PA 247-17-000727-ZC
Bend City Limit Applicant: Oregon Department of State Lands
w®oo..a
ever Urban Growth Boundary Taxlot Number: 18-12-00-00-01800
e:e Subject Property 18-12-00-00-01800 Address: 21425 Stevens Road, Bend
Comprehensive Plan & Zoning
AG & EFUTRB l�
RREA & MUA10
0 150300 fi00 900 1.]00 1.500 1800 r
i' Surface Mining r"
I°z'� .y"`""^. April 21), 2018
Attachment 2
Draft Ordinance 2018-011
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Deschutes County Code
Title 23, the Deschutes County Comprehensive Plan,
* ORDINANCE NO. 2018-011
to Change the Comprehensive Plan Map Designation
for Certain Property From Agriculture to Rural
Residential Exception Area, and Amending
Deschutes County Code Title 18, the Deschutes
County Zoning Map, to Change the Zone
Designation for Certain Property From Exclusive
Farm Use to Multiple Use Agricultural, and
Declaring and Emergency.
WHEREAS, the Oregon Department of State Lands applied for changes to both the Deschutes County
Comprehensive Plan Map and the Deschutes County Zoning Map, to change a portion of the subject property
from an Agricultural (AG) designation to a Rural Residential Exception Area (RREA) designation and a
corresponding zone change from Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA-10); and
WHEREAS, after notice was given in accordance with applicable law, a public hearing was held on April
24, 2018, before the Deschutes County Hearings Officer and, on May 9, 2018, the Hearings Officer recommended
approval of both the Comprehensive Plan Map change and Zoning Map change; and
WHEREAS, after notice was given in accordance with applicable law, a de novo public hearing was held
on July 30, 2018, before the Board of County Commissioners ("Board"); and
WHEREAS, the Board, after review conducted in accordance with applicable law, both approved the plan
amendment to change the Comprehensive Plan Map designation from Agriculture to Rural Residential Exception
Area, and approved the Zoning Map amendment to change from Exclusive Farm Use (EFU) to Multiple Use
Agricultural (MUA-10); now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. AMENDMENT. DCC Section 23.01.010, Introduction, is amended to read as described
in Exhibit "D" attached and incorporated by reference herein, with new language underlined.
Section 2. AMENDMENT. Deschutes County Comprehensive Plan Section 5.12, Legislative
History, is amended to read as described in Exhibit "E" attached and incorporated by reference herein, with new
language underlined.
PAGE 1 OF 2 - ORDINANCE NO. 2018-011
Section 3. AMENDMENT. DCC Title 23, Deschutes County Comprehensive Plan Map, is
amended to change the plan designation for certain property described in Exhibit "A" and depicted on the map set
forth as Exhibit "B", with both exhibits attached and incorporated by reference herein, from Agriculture to Rural
Residential Exception Area.
Section 4. AMENDMENT. DCC Title 18, Zoning Map, is amended to change the zone designation
from Exclusive Farm Use (EFU) to Multiple Use Agricultural (1\4UA-10) for certain property described in Exhibit "A"
and depicted on the map set forth as Exhibit "C."
Section 5. FINDINGS. The Board adopts as its findings in support of this Ordinance, the Decision
of the as set forth in Exhibit "F", and incorporated
by reference herein.
Dated this of , 2018 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
Recording Secretary
Date of 1St Reading:
Date of 2nd Reading:
ANTHONY DEBONE, Chair
PHILIP G. HENDERSON, Vice Chair
TAMMY BANEY, Commissioner
day of , 2018.
day of , 2018.
Record of Adoption Vote:
Commissioner Yes No Abstained Excused
Anthony DeBone
Philip G. Henderson
Tammy Baney
Effective date: day of 92018.
PAGE 2 OF 2 - ORDINANCE NO. 2018-011
Exhibit "A"
[The applicant will provide a meets and bounds description]
Citj�of
'�:Bend
URA
Taxlot
18-12-00-00-01800
Taxlot
18-12-00-00-01800
Plan Amendment from
Agriculture (AG)
to
Rural Residential Exception Area (RREA)
Taxlot
18-12-00-00-01700
Deschutes County
Road Dept.
AG
r' S
' r f Knott
F + Landfill
Legend
Proposed Plan Amendment Boundary
I ®j Bend City Limit
Urban Growth Boundary
Comprehensive Plan Designation
" AG -Agriculture
RREA- Rural Residential Exception Area
RREA
PROPOSED BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
COMPREHENSIVE PLAN MAP
Exhibit "B"
to Ordinance 2018-011
V V
0 250 500 1,000 1,500
Feet
July 24, 2018
Tony DeBone, Chair
Phil Henderson, Vice Chair
Tammy Barley, Commissioner
ATTEST: Recording Secretary
Dated this_ day of , 2018
Effective Date: , 2018
�j1of,
end
B
URA
Taxlot
18-12-00-00-01800
Taxlot
18-12-00-00-01700
10
Taxlot
18-12-00-00-01800
Zone Change from
Exclusive Farm Use (EFUTRB)
to
Multiple Use Agricultural (MUA10)
Deschutes County
Road Dept.
EFUTRB
1 Knott
Landfill
ytM11551 {7
Legend
dooms
Proposed Zone Change Boundary
1® Bend City Limit
Urban Growth Boundary
County Zoning
EFUTRB - Tumalo/Redmond/Bend Subzone
MUA10 - Multiple Use Agricultural
PROPOSED
ZONING MAP
Exhibit "C"
to Ordinance 2018-011
0 250 500 1,000 1,500
Feet
July 24, 2018
MUA10
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
Tony DeBone, Chair
Phil Henderson, Vice Chair
Tammy Baney, Commissioner
ATTEST: Recording Secretary
Dated this day of , 2018
Effective Date: , 2018
Chapter 23.01 COMPREHENSIVE PLAN
Chapter 23.01 COMPREHENSIVE PLAN
23.01.010. Introduction.
A. The Deschutes County Comprehensive Plan, adopted by the Board in Ordinance 2011-003
and found on the Deschutes County Community Development Department website, is incorporated
by reference herein.
B. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2011-027, are incorporated by reference herein.
C. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2012-005, are incorporated by reference herein.
D. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2012-012, are incorporated by reference herein.
E. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2012-016, are incorporated by reference herein.
F. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2013-002, are incorporated by reference herein.
G. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2013-009, are incorporated by reference herein.
H. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2013-012, are incorporated by reference herein.
I. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2013-007, are incorporated by reference herein.
J. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-005, are incorporated by reference herein.
K. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-006, are incorporated by reference herein.
L. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-012, are incorporated by reference herein.
M. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-021, are incorporated by reference herein.
N. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-027, are incorporated by reference herein.
O. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2015-021, are incorporated by reference herein.
P. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2015-029, are incorporated by reference herein.
Q. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2015-018, are incorporated by reference herein.
R. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2015-010, are incorporated by reference herein.
S. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-001, are incorporated by reference herein.
T. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-022, are incorporated by reference herein.
U. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-005, are incorporated by reference herein.
PAGE 1 OF 2 — EXHIBIT D TO ORDINANCE NO. 2018-011
V. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-027, are incorporated by reference herein.
W. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-029, are incorporated by reference herein.
X. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2017-007, are incorporated by reference herein.
Y. The Deschutes County; Comprehensive Plan amendments, adopted by the Board in Ordinance
2018-002, are incorporated by reference herein.
Z. The Deschutes County Comprehensive Plan amendments adopted by the Board in Ordinance
2018-006 are incorporated by reference herein.]
J�&The Deschutes County Comprehensive _Plan _amendments, adopted by Board in Ordinance
2018 -XXX, are incorporated by reference herein.]
BB.._ The Deschutes CountyC_oUi?rghensive Plat_amendments, dopted by the ,Board _in Ordinance
2018.011, are incorpolatedby reference herein.
Ord. 201 -01,1 1�� Z01& d._2018 -XXX _§l,_201.8, Ord. 2018-006 �1, 2018 JLOrd. 2018-002 §1,
2018; Ord. 2017-007 § 1, 2017; Ord. 2016-029 § 1, 2016; Ord. 2016-027 § 1, 2016; Ord. 2016-005 § 1,
2016; Ord. 2016-022 §1, 2016; Ord. 2016-001 §1, 2016; Ord. 2015-010 §1, 2015; Ord. 2015-018 § 1,
2015; Ord. 2015-029 § 1, 2015; Ord. 2015-021 § 1, 2015; Ord. 2014-027 § 1, 2014; Ord. 2014-021
§1, 2014; Ord. 2014-12 §1, 2014; Ord. 2014-006 §2, 2014; Ord. 2014-005 §2, 2014; Ord. 2013-012
§2, 2013; Ord. 2013-009 §2, 2013; Ord. 2013-007 §1, 2013; Ord. 2013-002 §1, 2013; Ord. 2013-001
§ 1, 2013; Ord. 2012-016 § 1, 2012; Ord. 2012-013 § 1, 2012; Ord. 2012-005 § 1, 2012; Ord. 2011-027
§1 through 12, 2011; Ord. 2011-017 repealed; Ord.2011-003 §3, 2011)
Click here to be directed to the Comprehensive Plan (http://www.deschutes.or cosnpplan)
NOTE: Items in [brackets] are pending amendments that
are not final yet.
PAGE 2 OF 2 - EXHIBIT D TO ORDINANCE NO. 2018-011
sect�ow ss2 �eg�s�at�ve r-F�stor�
Background
This section contains the legislative history of this Comprehensive Plan.
Table S.1 I.1 Comprehensive Plan Ordinance History
Ordinance
Date Adopted/
Chapter/Section
Amendment
Effective
All, except
Transportation, Tumalo
and Terrebonne
2011-003
8-10-1 1/ 1 1-9-1 1
Community Plans,
Comprehensive Plan update
Deschutes Junction,
Destination Resorts and
ordinances adopted in
2011
2.5, 2.6, 3.4, 3.10, 3.5,
Housekeeping amendments to
2011-027
10-31-1 1 / 1 1-9-1 1
4.6, 5.3, 5.8, 5.1 1,
23.40A, 23.408,
ensure a smooth transition to
23.40.065, 23.01.010
the updated Plan
23.60, 23.64 (repealed),
Updated Transportation
2012-005
8-20-12/11-19-12
3.7 (revised), Appendix C
System Plan
(added)
2012-012
8-20-12/8-20-12
4.1, 4.2
La Pine Urban Growth
Boundary
2012-016
12-3-12/3-4-13
3.9
Housekeeping amendments to
Destination Resort Chapter
Central Oregon Regional
2013-002
1-7-13/1-7-13
4.2
Large -lot Employment Land
Need Analysis
Comprehensive Plan Map
Amendment, changing
2013-009
2-6-13/5-8-13
1.3
designation of certain
property from Agriculture to
Rural Residential Exception
Area
Comprehensive Plan Map
2013-012
5-8-13/8-6-13
23.01.010
Amendment, including certain
property within City of Bend
Urban Growth Boundary
Newberry Country: A Plan
2013-007
5-29-13/8-27-13
3.10, 3.1 1
for Southern Deschutes
County
Page I of 4 - EXHIBIT E TO ORDINANCE NO. 2018-011
Page 2 of 4 - EXHIBIT E TO ORDINANCE NO. 2018-011
Comprehensive Plan Map
2013-016
10-21-13/10-21-13
23.0 1.010
Amendment, including certain
property within City of Sisters
Urban Growth Boundary
Comprehensive Plan Map
2014-005
2-26-14/2-26-14
23.01.010
Amendment, including certain
property within City of Bend
Urban Growth Boundary
2014-012
4-2-14/7-1-14
3.10, 3.1 1
Housekeeping amendments to
Title 23.
Comprehensive Plan Map
Amendment, changing
designation of certain
2014-021
8-27-14/11-25-14
23.01.010, 5.10
property from Sunriver Urban
Unincorporated Community
Forest to Sunriver Urban
Unincorporated Community
Utility
Comprehensive Plan Map
Amendment, changing
designation of certain
2014-021
8-27-14/11-25-14
23.01.010, 5.10
property from Sunriver Urban
Unincorporated Community
Forest to Sunriver Urban
Unincorporated Community
Utility
Comprehensive Plan Map
Amendment, changing
2014-027
12-15-14/3-31-15
23.01.010, 5.10
designation of certain
property from Agriculture to
Rural Industrial
Comprehensive Plan Map
Amendment, changing
2015-021
1 1-9-15/2-22-16
23.01.010
designation of certain
property from Agriculture to
Surface Mining.
Comprehensive Plan Map
Amendment, changing
2015-029
11-23-15/11-30-15
23.01.010
designation of certain
property from Tumalo
Residential 5 -Acre Minimum
to Tumalo Industrial
2015-018
12-9-15/3-27-16
23.01.010, 2.2, 4.3
Housekeeping Amendments
to Title 23.
Page 2 of 4 - EXHIBIT E TO ORDINANCE NO. 2018-011
Page 3 of 4 - EXHIBIT E TO ORDINANCE NO. 2018-011
Comprehensive Plan Text and
2015-010
12-2-15/12-2-15
2.6
Map Amendment recognizing
Greater Sage -Grouse Habitat
Inventories
Comprehensive Plan Map
Amendment, changing
2016-001
12-21-15/04-5-16
23.01.010; 5.10
designation of certain
property from, Agriculture to
Rural Industrial (exception
area)
Comprehensive Plan
Amendment to add an
exception to Statewide
2016-007
2-10-16/5-10-16
23.01.010; 5.10
Planning Goal I I to allow
sewers in unincorporated
lands in Southern Deschutes
County
Comprehensive Plan
Amendment recognizing non -
2016 -005
11-28-16/2-16-17
23.01.010, 2.2, 3.3
resource lands process
allowed under State law to
change EFU zoning
Comprehensive plan
2016-022
9-28-16/11-14-16
23.01.010, 1.3, 4.2
Amendment, including certain
property within City of Bend
Urban Growth Boundary
Comprehensive Plan Map
Amendment, changing
2016-029
12-14-16/12/28/16
23.01.010
designation of certain
property from, Agriculture to
Rural Industrial
Comprehensive Plan Map
Amendment, changing
2017-007
10-30-17/10-30-17
23.01.010
designation of certain
property from Agriculture to
Rural Residential Exception
Area
Comprehensive Plan
2018-002
1-3-18; 1-25-18
23.01, 2.6
Amendment permitting
churches in the Wildlife Area
Combining Zone
Page 3 of 4 - EXHIBIT E TO ORDINANCE NO. 2018-011
[ 2018-0061
j XX-XX-181
f 23.01.010, 5.8, 5.9 1
Housekeeping Amendments
correcting tax lot numbers in
Non-Significant Minims Mineral
and Aggregate Inventory;
modifying Goal 5 Inventory of
Cultural and Historic
Resources 1
2018-XXX 11
XX-XX- 181
f 23.01.010, 5.8, etc. 1
j Comprehensive Plan Map
Amendment, changing
designation of certain
property from Surface Mine
to Rural Residential Exception
Area
f 2018-011 11 1
f XX-XX-181
[ 23.01.0101
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture to
Rural Residential Exception
Area
NOTE: Items in [brackets] are pending amendments that
are not final yet.
Page 4 of 4 - EXHIBIT E TO ORDINANCE NO. 2018-011
Exhibit "F"
[The written decision of the Deschutes County Board of Commissioners or the
Hearings Officer]
Attachment 3
Hearings Officer's Decision
Mailing Date:
Wednesday, May 09, 2018
HEARINGS OFFICER REPORT
FILE NUMBERS: 247 -17 -000726 -PA, 727-ZC
HEARING: April 24, 2018, 6:00 p.m.
Barnes & Sawyer Rooms
Deschutes Services Center
1300 NW Wall Street
Bend, OR 97708
APPLICANT/OWNER: Oregon Department of State Lands (DSL)
John M. Swanson, Real Property Planner
775 Summer St. NE, Ste. 100
Salem, OR 97301
AGENT FOR APPLICANT: Angelo Planning Group
Matt Hastie, Project Manager
921 SW Washington St., Ste. 468
Portland, OR 97205
PROPOSAL: The applicant requests approval of a Comprehensive Plan Map
Amendment to change a portion of the subject property from an
Agricultural (AG) designation to a Rural Residential Exception Area
(RREA) designation. The applicant also requests approval of a
corresponding Zoning Map Amendment to change a portion of the
subject property from Exclusive Farm Use (EFU) to Multiple Use
Agricultural (MUA-10).
STAFF REVIEWER: Jacob Ripper, Senior Planner
HEARINGS OFFICER: Dan R. Olsen
SUMMARY OF DECISION: Approved
This decision adopts the staff report with minor edits and except as denoted 'Hearings Officer'.
I. APPLICABLE STANDARDS AND CRITERIA:
Deschutes County Code Title 18, County Zoning Ordinance
Chapter 18.04, Title, Purpose, and Definitions
Chapter 18.16, Exclusive Farm Use Zones
Chapter 18.32, Multiple Use Agricultural Zone
Chapter 18.136, Amendments
Deschutes County Code Title 22, Procedures Ordinance
Deschutes County Comprehensive Plan
Chapter 2, Resource Management
Chapter 3, Rural Growth Management
Appendix C, Transportation System Plan
Oregon Administrative Rules (OAR), Chapter 660
Division 6, Forest Lands
Division 12, Transportation Planning
Division 15, Statewide Planning Goals and Guidelines
Division 33, Agricultural Land
Oregon Revised Statues (ORS)
Chapter 215.211, Agricultural Land, Detailed Soils Assessment.
11. FINDINGS OF FACT:
A. LOCATION: The subject property has an assigned address of 21425 Stevens Road, Bend, and
includes an approximately 260 -acre area in the eastern portion of the property identified on
the County Assessor's Map No. 18-12-(11), as tax lot 1800. The property is described in the
application as both the Stevens Road Tract (SRT) and Section 11. The portion of the subject
property that these applications address lies directly east of the Urban Growth Boundary
(UGB) running diagonally through the subject property (see map below).
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 2 of 41
all 5W
Park z
W
v
z
W
}
4
o�asn>ira�
COYOTE DF
r
Shaded area is subject portion of the property.]
Map and tax lot: 1812000001800
tiw------
Dcs chutes l'.ouu0� CIS, Sur a_.- Es t,, U.:G:3, NCiCti4
B. LOT OF RECORD: The subject tax lot 1800, together with the adjoining tax lot 1700, form a
single legal lot of record pursuant to the previous land use decisions CU -97-132, PA -11-7, and
ZC-11-2.
C. PROPOSAL: The applicant requests approval of a Comprehensive Plan Map Amendment to
change a portion of the subject property from an Agricultural (AG) designation to a Rural
Residential Exception Area (RREA) designation. The applicant also requests approval of a
corresponding Zoning Map Amendment to change a portion of the subject property from
Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA-10). The applicant asks that
Deschutes County change the zoning and the plan designation because the subject property
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 3 of 41
does not qualify as "agricultural land" under Oregon Revised Statutes (ORS) or Oregon
Administrative Rules (OAR) definitions. The applicant proposed that no exception to
Statewide Planning Goal 3, Agricultural Land is required because the subject property is not
agricultural land.
The area west of the UGB is not part of the subject application, as it has already been
approved for a similar Plan Amendment and Zone Change.
Submitted with the application is an Order 1 Soil Survey of the subject property, titled "Soil
Investigation for Stevens Road Tract" (hereafter referred to as "soil study"), and an
amendment to the soil study. The soil study was prepared by soil scientist Roger Borine,
CPSC, CPSS, PWS of Sage West, LLC. The applicant has also submitted a traffic analysis
prepared by Kittelson & Associates, titled "Transportation Planning Rule Analysis", and an
amendment to the traffic study. Additionally, the applicant has submitted an application
form, a burden of proof statement, a revised burden of proof statement, and other
supplemental materials, all of which are included in the record for the subject applications.
D. ZONING AND PLAN DESIGNATIONS: The subject property is within the land use
management jurisdiction of the City of Bend for the western portion and Deschutes County
for the eastern portion. The Deschutes County Comprehensive Plan map designates the
subject eastern portion of the property as Agriculture. The western portion has been
incorporated into the Urban Growth Boundary (UGB), where the City of Bend's
Comprehensive Plan applies. The subject eastern portion of the property is within the
Exclusive Farm Use Zone - Tumalo/Redmond/Bend subzone (EFU-TRB), while the western
portion is within the Urbanizable Area (UA) and Residential Standard Density (RS) Zones.
E. SITE DESCRIPTION: The SRT, or Section 111, is an undeveloped square mile (640 acres) of
scrub sagebrush, juniper, ponderosa pine, and lava rock. An underground natural gas
pipeline diagonally bisects the property from the northern property line to the southern
property line. The western portion of the SRT property, which is approximately the area west
of the natural gas pipeline, was previously rezoned from EFU-TRB to MUM 0 in 2013. The
western portion of the site was subsequently added to the Bend UGB in 2016. As a result,
the UGB abuts the entire western boundary of the subject eastern portion of the SRT.
Although the property is zoned EFU, there is no indication in the record of current or historic
farm uses or agricultural uses. The property is not in farm tax deferral as it is owned by the
Oregon Department of State Lands, and is thereby exempt from property taxes. The
property does not contain any irrigated areas nor does it have irrigation water rights. There
are also several trails on the property and a cluster of lava tube caves identified in the
applicant's Exhibit A attached to the application materials.
F. SURROUNDING LAND USES: Surrounding land uses generally consist of urban residential,
rural residential, agricultural, and civic/institutional uses. To the west of the SRT is the City of
1 The applicant refers to the subject property as both the SRT (Stevens Road Tract) and Section 11 in the application
materials.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 4 of 41
Bend, where properties across SE 27th Street are developed with single-family dwellings and
a manufactured home park. To the south of the SRT are properties developed with buildings
and facilities for the Humane Society of Central Oregon, the Deschutes County Road
Department, the Central Electric Cooperative, and the Knott Landfill. To the east and north
of the SRT are private properties mostly developed with dwellings and some are engaged in
agricultural or small-scale farm uses.
Zoning in the areas to the northwest, west, and southwest consist of City of Bend Zones
Residential Standard Density (RS), Residential Low Density (RL), Urbanizable Area (UA), and
Public Facility (PF). The remaining areas to the south, east, and north are zoned Exclusive
Farm Use (EFU) or Multiple Use Agricultural (MUA-10).
G. SOILS: According to Natural Resources Conservation Service (NRCS) maps of the area, the
subject eastern portion of the property contains four soil units. The mapped soil units are
listed below. The applicant submitted a soil study report (applicant's Exhibit B), which was
prepared by a certified soils scientist and soil classifier that determined the entire 640 -acre
SRT was predominantly comprised of soils that do not qualify as Agricultural Land'. The
purpose of this soil study was to inventory and assess the soils on the subject property and
to provide more detailed data on soil classifications and ratings than is contained in the NRCS
soils maps. The NRCS soil map units identified on the subject eastern portion of the property
are below.
27A Clovkamp Loamy Sand: Clovkamp Loamy Sand soils consist of 85 percent Clovkamp
soils and similar inclusions and 15 percent contrasting inclusions. The contrasting inclusions
for the Clovkamp soils consist of Deskamp soils on side slopes. The major uses of this soil
are irrigated cropland and livestock grazing. The agricultural capability ratings of this soil are
3s when irrigated and 6s when not irrigated. Section 18.04.030 of the DCC considers this soil
type high-value farmland when irrigated. Approximately seven (7) percent of the subject
parcel is made up of this soil type.
36A Deskamp loamy sand 0 to 3 percent slopes: This soil complex is composed of 85 percent
Deskamp soil and similar inclusions, and 15 percent contrasting inclusions. The Deskamp
soils are somewhat excessively drained with a rapid over moderate permeability, and about
5 inches of available water capacity. Major uses of this soil type are irrigated cropland and
livestock grazing. The agricultural capability rating for 36A soils are 3S when irrigated, and 6S
when not irrigated. This soil is high-value when irrigated. Approximately two (2) percent of
the subject parcel is made up of this soil type.
38B Deskamp-Gosney complex 0 to 8 percent slopes: This soil is composed of 50 percent
Deskamp soil and similar inclusions, 35 percent Gosney soil and similar inclusions, and 15
percent contrasting inclusions. The Deskamp soils are somewhat excessively drained with
rapid permeability, and an available water capacity of about 3 inches. The Gosney soils are
somewhat excessively drained with rapid permeability, and an available water capacity of
I As defined in OAR 660-033-0020, 660-033-0030
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 5 of 41
about 1 inch. The contrasting inclusions contain Clovkamp soils in swales, soils that are very
shallow to bedrock, and are on ridges with occasional rock outcrops. The major use of this
soil is for livestock grazing. The Deskamp soils have ratings of 6e when unirrigated, and 3e
when irrigated. The Gosney soils have ratings of 7e when unirrigated, and 7e when irrigated.
This soil type is not considered high-value soil. Approximately six (6) percent of the subject
parcel is made up of this soil type.
58C Gosney--Rock Outcrop-Deskamp complex, 0 to 15 percent slopes: This soil type is
comprised of 50 percent Gosney soil and similar inclusions, 25 percent rock outcrop, 20
percent Deskamp soil and similar inclusions, and 5 percent contrasting inclusions. Gosney
soils are somewhat excessively drained with rapid permeability. The available water capacity
is about 1 inch. Deskamp soils are somewhat excessively drained with rapid permeability.
Available water capacity is about 3 inches. The major use for this soil type is livestock grazing.
The Gosney soils have ratings of 7e when unirrigated, and 7e when irrigated. The rock
outcrop has a rating of 8, with or without irrigation. The Deskamp soils have ratings of 6e
when unirrigated, and 4e when irrigated. Approximately 83 percent of the subject parcel is
made up of this soil type.
H. PUBLIC AND PRIVATE AGENCY COMMENTS: The Planning Division mailed notice of the
application and notice of the public hearing to several agencies and the following comments
were received:
Arnold Irrigation District
The District monitors construction or building activities near mapped water right areas. Tax Map
18-12-(11), as tax lot 1800, does not have a water right with Arnold Irrigation District. The District
has no conveyance system, assets or facilities with this tax lot.
Bend Fire Department
No fire department comments will be submitted regarding zone change only for 247 -17 -000726 -
PA & 727-ZC.
Bend Park & Recreation District
Bend Park and Recreation District (BPRD) has three comments:
1. BPRD's adopted Trails Master Plan designates the gas line easement of the TransCanada
Pipeline (the dividing line between the aforementioned property and the property of the some
address to the west) as a Planned Primary Trail.
2. Additionally, the BPRD adopted Trails Master Plan designates a Planned Connector Trail from
NE 27th St. through the property to the west of the aforementioned property to the
TransCanada Pipeline.
3. BPRD is interested in discussing the provision of parks and trails on the property to the west
that was recently brought into the Urban Growth Boundary.
Central Oregon Irrigation District
COLD FACILITIES:
• COID has two facilities on subject's property
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 6 of 41
o The COC has a 100' right of way along with a road on the west side of the canal
with a 20'right of way
o The smaller delivery ditch has a 20'right of way
COID WATER RIGHTS: none
COID GUIDELINE STATEMENT none
Staff Comment: COID also included a map depicting the rights-of-way, which are located in
the far northwest portion of the SRT, and are not located within the area of the subject
applications. The COID map is included in the record.
City of Bend Growth Management Department
Thanks for the copy of the notice on the above -referenced application of the Department of State
Lands. We have no comments on their application for a plan map amendment and zoning map
amendment.
Please send on copies of the Staff Report and final decisions and any adopting ordinance of the
Board of County Commissioners. Our interest is in keeping track of changes in land use around
the current UGB before we prepare for the next UGB evaluation.
Deschutes County Road Department
I have reviewed the application materials for the above -referenced file numbers, proposing a
Comprehensive Plan Map Amendment and Zone Change for the Stevens Road Tract. I will reiterate
the comments submitted by Peter Russell, Senior Transportation Planner with Deschutes County
CDD.
Deschutes County Transportation Planner
I have reviewed the transmittal materials for 247-17-000726-PA/727-CU to amend the
Comprehensive Plan from Agriculture to Rural Residential and the zoning map from Exclusives
Farm Use (EFU) to Multiple Use Agriculture (MUA-10) on 242 acres at 21425 Stevens Road, aka 16-
12-15, Tax Lot 1300. The subject property, which belongs to Department of States Lands (DSL) is
often referred to as Section 11 and this land use application would change the land use
designations to the some as the western half of Section 11 which went through a similar process
in 2011.
The most recent edition of the Institute of Traffic Engineers (ITE) Trip Generation Handbook
indicates a single-family residence (Land Use 210) generates an average of approximately 10 daily
weekday trips including one trip in the p.m. peak hour. The 2011 traffic study was based on the
western 380 acres going from EFU to MUA-10. The then -existing EFU zone was expected to generate
100 daily trips and 10 p.m. peak hour trips. The current proposal is for 242 acres to also change
from EFU to MUA-10. As 242 acres is 63% of 380 acres (242/380 X 100), the base traffic under the
EFU zoning should be 63 daily trips (100 X 0.63) and 6 trips in the p.m. peak. The submitted TIA
assumes the existing EFU would generate 50 daily trips and 5 p.m. peak hour trips. The applicant
needs to explain the difference of why they expect 13 fewer daily trips (63-50) under the existing
EFU zone and one less p.m. peak hour trip (6-5). The study's conclusions probably won't change,
but the seeming discrepancy still needs to be explained and Table 1 revised if necessary.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 7 of 41
The study's horizon year is 2030 to be consistent with the horizon years of the Deschutes County
Transportation System Plan (TSP) and the City of Bend TSP. That makes sense. Alas, the 13 year
timeframe is inconsistent with Deschutes County Code (DCC) as DCC 18.116.310(E)(4) specifically
requires a 20 year traffic analysis for zone changes. The study needs to examine affected County
intersections out to 2037.
Board Resolution 2013-020 sets a transportation system development charge (SDC) rate of $3,937
per p.m. peak hour trip. While SDCs are not assessed for this land use, they do apply as sites
develop so the SDC info is provided. For residential uses, County staff has determined a local trip
rate of 0.81 p.m. peak hour trips per single-family dwelling unit, therefore the applicable SDC is
$3,189 ($3,937 X 0.81) per home. The SDC is due prior to issuance of certificate of occupancy,* if a
certificate of occupancy is not applicable, then the SDC is due within 60 days of the land use
decision becoming final.
Staff Comment: The applicant submitted an updated traffic analysis in its supplemental
application materials.
Department of State Lands Planning and Policy Unit Aquatic Resources Management
Program
... a change in land use from normal farming and ranching to other uses removes ground
disturbing activities from removal fill exemptions within wetlands and waters (if any exist on this
property) ... if there are any wetlands or waters on the property (I can't remember the details of
this property) then the change from EFU and farm use removes any agricultural exemptions that
may have applied under removal fill.
Staff Comment: According to the County's property information and maps, the SRT contains
no wetlands, nor does it have a history of farming or ranching activities.
TransCanada Gas Transmission Northwest LLC
Reference is made by the applicant to request approval of a Comprehensive Plan Map Amendment
to change a portion of the subject property from an Agricultural designation to a Rural Residential
designation and from Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA-10). The
proposed subdivision is located on or adjacent to the TransCanada -Gas Transmission NO1 thwest
LLC (GTN) gas pipelines easement in Section 11, T 18 N, R 12 E, W. M. (see attached google earth
image) between Steven's Rd. and Ferguson Rd. in Deschutes County, Oregon.
GTN owns and operates two (2) high-pressure natural gas pipelines which begin at the
U.S./Canada border, extend across Idaho, Washington and Oregon, and end at the
Oregon/California border. The above referenced request affects lands upon which the GTN
pipeline system crosses, containing two (2) high pressure natural gas pipelines, (1) 36 -inch and (1)
42 -inch pipelines which are located within the GTN 83.75 foot easement (50 feet belongs to the
DSL easement# 40319 -EA).
We have no objection to the request but are concerned regarding development of the property.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 8 of 41
We ask that provisions in the Right -of -Way Agreement granted to our company several years ago
be observed. The "Right -of --Way Agreement" grants to GTN a right-of-way 83.75 ft. in width over
and across the property impacted by the applicant's request. It is important that GTN provides
input and is willing to meet with the developer/Community Development Department during the
design phase impacting the GTN pipelines and right-of-way to encourage best practices and
enhance pipeline corridor safety which is in the best interest to us all.
In order to protect the integrity and safety of these pipelines and to safeguard the land rights
obtained several years ago, we ask the following comments to be included by Deschutes County
Planning Division:
1. No buildings or structures of any kind are to be placed upon GTN's right-of-way.
2. No leaching fields, septic tanks, drain fields, wells, reservoirs, or other water
impoundments are to be placed on GTN's right -of --way.
3. Any underground crossing of GTN's right-of-way must be a minimum of one (1) foot above
or two (2) feet below GTN's pipelines and this depth must be maintained across the entire
83.75 ft. right-of-way. A "Consent to Common Use" agreement must be obtained from GTN
before third parties install any facilities over/across the right -of --way. Parallel
encroachments inside the easement are not allowed.
4. Any new permanent road crossings of GTN's right-of-way must make provisions for
protection of the pipelines from the additional external loading superimposed upon the
pipelines by the vehicular traffic using the roadway. GTN reserves the right to design and
install the necessary pipeline protection, if any, however, the cost of design and installation
shall be borne by the proponents of the new roadway.
5. As required by law GTN requests a 48-hour notice by calling 811 (2 working days) prior to
the commencement of any excavation or other work. Any work on the GTN right-of-way
requires than a GTN Field Representative be present. Please contact the GTN Redmond
office at (541) 548-4110.
The following agencies either had no comment or did not respond to the notice: Bend
Public Works Department, Bureau of Land Management, Cascade Natural Gas Co.,
Department of Environmental Quality, Deschutes County Assessor, Oregon Department of
Transportation, Oregon Department of Agriculture, Oregon Department of Fish & Wildlife,
PG & E Gas, U.S. Fish & Wildlife.
I. PUBLIC COMMENTS: On September 8, 2017, the Planning Division mailed a Notice of
Application to all property owners within 750 feet of the subject property. Written comments
were received prior to the hearing from the following individuals:
Steve Brainerd
We were discussing with neighbors [Eric & Amber Wark: Tax Lot 18121200008011 the State of OR:
DSL: Account 151656 812000001800 260 acres: Zoning change EFU-TRB to MUA-10:
The owners of these abutting properties to the east would like to see some type of road access to
the backside of these properties from the future.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 9 of 41
East side abutting properties would like a road access to backside of these properties from Stevens
Road in the PLAN
A road to access these properties in the future.
Please put these comments into the public record for 247 -17 -000726 -PA & ZC
See attached document
Tom and Beth Lomax
We live on Stevens road and will be directly impacted by the proposed land action change on the
State Land to the South of Stevens road. This change would essentially make a 640 acre residential
parcel in what is now MUA or agricultural zoning. Has the parcel on the east side of that property
already had a zoning change? It was my understanding that it was brought into the UBG and that
there would be a zoning change process after that. Please see specific listed comments below.
• The entire parcel of State Land would make an amazing open space park that over time in
Bend would be invaluable.
• This land has unobstructed views of the surrounding mountains, is sheltered from views of
the surrounding city and has natural caves and lava features.
• Due to its size it will be irreplaceable in the future and must be one of the largest
undeveloped parcels in as close to the core of the city that there is in the Bend area.
• There is sufficient private land available in the surrounding area to bring into the UBG or
to change the zoning on, to fulfill the need for additional building areas.
• By changing this entire 640 acres to residential and not the properties to the North between
Stevens Road and the canal, the character of the neighborhoods would be completely
changed.
• These properties are zoned MUA 10 and with all the changes that the development of the
State Land would bring, the use of these properties would be substantially changed.
• If this development were to move forward, the proprieties on the South are insulated
somewhat due to the landfill but on the North Stevens road would be directly impacted.
• If the State Land has to be developed, which I understand is the only way for the State to
see income from this land swap, then the proprieties between Stevens road and the canal
should also be rezoned to allow those propriety owners to change the use or have a better
chance of moving somewhere else that maintains the character of MUA 10.
• If there is any interest in the planning department in walking this property to see some of
its natural attributes I would gladly lead a group around the property.
Staff Comments: The attachments Mr. Brainerd submitted are in the record. Staff has
included a portion of one of the maps to demonstrate the location of the road access
referenced above. The applicant has included a conceptual master plan, but that conceptual
master plan is not being reviewed as part of the subject applications. Only the Plan
Amendment and Zone Change application is being reviewed at the present. Any future
subdivision of the property, if the property were in the jurisdiction of Deschutes County,
would consider road development pursuant to the provisions of DCC Title 17 (the Subdivision
Ordinance) and any other applicable sections of the DCC. Also in Mr. Brainerd's comments
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 10 of 41
are questions as to why there was only one public comment in the record at the time he
submitted comments, and why Central Oregon LanclWatch (COLW) hasn't opposed the
application. Staff notes only two public comments have been received and were included in
the record. Staff also notes that COLW has not participated in the land use process as of the
date of this Staff Report.
The application will be reviewed and eventually approved or denied based only on the
approval criteria that apply to the proposal, which is listed at the beginning of this Staff
Report. The applications only include the subject property, so will not and cannot change the
Comprehensive Plan or Zoning Maps for other nearby properties. If a property owner
desired similar amendments for their own property, then separate applications would be
required and would be reviewed on their own merit. The DSL is not applying for specific
development at this time. Staff also notes the majority of the properties to the north of
Stevens Road and south of the irrigation canal are already zoned MUA-10.
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 September 14, 2017, indicating the applicant posted
notice of the land use action on the property on that same date. On March 6, 2018, the
Planning Division mailed a Notice of Public Hearing to all property owners within 750 feet of
the subject property. A Notice of Public Hearing was published in the Bend Bulletin on
Sunday, March 11, 2018. Notice of the first evidentiary hearing was submitted to the
Department of Land Conservation and Development on March 5, 2018.
K. REVIEW PERIOD: The application was submitted on August 28, 2018. The application was
deemed incomplete on September 25, 2017. Upon submission of additional application
materials, the application was deemed complete on January 29, 2018. According to
Deschutes County Code 22.20.040(D), the review of the proposed quasi-judicial Plan
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 11 of 41
Amendment and Zone Change application is not subject to the 150 -day review period.
L. LAND USE HISTORY: According to the applicant, the SRT is part of Trust Lands that are
managed by DSL for the exclusive benefit of the Common School Fund (CSF) as directed by
the State Land Board (the Governor, Secretary of State, and the State Treasurer). CSF lands
were granted to the state by the federal government at statehood to support K-12 public
schools throughout the state. The SRT was acquired from the federal government in the mid-
1990s to compensate for deficiencies in the original land allocation at the time of statehood.
Previous land use actions associated with the subject property are:
SW3985: A 1980 driveway access permit issued by the Road Department for access to the
subject property from Stevens Road. The owner of the property at the time was the BLM.
CU -97-132: A 1997 conditional use permit to establish a mainline valve and blowdown
assembly for an existing natural gas pipeline. The applicant was Pacific Gas Transmission
Company.
CU -04-21: A 2004 conditional use permit to establish a utility facility consisting of an electric
substation. The applicant was Central Electric Cooperative (CEC). The facility was not
constructed.
PS -09-4: A 2009 Department of State Lands sign -off for a renewal of Central Electric
Cooperative's power line easement across State lands. The applicant was CEC.
PA -11-7 and ZC-11-2: The Plan Amendment and Zone Change applications which were
approved for the western portion of the subject property. The applicant was the DSL.
247 -16 -000075 -PS: A 2016 Department of State Lands sign -off for a renewal of the gas
transmission line easement across State lands. The applicant was TransCanada.
M. HEARINGS OFFICER: At the outset of the hearing I provided the required notices. I
indicated that I had had no ex parte contacts, had not conducted a site visit and had no
conflicts of interest. I asked for but received no procedural or other objections to hearing
this matter. At the end of testimony, I provided an opportunity to keep the record open as
provided by statute, but no request was received.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 12 of 41
III. FINDINGS AND CONCLUSIONS
TITLE 18 OF THE DESCHUTES COUNTY CODE (ZONING ORDINANCE) & THE DESCHUTES COUNTY
COMPREHENSIVE PLAN
A. Chapter 18.136, Amendments
1. Section 18.136.010, Amendments
DCC Title 18 may be amended as set forth in DCC 18.136. The procedures for text or
legislative map changes shall be as set forth in DCC 22.12. A request by a property owner
for a quasi-judicial map amendment shall be accomplished by filing an application on
forms provided by the Planning Department and shall be subject to applicable
procedures of DCC Title 22.
FINDING: The applicant, also the property owner, has requested a quasi-judicial plan amendment
and filed the applications for a Plan Amendment and Zone Change. The applicant has filed the
required Planning Division's land use application forms for the proposal. The application will be
reviewed utilizing the applicable procedures contained in Title 22 of the Deschutes County Code.
2. Section 18 136.020 Rezoning Standards
The applicant for a quasi-judicial rezoning must establish that the public interest is best
served by rezoning the property. Factors to be demonstrated by the applicant are:
A. That the change conforms with the Comprehensive Plan, and the change is
consistent with the plan's introductory statement and goals.
FINDING: The following provisions of Deschutes County's Comprehensive Plan should be
considered in reviewing this proposal to change the plan designation from Agriculture (AG) to Rural
Residential Exception Area (RREA) and to change the zoning from EFU to MUA-10. Other provisions
of the plan do not apply.
Chapter 2 Resource Management
1. Section 2.2, Agricultural Lands Policies
Goal 1, Preserve and maintain agricultural lands and the agricultural industry.
FINDING: As discussed below, the applicant's soil study, NRCS soil data, and the findings in the
submitted burden of proof effectively demonstrate that the subject property is not suitable for
designation as Agriculture in the Comprehensive Plan.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 13 of 41
Policy 2.2.2 Exclusive Farm Use sub -zones shall remain as described in the 1992 Farm Study and
shown in the table below, unless adequate legal findings for amending the sub -zones are
adopted or an individual parcel is rezoned as allowed by Policy2.2.3.
FINDING: The applicant is not asking to amend the subzone that applies to the subject property;
rather, the applicant is seeking a change under Policy 2.2.3 and has provided evidence to support
rezoning the subject property to MUM 0.
Policy 2.2.3 Allow comprehensive plan and zoning map amendments for individual EFU parcels
as allowed by State Statute, Oregon Administrative Rules and this Comprehensive Plan.
FINDING: The applicant has applied for a Zone Change to rezone the subject property from EFU to
MUM 0. The applicant has also applied for a Plan Amendment to support this Zone Change, which
would designate the approximately 260 acres as RREA rather than AG. Rather than pursuing an
exception to Goal 3, which would ordinarily be the method of effectuating such a change, the
applicant has attempted to demonstrate that the subject property does not meet the state
definition of "Agricultural Land", as defined in Statewide Planning Goal 3 (OAR 660-033-0020).
The Land Use Board of Appeals (LUBA) allowed this approach in Wetherell v. Douglas County, 52 Or
LUBA 677 (2006), and this approach was utilized in the previous Plan Amendment and Zone Change
applications for the western portion of the subject property, files PA -11-7 and ZC-11-2. The County
Hearings Officer also accepted this method in file PA -10-5 (Rose & Associates). In Wetherell v. Douglas
County, LUBA states at pp. 678-679:
As we explained in DLCD v. Klamath County, 16 Or LUBA 817, 820 (1988), there are two ways a county
can justify a decision to allow nonresource use of land previously designated and zoned for farm use
or forest uses. One is to take an exception to Goal 3 (Agricultural Lands) and Goal 4 (Forest Lands).
The other is to adopt findings which demonstrate the land does not qualify either as forest lands or
agricultural lands under the statewide planning goals. When a county pursues the latter option, it
must demonstrate that despite the prior resource plan and zoning designation, neither Goal 3 or Goal
4 applies to the property. Caine v. Tillamook County, 25 Or LUBA 209, 218 (1993); DLCD v. Josephine
County, 18 Or LUBA 798, 802 (1990).
The facts pertinent to the subject application are sufficiently similar to those in PA -11-7 and PA -10-
5 to allow the applicant to attempt to show that the subject property is not agricultural land, rather
than seeking an exception to Goal 3 under state law.
Policy2.2.4 Develop comprehensive policy criteria and code to provide clarity on when and how
EFU parcels can be converted to other designations.
FINDING: This provides direction to Deschutes County to develop new policies to provide clarity
when EFU parcels can be converted to other designations. In the findings for the previous Plan
Amendment and Zone Change for the western portion of the subject property, the County found
that this policy does not impose a moratorium on requests for applications of this type, and that
nothing in this policy prohibits the conversion of EFU parcels to other designations (see PA -11-7,
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 14 of 41
also 247 -16 -000318 -PA, PA -10-5, PA -07-1). Staff concurs with the previous determinations and the
proposal is consistent with this policy.
Goal 3, Ensure Exclusive farm Use policies, classifications and codes are consistent with local
and emerging agricultural conditions and markets.
Policy 2.2.93 Identify and retain accurately designated agricultural lands.
FINDING: This plan policy makes it clear that it is County policy to identify and retain agricultural
lands that are accurately designated. The applicant proposes that the subject property was not
accurately designated as demonstrated by the soil study, NRCS soil data, and the applicant's burden
of proof.
2. Section 2.5, Water Resources Policies
Goal 6, Coordinate land use and water policies.
Policy 2.5.24 Ensure water impacts are reviewed and, if necessary, addressed for significant
land uses or developments.
FINDING: In the previous Plan Amendment application for the subject property, the County found
that any proposed water use for the development of the subject property would be reviewed under
any necessary land use process for the site (e.g. conditional use permit, tentative plat). Staff agrees
with the previous decision and finds that it is also relevant to the subject application.
3. Section 2.7, Open Spaces, Scenic Views and Sites
Goal 9, Coordinate with property owners to ensure protection of significant open spaces and
scenic views and sites.
Policy 2.7.3 Support efforts to identify and protect significant open spaces and visually
important areas including those that provide a visual separation between communities such
as the open spaces of Bend and Redmond or lands that are visually prominent.
Policy 2.7.5 Encourage new development to be sensitive to scenic view and sites.
FINDING: The applicant addressed this criterion in their burden of proof, stating:
No actual site development or land division/subdivision is proposed at this time, and thus the
applicability of this evaluation criterion is uncertain. Nevertheless, the SRT Conceptual Master Plan
includes significant proposed open space areas comprised of lava caves, lava tubes, lava rock
outcrops, a natural gas pipeline easement, and a former county landfill site. The former county landfill
site has been environmentally analyzed and reviewed and has been found to be properly closed and
managed according to the Oregon Department of Environmental Quality.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 15 of 41
FINDING: The subject property is not within the Open Space and Conservation (OS&C) Zone, nor is
it located within a Landscape Management (LM) Combining Zone associated with designated scenic
highways, roads, rivers, and streams. Additionally, no actual development of the property is
proposed at this time, so staff finds these policies do not apply to the subject proposal.
Chapter 3. Rural Growth
1. Section 3.2, Rural Development
Growth Potential
As of 2090, the strong population growth of the last decade in Deschutes County was thought
to have leveled off due to the economic recession. Besides flatter growth patterns, changes to
State regulations opened up additional opportunities for new rural development. The
following list identifies general categories for creating new residential lots, all of which are
subject to specific State regulations.
• Some farmlands with poor soils that are adjacent to rural residential uses can be rezoned
as rural residential
FINDING: This section of the Comprehensive Plan does not contain Goals or Policies, but does
provide the guidance above. In response to this section, the applicant's burden of proof provides
the following:
The County Comprehensive Plan notes that "Some farm lands with poor soils that are adjacent to
rural residential uses can be rezoned as rural residential." The requested Plan amendment is based
on the results of the submitted Soils Investigation for the SRT which has demonstrated that the subject
property does not constitute "agricultural lands" as defined in the goal, based upon a site-specific soils
study conducted by a certified, professional soil scientist (Roger Borine). Therefore, the proposal is
consistent with this section of the Comprehensive Plan, given that the subject property has been
determined to be non -resource land appropriate for rural residential development.
Staff notes that the MUA-10 Zone is a rural residential zone and as discussed in the Findings above,
there are many adjacent properties to the east and north that are zoned MUA-10. Additionally, many
properties to the north and west are within urban residential zones. Staff agrees with the applicant's
response and finds the proposal complies with this policy.
2. Section 3.3, Rural Housing
Rural Residential Exception Areas
In Deschutes County most rural lands are designated for farms, forests or other resources and
protected as described in the Resource Management chapter of this Plan. The majority of the
land not recognized as resource lands or Unincorporated Community is designated Rural
Residential Exception Area. The County had to follow a process under Statewide Goal 2 to
explain why these lands did not warrant farm or forest zoning. The major determinant was
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 16 of 41
that many of these lands were platted for residential use before Statewide Planning was
adopted.
In 1979 the County assessed that there were over 17,000 undeveloped Rural Residential
Exception Area parcels, enough to meet anticipated demand for new rural housing. As of 2010
any new Rural Residential Exception Areas need to be justified through taking exceptions to
farm, forest, public facilities and services and urbanization regulations, and follow guidelines
set out in the OAR.
FINDING: The Hearings Officer's decision for the western portion of the subject property (PA -1 1 -
1 7/ZC-1 1-2) provides the following findings in response to this portion of Section 3.3 of the
Comprehensive Plan:
To the extent that the quoted language above represents a policy, it appears to be directed at a
fundamentally different situation than the one presented in this application. The quoted language
addresses conversions of 'farm" or 'forest" land to rural residential use. In those cases, the language
indicates that some type of exception under state statute and DLCD rules will be required in order to
support a change in Comprehensive Plan designation. See ORS 197.732 and OAR 660, Division 004.
That is not what this application seeks to do. The findings below explain that the applicant has been
successful in demonstrating that the subject property is composed predominantly of nonagricultural
soil types. Therefore, it is permissible to conclude that the property is not'farmland"as defined under
state statute, DLCD rules, and that it is not correctly zoned for exclusive farm use. As such, the
application does not seek to convert "agricultural land" to rural residential use. If the land is
demonstrated to not be composed of agricultural soils, then there is no "exception" to be taken. There
is no reason that the applicant should be made to demonstrate a reasons, developed or committed
exception under state law because the subject property is not composed of the type of preferred land
which the exceptions process was designed to protect. For all these reasons, the Hearings Officer
concludes that the applicant is not required to obtain an exception to Goal 3.
There is one additional related matter which warrants discussion in connection with this issue. It
appears that part of Staff's hesitation and caution on the issue of whether an exception might be
required is rooted in the title of the Comprehensive Plan designation that would ultimately apply to
the subject property - which is 'Rural Residential Exception Area." There appears to be seven
countywide Comprehensive Plan designations as identified in the plan itself. These include
"Agriculture, Airport Development, Destination Resort Combining Zone, Forest, Open Space and
Conservation, Rural Residential Exception Area, and Surface Mining." Of the seven designations, only
Rural Residential Exception Area provides for associated zoning that will allow rural residential
development. As demonstrated by reference to the Pagel decision discussed above, there appears to
be instances in which rural residential zoning has been applied without the underlying land
necessarily being identified as an exception area. This makes the title of the "Rural Residential
Exception Area" designation confusing, and in some cases inaccurate, because no exception is
associated with the underlying land in question. However, it is understandable that since this
designation is the only one that will allow rural residential development, that it has become a catchall
designation for land types that are authorized for rural residential zoning. That is the case with the
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 17 of 41
current proposal, and again, for the some reasons set forth in Hearings Officer Green's decision in
Pagel, I cannot find a reason why the County would be prohibited from this practice.
Based on the above, staff agrees with the Deschutes County Hearings Officer that the above
language is not a policy and does not require an exception to the applicable Statewide Planning
Goal 3, thus, the RREA plan designation is the appropriate plan designation to apply to the subject
property.
Hearings Officer: I concur and note that I also have concluded in at least one prior matter that the
title "Rural Residential Exception Area" is not controlling.
3. Section 3.7, Transportation
The Transportation System was adopted in Ordinance 2012-005 and is hereby incorporated into
this Plan as Appendix C... Appendix C - Transportation System Plan
ARTERIAL AND COLLECTOR ROAD PLAN
Goal 4
4. Establish a transportation system, supportive of a geographically distributed and
diversified economic base, while also providing a safe, efficient network for residential
mobility and tourism.
Policies
4.4 Deschutes County shall consider roadway function, classification and capacity as criteria
for plan map amendments and zone changes. This shall assure that proposed land uses do
not exceed the planned capacity of the transportation system.
FINDING: This policy applies to the County and advises it to consider the roadway function,
classification and capacity as criteria for Plan Amendments and Zone Changes. The County will
comply with this direction by determining compliance with the Transportation System Planning Rule
(TPR), as described below.
B. That the change in classification for the subject property is consistent with the purpose
and intent of the proposed zone classification.
FINDING: In response to subsection (B) of this policy, the applicant's burden of proof provides the
following:
The proposed zone change from EFU to MUA-10 is consistent with the purpose and intent of the MUA
zone classification. Per DCC 18.32.010, the stated purposes of the MUA zone are:
"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
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 18 of 41
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 MUA-10 zone is the optimal county zone to transition the SRT to urban use which is a stated
intention of the MUA-10 zone. As detailed above and incorporated herein by reference, the subject
property is not suited for agricultural use. This property is more appropriately zoned MUA-10. The SRT
is currently zoned Exclusive Farm Use (EFU) likely due to prior ownership by the federal government
(BLM), rather than consideration of the agricultural capability of the land, the SRT has never been in
farm or pasture use. Agricultural uses are not practical or compatible with the existing residential uses
surrounding the SRT. Furthermore, as validated by the 2010 and 2011 Soils Investigations, the majority
of the soil types in the SRT are Class 7 & 8 and the property has no water rights. It is not possible to
engage in productive or profitable farming activity without water rights. Agricultural uses at the SRT
are not feasible, practical or compatible with existing and surrounding urban uses and residential
development.
This Comprehensive Plan Map and Zoning Map Amendment request will help to resolve the potential
conflict and incompatibility between the EFU permitted uses and the adjacent, surrounding lands
developed or committed for urban and residential uses. The requested Comprehensive Plan Map and
Zoning Map amendments will result in a zoning assignment that is compatible with neighboring
properties rather than the current EFU zoning, which poses potential conflict with established
residential uses.
Rezoning of the SRT from EFU to MUA-10 will resolve the latent conflict between EFU permitted uses
and the immediately adjacent urban density residential neighborhoods. Furthermore, the
Comprehensive Plan Map and Zone Map change will serve the interests of the southeast Bend
residents, surrounding residential neighborhoods, and public investments in public facilities and
services for the following reasons.
1. The northwest 12 acres of the SRT are already within Bend city limits and UGB;
2. The City of Bend recently expanded its UGB to include the adjacent western portion of the SRT.
This area is planned and will be zoned for a mix of urban uses, including residential, commercial,
institutional, industrial, and open space, consistent with adopted amendments to the City of Bend's
Comprehensive Plan;
3. The adjacent area within the Bend city limits (west of 27th Avenue), includes fully developed urban
density residential areas and major urban infrastructure (Southeast Sewer interceptor and Avion
water lines) and facilities (including bus route and shelter/stop);
4. A middle school is less than 3/ mile away,
5. The Bend-LoPine School District 2005 Sites and Facility Study proposes a new elementary school
for the immediate vicinity (the SRT is the only vacant parcel in the vicinity large enough to support
a new elementary school);
6. The State Land Board adopted Stevens Road Tract Conceptual Master Plan includes a new
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 19 of 41
elementary school in the adjacent western portion of the SRT site with a trail system connecting
the new elementary school with the existing nearby middle school,
7. Future development of the SRT will support the City's plans to create a complete community in
southeast Bend for future and existing residents who currently do not have a local neighborhood
commercial facility;
8. The Stevens Road Tract Conceptual Master Plan, adopted by the State Land Board, was prepared
with the participation of Bend planning staff, school district and parks district staff and other
diverse public input in order to address the interests and needs of southeast Bend residents,
9. There are no active commercial agricultural activities in the vicinity or neighborhood, and
10. Various public agencies and interests have cooperatively participated in planning for the eventual
urban density development of this site to serve the residents of Bend through implementation of
the Stevens Road Conceptual Master Plan.
The requested Rural Residential Comprehensive Plan Map designation is sought at this time in order
to enhance the eligibility of the subject property for inclusion in a future expansion of the Bend UGB
and/or in the designation of urban reserves. The SRT Conceptual Master Plan calls for diverse, mixed
use development including affordable home ownership and rental opportunities. DSL is committed to
the urban development forms illustrated in the Conceptual Master Plan that was developed
cooperatively with Bend planning staff to support the City's Framework Plan. This request to re-
designate and re -assign the Comprehensive Plan and Zoning Maps from Agriculture to Rural
Residential and EFU to MUA-10, respectively, will allow this site to be eligible and competitive for future
UGB inclusion.
The requested MUA-10 zone emphasizes the conservation of open spaces and the protection of natural
and scenic resources. While the subject property is not suitable for agriculture, it does contain lava
tubes and caves, this area represents a significant planned open space area in the SRT Conceptual
Master Plan. The MUA-10 zone will encourage that preservation and protection while also maintaining
consistency with the EFU and MUA-10 lands in the vicinity.
By allowing for a single family dwelling as an outright permitted use (DCC 18.32.020(B), the MUA-10
zone recognizes that rural lands may sometimes be better suited for residential use than agricultural
uses. Other non -resource land uses are conditionally permitted, any nonresource land development
proposal on the property other than a single family dwelling would not be allowed unless it was found
to be consistent with the surrounding properties and the applicable conditional use evaluation
standards. Therefore, the proposed change in zoning is consistent with the intent and purpose of the
MUA-10 zone, and will be compatible with surrounding properties. In addition, as noted elsewhere in
this application, the long-term proposed use of the property is for urban density development after
the property is included in the Bend UGB. Until such time, the property owner plans to essentially hold
the property for that future use.
Staff accepts the applicant's response and finds compliance has been demonstrated.
C. That changing the zoning will presently serve the public health, safety and welfare
considering the following factors:
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 20 of 41
1. The availability and efficiency of providing necessary public services and facilities.
FINDING: The applicant's burden of proof provides the following:
The proposed change from EFU to MUA-10 will not require the extension of new public services to the
subject property. The site is already adjacent to urban infrastructure (city sewers and water district
water lines) City services are typically not available until a property annexes to the city, although the
private water district water service may be available upon request. The site likely could be served by
on-site private well and septic system. Similarly, electrical and phone services are already provided to
adjacent properties could be efficiently extended to the property to serve a new dwelling or other use.
Thus, public facilities are available and can be efficiently provided to the site.
Also in the applicant's burden of proof, DSL's long-term goals for the property are explained:
At this juncture, DSL has no intention of actually developing the site into 10 -acre rural residential lots.
DSL is committed to the urban development forms and resulting community functions and services as
illustrated in the Conceptual Master Plan. That Plan was developed cooperatively with City of Bend
planning staff to support the City's Framework Plan. Similar to the benefits of previously rezoning the
western portion of the SRT to a rural residential designation, this request to re -designate and re -assign
the Comprehensive Plan and Zoning Maps from Agriculture to Rural Residential and EFU to MUA-10,
respectively, will allow this site to be eligible and competitive for UGB inclusion in the future and help
the site come closer to realizing its ultimate potential for urban development and community benefit.
Developing the eastern portion of the SRT as part of a larger complete community and urban center
serving southeast Bend residents will make efficient use of existing and planned (adjacent and nearby)
urban infrastructure, public facilities, and public services. Eventual urbanization of this site will
continue to further goals and opportunities to provide a mix of land uses and community facilities
(parks, schools, open spaces, and other facilities) along with supporting urban infrastructure and
services in this and other portions of the Bend urban area.
Although there are no plans to develop the property, the criterion specifies if the zone change will
presently serve public health, safety, and welfare. The surrounding areas outside of the UGB contain
numerous properties that are residentially developed and have water service from a quasi-
municipal source or wells, on-site sewage disposal systems, electrical service, telephone services,
etc. There are no known deficiencies in public services or facilities that would negatively impact
public health, safety, or welfare. Staff agrees with the applicant's response and compliance with this
criterion is demonstrated. Staff adds that if the SRT is not included in the UGB, development of the
property under MUA-10 zoning would need to comply with applicable requirements of the DCC,
including possible land use permit, building permit, and sewage disposal permit processes. Through
these development review processes, assurance of adequate public services and facilities will be
verified.
2. The impacts on surrounding land use will be consistent with the specific goals and
policies contained within the Comprehensive Plan.
FINDING: In response, the applicant's burden of proof provides the following:
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 21 of 41
The relevant goals of the Comprehensive Plan are implemented through the MUA-10 purpose
statement in the zoning ordinance, as set forth above. The zone is unique in that it serves as a
transition between EFU lands with productive soils and other rural lands that are "not suited to full
time commercial farming" and are more appropriately suited for "diversified or part time agricultural
uses." The MUA-10 zone retains consistency with EFU lands by allowing a limited
array of rural uses and mandating a 10 -acre minimum lot size (except in cluster developments, in
which the smaller lot sizes are offset by the 65% open space requirement). There are only a limited
number of uses allowed in the MUA-10 zone that are not also allowed in the EFU zone. Further, the
majority of the different non -resource land uses in the MUA-10 zone are conditional, thereby ensuring
that potential impacts on surrounding land uses are reviewed by the County during each quasi-judicial
land use application.
In summary, the MUA-10 zone remains a rural zone devoted to a mix of part-time agricultural and
residential uses. This minimizes potential impacts on surrounding lands. The MUA-10 zoning would
emphasize the continued protection of the open space and wildlife values of the property. As a result
of the proposed MUA-10 zoning, the land development restrictions caused by the (closed) county
landfill, and the lava tubes and caves, the foreseeable impacts on surrounding land uses in the next
5 -years will be minimal to none. Development of the permitted uses in the existing EFU zone could
result in direct conflicts with the existing and fully developed, urban -density residential neighborhoods
adjacent to the SRT. The requested Rural Residential Comprehensive Plan Map Amendment and MUA-
10 Zoning Map Amendment will help to diminish these potential conflicts.
Staff accepts the applicant's response; compliance has been demonstrated.
D. That there has been a change in circumstances since the property was last zoned, or a
mistake was made in the zoning of the property in question.
FINDING: In response, the applicant's burden of proof provides, in part, the following:
Circumstances have changed since the zoning of the property. When the property was first given an
EFU zoning assignment, it was in federal [BLM] ownership; it is now in state ownership as a Common
Schools Fund land asset. This property was zoned without detailed or site specific consideration given
to its soil, geologic, and topographic characteristics. Now that a certified soils scientist has conducted
a detailed Soils Investigation, it is documented that the parcel does not qualify as farmland.
Furthermore, urban density residential development has occurred in direct proximity to the SRT,
directly across the street (27th) to the immediate west of the western portion of the SRTsite. The county
also has allowed the establishment of urban related uses (offices) to the immediate south.
In addition, the City of Bend approved expansion of its UGB in 2016 to include the western portion of
the SRT. As a result, the eastern portion of the SRT (subject site) is directly adjacent to the existing UGB.
Major investments in urban infrastructure also have occurred in direct, immediate proximity to the
SRT. The Bend Southeast sewer interceptor, a major sewer conveyance system that is currently being
improved, is adjacent to and designed to serve the western edge of the SRT Major urban sized water
(Avion) lines abut the western portion of the SRT and the north property boundaries of the subject site.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 22 of 41
And a major road improvement project to nearby Reed Market Road is funded and scheduled for
construction. See Figure 4 for a map showing the location of these improvements.
In summary, the County's zoning of agricultural lands has been a process of refinement since the
1970's. The subject property has never been suitable for agriculture and has never been actively
farmed due to its soil and geologic (lava rock outcrops, lava tubes/caves) characteristics, as well as
lack of water rights for irrigation. Although it was assigned EFU zoning, this property likely should not
have been originally zoned EFU due to its location, soils, geology, and lack of irrigation water supply.
Therefore, the parcel should be rezoned to MUA-10, consistent with the zoning of adjacent
rural/county properties to the west and east. The MUA-10 zoning assignment supports logical,
compatible, and efficient use of the land and will contribute to future urbanization and sound growth
management within the Bend urban area.
The applicant also argues that the SRT was likely zoned EFU in 1979 because it was owned by the
federal government (BLM) at the time. Staff is unaware of the exact reasons why this property was
initially zoned EFU, but supposes it had more to do with the lack of development and the size of the
property itself, and not necessarily the soil classification, availability of irrigation, or historic farming
practices. For whatever reasons the property was initially zoned EFU, staff agrees with the
applicant's findings that there have been several particularly relevant changes in circumstances that
warrant a zone change, especially in consideration of the detailed information provided by the soil
study. Staff finds the applicant has demonstrated compliance with this criterion.
Hearings Officer: As discussed below, there is an issue regarding the role of the soils study.
Regardless, it is apparent from the NRCS maps, staff's analysis of those maps as discussed below,
and the significant changes in the immediate vicinity of the property, that this criterion is met.
OREGON ADMINISTRATIVE RULES CHAPTER 660, LAND CONSERVATION AND DEVELOPMENT
DEPARTMENT
A. Division 6, Goal 4 Forest Lands
1 OAR 660-006-0005. Definitions
(7) "Forest lands" as defined in Goal are those lands acknowledged as forest lands, or, in the
case of a plan amendment, forest lands shall include:
(a) Lands that are suitable for commercial forest uses, including adjacent or nearby lands
which are necessary to permit forest operations or practices, and
(b) Other forested lands that maintain soil, air, water and fish and wildlife resources.
FINDING: The subject property is not zoned for forest lands, nor are any of the properties within a
two-mile radius. The property does not contain merchantable tree species and there is no evidence
in the record that the property has been employed for forestry uses historically. None of the soil
units comprising the parcel are rated for forest uses according to NRCS data. The property does not
appear to qualify as forest land.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 23 of 41
B. Statewide Planning Goal 3, Agricultural Lands; Division 33, Agricultural Lands
1. OAR 660-015-0000(3)
To preserve and maintain agricultural lands.
Agricultural lands shall be preserved and maintained for farm use, consistent with existing
and future needs for agricultural products, forest and open space and with the state's
agricultural land use policy expressed in ORS 215.243 and 215.700.
FINDING: Goal 3 continues on to define "Agricultural Land", which is repeated in OAR 660-033-
0020(1).
2 OAR 660-033-0020, Definitions
For purposes of this division, the definitions in ORS 197.015, the Statewide Planning Goals, and
OAR Chapter 660 shall apply. In addition, the following definitions shall apply:
(1)(a) "Agricultural Land" as defined in Goal 3 includes:
(A) Lands classified by the U.S. Natural Resources Conservation Service (NRCS) as
predominantly Class I-IV soils in Western Oregon and I-Vl soils in Eastern Oregon3
FINDING: The applicant's basis for not requesting an exception to Goal 3 is based on the proposal
that the subject property is not defined as "Agricultural Land". In support, the applicant offers the
following:
A professionally conducted Soils Investigation has demonstrated that the subject property is not
composed predominantly of Class I -V1 soils. To analyze the soils on the site, the Applicant obtained the
services of Mr. Roger Borine, a Certified Professional Soil Scientist (CPSS #24918), Soil Classifier (CPSC
#24918) and Professional Wetlands Scientist (PWS #1707) who has a distinguished career in Oregon
with the USDA - Natural Resources Conservation Service including positions as: State Habitat Biologist,
State Wetland Specialist, Resource Soil Scientist, Soil Survey Project Leader, and Soil Scientist. Mr.
Borine is an acknowledged soils expert statewide and especially in Central and Eastern Oregon. The
complete Soils Investigation report, detailing the procedures and methodology used as well as the
complete findings, is attached to this application as Exhibit B.
This analysis was undertaken as part of the previous land use permitting effort associated with the
western portion of the SRT site. Mr. Borine initially conducted a soils investigation of the entire 622 -
acre SRT site. The resulting report was subsequently modified to include only that area from the east
edge of the natural gas pipeline easement westward to 27th Street. As part of this application, data
associated with the subject site (the eastern portion of the SRT) has been further summarized.
3 OAR 660-033-0020(5): "Eastern Oregon" means that portion of the state lying east of a line beginning at the intersection of
the northern boundary of the State of Oregon and the western boundary of Wasco County, then south along the western
boundaries of the Counties of Wasco, Jefferson, Deschutes and Klamath to the southern boundary of the State of Oregon.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 24 of 41
The purpose of the Soils Investigation for the Stevens Road Tract was to determine the extent of
agricultural land for planning purposes. A comparison of the soils reports for the entire site and the
western -half of the SRT indicates that approximately 227 acres or 87916 of the site consists of Land
Capability Class 7 and 8 soils, and 139,6' (33 acres) is Land Capability Class 6 soilsz. This means that the
soils are predominantly non-agricultural soils according to a certified and well-qualified soils scientist
using state sanctioned and approved field investigation methods and techniques. Thus, the Stevens
Road Tract as defined in OAR 660-033-0020 is not predominantly Agricultural Land.
... In July, 2010, a Soils Investigation of the 622 -acre SRT was conducted by Mr. Roger Borine. This
information was again used a year later as the basis for the July, 2011 380 -acre Soils Investigation
findings. The purpose of both Soils Investigations was to determine the extent of agricultural land at
the SRT for planning purposes. The inventory and analysis of the 622 -acre Stevens Road Tract [T18S,
R12E, Section 11, Tax Lots 1700 and 1800] determined that approximately 71 9,66 (438 acres) was Land
Capability Class 7 and 8 soils and 29% (184 acres) Land Capability Class 6 soils. The 622 acre Stevens
Road Tract, as defined in OAR 660-033-0020, is not predominantlyAgricultural Land. A second analysis
indicated that approximately 569,6 (211.4 acres) of the western portion of the SRT was Land Capability
Class 7 and 8 soils. This means that 227 acres of the eastern half of the SRT are Class 7 and 8 soils out
of a total of 260 acres. This translates to 227 acres (87%) of the eastern half of the site being Class 7
and 8 soils.
2 The Borine Reports states that 438 acres of the entire SRT site are Class 7 and 8 soils, while 211
acres of the western half of the site are Class 7 and 8 soils. This means that 227 acres of the eastern
half of the SRT are Class 7 and 8 soils out of a total of 260 acres. This translates to 227 acres (87%)
of the eastern half of the site being Class 7 and 8 soils.
Table 2 and the conclusion of the original soil study are below, with the revised table from the soil
study amendment to reflect the soils only on the western 380 acres.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 25 of 41
Original Soil Study Table 2 and Conclusion
Table 2 —Order 1 Soil Survey Map Units and Interpretations
Symbol Mapunit' Soil % High < LCC; Area
n
'Val e: AC, %
AR Access Road 100 No 8 9 2
CA Clovkamp loamy sand, 0-316 Clovkamp 85 No 6 14 2
DGB Deskamp-Gosney complex, 0-516 Deskamp 50 No 6 170 27
DGB Gosney 35 No 7
GRB Gosney-Rock outcrop complex, Gosney 60 No 7 229 37
GRB 0-806 Rock outcrop 20 No 8
GRC Gosney-Rock outcrop complex, Gosney 50 No 7 68 11
GRC 8-1596 Rock outcrop 25 No 8
GTE Gas Transmission Easement 100 No 8 21 3
LF Landfill 90 No 8 56 9
MFA Mined/Fill Area 90 No 8 45 7
SR Stevens Road 100 No 8 10 2
Conclusion:
The purpose for this study was to conduct an inventory and assessment of the soil resource and
specifically the extent of agricultural land as defined in Oregon Administrative Rules (OAR) 660-033
Agricultural Land.
The inventory and analysis of this 622 acre Stevens Road Tract in T18S, R12E, Section 11, Tax Lots
a 1700 and 1800 determined that approximately 71% (438 acres) was Land Capability Class 7 and 8
soils and 29% (184 acres) Land Capability Class 6 soils. The Stevens Road Tract as defined in OAR
660-033-0020 is not predominantly Agricultural Land.
Tax Loo LCC 718 LCC 6
fb22awes). Acres °7b Acres
1700 & 1800 438 71 184 29
Soil Study Amendment
As requested, I have reviewed the soils Investigation Report Dy Sage west, LLL OT me srevens x000 i racr iocaieo in i 16o, K14t,
and Section 11 as it relates to the new "study area". The review was determined necessary as the boundary and size of the new
"study area" differs from the original 622 acre study area that was reduced to 380 acres. The new area is primarily the west half
of Section 11 that is west of the eastern boundary of the Gas Transmission Easement.
Dan Antonson, GIS Analyst ODSL, digitized the mapping units from the soil map completed by Sage West, LLC dated lune 2010 for
the new study area. Data points, transect data and accuracy of soil boundary line placement was reviewed both in the office and
field. Minor adjustments to soil boundaries were made to four polygons based on field observation and updated on the ODSL
Stevens Road Tract Map dated 7/25/2011 (attached).
Mapping unit descriptions and interpretations in the Soils Investigation Report, dated 7/6/2010, accurately describe conditions
existing in the new study area.
Survey map units and interpretations for the new study area in the Stevens Road Tract are:
Symbol
Map Unit
Soil
16
High
Value
LCC I
Area
I Ac % '
DGB
Deskamp-Gosney complex, 0-5%
Deskamp
Gosney
50
35
No
No
6
7
168.6
44.4
GRB
Gosney-Rock outcrop complex, 0-8%
Gosney
Rock outcrop
60
20
No
No
7
8
101.5
26.7
GRC
Gosney-Rock outcrop complex, 8-
15%
Gosney
Rock outcrop
50
25
No
No
7
8
12.3
3.2
Gas Transmission Easement
100
No
8
20.7
5.5
Landfill
-
90
No
8
55.9
14.7Mined/fill
P
Area
90
a
8
14.2
3.7
Stevens Road
-
l00
No
8
6.8
1.8
The inventory and analysis of this 380 acre study area in the Stevens Road Tract determined that approximately 56-6 is Land
Capability Class 7 and 8, and 441,6 is Land Capability Class 6. This study area in the Stevens Road Tract as defined in OAR 660-033-
0020 is predominantly non-agricultural land.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 26 of 41
Staff accepts the applicant's evidence and explanation; compliance with this subsection has been
met and the subject property should not be defined as "Agricultural Land".
Hearings Officer: See discussion below.
(B) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a),
taking into consideration soil fertility, suitability for grazing, climatic conditions,
existing and future availability of water for farm irrigation purposes, existing land use
patterns, technological and energy inputs required, and accepted farming practices,
and
(C) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby
agricultural lands.
(b) Land in capability classes other than I-IV/I-VI that is adjacent to or intermingled with lands
in capability classes 1-1141141 within a farm unit, shall be inventoried as agricultural lands
even though this land may not be cropped or grazed,
FINDING: In response to subsections (1)(a)(B), (1)(a)(C), and (1)(b) above, the applicant's burden of
proof provides the following:
The subject property has never been irrigated, has not been used for producing crops or grazing
livestock, is not part of a farm unit and is currently vacant. None of the surrounding properties are
used for active, commercial agriculture including the MUA-10 and EFU zoned abutting properties to
the north and east that are predominantly developed with rural residences engaged in horse raising
and equestrian activities. There are no commercial farm practices being undertaken on adjacent or
nearby agricultural lands.
A review of both Soils Investigations duly, 2010 [622 acres] and July, 2011 [380 acres]) found that the
Stevens Road Tract, as defined in OAR 660-033-0020, is predominantly nonagricultural land. This
includes the SRT as a whole, as well as both the western and eastern halves when viewed
independently.
The subject property is zoned Exclusive Farm Use (EFU), but this designation is not based on the
agricultural capability of the land, as the SRT has never been inform or pasture use.
Agricultural uses are not practical or compatible with the existing residential uses surrounding the
SRT. Furthermore, as validated by the 2010 Soils Investigation, the majority of the soil types in the SRT
are Class 7 & 8 and the property has no water rights. Agricultural uses at the SRT are not practical,
profitable or compatible with existing and surrounding urban uses and residential development. This
Comprehensive Plan Map and Zoning Map Amendment request will help to resolve the potential
conflict and incompatibility between the EFU permitted uses and the adjacent, surrounding lands
developed or committed for urban and residential uses.
Staff accepts the applicant's response and finds compliance with this subsection of the rule has
been demonstrated.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 27 of 41
(c) "Agricultural Land" does not include land within acknowledged urban growth boundaries
or land within acknowledged exception areas for Goal 3 or 4.
FINDING: The subject eastern portion of the SRT is outside of the UGB. The western portion of the
SRT is within the UGB and therefore is not considered Agricultural Land.
3. OAR 660-033-030 Identifying Agricultural Land
(1) All land defined as "agricultural land" in OAR 660-033-0020(1) shall be inventoried as
agricultural land.
(2) When a jurisdiction determines the predominant soil capability classification of a lot or
parcel it need only look to the land within the lot or parcel being inventoried. However,
whether land is "suitable for farm use" requires an inquiry into factors beyond the mere
identification of scientific soil classifications. The factors are listed in the definition of
agricultural land set forth at OAR 660-033-0020(1)(a)(8). This inquiry requires the
consideration of conditions existing outside the lot or parcel being inventoried. Even if a
lot or parcel is not predominantly Class I-IV soils or suitable for farm use, Goal 3
nonetheless defines as agricultural "Lands in other classes which are necessary to permit
farm practices to be undertaken on adjacent or nearby lands. "A determination that a lot
or parcel is not agricultural land requires findings supported by substantial evidence that
addresses each of the factors set forth in 660-033-0020(1).
Hearings Officer: As noted above, the property has not been irrigated or farmed. Given its location
adjacent to the UGB and the zoning and uses in the immediate vicinity it is unlikely that it could be
put to productive agricultural use in conjunction with any other property. No one has suggested
otherwise. In conjunction with the discussion above and below, I find that compliance with this
subsection of the rule has been demonstrated.
(3) Goal 3 attaches no significance to the ownership of a lot or parcel when determining
whether it is agricultural land. Nearby or adjacent land, regardless of ownership, shall be
examined to the extent that a lot or parcel is either "suitable for farm use" or "necessary
to permit farm practices to be undertaken on adjacent or nearby lands" outside the lot or
parcel.
FINDING: The evidence that shows that the subject property is not suitable for farm use and is not
necessary to permit farm practices to be undertaken on adjacent or nearby lands, has not assigned
any significance to the ownership of the subject or adjoining properties.
(5)(a) More detailed data on soil capability than is contained in the USDA Natural Resources
Conservation Service (NRCS) soil maps and soil surveys may be used to define agricultural
land. However, the more detailed soils data shall be related to the NRCS land capability
classification system.
(b) If a person concludes that more detailed soils information than that contained in the
Web Soil Survey operated by the NRCS as of January 2, 2012, would assist a county to
make a better determination of whether land qualifies as agricultural land, the person
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 28 of 41
must request that the department arrange for an assessment of the capability of the
land by a professional soil classifier who is chosen by the person, using the process
described in OAR 660-033-0045.
FINDING: The Sage West soils study provides more detailed soils information than contained in the
NRCS Web Soil Survey. NRCS sources provide general soils data for large units of land. The soil study
provides detailed and accurate information about a single property based on numerous soil
samples taken from the subject property. The soil study is related to the NRCS Land Capability
Classification (LLC) system that classifies soils class 1 through 8. An LCC rating is assigned to each
soil type based on rules provided by the NRCS.
The NRCS mapping for the subject portion of the property is estimated below, based on the County's
GIS data and NRCS soil maps available on Dial (the County's property information and mapping
website). This data estimation shows that a predominance of the subject eastern portion of the SRT
is comprised of class 7 and 8 soils (see map below). Staff notes these estimations assume the
highest soil classification of the soil complex for the portion of the soils that are unclassified
(contrasting inclusions), and amount to approximately 98 percent of the subject 260 acres, so a
margin of error should be taken into consideration. Additionally, staff notes that the NRCS data
indicates the average soil compositions across an entire soil unit. The NRCS data and the applicant's
soil study indicate a predominance of class 7 and 8 soils. A discussion regarding the process
described in OAR 660-033-0045 is provided in findings below, as it relates to the previous Plan
Amendment and Zone Change for the western portion of the SRT.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 29 of 41
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 30 of 41
Approx.
Approx.
°lo'of
Soil'
Percent
°loin
Classification
Classification
Sail Unit
unit in
name
in
Classification
east
1-6
7.8'
east
complex
SRT
SRT
27A:
Clovkamp
7%
Clovkamp
85%
6
7%
7%
0%
Loamy
Sand
36A:
Deskamp
2%
Deskamp
85%
6
2%
2%
0%
loamy
sand
38B,
Deskamp
50%
6
3%
3%
0%
Gosney
35%
7
2%
0%
2%
Deskamp-
6%
Gosney
Other
15%
6
1%
1%
0%
complex
Gosney
50%
7
42%
0%
42%
58C:
Rock
25%
8
21%
0%
21%
Gosney-
Rock
Outcrop
83%
Outcrop-
Deskamp
20%
6
17%
17%
0%
Deskamp
Other
5%
6
4%
4%
0%
complex
Total percent of the eastern portion of SRT:
34%
64%
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 30 of 41
NRCS Soil Map (dial. deschutes. org)
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 31 of 41
(c) This section and OAR 660-033-0045 apply to:
(A) A change to the designation of land planned and zoned for exclusive farm use, forest
use or mixed farm forest use to a non -resource plan designation and zone on the
basis that such land is not agricultural land, and
FINDING: The applicant is seeking approval of a non -resource plan designation on the basis that
the subject property is not defined as agricultural land.
(d) This section and OAR 660-033-0045 implement ORS 215.211, effective on October 1, 2011.
After this date, only those soils assessments certified by the department under section
(9) of this rule may be considered by local governments in land use proceedings
described in subsection (c) of this section. However, a local government may consider
soils assessments that have been completed and submitted prior to October 1, 2011.
FINDING: The applicant's submitted soil study was prepared for the previous files PA -11-7 and ZC-
11-2. The date of the original soil study isjuly 6, 2010, and the amendment to the study is dated July
26, 2011. Both of these dates are before the effective date of ORS 215.211. Although the soil scientist
was recognized by DLCD and had the appropriate qualifications, it does not appear the soil study
was certified by the department (DLCD). The soils study, as mentioned, was completed and
submitted as part of the western portion of the property's land use applications, which were
submitted on October 31, 2011, after the effective date of ORS 215.211.
In PA -1 1-7/ZC-1 1-2 the Hearings Officer addressed this point, as it was discussed as a point of
concern by an opponent of the applications and is the same soil study submitted by the applicant
for the subject application. This discussion is quoted in full below as it is pertinent to the subject
application:
In response to this portion of the definition, the applicant submitted a soil investigative report,
prepared by Roger Borine. In short, that report concludes that the subject property is composed
predominantly of Class Vll and Vlll soils which do not meet the definition set forth in this administrative
rule.
Newland argued at both the March 20, 2012 public hearing and in written submissions that in order
for the County to rely on the applicant's soils report, the recently adopted Oregon statute at ORS
215.211 and DLCD rules at OAR 660-033-0030 and 0045 must be applied to this application. Newland
argued that these administrative rules, adopted on October 1, 2011, clearly apply to the application.
This does not appear to be disputed.
Newland then argued that a specific provision, OAR 660-033-0030(5)(b), which essentially mimics the
statute, triggered a required review by DLCD of the Borine report. Newland argued that the County
was prohibited by both the statute and DLCD rule from relying on the report until the DLCD had
conducted a review under the rigorous provisions of OAR 660-033-0045.
The applicant and DLCD disagreed with Newland. Specifically, the applicant provided an April 3, 2012
letter from DLCD representative Katherine Daniels in which she argues that OAR 660-033-0030(5)(b)
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 32 of 41
is only triggered where an applicant and the local government desired to rely upon a soils report, such
as the Borine report, to challenge or contradict the NRCS Soil Survey, which is considered to be the
primary source of soils information for the state.
OAR 660-033-0030(5)(b) states:
"If a person concludes that more detailed soils information than that contained in the Internet soil
survey of soil data and information produced by the National Cooperative Soil Survey operated by the
NRCS of the USDA has of January 2, 2012, would assist a county to make a better determination of
whether land qualifies as agricultural land, the person must request that the department arrange for
an assessment of the capability of the land by a professional soil classifier who is chosen by the person,
using the process described in OAR 660-033-0045."
Newland argued, and the Hearings Officer agrees, that this provision may be applicable in the context
of a request to change the zoning of EFU land to a non -resource zone. OAR 660-033-0030(5)(c).
However, the Hearings Officer disagrees with Newland that a DLCD analysis is necessary as part of the
current application. I also disagree with Ms. Daniels's interpretation of OAR 660-033-0030(5)(b),
because it reads too much into the administrative rule and probably grants the department more
discretion than the statute intends, but my disagreement is not relevant to the review of this
application.
In this case, Newland reads the administrative rule for more strictly than the actual language of the
rule indicates. The rule does not require that any time an applicant submits a soils report in support
of an application to rezone EFU land to a non -resource zone that the report must be vetted by DLCD.
That analysis is only triggered when the report "would assist a county to make a better determination
of whether land qualifies as agricultural land." Where the NRCS Soils Survey itself is sufficient to
demonstrate that the land in question is predominantly Class Vll and Vlll soils, and a supplemental
soils report merely confirms that data, the rule is not necessarily triggered.
Here, the record contains three sets of corroborating data which all appear to indicate that at least
50 percent, and as much as 70 percent, of the subject property is composed of Class Vll and Vlll soils.
The primary data is the information submitted by the applicant in its April 18, 2012 letter which
contains the NRCS Soil Survey. The supplemental data includes the Borine report, and calculations
submitted by Staff which were initially identified in a March 20, 2012 e-mail from Tim Berg to Paul
Blikstad, and then refined and submitted during the open record period as a table showing that the
subject property is composed of at least 51 percent Class Vll and Vlll soils. Taken together, this
information is sufficient to demonstrate that the subject property is not predominantly agricultural
land as defined in administrative rule. While the Borine report is helpful in confirming the base soil
survey data, the application is not solely dependent on the report, and the Hearings Officer would
consider it unreasonable to expect the applicant to seek and obtain an additional DLCD review of the
report when other reliable data adequately serves the some purpose.
Newland submitted criticism of the Borine report in one of its April 20, 2012 submissions arguing that
the report does not adequately explain a distinction between Class VI and Class Vll components of
some of the Deskamp-Gosney soils on the property. The Hearings Officer does not find these
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 33 of 41
arguments persuasive. Newland's criticisms appear to be adequately answered by the applicant
submission of the NRCS Soils Survey and Staff calculations of Class Vll and Vlll soil types on the subject
property.
The Hearings Officer would also note that while Newland is careful to confine its criticism to the Borine
report, to be successful in demonstrating that the subject property is predominantly composed of
Class I -VI soils, and therefore not eligible to be rezoned from EFU zoning, Newland might be required
to prove that the NRCS Soils Survey for the subject property is incorrect. Such a challenge would
appear to require a soils report that would "assist a county to make a better determination" about
whether the subject property qualifies as agricultural land, and would likely trigger the DLCD review
required by OAR 660-033-0030(5)(b). In other words, the "person" identified in ORS 215.211 and OAR
660-033-0030(5)(b) could be the applicant or any opponents of an application as well.
Based on the above -referenced decision and the NRCS data indicating a predominance of class 7
and 8 soils, it appears the application and associated soil study complies with this administrative
rule.
HEARINGS OFFICER: I generally agree with the above-cited analysis. In this case, staff analyzed the
NRCS maps and demonstrated that, on their face, the maps show that the property is at least 67%
non-agricultural land on average. This is less than the 87% the applicant found based on its soil
survey but nevertheless demonstrates that the site consists of predominantly non-agricultural soils.
This is evidence independent of the soil survey. So, the soil survey confirms staffs map analysis and
consideration of the soil survey would, at most, be harmless error. The issue raised by the rule
might be closer if anyone had introduced evidence that the NRCS maps are inaccurate, that staff
miscalculated or some other evidence that the property consists predominantly of agricultural soils.
Although Martin Lawrence testified in passing that the "soil survey" should have been redone, he
provided no evidence of misclassification. To the contrary, the opposition testimony stressed that
the property has value as open space and recreational land, not agriculture.
(e) This section and OAR 660-033-0045 authorize a person to obtain additional information for
use in the determination of whether land qualifies as agricultural land, but do not
otherwise affect the process by which a county determines whether land qualifies as
agricultural land as defined by Goal and OAR 660-033-0020.
FINDING: The applicant has obtained additional information regarding soils and how these soils
relate to the agricultural designation of the property. Staff defers to the Hearings Officer as to if
OAR 660-033-0020 otherwise affects the agricultural land determination.
HEARINGS OFFICER: To reiterate, I find based on the evidence and analysis provided above that
the property was not and is not property classified as agricultural land under Goal 3, the
administrative rule or the Deschutes County comprehensive plan and code.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 34 of 41
4. OAR 660-012, DIVISION 12, TRANSPORTATION PLANNING
OAR 660-012-0060 Plan and Land use Regulation Amendments
(1) If an amendment to a functional plan, an acknowledged comprehensive plan, or a land
use regulation (including a zoning map) would significantly affect an existing or planned
transportation facility, then the local government must put in place measures as
provided in section (2) of this rule, unless the amendment is allowed under section (3),
(9) or (10) of this rule. A plan or land use regulation amendment significantly affects a
transportation facility if it would.
(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,
(e) Degrade the performance of an existing or planned transportation facility such
that it would not meet the performance standards identified in the TSP or
comprehensive plan; or
(C) Degrade the performance of an existing or planned transportation facility that
is otherwise projected to not meet the performance standards identified in the
TSP or comprehensive plan.
FINDING: As referenced in the agency comments section in the Findings of Fact above, the Senior
Transportation Planner for Deschutes County requested revised details than what the initial traffic
study materials provided. The applicant, as mentioned above, submitted an updated report from
Kittelson dated October 10, 2017, to address these discrepancies. The update included adjustments
to total daily trip generation and p.m. peak hour trips, as well as an extension of the traffic analysis
to the year 2037. In response to this criterion, the applicant's burden of proof provides the following:
To address Transportation Planning Rule (TPR) requirements and the relevant Comprehensive Plan
goal and policies, a professional Transportation Engineering firm (Kittelson & Associates) was hired to
prepare a Transportation Planning Rule Analysis for the subject property. Kittelson & Associates
initiated this analysis by preparing a scope of work that was reviewed by Transportation Planning
staff from both Deschutes County and the City of Bend, and then conducted that analysis per the
agreed upon work scope. Following immediately below are the criteria, factors, conclusions, and
findings of the Section 11 Transportation Planning Rule Analysis. Exhibit D is the complete
Transportation Planning Rule Analysis report prepared by Kittelson. Exhibit E is a supplemental memo
addressing County staff comments related to Exhibit D.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 35 of 41
Transportation Planning Rule and Goal and Policy Compliance
OAR Section 660-12-0060 of the Transportation Planning Rule (TPR) sets forth the relative criteria for
evaluating plan and land use regulation amendments. Table 2 summarizes the criteria in Section 660-
012-0060 and the applicability to the proposed rezone application.
Table 2
Summary of Criteria in OAR 660-012-0060
Section
Criteria
Applicable?
1
Describes how to determine if a proposed land use action
See response below
results in a significant impact.
2
Describes measures for complying with Criteria #1 where a
See response below
significant impact is determined.
Describes measures for complying with Criteria #1 and #2
No
3
without assuring that the allowed land uses are consistent
(Roadway system currently
with the function, capacity and performance standards of
operates acceptably)
the facility
Yes
4
Determinations under Criteria #1, #2, and #3 are
(Scoping and application
coordinated with other local agencies.
sent to City and County for
review)
Indicates that the presence of a transportation facility shall
5
not be the basis for an exception to allow development on
No
rural lands.
6
Indicates that local agencies should credit developments
No
that provide a reduction in trips.
Outlines requirements for a local street plan, access
No
management plan, or future street plan.
8
Defines a mixed-use, pedestrian -friendly neighborhood
No
Outlines requirements under which a local government may
find that an amendment to a zoning map does not
No
9
significantly affect an existing and planned transportation
facility.
Outlines requirements under which a local government may
10
amend a plan without applying performance standards
No
related to motor vehicle traffic congestion, delay or travel
time.
11
Outlines requirements under which a local government may
No
approve an amendment with partial mitigation.
As noted in Table 2, there are 11 criteria that apply to Plan and Land Use Regulation Amendments. Of
these, Criteria #1, #2, and #4 are applicable to the proposed land use action.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 36 of 41
Criteria #1 and #2 are provided below in italics with responses shown in standard font. Criteria #4 is
summarized in Table 2 with a response provided in the "applicable" column. [Staff note: italic and
standard font are reversed as a quote in this Staff Report]
(1) If an amendment to a functional plan, an acknowledged comprehensive plan, or a land
use regulation (including a zoning map) would significantly affect an existing or planned
transportation facility, then the local government must put in place measures as provided
in section (2) of this rule, unless the amendment is allowed under section (3), (9) or (10)
of this rule. A plan or land use regulation amendment significantly affects a
transportation facility if it would:
(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;
Response: Based on the incremental traffic increase from EFU to the proposed MUA-10 zoning, the
functional classification of all the adjacent roadways will not be affected with the proposed zone
change.
(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
Response: All of the study intersections will operate acceptably with or without the proposed rezone.
(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.
Response: All of the study intersections currently operate acceptably, operate acceptably without the
rezone, and continue to operate acceptably with the rezone assuming incorporation of programmed
projects.
OAR 660-12-0060 (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 unless the amendment meets the balancing test in subsection (2)(e) of this
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 37 of 41
section or qualifies for partial mitigation in section (11) of this rule. A local government using
subsection (2)(e), section (3), section (10) or section (11) to approve an amendment
recognizes that additional motor vehicle traffic congestion may result and that other facility
providers would not be expected to provide additional capacity for motor vehicles in
response to this congestion.
(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) Amending the TSP to modify the planned function, capacity or performance standards of
the transportation facility.
(d) Providing other measures as a condition of development or through a development
agreement or similar funding method, including but not limited to transportation system
management measures 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.
(e) Providing improvements that would benefit modes other than the significantly affected
mode, improvements to facilities other than the significantly affected facility, or
improvements at other locations, if the provider of the significantly affected facility
provides a written statement that the system -wide benefits are sufficient to balance the
significant effect, even though the improvements would not result in consistency for all
performance standards.
Response: A significant effect does not occur.
TPR Analysis: Findings and Recommendations
Findings and recommendations of this analysis are presented below.
• The proposed rezone to MUA-10 could generate an additional 393 daily trips and 42 additional
weekday PM peak hour trips as compared to the existing EFU zoning.
• All of the study intersections can accommodate forecast travel demands with the existing and
proposed zoning.
• With the planned realignment of Stevens Road and Reed Market Road the intersection with 27th
Street can continue to adequately accommodate the increased traffic.
• A significant effect does not occur with the incremental trips associated with the proposed rezone,
and no mitigation is required to satisfy the Transportation Planning Rule.
• No existing safety or operational issues were noted at any of the study intersections.
Based on the Senior Transportation Planner's comments and the amended traffic study from
Kittelson, staff finds compliance with the TPR Rule has been demonstrated.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 38 of 41
5. OAR 660-015, Division 15, Statewide Planning Goals and Guidelines
FINDING: The Statewide Planning Goals are outlined in the applicant's burden of proof:
Goal 1, Citizen Involvement. This proposal satisfies this goal because the Planning Division will
provide notice of the proposed plan amendment and zone change to the public through individual
notice to affected property owners, posting of the subject property with a notice of proposed land use
action sign, and publishing notice of the public hearing in the "Bend Bulletin" newspaper. In addition,
at least two public hearings will be held on the proposed plan amendment before it can be approved
- one before the Hearings Officer and one before the Deschutes County Board of Commissioners.
Goal Z Land Use Planning. This proposal satisfies this goal because the applications were handled
pursuant to the procedures applicable to plan amendments and zone changes in the county's
comprehensive plan and zoning ordinance.
Goal 3, Agricultural lands. The applicant has elected not to take an exception to Goal 3 for the
subject property, but rather to provide evidence supporting findings that the subject property does
not constitute "agricultural land" as defined in Goal 3. The application includes a professionally
prepared Soils Investigation that demonstrates that the subject property does not constitute
"agricultural land" and therefore the proposed plan amendment and zone change to MUA-IO is
consistent with Goal 3.
Goal 4, Forest Lands. The proposal is consistent with Goal 4 because the subject property is not zoned
for forest use and the applicant's soil survey shows the subject property does not contain any forest
soils.
Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. The proposal is consistent
with Goal 5 because, as discussed in the proposed plan amendment and zone change will have no
effect on any designated Goal 5 resources.
Goal 6, Air, Water and Land Resources Quality. The proposal is consistent with Goal 6 because it
will not result in any impact on air or water quality and land resources.
Goal 7, Areas Subject to Natural Disasters and Hazards. Goal 7 is not applicable to the proposal
because the subject property is not located in a known natural disaster or hazard area (i.e., flood
hazard zone, steep slopes, historic landslide areas or other hazards identified under Goal 7).
Goal 8, Recreational Needs. Goal 8 is not applicable to the proposal because the proposal will not
affect property zoned for recreation or impact recreational needs. In addition, it supports a potential,
though not certain, eventual transition from rural to urban land use that will incorporate lands
designated for open space and trails.
Goal 9, Economy of the State. The proposal is consistent with Goal 9 because it will not adversely
impact economic activities in the state. In addition, it supports a potential, though not certain,
eventual transition from rural to urban land use that will incorporate and build on a complete
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 39 of 41
community in the southeastern portion of Bend which will include retail, commercial and other
employment uses, consistent with the Stevens Road Conceptual Master Plan.
Goal 10, Housing. Goal 10 is not applicable to the proposal because it does not include development
of additional housing, and does not remove any land from the county's supply of land for needed
housing. In addition, it supports a potential, though not certain, eventual transition from rural to
urban land use that will incorporate a mix of residential uses that will support future city residents
with a range of housing needs, consistent with the Stevens Road Conceptual Master Plan.
Goal 11, Public Facilities and Services. The proposal is consistent with Goal 11 because the
proposed plan amendment and zone change will have little to no impact upon the provision of public
facilities and services to the subject property.
Goal 12, Transportation. The proposal is consistent with the TPR, and therefore is also consistent
with Goal 12 as demonstrated by the attached, professionally prepared Transportation Planning Rule
Analysis.
Goal 13, Energy Conservation. The proposal is consistent with this goal because it will have no
impact on energy use or conservation.
Goal 14, Urbanization. The proposal is consistent with Goal 14 for the following reasons.
1. The proposal does support a likely, though not certain, eventual transition from rural to urban
land use that responds to identified needed lands;
2. The proposal represents an orderly growth pattern that eventually will efficiently enhance and
utilize public facilities and services;
3. The proposal will ultimately result in the maximum efficiency of land uses on the fringe of the
existing urban area,
4. The subject property has been found to be not predominantly agricultural land as defined in OAR
660-033-0020, and
5. The proposal will promote compatibility with surrounding urban uses and will not adversely
impact any nearby commercial agricultural uses because there are none.
Goals 15 through 19. These goals, which address river, ocean, and estuarine resources, are not
applicable to the proposal because the subject property is not located in or adjacent to anysuch areas
or resources.
The applicant's responses demonstrate compliance with the applicable Goals.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 40 of 41
IV. CONCLUSION
Based on the foregoing findings and conclusions the Comprehensive Plan Map Amendment to
change a portion of the subject property from an Agricultural (AG) designation to a Rural Residential
Exception Area (RREA) designation and the corresponding Zoning Map Amendment to change a
portion of the subject property from Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA-10)
are approved.
Dan R. Olsen, Hearings Officer Date: May 8, 2018
THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY APPEALED.
247 -17 -000726 -PA, 727-ZC Hearings Officer Decision Page 41 of 41
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Mailing Date:
Wednesday, May 09, 2018
NOTICE OF HEARINGS OFFICER'S DECISION
The Deschutes County Hearings Officer has approved/denied the land use application(s) described
below:
FILE NUMBER: 247 -17 -000726 -PA, 727-ZC
LOCATION: The subject property has an assigned address of 21425 Stevens Road,
Bend, and includes an approximately 260 -acre area in the eastern
portion of the property identified on the County Assessor's Map No. 18-
12-(11), as tax lot 1800.
APPLICANT/OWNER: Oregon Department of State Lands (DSL)
AGENT FOR APPLICANT: Angelo Planning Group
PROPOSAL: The applicant requests approval of a Comprehensive Plan Map
Amendment to change a portion of the subject property from an
Agricultural (AG) designation to a Rural Residential Exception Area
(RREA) designation. The applicant also requests approval of a
corresponding Zoning Map Amendment to change a portion of the
subject property from Exclusive Farm Use (EFU) to Multiple Use
Agricultural (MUA-10).
STAFF CONTACT: Jacob Ripper, Senior Planner
acob.ripoer@@gmail.com, 541-385-1759
DOCUMENTS: Can be viewed and downloaded from:
www.buildingpermits.oregon.gov and http://dial.deschutes.org
APPLICABLE CRITERIA: The Hearings Officer reviewed this application for compliance against
criteria contained in Chapters 18.04, 18.16, 18.32, and 18.136 in Title 18
of the Deschutes County Code (DCC), the Deschutes County Zoning
Ordinance, the procedural requirements of Title 22 of the DCC,
Chapters 2, 3, and Appendix C of the Deschutes County Comprehensive
Plan, Divisions 6, 12, 15, and 33 of Chapter 660 of the Oregon
Administrative Rules, and Chapter 215.211 of the Oregon Revised
Statutes.
11 7 NVV Lafayette, Avem_ic, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 07708-6005
k� (541) 388-6575 @ rdd@dleschutes.org @ wwvw.deschutes.orgJcd
DECISION: The Hearings Officer finds that the application meets applicable criteria, and
recommendation of approval is being granted.
This decision becomes final twelve (12) days after the date mailed, unless appealed by a party
of interest. To appeal, it is necessary to submit a Notice of Appeal, the appeal fee of $2,665.00 plus
20% of the original application fee(s), and a statement raising any issue relied upon for appeal with
sufficient specificity to afford the Board of County Commissioners an adequate opportunity to
respond to and resolve each issue.
Copies of the decision, application, all documents and evidence submitted by or on behalf of the
applicant and applicable criteria are available for inspection at no cost. Copies can be purchased
for 25 cents per page.
NOTICE TO MORTGAGEE, LIEN HOLDER, VENDOR OR SELLER: ORS CHAPTER 215 REQUIRES THAT IF
YOU RECEIVE THIS NOTICE, IT MUST BE PROMPTLY FORWARDED TO THE PURCHASER.
247 -17 -000726 -PA, 727-ZC Page 2 of 2
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