2018-478-Minutes for Meeting October 24,2018 Recorded 11/8/2018BOARD OF Recorded in Deschutes County
COMMISSIONERS Nancy Blankenship, County Clerk CJ2018-478
Commissioners' Journal 11/08/2018 2:00:12 PM
1300 NW Wall Street, Bend, Oregon
(541) 388-6570
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BUSINESS MEETING MINUTES
9:00 AM
WEDNESDAY, October 24, 2018 BARNES & SAWYER ROOMS
Present were Commissioners Tammy Baney, Phil Henderson and Anthony DeBone. Also present were
Tom Anderson, County Administrator; David Doyle, County Counsel; and Sharon Keith, Board Executive
Assistant. Several citizens and identified representatives of the media were in attendance.
This meeting was audio and video recorded and can be accessed at the Deschutes County
Meeting Portal website http://deschutescountyor.iqm2.com/Citizens/Default.aspx
CALL TO ORDER: Chair DeBone called the meeting to order at 9:02 a.m.
PLEDGE OF ALLEGIANCE
CITIZEN INPUT:
Andrea Blum: Expressed gratitude to Commissioner Baney for all of her service
and thanked her for all of her accomplishments for the community.
CONSENT AGENDA: Before the Board was Consideration of Approval of the
Consent Agenda.
HENDERSON: Move approval.
BANEY: Second.
BOCC BUSINESS MEETING
OCTOBER 24, 2018 PAGE 1 OF 5
VOTE: HENDERSON: Yes.
BAN EY: Yes.
DEBONE: Chair votes yes. Motion Carried
Consent Agenda Items:
1. Consideration of Board Signature of Letter Appointing Scott Morgan to the
Bicycle and Pedestrian Advisory Committee
2. Approval of Minutes of the August 23, 2018 Special Business Meeting
3. Approval of Minutes of the August 27, 2018 Business Meeting
4. Approval of Minutes of the August 27, 2018 Work Session
5. Approval of Minutes of the August 28, 2018 Public Hearing
6. Approval of Minutes of the August 29, 2018 Business Meeting
7. Approval of Minutes of the August 29, 2018 Work Session
8. Approval of Minutes of the September 5, 2018 Business Meeting
9. Approval of Minutes of the September 12, 2018 Work Session
10.Approval of Minutes of the September 19, 2018 Business Meeting
11.Approval of Minutes of the September 19, 2018 Work Session
ACTION ITEMS
12. FIRST READING: Ordinance No. 2018-012, Marijuana Text Amendments
Community Development Department Planner Tanya Saltzman and Nick
Lelack, CDD Director presented the Ordinance and text amendments for
consideration of first reading. Commissioner Henderson made suggestions
for revisions. Commissioner Baney would be in favor of adoption by
emergency. Commissioner DeBone does not support adoption by
emergency at this time and asked for discussion on the reason for the
emergency. Commissioner Henderson is in favor of the 30 -day adoption by
emergency. Commissioner DeBone noted the value of defining this prior to
the 2019 legislative session and would support a 30 -day adoption. The
Board supported a 30 -day adoption by emergency which provides for an
effective date of November 23, 2018.
BOCC BUSINESS MEETING
OCTOBER 24, 2018 PAGE 2 OF 5
BAN EY: Move approval of first and second reading of Ordinance No.
2018-012 by title only as amended and declaring emergency
date effective of November 23, 2018
HENDERSON: Second
Ms. Saltzman read the one sentence amendment into the record. The Board
expressed their comments on the land use process to this point.
VOTE: BAN EY: Yes
HENDERSON: Yes
DEBONE: Chair votes yes. Motion Carried
Commissioner DeBone read the first and second reading of the Ordinance
into the record.
BAN EY: Move adoption
HENDERSON: Second
VOTE: BAN EY: Yes
HENDERSON: Yes
DEBONE: Chair votes yes. Motion Carried
Ms. Saltzman inquired on the next steps with the medical marijuana review
process. The Board would like the medical marijuana business community
involved in those conversations.
13.Consideration of Board Signature of Document No. 2018-648, 4 Peaks
Music Festival Outdoor Mass Gathering Permit
Isabella Liu, Community Development Department presented the document
for consideration. Ms. Liu noted there has not been any new evidence
presented for the record. Commissioner Henderson would like to see the
applicant work with the event site property owner to move the event facilities
BOCC BUSINESS MEETING
OCTOBER 24, 2018 PAGE 3 OF 5
further west in order to make it less impactful on adjacent . Commissioner
Baney is not in favor of moving the event into the irrigated pasture and near
the rock cliff. Commissioner Henderson would like someone to address any
violations by an inspection. Commissioner DeBone feels the application
defines the event and thanks the neighbors for getting involved and sharing
information. Ms. Liu explained the review of security and ground control for
the event.
BANEY: Move approval
HENDERSON: Second
VOTE: BANEY: Yes
HENDERSON: Yes
DEBONE: Chair votes yes. Motion Carried
14.Consideration of Board Signature of Document No. 2018-687, Board
Ruling a Paved Taxiway Does Not Violate Open Space Requirement and
Overturning on Appeal a Hearings Officer's Decision
Community Development Department Peter Russell presented the
document for consideration. Discussion held on the history of this topic and
expressed various concerns on this decision. Mr. Russell explained the
review process and present use definition. Adam Smith, Assistant Legal
Counsel and Mr. Russell will present a revised document. The 150 -day clock
was noted at November 1 6th
15.DELIBERATIONS: Tumalo Irrigation District Plan Amendment & Zone
Change Appeals
Cynthia Smidt, Community Development Department presented a new
decision matrix for the Board to consider. The Board commented on
information provided to them regarding issues. The Board addressed recent
ex parte contacts and were able to proceed without conflict. Ms. Smidt
BOCC BUSINESS MEETING
OCTOBER 24, 2018 PAGE 4 OF 5
reviewed the decision matrix with the Board along with Adam Smith,
Assistant Legal Counsel and Peter Russell, Senior Transportation Planner.
Staff will draft desired conditions as part of draft final decision for later
consideration by the Board.
OTHER ITEMS: None were offered.
ADJOURN
Being no further items to come before the Board, the meeting was adjourned at 11:28 a.m.
DATED this 7 Day of ,JOtie."L-€( 2018 for the Deschutes County Board of
Commissioners.
,/
RECORDING SECRETARY
BOCC BUSINESS MEETING
ANTHONY DEBONE, CHAIR
NDERSON, VICE CHAIR
OCTOBER 24, 2018 PAGE 5 OF 5
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
9:00 AM, WEDNESDAY, OCTOBER 24, 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/meeting. 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 Letter Appointing Scott Morgan to the Bicycle
and Pedestrian Advisory Committee
2. Approval of Minutes of the August 23, 2018 Special Business Meeting
Board of Commissioners Business Meeting Agenda
of 3
Wednesday, October 24, 2018 Page 1
3. Approval of Minutes of the August 27, 2018 Business Meeting
4. Approval of Mintues of the August 27, 2018 Work Session
5. Approval of Minutes of the August 28, 2018 Public Hearing
6. Approval of Minutes of the August 29, 2018 Business Meeting
7. Approval of Minutes of the August 29, 2018 Work Session
8. Approval of Minutes of the September 5, 2018 Business Meeting
9. Approval of Minutes of the September 12, 2018 Work Session
10.Approval of Minutes of the September 19, 2018 Business Meeting
11.Approval of Minutes of the September 19, 2018 Work Session
ACTION ITEMS
12. FIRST READING: Ordinance No. 2018-012, Marijuana Text Amendments - Tanya
Saltzman, Associate Planner
13. Consideration of Board Signature of Document No. 2018-648, 4 Peaks Music
Festival Outdoor Mass Gathering Permit - Isabella Liu, Associate Planner
14.Consideration of Board Signature of Document No. 2018-687, Board Ruling a Paved
Taxiway Does Not Violate Open Space Requirement and Overturning on Appeal a
Hearings Officer's Decision - Peter Russell, Senior Planner
15. DELIBERATIONS: Tumalo Irrigation District Plan Amendment & Zone Change
Appeals - Cynthia Smidt, Associate 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.
Board of Commissioners Business Meeting Agenda
of 3
Wednesday, October 24, 2018 Page 2
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•/meetin ,calendar
Meeting dates and times are subject to change. If you have question, please call (541) 388-6572.
Board of Commissioners Business Meeting Agenda
of 3
Wednesday, October 24, 2018 Page 3
Subject:
Name
Address
BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
Citizen Input or Testimony
CIAACtii4
l (426
Date:
77,6
Phone #s 541 54 /
E-mail address
In Favor
Neutral/Undecided
Submitting written documents as part of testimony? Yes
If so, please give a copy to the Recording Secretary for the record.
Opposed
SUBMIT COMPLETED REQUEST TO
RECORDING SECRETARY BEFORE MEETING BEGINS
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 October 24, 2018
DATE: October 17, 2018
FROM: Peter Russell, Community Development, 541-383-6718
TITLE OF AGENDA ITEM:
Consideration of Board Signature of Document No. 2018-687, Board Ruling a Paved
Taxiway Does Not Violate Open Space Requirement and Overturning on Appeal a
Hearings Officer's Decision
RECOMMENDATION & ACTION REQUESTED:
Review Board Document 2018-687 and consider signature of decision.
BACKGROUND AND POLICY IMPLICATIONS:
The Board held a public hearing on September 5, 2018, on file 247-18-000626-A, an appeal of
a hearings officer's decision on file 247 -18 -000138 -DR that a nearly 30 -year-old paved taxiway
violated the open space of Eagle Air Estates (EAE) cluster subdivision. The record closed
September 26 and the Board deliberated on October 10. The Board overturned the hearings
officer's July 25, 2018, decision on the interpretation of the terms present use, open space,
and development. Due to the unique aspects of this case, including the aspect the Board is
interpreting County code from almost 30 years ago, the Board specifies its findings and
interpretation are for matters in this appeal only and are not intended to set precedent.
FISCAL IMPLICATIONS: None
ATTENDANCE: Peter Russell, Senior Transportation Planner, CDD.
STAFF MEMORANDUM
TO: Board of County Commissioners
FROM: Peter Russell, Senior Transportation Planner
DATE: October 17, 2018
MEETING: October 24, 2018
RE:
Decision on an appeal of a declaratory ruling on a paved taxiway in
open space at Eagle Air Estates Cluster Subdivision (247 -18 -000626-
A/247 -18 -000138 -DR)
I. BACKGROUND
The Board of County Commissioners (Board) held deliberations on October 10, 2010, at 9:00 a.m.
on an appeal, 247-18-000626-A, which was an appeal of a hearings officer's denial of 247 -18 -000138 -
DR regarding an approximately 30 -year-old paved taxiway between Eagle Air Estates (EAE) and
Sisters Eagle Air Airport. The Board previously held a public hearing on the matter on September
5, closing the record September 26, 2018. The subject property has no assigned address, but is
identified on the County Assessor's map as 14-10-33D, Tax Lot 99. The EAE Cluster Subdivision was
originally approved under CU-89-68/TP-89-701. (Please see Figures 1 and 2.) The declaratory ruling
was filed in response to a code enforcement complaint filed by a private party in May 2017.
The hearings officer in his July 25, 2018, decision found the paved taxiway did violate the open space
requirement. The hearings officer also determined a declaratory ruling was appropriate and
identified what issues were germane. Specifically, the hearings officer's decision, based on the
County code language at Deschutes County Code (DCC) 22.40, limited his ruling to what is open
space; what is development; what were the land use regulations in effect when EAE was approved;
what was the then -present use in 1989; and what is enhanced recreational opportunity. The
hearings officer's decision stated anything else (calculation of open space, absence of paved taxiway
on final EAE plat, access to Sisters Airport, design of paved taxiway, flooding, etc.) was not relevant.
Mike Morgan, a party with standing through his submittal of written testimony into the record for
247 -18 -000138 -DR, filed a timely appeal (247-18-000626-A) on August 6, 2018.
Figure 1, EAE Open Space, aka Common Area, 14-10-33D, Tax Lot 99
Figure 2, EAE Paved Taxiway
Page 2 of 4
H. BOARD DELIBERATIONS
The Board and staff on October 10, 2018, reviewed a Decision Matrix, which summarized the major
issues from the hearings officer's July 25, 2018, denial of the Eagle Air Estates declaratory ruling as
well as issues raised before the Board on appeal at the September 5, 2018, public hearing and
materials submitted into the written record. The matrix topics were:
• Availability of the Declaratory Ruling process
• Definition of "present use"
• Definition of "open space" as natural or undeveloped
• Definition of "open space" as related to listed traits
• "Open space" is the same as "common area"
• Definition of "development"
• Definition of "enhance recreation opportunities"
The Board found file 247 -18 -0000138 -DR met the standards of Deschutes County Code (DCC)
22.40.010 and thus the declaratory ruling process was available to the applicant. Planning Law -15
(PL -15) was the applicable County code in 1989 when the application for EAE was submitted. The
Board did not reach consensus on "present use" in PL -15 Section 1.030(80) and CU-89-68/TP-89-701
but due to the discussion on activities allowed in open space this question became moot. The Board
agreed on the interpretation of the definition of "open space" in PL -15 Section 1.050(16)(6)(1) and
agreed to overturn the hearings officer's finding. The Board agreed on the characteristics of "open
space" at PL -15 Section 1.030(80) and agreed to overturn the hearings officer's finding. The Board
agreed with the definition of "open space" only needing to meet one of the traits listed in PL -15
Section 1.030(80). The Board agreed that "open space" and "common area" were meant as
interchangeable terms in 1989. The Board agreed on what was meant by development as that term
pertained to the paved taxiway and agreed to overturn the hearings officer's finding. The Board
agreed that flying met the definition of PL -15 Sections 1.030(80) and 8.050(16)(6)(1) as used in the
1989 approval of EAE cluster subdivision.
The Board at the conclusion of deliberations gave a preliminary decision to overturn the hearings
officer's decision. The Board directed staff to write a decision, based on Board review and
discussion of the Decision Matrix, which explained the Board's decision.
III. BOARD'S DECISION
Staff now presents Board Document No. 2018-687, a decision on file 247-18-000626-A and hereby
declares the paved taxiway in this case does not violate the open space requirement of EAE and
overturns on appeal the Hearings Officer's decision in file 247 -18 -000138 -DR, which found the paved
taxiway did violate the open space requirement.
IV. TIMELINE
The County has 150 days to issue a decision. EAE HOA submitted 247 -18 -000138 -DR on February
9, 2018. Through various tollings by the applicant the 150th day to render a local decision is now
November 16, 2018.
Page 3 of 4
Attachment: Board Document No. 2018-687, Files 247 -18 -000626 -A/138 -DR
Page 4 of 4
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
DECISION OF THE BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
FILE NUMBERS: 247 -18 -000138 -DR, 247-18-000626-A
OWNER/APPLICANT: Eagle Air Estates Homeowners Association
15860 Pilot Drive
Sisters, OR 97759
APPLICANT'S J. Christian Malone
ATTORNEY: Schmid Malone Buchanan, LLC
550 NW Franklin Ave., Suite 378
Bend, OR 97703
APPELLANT:
Michael Morgan
15925 Pilot Drive
Sisters, OR 97759
PROPOSAL: An appeal of a Declaratory Ruling that a paved taxiway violated the
open space requirements of Eagle Air Estates.
STAFF REVIEWER: Peter Russell, Senior Transportation Planner
HEARINGS OFFICER
DECISION ISSUED: July 25, 2018
APPEAL FILED: August 6, 2018
HEARING DATE: September 5, 2018
RECORD CLOSED: September 26, 2018
1 1 7 NW Lafayette Avenue, Bend, Oregon 97703 P.O. Box 6005, Bend, OR 97708-6005
(541) 388 6575 op cdd@deschutes.org
www.deschutes.org/cd 7
1. SUMMARY OF DECISION:
In this decision, the Board of County Commissioners ("Board") considers the appellant's appeal of
the July 25, 2018, Hearings Officer Decision (file no. 247 -18 -000138 -DR; "Hearings Officer Decision").
The Board exercised its discretion to hear the appeal de novo.
The Board received two Memoranda on the appeal from Senior Planner Peter Russell, dated August
23 and October 3, 2018 ("Staff Memoranda #1 and #2") that identified and summarized the
appellant's objections, the applicant's materials, and the Hearings Officer's findings in regard to the
issues raised in the appellant's Notice of Appeal submittal. The Board also received a memorandum
dated September 11, 2018, that focused solely on the declaratory ruling process (Staff
Memorandum #3). The Board's Decision in this appeal will refer to and incorporate the Hearings
Officer's Decision, and the summary of issues in the three Staff Memoranda.
A public hearing was held before the Board on September 5, 2018, after which the Board closed the
oral record and the applicant agreed to the Open Record closing September 12, Mutual Rebuttal
closing September 19, and Final Argument closing September 26, 2018. The Board deliberated on
the matter on October 10, 2018. After reviewing the record, receiving testimony from the applicant,
the appellant, and the public, and deliberating on the matter, the Board found that the paved
taxiway did not violate the open space requirements and overturned the hearings officer's decision,
determining the appellant had met its burden of proof. The Board based its decision primarily on
a differing interpretation of the terms "open space" and "present use" than the hearings officer's
ruling. The Board agreed with the hearings officer's decision on the interpretation of "enhance
recreational opportunities" but differed on how the term is applied to a paved taxiway in open
space.
Due to the unique aspects of this case, including that the Board is interpreting County code from
almost 30 years ago, the Board specifies its findings and interpretations are for matters in this
appeal only and are not intended to set precedent.
II. APPLICABLE STANDARDS AND CRITERIA:
The Board adopts and incorporates by reference the description of the applicable standards and
criteria as set forth in the July 25, 2018 Hearings Officer Decision (file no. 247 -18 -000138 -DR) in
Section I. The applicable criteria were:
• Planning Law 15 (PL -15)
o Section 1.030 (Definitions) (21) and (80)
o Section 8.050, Specific Use Standards (16)
• Title 22, Deschutes County Code (DCC) Procedures Ordinance
o Chapter 22.40, Declaratory Ruling
• Land Use Approval CU-89-68/TP-89-701 (Eagle Air Estates cluster subdivision)
Board of County Commissioners Decision, Document No. 2018-687
File Nos. 247-18-000626-A, 247 -18 -000138 -DR Page 2 of 6
III. BASIC FINDINGS:
The Board adopts and incorporates by reference the code interpretations, findings of fact, and
conclusions of law set forth in the July 25, 2018, Hearings Officer Decision in Section II. Basic
Findings, Subsections A (Location), B (Zoning), C (Lot of Record), D (Proposal), E (Land Use History),
F (Review Period) and II (General Findings) with the addition of the following:
Procedural History: On August 8, 1989, a County hearings officer approved CU-89-68/TP-89-701,
which created Eagle Air Estates ("EAE"). EAE is a 12 -lot cluster subdivision with hangars to the
immediate west of Sisters Eagle Airport. Pilot Drive, a private road, provides access from Camp Polk
Road to EAE. Pilot Drive ends in a cul-de-sac. A paved taxiway then extends from the cul-de-sac to
the north end of the runway at Sisters Eagle Airport. The 1989 approval required 65% of the EAE
land be open space with 35% developed. The open space has no in situs address but is a separate
tax lot described on the County Assessors Map as 14-10-33D, Tax Lot 99.
A private party filed a code enforcement complaint with the County in May 2017, alleging the paved
taxiway violated the open space requirement of EAE's land use approval. The EAE Homeowners
Association ("EAE HOA") filed a declaratory ruling application (file 247 -18 -000138 -DR) on February 8,
2018. The application stated "A declaratory ruling that the paved taxiway does not violate 'open
space' requirement." The application was deemed complete on March 9, 2018. A public hearing
was held on May 22, 2018, before a County Hearings Officer. The Hearings Officer issued his
decision ruling the paved taxiway did violate the open space requirement on July 25, 2018. Michael
Morgan, who provided written testimony to the Hearings Officer, appealed the Hearings Officer's
Decision on August 6, 2018.
The 150 -day period for issuance of a final local decision is November 16, 2018. The applicant has
requested to extend the 150 -day decision period at several points throughout the process. The
combined extensions cannot exceed 215 days per ORS 215.427, unless the applicant chooses to
waive the time period limitations. The extensions totaled 103 days.
The Board decided to hear the appellant's appeal de novo in the Board's Order 2018-057 dated
August 15, 2018. A public hearing was held on September 5, 2018. The appellant, Michael Morgan,
represented himself. The opponent, Sisters Eagle Airport, was represented by Elizabeth Dickson of
Dickson Hatfield LLP. The Board heard testimony from the applicant, the appellant, and the public.
The record closed on September 26, 2018. The Board's review included the record below before
staff and the hearings officer as well as the record, testimony, and written submissions in the
proceedings on appeal before the Board.
The Board conducted deliberations at the regular Business Meeting on October 10, 2018.
IV. FINDINGS:
The Board adopts and incorporates by reference the record, code interpretations, findings of fact,
and conclusions contained in the July 25, 2018, Hearings Officer Decision (file no. 247 -18 -000138 -
Board of County Commissioners Decision, Document No. 2018-687
File Nos. 247-18-000626-A, 247 -18 -000138 -DR Page 3 of 6
DR) in Section II Substantive Findings, except for the additional findings related to the DCC Sections
identified below, which are amended as follows:
A. FINDING: (E)(4) CU-89-68/TP-89-701 Approval Document (First Step)
The Board disagrees with the Hearings Officer finding that:
"The inquiry, in this section of findings, is whether or not laying asphalt pavement upon
the ground, to create a paved taxiway, is development. The Hearings Officer finds laying
asphalt pavement on the ground (or any other material used to create a hard surface to
allow vehicles/aircraft to travel over) is analogous to laying pavement for a public or
private road. The Hearings Officer finds the paved taxiway is development."
"The Hearings Officer finds laying pavement for a taxiway is a human activity and
development that must be located in the 35% (non -open space area)."
"The Hearings Officer finds that allowing the paved taxiway within the EAE Cluster
Development common area/open space would be a modification of the CU-89-68/TP-89-
701 Approval clearly prohibits development within the common area/open space."
The Board finds a paved taxiway in this particular circumstance was not development, but rather
was instead a contemplated minor improvement that sees extremely intermittent use. The Board
finds the record for CU-89-68/TP-89-701 clearly indicated the paved taxiway was part of the
application for EAE and an anticipated use of the land. The paved taxiway appeared on the tentative
plat and was described in the Hearings Officer's 1989 approval of EAE under Findings of Fact #3.
The 1989 decision stated in relevant part "The 12 lot development is designed to be an airpark
subdivision, where lot owners could taxi their personal planes out onto the private road and then
to the airstrip." Even if the paved taxiway were considered development, the paved taxiway in this
case is an allowed activity in the open space. Under the applicable County code, the enhancement
of recreational opportunities is allowed in open space. The Hearings Officer and the Board both
agree that flying private planes is a recreational activity. A paved taxiway is essential to this activity
and thus is allowed in open space. The paved taxiway is analogous to a golf cart path, which is also
allowed in open space. Both are horizontal features which do not disturb the visual aspects of open
space nor act as a barrier to physical movement across the open space and are crucial to
recreational activities. A paved taxiway is an ancillary and subordinate use to the EAE cluster
subdivision which was proposed as an airpark. The Board finds the specificity of the findings for
CU-89-68/TP-89-701 limits the precedential value of this decision.
Board of County Commissioners Decision, Document No. 2018-687
File Nos. 247-18-000626-A, 247 -18 -000138 -DR Page 4 of 6
B. FINDING: (E)(5) PL -15 Section 1.030, (21) and PL -15 Section 1.030(80) and PL -15 Section
8.050 (16) Modified by Board Ordinance 84-105
The Board disagrees with the Hearings Officer finding that:
"The Hearings Officer finds PL -15 Section 8.050(16)(8)(2) does not allow a paved taxiway
on land designated open space in a Cluster Development."
"The Hearings Officer finds paving a taxiway is development as that term is used [in) PL -15
Section 8.050(16)(b)(7)."
"The Hearings Officer finds PL -15 Section 8.050(16)(8)(1)(2) and (7) would not allow a paved
taxiway within open space land at the EAE Cluster Development."
The Board finds a paved taxiway in this particular circumstance was not development, but rather
was instead a contemplated minor improvement that sees extremely intermittent use. The Board
finds the record for CU-89-68/TP-89-701 clearly indicated the paved taxiway was part of the
application for EAE and an anticipated use of the land. The paved taxiway appeared on the tentative
plat and was described in the Hearings Officer's '1989 approval of EAE under Findings of Fact #3.
The 1989 decision stated in relevant part "The 12 lot development is designed to be an airpark
subdivision, where lot owners could taxi their personal planes out onto the private road and then
to the airstrip." Even if the paved taxiway were considered development, the paved taxiway in this
case is an allowed activity in the open space. Under the applicable County code, the enhancement
of recreational opportunities is allowed in open space. The Hearings Officer and the Board both
agree that flying private planes is a recreational activity. A paved taxiway is essential to this activity
and thus is allowed in open space. The paved taxiway is analogous to a golf cart path, which is also
allowed in open space. Both are horizontal features which do not disturb the visual aspects of open
space nor act as a barrier to physical movement across the open space and are crucial to
recreational activities. A paved taxiway is an ancillary and subordinate use to the EAE cluster
subdivision which was proposed as an airpark. The Board finds the specificity of the findings for
CU-89-68/TP-89-701 limits the precedential value of this decision.
C. 6. PL -15 Section 1.030(80)
The Board disagrees with the Hearings Officer's finding that
"...the term 'present' as used in PL -15 Section 1.030(80), refers to the use of the property at
the time of the application by EAE for its Cluster Development approval."
"The Hearings Officer finds a paved taxiway would not meet the applicable 1989 definition
of open space because a paved taxiway would not be the preservation and continuation
of the 1989 use of the common area/open space land."
The Board did not reach consensus on whether "present" meant the use at the time of the code
enforcement complaint about the paved taxiway, or if the paved taxiway was anticipated as the
Board of County Commissioners Decision, Document No. 2018-687
File Nos. 247-18-000626-A, 247 -18 -000138 -DR Page 5 of 6
"present" use based on the application materials for CU-89-68/TP-89-701 that referenced a physical
connection to Sisters Eagle Airport, or if "present" meant at the time of the land use application.
During the appeal process, the appellant raised the issue of equitable estoppel, and one
commissioner specifically noted his concern with the issue. In a land use matter, the doctrine of
equitable estoppel can at times arise as a defense in a code enforcement action. As the Board
understands the argument, regardless of the interpretation of "present," it is undeniable that the
paved taxiway has been in existence for decades. However, as the Board agreed that the paved
taxiway enhanced the recreational opportunity of flying and thus is allowed in open space, the
equitable estoppel issue and the question of defining "present" are moot.
V. DECISION:
Based on the findings set out above, the Board hereby declares the paved taxiway in this case does
not violate the open space requirement of EAE and overturns on appeal the July 25, 2018, Hearings
Officer Decision, which found the paved taxiway did violate the open space requirement.
Dated this day of October, 2018
Mailed this day of October, 2018
BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
Anthony DeBone, Chair
Philip G. Henderson, Vice Chair
Tammy Baney, Commissioner
THIS DECISION BECOMES FINAL WHEN MAILED. PARTIES MAY APPEAL THIS DECISION TO THE
LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS DECISION IS
FINAL.
Board of County Commissioners Decision, Document No. 2018-687
File Nos. 247-18-000626-A, 247 -18 -000138 -DR Page 6 of 6
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - Fax (541) 385-3202 - https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners Business Meeting of October 24, 2018
DATE: October 15, 2018
FROM: Cynthia Smidt, Community Development, 541-317-3150
TITLE OF AGENDA ITEM:
DELIBERATIONS: Tumalo Irrigation District Plan Amendment & Zone Change Appeals
BACKGROUND AND POLICY IMPLICATIONS:
Deliberations on two appeals of a comprehensive plan amendment and zone change for
property at 19300 Tumalo Reservoir Road. A public hearing was held on July 25, 2018. The
Board established an open record period of 21 days. The record closed on August 15, 2018.
The Board is tasked with determining if the proposal complies with the applicable sections of
Deschutes County Code and Oregon Administrative Rules.
On October 22, 2018, for a Board work session, staff presented to the Board a memo and
decision matrix which outlines the substantive issues. Any additional information requested by
the Board at work session will be provided directly to the Board at the October 24, 2018
deliberation meeting.
FISCAL IMPLICATIONS: None
ATTENDANCE: Cynthia Smidt, Associate Planner
SES
COMMN TT DEVELOPMENT
MEMORANDUM
DATE: October 15, 2018
TO: Board of County Commissioners
FROM: Cynthia Smidt, Associate Planner
RE:
Deliberations; Comprehensive Plan Amendment and Zone Change for Tumalo
Irrigation District (File Nos. 247-17-000775-ZC, 247 -17 -000776 -PA, 247-18-000241-A,
and 247-18-000247-A)
The Board of County Commissioners (Board) held a public hearing on July 25, 2018 to consider two
appeals, one filed by the applicant, Tumalo Irrigation District (TID) and the other by Central Oregon
LandWatch (LandWatch). This memo and the attached decision matrix are intended to identify issue
areas, summarize relevant findings and testimony, and provide a framework for a decision. These
documents do not replace the information contained in the record. For the Board's review is the
open record period since the public hearing. At various points in this memo, staff highlights Board
decision points.
Written evidence and testimony was submitted into the record at the hearing and during the post -
hearing open written record period. Said evidence and testimony is detailed in the Exhibit list at the
end of this memo.
I. BACKGROUND
The applicant, TID, submitted a request for a quasi-judicial Comprehensive Plan Amendment (file
no. 247 -17 -000776 -PA) to change the designation of the 541 -acre subject property from Surface
Mine (SM) to Rural Residential Exception Area (RREA). The request includes removing Surface
Mining Site No. 357 from the County's Surface Mining Mineral and Aggregate Inventory and adding
it to the Non -Significant Mining and Aggregate Inventory. The applicant also requests approval of a
Zone Change (file no. 247-17-000775-ZC) from Surface Mining to Multiple Use Agricultural (MUA).
The removal of the SM zoning would remove the existing Surface Mining Impact Area Combining
Zone (SMIA) zoning on surrounding properties located within one-half mile of the SM Zone.
The Hearings Officer (H.O.) decision denied the applicant's request for a plan amendment and zone
change (referred to as "plan amendment/zone change" request). The decision was based on the
11 7 NW Lafayette Avenue, Bend, Oregon 97703 I P.O. Box 6005, Bend, OR 97708-600.5
t (541) 388-6575 @ cdd@deschutes .org www.deschutes.org/cd
applicant's failure to demonstrate that the proposed change would not have a significant impact on
transportation facilities. Specifically, the H.O. was concerned about traffic impacts from potential
conditional uses following the plan/zone change, such as a cluster development.
The H.O. issued a decision on February 23, 2018, which was subsequently appealed. The Board
accepted review of the Hearings Officer's decision on April 18, 2018 via Order No. 2018-024.
II. RECORD
At the conclusion of the public hearing, the Board established the following deadlines for the open
record period to allow submittal of evidence, testimony and final legal argument. Also identified
below is the evidence and testimony submitted at the public hearing.'
• Evidence and testimony submitted at the public hearing on July 25, 2018
Jim and Bradaigh Holt Letter dated July 19, 2018; Exhibit A
Jennifer Bragar (Bishop) Letter dated July 24, 2018; Exhibit B
Jim and Bradaigh Holt Testimony dated July 25, 2018; Exhibit C
LandWatch Testimony dated July 25, 2018; Exhibit D
• New evidence and testimony ("First Round"): August 1, 2018 at 5:00 p.m. During this time,
the following documents were submitted:
Jim and Bradaigh Holt Testimony July 30, 2018; Exhibit E
Applicant's Testimony dated August 1, 2018; Exhibit F
LandWatch Testimony dated August 1, 2018; Exhibit G
• Rebuttal evidence and testimony ("Second Round"): August 8, 2018 at 5:00 p.m. During this
time, the following documents were submitted:
Applicant's Rebuttal dated August 8, 2018; Exhibit H
LandWatch Rebuttal dated August 8, 2018; Exhibit I
• Applicant's final legal argument ("Final Legal Argument"): August 15, 2018 at 5:00 p.m. During
this time, the following documents were submitted:
Applicant's Final Arguments dated August 15, 2018; Exhibit J
I11. PRELIMINARY MATTERS
Procedural Requirements
22.28.030. Decision on Plan Amendments and Zone Changes.
B. In considering all quasi judicial zone changes and those quasi judicial plan amendments on
which the Hearings Officer has authority to make a decision, the Board of County
'Staff understands the Board may not have received a copy of all evidence and testimony from the public hearing.
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Commissioners shall, in the absence of an appeal or review initiated by the Board, adopt the
Hearings Officer's decision. No argument or further testimony will be taken by the Board.
C. Plan amendments and zone changes requiring an exception to the goals or concerning lands
designated for forest or agricultural use shall be heard de novo before the Board of County
Commissioners without the necessity of filing an appeal, regardless of the determination of
the Hearings Officer or Planning Commission. Such hearing before the Board shall otherwise
be subject to the same procedures as an appeal to the Board under DCC Title 22.
The Deschutes County Code (DCC), Chapter 22.28.030(C) of the Procedures Ordinance requires the
Board to hear plan amendments and zone changes that require an exception to the statewide
planning goals or concerning lands designated agricultural use without the necessity of filing an
appeal of the H.O. decision. According to LandWatch, the application requires a goal exception,
primarily an exception to Goal 3, and thus the appeal by the applicant and LandWatch should not
have been necessary.2 Staff understands LandWatch to be seeking a refund of appeal fees under
this argument.
The H.O. found that an exception to Goal 3 was not required. The applicant agrees with the H.O.
decision. However, if the Board finds an exception is required, the applicant requests the hearing
be reopened to allow for further evidence to be submitted, as the applicant has not received any
direction to provide such information from staff or the H.O.3
Board Decision - As it relates to DCC 22.28, does the Board believe a goal exception is required to
accompany the proposed plan amendment/zone change request? If so, is the Board interested in
reopening the hearing?
Code Violations and Ability to Process Applications
22.20.015 Code Enforcement and Land Use
A. Except as described in (D) below, if any property is in violation of applicable land use
regulations, and/or the conditions of approval of any previous land use decisions or building
permits previously issued by the County, the County shall not:
1. Approve any application for land use development;
2. Make any other land use decision, including land divisions and/or property line
adjustments;
3. Issue a building permit.
C. A violation means the property has been determined to not be in compliance either through a
prior decision by the County or other tribunal, or through the review process of the current
application...
2 LandWatch also argues that because a Goal 3 exception is required, notice of the December 12, 2017 hearing
was inadequate.
3 Nonetheless, the applicant did provide a response to the goal exception standards, indicating that if an
exception was required, the proposal satisfies the "committed" exception.
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As noted above, DCC 22.20.015 may prevent approval of the present application if the property is
in violation of other land use regulations. LandWatch and others argue that a denial of the plan
amendment/zone change request is warranted because the subject property is in violation of
applicable land use regulations.' The applicant states that there are no code violations associated
with the subject property or Bill Martin Road. The complaints are "unsubstantiated from both an
evidentiary and substantive perspective."
Board Decision - Is the subject property in violation of applicable land use regulations?
IV. PLAN AMENDMENT AND ZONE CHANGE
Transportation Planning
OREGON ADMINISTRATIVE RULES, TRANSPORTATION PLANNING (OAR 660-012)
This section is applicable to the proposal because it involves an amendment to an acknowledged
comprehensive plan. The transportation analysis for a plan amendment/zone change request is
different than when analyzing physical development. This analysis considers generally whether the
proposed zoning allows for more vehicle trips than what is permitted under the current zoning. It
looks at impacts at intersections if the analysis identifies that the proposed zoning will increase trips
to the system. The H.O. denied the proposal here, making a finding regarding the Transportation
Planning Rule (TPR) is based on something other than mobility standards.
The applicant appeals this decision arguing that the H.O. erroneously concluded that the applicant
failed to satisfy OAR 660-012-0060. The applicant states that OAR 660-012-0060 requires the County
to estimate traffic impacts under a reasonable "worst-case" scenario. The applicant continues that
the H.O. erroneously concluded that 74 dwelling units on the subject property, which is only
achievable if TID seeks and obtains nine separate conditional use approvals and nine separate
subdivision approvals, is a reasonable worst-case scenario.' Nonetheless, the applicant provided a
supplemental traffic analysis from Kittelson & Associates that "confirms that surface mining
operations have a higher trip generation potential than even the 72 dwellings theoretically
possible."
The opponents support the H.O. decision.6 They argue that the transportation facilities serving the
property will not be consistent with their functional classification and thus, resulting in deterioration
4 LandWatch not only argues violation of the DCC but also a violation of ORS 368.256 regarding water traveling
across Bill Martin Road and, as in the record below, ongoing litigation - Blischke et al. v Tumalo Irrigation District,
Deschutes County District Court Case No. 16CV21940 - that involves Bill Martin Road as the violation of
applicable land use regulations. Finally, during this plan amendment/zone change request process, a code
complaint (case no. 247 -18 -000509 -CE) was filed against the subject property. This case has been closed.
5 The general understanding among parties is that multiple cluster developments would create approximately
72 to 74 dwelling units (no exact number). The argument is not regarding the number of dwelling units but what
the TPR evaluates in a plan amendment/zone change request.
6 At the lower hearing, LandWatch presented the original argument regarding TPR.
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of facility performance.' In addition, opposition (Holt) questions the validity of the traffic analysis
and argues that the County should have contacted ODOT pursuant to Comprehensive Plan's
Transportation System Plan (TSP) policy 3.1.a.8
As noted previously by staff, the H.O. decision makes an unusual finding regarding the TPR. This
could then set precedent regarding required traffic analyses for plan amendment/zone changes. In
the decision, the H.O. sites two cases, Jaqua v City of Springfield and Willamette Oaks, LLC, v City of
Eugene. In Jaqua v City of Springfield, 193 Or App 573, 593, 91 P3d 817 (2004) the court held that the
TPR does not permit deferral of a determination of whether the proposal would significantly impact
transportation facilities. This was reaffirmed and perhaps extended in Willamette Oaks, LLC, v City of
Eugene, 232 Or App 29, 220 P.3d 445 (2009). This effectively overruled a line of LUBA cases holding
that it was permissible in some instances to condition a plan amendment or zone change to prohibit
development that could significantly impact a transportation facility. The court made it clear that
there must be a finding on this issue at the plan amendment/zone change stage.
Board Decision - Has the applicant demonstrated that the proposed plan amendment/zone
change request will satisfy OAR 660-012-0060?
Transportation Planning and Natural Hazards
DCC 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:
C. That changing the zoning will presently serve the public health, safety and welfare considering
the following factors:
1. The availability and efficiency of providing necessary public services and facilities.
2. The impacts on surrounding land use will be consistent with the specific goals and policies
contained within the Comprehensive Plan.
Together with OAR 660-012-0060, the H.O. denied the plan amendment/zone change based on the
applicant's failure to meet this standard. The H.O. states the following:
Regarding Bill Martin Rd., and perhaps others, I have found that the applicant failed to meet its
burden of demonstrating that there is no potential significant detrimental impact on
transportation facilities. I think this criterion has a somewhat different focus. Adopting a zone that
permits some level of development likely promotes the provision of adequate facilities because it
can be conditioned to make improvements and it likely would be financially feasible to make those
improvements. Nevertheless, I find this criterion is not met regarding transportation because, as
stated above, there is insufficient information about the impacts of potential development, the
' LandWatch focuses specifically on the expected impact to Bill Martin Road, in addition to the intersection of
Highway 20 and Bailey Road.
8 The applicant argues that no new highway access is proposed and no actual trips are being generated by
this proposal. Therefore, the proposal is consistent with this policy.
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carrying capacity and condition of existing roads and what, if anything, can be done to mitigate
such impacts.
LandWatch and others agree with the H.O. decision here.9 They argue that this standard is not met
because the site, with a history of erosion (e.g. sinkholes), is unsafe, and Bill Martin Rd. is in poor
condition. LandWatch indicates that the unsafe conditions are "likely due to insufficient reclamation
of the former mining site."
The applicant appeals this decision arguing that the H.O. misapplied and erroneously concluded
that the applicant failed to satisfy DCC 18.136.020(C). The applicant argues that this provision looks
at whether public services are provided. Bill Martin Road is not the only road that serves the
property; Mock Road and Tumalo Reservoir Road also serve the property and help distribute traffic
throughout the area.10
Board Decision - Has the applicant demonstrated that changing the zoning will presently serve the
public health, safety as identified in DCC 18.136.020(C)?
Goal 3: Agricultural Lands
To preserve and maintain agricultural lands.
The subject property is identified as Surface Mine under the County Comprehensive Plan. It is
not identified as agricultural lands. The applicant did not request an exception to Goal 3 based
on this information. The H.O. found that an exception to Goal 3 was not required.
LandWatch appeals the H.O. decision arguing that the subject property is agricultural land for
which no goal exception has been taken in the Comprehensive Plan. Therefore, the argument
is made that lands can only be designated as RREA if an exception is taken. LandWatch
continues by stating the subject property is agricultural land based on the soil classification of
the U.S. Natural Resources Conservation Service (NRCS) and therefore, the property is
agricultural land by definition.11 LandWatch refers to previous County comprehensive plans
and processes but argues the State acknowledged many exceptions to Goal 3 but did not
acknowledge the SM Zone as an exception to Goal 3. Moreover, even if there was an
9 Jim and Bradaigh Holt reference ORS 517.760(1)(b) and (2)(b), which state, respectively:
(1) The Legislative Assembly finds and declares that: (b) Proper reclamation of surface -mined lands is necessary
to prevent undesirable land and water conditions that would be detrimental to the general welfare, health,
safety and property rights of the citizens of this state.
(2) The Legislative Assembly, therefore, declares that the purposes of ORS 517.702 to 517.951 are: (b) To provide
for cooperation between private and governmental entities in carrying out the purposes of ORS 517.702 to
517.951 and reclamation of abandoned mined lands that may pose a hazard to public health, safety or the
environment.
10 The applicant also argues that there is nothing wrong with Bill Martin Road, having been repaired and
improved, including installation of culverts, following the sink hole events,
11 LandWatch provides a definition that is similar or the same as the one in OAR 660-033-0020.
247-17-000775-ZC, 247 -17 -000776 -PA, 247-18-000241-A, and 247-18-000247-A Page 6 of 11
acknowledgement, the exception allowed for surface mining but not rural residential. Lastly,
since surface mining is considered a temporary and transitional use, once the significant
mineral resources is deleted, Goal 5 no longer applies which warrants the re -designation and
rezoning based on the agricultural soils of the property. Other opposition (Holt) argues that
zoning should be EFU and not residential.
The applicant supports the H.O. decision regarding Goal 3. The applicant argues the NRCS
identifies the soils at the landscape level and are not site specific and thus not reliable.
Furthermore, the NRCS data is irrelevant because the County's agricultural land inventories and
zoning have long been acknowledged by the State. The applicant, also referring to previous
comprehensive plans and processes, argues that Deschutes County inventoried all agricultural
(resource) lands in the county. The lands found to be resource lands - agricultural or forest -
by definition, were then assigned their associated zones - Exclusive Farm Use or Forest zoning
(or their predecessor). For the lands not identified as agricultural or forestry land, the County
took the approach of establishing completely separate zones, which included the SM Zone.
These separate zones were then assigned to the properties not identified as agricultural or
forestry land. They continue by indicating that the RREA plan designation is a misleading term
carried over since the initial Comprehensive Plan.
They state, "As discussed in prior decisions, the term is simply a 'catchall designation for land
types that are authorized as rural residential zoning."' The applicant states that the County
recognized that mining operations were distinctly not agricultural or forest resources unless
specifically identified in the Economic, Social, Environmental and Energy (ESEE) analysis
associated with the site.12 The applicant states that the subject property was not inventoried
as agricultural resource land, and subsequently acknowledged by the State, in the 1979
comprehensive plan and the 1992 periodic review of the comprehensive plan. The site has
never been suitable for farm use, according to the applicant, and was never subject to Goal 3.
Here and at the lower hearing, the applicant cites Caldwell v Klamath County, 45 LUBA 548 (No.
2003-115, 2003), which the H.O. concurred.
In conclusion, the applicant argues that an exception is not required because the site is not
agricultural land. However, if an exception is required, the applicant requests the hearing be
reopened to allow for further evidence be submitted, as the applicant has not received any
direction to provide such information from staff or the H.O. (see footnote 3).
Board Decision - Does the proposed plan amendment/zone change request require an
exception to Goal 3, Agricultural Lands?
12 The surface mining element and the ESEE analysis for Site No. 357 do not identify a subsequent use zone
for the property.
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Goal 7: Areas Subject to Natural Hazards13
To protect people and property from natural hazards.
The H.O. found that the site does not include areas subject to natural hazards. Moreover, the H.O.
found that environmental concerns "can be addressed through compliance with applicable state
health and environmental quality regulations, or through compliance with the county's
development standards."14
LandWatch appeals this decision, arguing that an exception to Goal 7 is required. They state that
the "evidence in the record indicates the applicant did not fill mined areas on the property in a
manner that permits subsequent use of the property for housing development." They argue that if
the County does not respond to new hazard inventory information submitted by a state agency,
DOGAMI in this case, then an exception to Goal 7 is required.15 Now that the County is aware of
potentially hazardous conditions on the property, the H.O. erred in "not recommending that the
County conduct an evaluation of the risk of sinkholes from improper fill."
The applicant supports the H.O. decision here. They argue that the County's existing development
regulations, as required by the Goal 7 policies, are designed to screen for these issues as part of the
physical development review process. The sinkholes that occurred at Summit High School were
used as an example among parties. The applicant argues that this is an example that reclaimed
mines can be reasonably utilized and that "this was a result of selected treatment and not an
incurable defect of the property." Lastly, the applicant states, "DOGAMI has confirmed, nothing
precludes a property owner from pursuing additional reclamation" to support some alternative
post -mining use.
Board Decision - Does the plan amendment/zone change request require an exception to Goal 7,
Areas Subject to Natural Hazards?
13 LandWatch argues that several policies related to natural hazards in the Comprehensive Plan have not been
met and are summarized in their notice of appeal. As noted by LandWatch, the Comprehensive Plan Section
3.5, Natural Hazards, only identifies wildland fire, severe winter storms, flooding, volcanic eruption, and
earthquake. Other hazards such as sinkholes are not identified since they are not a typical hazard for the
county. The County Zoning Ordinance implements those policies of the acknowledged Comprehensive Plan.
14 The H.O. quoted the Hearings Officer from another plan amendment/zone change request, file nos. PA -08-1
and ZC-08-1.
1s LandWatch indicates that Goal 7 requires that the County respond to new natural hazard inventory
information submitted by a state agency. They reference the following Goal 7, part B section:
B. RESPONSE TO NEW HAZARD INFORMATION 1. New hazard inventory information provided by federal and
state agencies shall be reviewed by the Department in consultation with affected state and local government
representatives. 2. After such consultation, the Department shall notify local governments if the new hazard
information requires a local response. 3. Local governments shall respond to new inventory information on
natural hazards within 36 months after being notified by the Department of Land Conservation and
Development, unless extended by the Department.
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Comprehensive Plan - Resource Management
Section 2.10 Surface Mining
Background
Surface mining provides non-renewable resources, such as pumice, cinders, building stone, sand,
gravel and crushed rock. The extraction of these materials provides employment as well as
products important to local economic development. Yet mining of mineral and aggregate
resources creates noise, dust and traffic and potential pollution that can conflict with neighboring
land uses, particularly residential uses. This conflict can be aggravated by delayed or incomplete
reclamation of the land. Surface mining is protected through Statewide Planning Goal 5, Natural
Resources, Scenic and Historic Areas and Open Spaces and the associated Oregon Administrative
Rule (OAR) 660-023 (this rule replaced 660-016 in 1996). Mineral and aggregate resources are
included on the list of Statewide Goal 5 resources that the County must inventory and protect...
Goals and Policies
Goal 1 Protect and utilize mineral and aggregate resources while minimizing adverse
impacts of extraction, processing and transporting the resource.
Policy 2.10.1 Goal 5 mining inventories, ESEEs and programs are retained and not repealed.
Policy 2.10.2 Cooperate and coordinate mining regulations with the Oregon Department of
Geology and Mineral Industries.
Policy 2.10.3 Balance protection of mineral and aggregate resources with conflicting
resources and uses.
Policy 2.10.5 Review surface mining site inventories as described in Section 2.4, including the
associated Economic, Social, Environmental and Energy (ESEE) analyses.
Policy 2.10.6 Support efforts by private property owners and appropriate regulatory agencies
to address reclamation of Goal 5 mine sites approved under 660-016 following
mineral extraction.
The request includes removing Surface Mining Site No. 357 from the County's Surface Mining Mineral
and Aggregate Inventory and adding it to the Non -Significant Mining and Aggregate Inventory. The
H.O. found these comprehensive plan policies were met and concluded the following:
There do not appear to be any express criteria for inclusion on the Non-significant inventory. As
discussed above, the applicant has met its burden of demonstrating that the Significant
designation should be terminated. Any future proposal for a reservoir will at a minimum require
development review. I do not have a proposal for such excavation before me and the issue of
whether a new reservoir may be excavated on a property not listed as a Significant Resource will
be addressed if such development is sought.
LandWatch appeals this decision, indicating that the H.O. erred in deciding to amend Table 5.8.2 to
include the subject property. LandWatch and others argue the property should not be placed on
the non-significant mining and aggregate inventory. LandWatch states that the existence of such
247-17-000775-ZC, 247 -17 -000776 -PA, 247-18-000241-A, and 247-18-000247-A Page 9 of 11
an inventory is an error and has no legal value in the County's program. They reference Beaver State
Sand & Gravel v. Douglas County was made, indicating this issue was settled with the Court of Appeals.
The applicant supports the H.O. decision regarding the Non -Significant Mining and Aggregate
Inventory listing. The applicant states Deschutes County adopted DCC 18.128.280, which provides
mining on non -Goal 5 resources, regardless of the zone, if the site is listed on the Non -Significant
Mining and Aggregate Inventory. They contend that although the Court of Appeals ruling in Beaver
State Sand and Gravel, Inc. v. Douglas County may have rendered DCC 18.128.280 and the Non -
Significant Mining and Aggregate Inventory "obsolete and unnecessary" it remains in the DCC.
Therefore, based on the DCC, it requires non -Goal 5 resources be included on the Non -Significant
Mining and Aggregate Inventory in order to be eligible for mining via conditional use approval.
Board Decision - Does the proposed plan amendment/zone change request meet the Resource
Management policies of the Comprehensive Plan? Should the Non -Significant Mining and
Aggregate Inventory be amended to include the subject property?
Comprehensive Plan - Post -Mining Uses
Section 18.52.200 of the DCC governs post -mining uses of surface mining sites. That section states,
"...the property shall be rezoned to the subsequent use zone identified in the surface mining
element of the Comprehensive Plan." In this case, however, the Comprehensive Plan does not
identify a subsequent use zone for the subject property (see footnote 12). For reference, the site's
reclamation report by DOGAMI designated post -mining use as Open Space/Range compared to the
other choices such as agriculture, recreation, wildlife/wetlands, or housing/construction.
LandWatch and others argue that the H.O. erred in "ignoring DOGAMI's reclamation certification."
They state that a comprehensive plan amendment and zone change to something other than open
space or range would be inconsistent with that determination. LandWatch states that if the
applicant is responsible for identifying the post -mining designation with the DOGAMI, "then the
applicant cannot seek to use the subject property for any other use."
The applicant supports the H.O. decision here. They argue that the post -mining uses identified in
DOGAMI paperwork is not binding on actual future uses of that property.16 They state, "Actual post -
mining uses are squarely the province of local governments." Furthermore, the applicant argues,
"There is no indication or analysis from DOGAMI that the reclamation actually performed on the
subject property is not suitable for some alternative use." In the MUA-10 Zone, the applicant points
out, talks to the preservation of open spaces.
Board Decision - Does the proposed zone change request to rezone the property from SM to MUA-
10 meet DCC 18.52.200 regarding post -mining uses?
16 The applicant indicates that while a DOGAMI permit is active, if there is an alternative post -mining use, then
the reclamation standard must also change. However, once the DOGAMI permit is closed, DOGAMI loses
jurisdiction.
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V. 150 -DAY Clock
According to DCC 22.20.040, quasi-judicial plan amendment and zone change requests are exempt
from the 150 -day time limit.
EXHIBITS
Evidence and testimony submitted at the public hearing
A. Jim and Bradaigh Holt Letter dated July 19, 2018
B. Jennifer Bragar (Bishop) Letter dated July 24, 2018
C. Jim and Bradaigh Holt Testimony dated July 25, 2018
D. LandWatch Testimony dated July 25, 2018
Post -hearing new evidence and testimony
E. Jim and Bradaigh Holt Testimony July 30, 2018
F. Applicant's Testimony dated August 1, 2018
G. LandWatch Testimony dated August 1, 2018
Post -hearing rebuttal evidence and testimony
H. Applicant's Rebuttal dated August 8, 2018
I. LandWatch Rebuttal dated August 8, 2018
Post -hearing Applicant final legal argument
J. Applicant's Final Arguments dated August 15, 2018
Staff submittal
K. Decision Matrix
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TID Plan Amendment and Zone Change - MATRIX revised
Issue Area
Applicant
Opposition
Staff Comments
Board Decision
Goal 3: Agricultural Lands
Supports the Hearings Officer regarding Goal 3
decision.
Subject property is agricultural land
for which no goal exception has been
taken in the Comprehensive Plan.
Natural Resources Conservation Service (NRCS)
Therefore, the site can only be
Does the Board believe a Goal 3
To preserve and maintain agricultural
identifies the soils at the landscape level and is
designated as RREA if an exception is
exception is required?
lands.
not site specific nor reliable. NRCS data is
irrelevant because the County's agricultural land
taken.
1. If yes, then the Board can either
The subject property is identified as
inventories and zoning have been acknowledged
Subject property is agricultural land
a. Reopen the hearing to allow
Surface Mine under the County
by the State.
based on the soil classification of the
the applicant to provide
Comprehensive Plan. It is not
NRCS and therefore, the property is
additional evidence; or
identified as agricultural lands. The
Deschutes County inventoried all resource lands
agricultural land by definition.
None
b. Review the supplemental
applicant did not request an
in the county. The lands found to be resource
information regarding
exception to Goal 3 based on this
lands by definition, were then assigned their
State acknowledged many exceptions
"committed" exception and
information.
associated zones - Exclusive Farm Use or Forest
to Goal 3 but did not acknowledge the
proceed with the decision
The Hearings Officer found that an
zoning (or their predecessor). Lands not
identified as agricultural or forestry land, the
SM Zone as an exception to Goal 3.
matrix.
exception to Goal 3 was not required.
County established completely separate zones,
included the SM Zone. The separate zones were
assigned to the properties not identified as
agricultural or forestry.
Even if there was state
acknowledgement, the exception
allowed for surface mining but not
rural residential.
2. If no, proceed with the decision
matrix.
247-17-000775-ZC, 247 -17 -000776 -PA, 247-18-00241-A, and 247-18-000247-A Board Deliberations MATRIX
Page 1 of 7
Issue Area
Applicant
Opposition
Staff Comments
Board Decision
Goal 7: Areas Subject to Natural Hazards
To protect people and property from
natural hazards.
The Hearings Officer found that the
site does not include areas subject to
natural hazards. In addition, it was
found that environmental concerns
"can be addressed through
g
compliance with applicable state
p pp
health and environmental quality
regulations, or through compliance
with the county's development
standards."
Supports the Hearings Officer regarding Goal 7
decision.
The County's existing development regulations,
as required by the Goal 7 policies, are designed
to screen for these issues as part of the physical
development review process.
Summit High School is an example that
reclaimed mines can be reasonably utilized and
that "this was a result of selected treatment and
not an incurable defect of the property."
"DOGAMI has confirmed, nothing precludes a
property owner from pursuing additional
reclamation to support some alternative post-
mining use.
An exception to Goal 7 is required.
"Evidence in the record indicates the
applicant did not fill mined areas on
the property in a manner that permits
subsequent use of the property for
housing development.
If County does not respond to new
hazard inventory information
submitted by DOGAMI, then an
exception to Goal 7 is required. Now
that the County is aware of potentially
hazardous conditions on the property,
the Hearings Officer erred in "not
recommending that the County
conduct an evaluation of the risk of
sinkholes from improper fill."
None.
Does the Board believe a Goal 7
exception is required?
1. If yes, then the Board can either
a. Reopen the hearing to allow
the applicant to provide
additional evidence; or
b. Review the record and
proceed with the decision
matrix.
2. If no, proceed with the decision
matrix.
247-17-000775-ZC, 247 -17 -000776 -PA, 247-18-00241-A, and 247-18-000247-A Board Deliberations MATRIX
Page 2 of 7
Issue Area
Applicant
Opposition
Staff Comments
Board Decision
Transportation Planning Rule (TPR)
OAR 660-012-0060.
The transportation for a
p analysisplanSupport
amendment and zone change request
considers generally whether the
proposed zoning allows for more
vehicle trips than what is permitted
under the current zoning. It looks at
impacts at intersections if the analysis
identifies that the proposed zoning
will increase trips to the system.
The Hearings Officer denied the
proposal here, making a finding
regarding the TPR that is based on
something other than mobility
standards.
The Hearings Officer erroneously concluded that
the applicant failed to satisfy OAR 660-012-0060.
OAR 660-012-0060 requires the County to
estimate traffic impacts under a reasonable
"worst-case" scenario (concluding that 74
dwelling units on the subject property, which is
only achievable if the applicant seeks and
obtains nine separate conditional use approvals
and nine separate subdivision approvals, is a
reasonable worst-case scenario).
the Hearings Officer s decisionCity
and argue that transportation facilities
serving the property will not be
consistent with their functional
classification and thus, resulting in
deterioration of facilit y performance.2.
Other opposition question the validity
of the traffic analysis and argues that
the County should have contacted
ODOTursuant to Comprehensive
p p
Plan's Transportation System Plan
(TSP) policy3.1.a.
The Hearings Officer makes
an unusual finding regarding
the TPR. This could then set
precedent regarding
required traffic analyses for
plan amendment and zone
changes.
In the decision, the Hearings
Officer sites two cases,Jaqua
v City of Springfield and
Willamette Oaks, LLC, v Ci o f
Eugene. In Jaqua v City of
Springfield, the court held
that the TPR does not permit
deferral of a determination
of whether the proposal
would significantly impact
transportation facilities. This
was reaffirmed and perhaps
extended in Willamette Oaks,
LLC, vCityEugene. This
of Eu g
effectively overruled a line of
LUBA cases holdingthat it
waspermissible insome
instances to condition a plan
amendment or zone change
to prohibit development that
could significantly impact a
transportation facility. The
court made it clear that
there must be a finding on
this issue at the plan
amendment and zone
change stage.
Has the applicant demonstrated
that the proposed plan amendment
p p
and zone change will satisfy OAR
660-012-0060?
1. If yes, proceed with the decision
matrix.
If no, then the Board can either
a. Reopen the hearing to allow
the applicant to provide
additional evidence; or
b. Review the supplemental
traffic analysis provided by
the applicant and proceed
with the decision matrix.
247-17-000775-ZC, 247 -17 -000776 -PA, 247-18-00241-A, and 247-18-000247-A Board Deliberations MATRIX
Page 3 of 7
Issue Area
Applicant
Opposition
Staff Comments
Board Decision
Rezoning Standards - Natural Hazards
DCC 18.136.020(C) requires a quasi -
judicial rezoning establish that the
public interest is best served by
rezoning the property and that
changing the zoning will presently
serve the public health, safety and
welfare consideringseveral factors.
Together with OAR 660-012-0060, the
Hearings Officer denied the planand
amendment and zone change based
on the applicant's failure to meet this
standard.
The Hearings Officer misapplied and
erroneously concluded that the applicant failed
to satisfy DCC 18.136.020(C).
This provision looks at whether public services
areprovided. Bill Martin Road is not the onlyThis
road that serves the property; Mock Road and
Tumalo Reservoir Road also serve the property
help distribute traffic throughout the area.
Supports the Hearings Officer's
decision here.
standard is not met because the
site, with a history of erosion (e.g.
sinkholes), is unsafe, and Bill Martin
Rd. is in poor condition.
None.
Has the applicant demonstrated
that changing the zoning will
presently serve the public health,
safety as identified in DCC
18.136.020(0)?
1. If es, then the Board can either
y
a. Reopen the hearing to allow
the applicant to provide
additional evidence; or
b. Review the record and
proceed with the decision
matrix.
2. If no, proceed with the decision
matrix.
Comprehensive Plan - Resource Management
Section 2.10 Surface Mining
The request includes removing
Surface Mining Site No. 357 from the
County's Surface Mining Mineral and
Aggregate Inventory and adding it to
the Non -Significant Miningand
g
Aggregate Inventory.
The Hearin s Officer found that the
g
comprehensive plan policies of
Section 2.10 were met and approved
listing the site on the Non -Significant
Mining and Aggregate Inventory.
Supports the Hearings Officer decision.
Deschutes County adopted DCC 18.128.280,
which provides mining on non -Goal 5 resources,
regardless of the zone, if the site is listed on thep
Non -Significant Mining and Aggregate Inventory.
Although the Court of Appeals ruling in Beaver
State Sand and Gravel, Inc. v. Douglas County may
have rendered DCC 18.128.280 and the Non-
Significant Mining and Aggregate Inventory
"obsolete and unnecessary" it remains in the
DCC. Based on the DCC, it requires non -Goal 5
resources be included on the Non -Significant
Mining and Aggregate Inventory in order to be
eligible for mining via conditional use approval.
Hearings Officer erred in deciding to
amend Table 5.8.2 to include the
subject property .
p y
Opponents argue the property should
not beplaced on this inventory.
y
The existence of such an inventory is
an error and has no legal value in the
County's program.
y s
Court of Appeals settled this issue in
Beaver State Sand & Gravel v. Douglas
County
None.
Should the Non -Significant Mining
and Aggregate Inventory be
amended to include the subject
property?
1. If yes, proceed with the decision
matrix.
2. If no, then deny listing the site on
the Non -Significant Mining and
Aggregate Inventoryand proceed
ggre g
with the decision matrix.
247-17-000775-ZC, 247 -17 -000776 -PA, 247-18-00241-A, and 247-18-000247-A Board Deliberations MATRIX
Page 4 of 7
Issue Area
Applicant
Opposition
Staff Comments
Board Decision
Comprehensive Plan - Post -Mining Use
DCC 18.52.200 governs post -mining
uses of surface mining sites.
DCC 18.52.200 states, "...the property
shall be rezoned to the subsequent
Supports the Hearings Officer's decision.
Hearings Officer erred in "ignoring
use zone identified in the surface
DOGAMI identified post -mining uses is not
DOGAMI's reclamation certification."
Does the proposed rezone request
mining element of the
binding on actual future uses of that property.
meet DCC 18.52.200?
Comprehensive Plan."
"Actual post -mining uses are squarely the
Comprehensive plan amendment and
zone change to something other than
1. If yes, proceed with the decision
matrix.
The Comprehensive Plan, surface
province of local governments."
open space or range would be
mining element, and the ESEE analysis
inconsistent with that determination.
None.
2. If no, the Board can either
for Site No. 357 do not identify a
"There is no indication or analysis from DOGAMI
a. Reopen the hearing to allow
subsequent use zone for the
that the reclamation actually performed on the
If the applicant is responsible for
the applicant to provide
property.
subject property is not suitable for some
identifying the DOGAMI post -mining
additional evidence; or
alternative use."
designation, "then the applicant
b. Review the record and proceed
DOGAMI's reclamation certificate
cannot seek to use the subject
with the decision matrix.
designated post -mining use as Open
Space/Range (other choices include
agriculture, recreation,
wildlife/wetlands, or
housing/construction).
MUA-10 Zone purpose includes preservation of
open spaces.
property for any other use."
247-17-000775-ZC, 247 -17 -000776 -PA, 247-18-00241-A, and 247-18-000247-A Board Deliberations MATRIX
Page 5 of 7
Issue Area
Applicant
Opposition
Staff Comments
Board Decision
Procedural - Goal Exception
DCC 22.28.030(C) states that plan
amendments and zone changes
Does the Board believe a goal
exception is required, as it relates
to DCC 22.28.030(C)?
requiring an exception to the goals or
The applicant agrees with the Hearings Officer
The application requires a goal
1. If yes, then the Board can either
concerning lands designated for
does believe a exception is
exception, primarily an exception to
forest or agricultural use shall berequired.
and not goal
Goal 3, and thus the appeal by the
a. Reopen the hearing to allow
heard de novo before the Board ofapplicant
CountyCommissioners without the
If an exception is required, the applicant
and LandWatch should not
have been necessary.
None.
the applicant to provide
additional evidence; or
necessity of filing an appeal,
regardless of the determination of the
requests the hearing be reopened to allow for
further evidence be submitted, as the applicant
Because a Goal 3 exception is
b. Review the supplemental
information regarding
Hearings Officer or Planning
Commission.
has not received any direction to provide such
information from staff or the Hearings Officer.
required, notice of the December 12,
2017 hearing was inadequate.
"committed" exception and
proceed with the decision
matrix.
The Hearings Officer found that an
exception was not required.
2. If no, proceed with the decision
matrix.
247-17-000775-ZC, 247 -17 -000776 -PA, 247-18-00241-A, and 247-18-000247-A Board Deliberations MATRIX
Page 6 of 7
Issue Area
Applicant
Opposition
Staff Comments
Board Decision
Code Violations and Ability to Process Applications
DCC 22.20.015 mayprevent approval
pp
of the present application if the
property is in violation of other land
regulations.
There are no code violations associated with the
subject property or Bill Martin Road.
"unsubstantiated
The complaints are from both
an evidentiary and substantive perspective."
Opponents argue that a denial of the
plan amendment and zone change
request is warranted because the
subject property is in violation of
applicable land use regulations, state
law, and pending litigation.
None.
Step 1: Is there substantial
evidence in the record related to
the issue to proceed?
1. If yes, the Board can address the
issue. Proceed to Step 2.
2. If no, the Board can make a
finding that there is no
substantial evidence and thus
decline to find a formal violation.
Step 2: Does the Board find the
property in violation of
subjectp p Y
applicable land use regulations?
1. If yes, then the Board can either
a. Approve the proposal if
following within one of the
circumstances listed in DCC
22.20.15(D)
b. Deny the proposal
2. If no, the Board can make a
finding that there is no formal
violation based on the evidence
in the record.
247-17-000775-ZC, 247 -17 -000776 -PA, 247-18-00241-A, and 247-18-000247-A Board Deliberations MATRIX
Page 7 of 7