2019-6-Ordinance No. 2019-2 Recorded 1/9/2019Recorded in Deschutes County CJ2019-6
Nancy Blankenship, County Clerk 01 /09/2019 4:44:14 PM
Commissioners' Journal
1111111ininuminii
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,
to Change the Comprehensive Plan Map Designation
for Certain Property From Surface Mining 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 Surface
Mining to Multiple Use Agricultural.
ORDINANCE NO. 2019-002
WHEREAS, the Tumalo Irrigation District applied for changes to both the Deschutes County
Comprehensive Plan Map and the Deschutes County Zoning Map, to change the subject property as described in
Exhibit "A" and depicted on the maps set forth as Exhibit "B" and Exhibit "C" from an Surface Mining (SM)
designation to a Rural Residential Exception Area (RREA) designation and a corresponding zone change from
Surface Mining to Multiple Use Agricultural (MUA-10); and
WHEREAS, after notice was given in accordance with applicable law, a public hearing was held on
December 12, 2017, before the Deschutes County Hearings Officer and, on February 23, 2018, the Hearings
Officer denied the Comprehensive Plan Map change and Zoning Map change; and
WHEREAS, Central Oregon LandWatch appealed the Hearings Officer's decision on March 6, 2018; and
WHEREAS, Tumalo Irrigation District, appealed the Hearings Officer's decision on March 7, 2018; and
WHEREAS, the Board of County Commissioners ("Board") accepted review of the Hearings Officer's
decision on April 18, 2018, through Order No. 2018-024; and
WHEREAS, after notice was given in accordance with applicable law, a de novo public hearing was held
on July 25, 2018, before the Board; and
WHEREAS, the Board, after review conducted in accordance with applicable law, overturned the
Hearings Officer's decision, approved the plan amendment to change the Comprehensive Plan Map designation
from Surface Mining to Rural Residential Exception Area, and approved the Zoning Map amendment to change
from Surface Mining to Multiple Use Agricultural; now, therefore,
PAGE 1 OF 3 - ORDINANCE NO. 2019-002
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 "F" attached and incorporated by reference herein, with new
language underlined and deleted language set forth in strikethrough.
Section 3. AMENDMENT. Deschutes County Comprehensive Plan Section 5.8, Goal 5 Inventory
Mineral and Aggregate Resources, is amended to read as described in Exhibit "E" attached and incorporated by
reference herein, with new language underlined and deleted language set forth in strikethrough..
Section 4. 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 Surface Mining to
Rural Residential Exception Area.
Section 5. AMENDMENT. DCC Title 18, Zoning Map, is amended to change the zone designation
from Surface Mining to Multiple Use Agricultural (MUA-10) for certain property described in Exhibit "A" and
depicted on the map set forth as Exhibit "C."
Section 6. AMENDMENT. The effect of rezoning the subject property to Multiple Use Agricultural
will be to remove the Surface Mining Impact Area (SMIA) Combining Zone classification for any parcel (or portion
thereof) located within one-half mile of any other property zoned Surface Mining for with the SMIA Combining Zone
designation is still applicable.
Section 6. FINDINGS. The Board adopts as its findings in support of this Ordinance, the Decision
of the Board as set forth in Exhibit "G."
///
PAGE 2 OF 3 - ORDINANCE NO. 2019-002
Section 7. FINDINGS. The Board adopts the Decision of the Hearings Officer as set forth in Exhibit
"H", and as incorporated by reference in Exhibit "G."
Dated this
of Jo_ tAfx ,A, 2019 BOARD OF COUNTY COMMISSIONERS
J OF DESCHUTES COUNTY, OREGON
Recording Secretary
Date of 1" Reading:
/Cif
a" 1)
ANTHONY DEBONE, Chair
Y\ • )1\—
PHILIP G. H I DERSON, Vice Chair
TAMMY BAEY, Coi nis�ioner
day of cb (i. oldp it 02018.
Date of 2°d Reading: day of•._ ekAt), ^L ... 2019.
Record of Adoption Vote:
Commissioner Yes No Abstained Excused
Anthony DeBone
Philip G. Henderson
Tammy Baney
Effective date: day of
PAGE 3 OF 3 - ORDINANCE NO. 2019-002
, 2019.
LEGAL DESCRIPTION
Tax Lots 1611000010300, 1611000010400, and 161136D000100
A parcel of land located in Section 36 of Township 16 South, Range 11 East, Willamette Meridian,
Deschutes County, Oregon, the three Tax Lots listed above, being fully described as follows:
Section 36 of Township 16 South, Range 11 East, Willamette Meridian;
EXCEPTING THEREFROM, the South 1/2 of the Southeast 1/4 of said Section 36
PAGE 1 OF 1 — EXHIBIT "A" TO ORDINANCE NO. 2019-002
u
O
2
Plan Change
From Surface Mining
to Rural Residential Exception Area
1611000010300
1611000010400
cc
2
-J
TUMALO. RESERVOIR
COYOTE RUN
161136D000100
zi
i
IL
Legend
Q Subject Property
Comprehensive Plan Desgination
Agriculture
Rural Residential Exception Area
Tumalo Residential 5 Acre Minimum
Comprehensive Plan Map
Exhibit "B"
to Ordinance 2019-002
N
Tammy Baney, Commissioner
Board of County Commissioners
of Deschutes County, Oregon
Anthony DeBone, Chair
Phil Henderson, Vice -Chair
0 450 900 ATTEST: Recording Secretary
Feet Dated this day of 2019
11/26/2018 Effective Date: 2019
w
z
h: 0
v
0
Zone Change
From Surface Mining
to Multiple Use Agricultural
1611000010300
1611000010400
TUMALO RESERVOIR
COYOTE RUN
161136D000100
O
2
z
Legend
SubjectProperty
County Zoning
Tumalo Research & Development
Tumalo 5 Acre Min District
Multiple Use Agricultural
EFU - Tumalo / Redmond / Bend Subzone
Zoning Map
Exhibit "C"
to Ordinance 2019-002
N
A
0 450 900
Feet
11/26/2018
Board of County Commissioners
of Deschutes County, Oregon
Anthony DeBone, Chair
Phil Henderson, Vice -Chair
Tammy Baney, Commissioner
ATTEST: Recording Secretary
Dated this day of . 2019
Effective Date: 2019
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.
V. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-027, are incorporated by reference herein.
PAGE 1 OF 2 — EXHIBIT "D" TO ORDINANCE NO. 2019-002
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.
AA. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2018-011, are incorporated by reference herein.
BB. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2018-005, are incorporated by reference herein.
CC. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2018-008, are incorporated by reference herein.
DD. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-002, are incorporated by reference herein.
Ord. 2019-002 §1, 2019; Ord. 2018-008 §1, 2018; Ord. 2018-005 §2, 2018; Ord. 2018-011 §1, 2018;
Ord. 2018-006 §1, 20180rd. 2018-002 §1, 2018; Ord. 2017-007 §1, 2017; Ord. 2016-029 §1, 2016; Ord.
2016-027 §1, 2016; Ord. 2016-005 §1, 2016; Ord. 2016-022 §1, 2016; Ord. 2016-001 §1, 2016; Ord.
2015-010 §1, 2015; Ord. 2015-018 § 1, 2015; Ord. 2015-029 § 1, 2015; Ord. 2015-021 § 1, 2015; Ord.
2014-027 § 1, 2014; Ord. 2014-021 §1, 2014; Ord. 2014-12 §1, 2014; Ord. 2014-006 §2, 2014; Ord.
2014-005 §2, 2014; Ord. 2013-012 §2, 2013; Ord. 2013-009 §2, 2013; Ord. 2013-007 §1, 2013; Ord.
2013-002 §1, 2013; Ord. 2013-001 §1, 2013; Ord. 2012-016 §1, 2012; Ord. 2012-013 §1, 2012; Ord.
2012-005 §1, 2012; Ord. 2011-027 §1 through 12, 2011; Ord. 2011-017 repealed; Ord.2011-003 §3,
2011)
Click here to be directed to the Comprehensive Plan (http://www.deschutes.org/compplan)
PAGE 2 OF 2 - EXHIBIT "D" TO ORDINANCE NO. 2019-002
5ectliow 5.8 Croal, 5 Iwvewtoru
MIAwera!, awd Aggregate R.esou.rces
Background
This section contains information from the 1979 Deschutes County Comprehensive Plan as
revised. It lists the surface mining resources in Deschutes County. These inventories have been
acknowledged by the Department of Land Conservation and Development as complying with
Goal 5. No changes have been proposed for the 2010 Comprehensive Plan update.
Table 5.8.1 — Deschutes County Surface Mining Mineral and Aggregate Inventory
#
Taxlot
Name
Type
Quantity*
Quality
Access/Location
51010-00-
151010-00-
246
246
00205, 207,
Tewalt
S & G
10,000
Good
Hwy 20
300, 302, 303
248
151012-00-
00100
Cyrus
Cinders
30.2 M
Excellent
Cloverdale Road
15121 1 -DO -
251
01400, 151214-
Cherry
S & G
125,000
Good
A0-00800
252
151200-00-
04700, 04701
Thornburgh
Rock
2.5 M
Good
151036-00-
Deschutes
Harrington Loop
271
00800
County
S & G
2 M
Mixed
Road
273
151117-00-
Deschutes
S & G
75,000
Excellent
Fryrear
Rd/Redmond-
00100
County
Sisters
274
151 117-00-
00700
Deschutes
County
S & G
Excellent
Fryrear Road
275
151 100-00-
02400
Deschutes
County
S & G
175,000
Good
Fryrear Landfill
151011-00-
Oregon State
ODOT
277
01 100
Hwy
S & G
100,000
Specs
151140-A0-
278
00901, 151211-
D0-01200
State of
Oregon
S & G
18,000
OpeOs
282
171000-00-
00100
Crown Pacific
Cinders
100,000
Fair
283
171000-00-
00100
Crown Pacific
Cinders
50,000
Fair
288
171 I I I-00-
00700
Tumalo
Irrigation
S& G
250,000
Good
292
171112-00-
00900
RL Coats
S & G
326,000
ODOT
Specs
17112-00-
293
00500, 600,
RL Coats
S & G
3 M
ODOT
700, 800
Specs
DESCHUTES COUNTY COMPREHENSIVE PLAN - 201 I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.8 SURFACE MINING INVENTORIES
EXHIBIT "E" TO ORDINANCE NO. 2019-002
1
#
Taxlot
Name
Type
Quantity*
Quality
Access/Location
296
171 100-00-
02702
Crown Pacific
Cinders
100,000
Excellent
Shevlin
Park/Johnson Rd
297
171 123-00-
00100
Crown Pacific
Cinders
60,000
Johnson
Rd/Tumalo
303
171207-00-
00300
Cascade
Pumice
Pumice
750,000
Good
303
171207-00-
00300
Cascade
Pumice
S & G
10,000
Good
313
1700600 1433-00
Deschutes
County
S & G
100,000
Good
313
171433-00-
00600, 120
Deschutes
County
Storage
Dodds
Road/Alfalfa
314
1701 100 1332-00
Deschutes
County
Dirt
150,000
Good
315
140900-00-
02100
Stott
Rock
93,454 tons
ODOT
Specs
Highway 20
316
140900-00-
00202
Black Butte
Ranch
S & G
7 M
Good
317
140900-00-
01300
Willamette
Ind
Cinders
1.2 M
Good
322
141200-00-
01801
Fred Gunzner
S & G
1.5 M
Mixed
Lower
Bridge/Terrebonn
e
322
141200-00-
01801
Gunzner
Diatomite
500,000
Good
Lower
Bridge/Terrebonn
e
324
141200-00-
00702
ODVA
S & G
490,000
Good
Lower
Bridge/Terrebonn
e
326
141236-00-
00300, 301
US Bank
Trust
S & G
1.5 M
Good
330
141328-00-
00702, 703
Larry Davis
Cinders
50,000
Good
331
141329-00-
00100, 103
EA Moore
Cinders
100,000
Good
332
141329-00-
00102
RL Coats
Cinders
2 M
Good
Northwest
Way/Terrebonne
333
141329-00-
00104
Robinson
Cinders
2.7 M
Good
335
141333-00-
00890
Erwin
Cinders
100,000
Excellent
Pershall
Way/Redmond
336
141333-00-
00400, 500
US Bank
Trust
Cinders
4.5 M
Good
Cinder
Butte/Redmond
339
141132-00-
01500
Deschutes
County
Dirt
200,000
Fill
Goodard
Loop/Bend
341
161000-00-
00106
Young &
Morgan
S & G
1 M
Good
2
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.8 SURFACE MINING INVENTORIES
EXHIBIT "E" TO ORDINANCE NO. 2019-002
#
Taxlot
Name
Type
Quantity*
Quality
Access/Location
342
220900-00-
00203
Crown Pacific
Cinders
200,000
Good
345
161000-00-
01000
Crown Pacific
Cinders
50,000
Good
346
161000-00-
01000
Crown Pacific
Cinders
50,000
Good
347
1600300 1101-00
Deschutes
County
Dirt
10,000
Good
351
1 6 1 1 1 2-00-
01401, 1700,
2000
Gisler/Russell
Cinders
150,000
Good
Innes Mkt/Innes
Butte
357
a
Tumalo
Irrigation
Cindcrs
Johnsen
ReadIT-iirnale
-6 -1 -1 -36 -DO -
00100, 161100
00 10400,
-1-0300
357
357
161136 DO
Tumalo
Ir-rigationf
& C
5-007000
Geed
00-1-00;-1-6-1-1-00-
00 10400,
-1-0300
357
161136 DO
00100, 161100
0040400,
103-00
Tumalo
Irrigation
5007000
Geed
358
161231 -DO-
01100
Gisler
S & G
100,000
ODOT
Specs
Hwy 20/Tumalo
361
161222-00-
02800
Oregon State
Hwy
Cinders
700,000
Good
366
161230-00-
00000
Oregon State
Hwy
S & G
40,000
ODOT
Specs
368
161220-00-
00200
Bend
Aggregate
S & G
570000
,
Excellent
Twin
Bridges/Tumalo
370
161231 -DO-
00400
Bend
Aggregate
Plant Site
Storage
379
181100-00-
01600
Oregon State
Hwy
S & G
500,000
ODOT
Specs
381
181125-00-
12600, 181 126-
00-01600
Pieratt Bros
Cinders
50,000
Good
390
181214-00-
00500, 100
Deschutes
County
Dirt
2 M
Landfill
391
181221-00-
00200
Central OR
Pumice
Cinders
500,000
Good
392
181223-00-
00300
Rose
Rock
10 M Est
Mixed
392
181223-00-
00300
Rose
Dirt
7.5 M
Good
DESCHUTES COUNTY COMPREHENSIVE PLAN - 201 I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.8 SURFACE MINING INVENTORIES
EXHIBIT "E" TO ORDINANCE NO. 2019-002
3
#
Taxlot
Name
Type
Quantity*
Quality
Access/Location
393
181225-00-
01400
LT
Contractors
Cinders
12.5 M
Good
Arnold Mkt Rd/SE
of Bend
394
181200-00-
04400,04411
Windlinx
Cinders
270,000
Coarse
Hwy 97/South of
Bend
395
181200-00-
04300
Oregon State
Hwy
Cinders
100,000
Good
400
181300-00-
04501, 04502
Eric Coats
S & G
2.5 M
ODOT
Specs
404
191400-00-
00200
Moon
S & G
1.3 M
Good
404
191400-00-
00200
Moon
Rock
800,000 - 2 M
Good
Hwy 20/East of
Bend
405
191400-00-
00600
Oregon State
Hwy
Aggregate
50,000
ODOT
Specs
408
191600-00-
01500
RL Coats
S & G
3 M
Good
413
201500-00-
01400
Deschutes
County
S & G
30,000
Good/Ex
cellent
Hwy 20/East of
Bend
414
201500-00-
01500
Deschutes
County
S & G
30,000
Good/Ex
cellent
Hwy 20/East of
Bend
415
201716-00-
00700
Deschutes
County
S & G
30,000
Good/Ex
cellent
Hwy 20/East of
Bend
416
201716-00-
00200
Deschutes
County
S & G
30,000
Good/Ex
cellent
Hwy 20/East of
Bend
417
201716-00-
00900
Deschutes
County
S & G
30,000
Good/Ex
cellent
Hwy 20/East of
Bend
418
201716-00-
01000
Deschutes
County
S & G
30,000
Good/Ex
cellent
Hwy 20/East of
Bend
419
201716-00-
01300
Deschutes
County
S & G
30,000
Good/Ex
cellent
Hwy 20/East of
Bend
421
212000-00-
00900
RL Coats
S & G
500,000
Excellent
Hwy 20/Tumalo
423
211106-00-
00700
Ray Rothbard
S & G
100,000
Good
426
211100-00-
00702
La Pine Redi-
Mix
S & G
I M
Good
427
211100-00-
00701
Bill Bagley
S & G
40,000
Good
431
221 100-00-
00600
Russell
Cinders/
Rock
12 M/ 1.2 M
Good
Finley Butte
432
221100-00-
00500
State of
Oregon
Cinders
160,000
Good
433
211300-00-
00101
La Pine
Pumice
Lump
Pumice
10 M
Excellent
441
150903-00-
00300
Willamette
Ind
S& G
11 M
Good
442
150909-00-
00400
Willamette
Ind
S & G
6 M
Good
4
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.8 SURFACE MINING INVENTORIES
EXHIBIT "E" TO ORDINANCE NO. 2019-002
#
Taxlot
Name
Type
Quantity*
Quality
Access/Location
443
150917-00-
00600
Willamette
Ind
Rock
150,000
Fair
453
161209, 10-00-
00600, 301
Robert
Fullhart
S & G
704,000
ODOT
Specs
459
141131-00-
05200
Deschutes
County
Cinders
50,000
Good
46 I
141200-1501,
1502,
Nolan
S & G
211,000
Does not
meet
ODOT
specs
461
141200-1501,
1502, 1600
Franklin
Nolan
Diatomite
2 M
Good
465
141333-00-
00900
Oregon State
Hwy
Cinders
100,000
Good
466
141333-00-
00600
Fred Elliott
Cinders
5.5 M
Good
467
141333-00-
00601
Knorr Rock
Co
Cinders
5 M
Good
469
1400100 1131-00
Deschutes
County
Cinders
2 M
Fair
475
151012-00-
00600
Deschutes
County
Cinders
200,000
Good
Cloverdale Road
482
151300-00-
00103
Deschutes
County
Dirt
2 M
Good
Negus Landfill
161230-00-
Bend
OSpeOcs
488
00100, 600,
2000, 2100
Aggregate
S & G
400,000
496
191400-00-
00500
Taylor
S & G
1.8 M
Mixed
Hwy 20
191400-00-
Oregon State
ODOT
498
02200
Hwy
S & G
200,000
Specs
191533-00-
Oregon State
ODOT
499
00200
Hwy
S & G
50,000
Specs
191500-00-
Oregon State
ODOT
500
00099
Hwy
S & G
130,000
Specs
191500-00-
Oregon State
ODOT
501
01600
Hwy
S & G
50,000
Specs
191600-00-
Oregon State
ODOT
503
01300
Hwy
S & G
200,000
Specs
201600-00-
Oregon State
ODOT
505
00400
Hwy
S & G
275,000
Specs
506
201600-00-
00600, 700, 800
Oregon State
Hwy
S & G
36,000
ODOT
Specs
201700-00-
State of
ODOT
508
01000
Oregon
S & G
100,000
Specs
201801-00-
Oregon State
ODOT
515
00100
Hwy
S & G
100,000
Specs
DESCHUTES COUNTY COMPREHENSIVE PLAN - 201 I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.8 SURFACE MINING INVENTORIES
EXHIBIT "E" TO ORDINANCE NO. 2019-002
5
#
Taxiot
Name
Type
Quantity*
Quality
Access/Location
211900-00-
Oregon State
ODOT
522
01000
Hwy
S & G
300,000
Specs
212000-00-
Oregon State
ODOT
524
01900
Hwy
S & G
300,000
Specs
222110-00-
Oregon State
ODOT
528
00600
Hwy
S & G
45,000
Specs
221100-00-
Oregon State
ODOT
529
00300
Hwy
S & G
31,000
Specs
533
222100-00-
00800Hwy
Oregon State
S & G
I M
ODOT
Specs
141035-00-
02000, 2100,
541
2200, 2300,
Cyrus
Aggregate
528,000
Good
Inc Portions of TL
2400, 2500,
1800/1900
2600
542
151001-00-
02700
Swarens
Aggregate
80,000
Good
543
151013-00-
00100
Cyrus
Aggregate
1.1 M
Good
600
191400-00-
00700
Robinson
S & G
3.8 M
Good
Hwy 20/East of
Bend
601
211100-00-
00700
La Pine Redi
Mix
S & G
479,000
DEQ
Specs
Paulina Lake Road
* Quantity in cubic yards unless otherwise noted
Source: 1979 Deschutes County Comprehensive Pian as revised
6
DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.8 SURFACE MINING INVENTORIES
EXHIBIT "E" TO ORDINANCE NO. 2019-002
Table 5.8.2 — Deschutes County Non -Significant Mining Mineral and Aggregate
Inventory
Site #
Taxiot
Name •
Type
Quantity*
Comments
Whychus
Creek
100
15-10-14-700
Irrigation
District—
Watson
Silt, sand,
& dirt
200,000 cy
Reservoir Size is
80 acres.
Reservoir 1.
Whychus
Creek
101
15-10-14-700
Irrigation
District
sand & dirt
600,000 cy
Reservoir size is
40 acres.
Watson
Reservoir 11.
Whychus
Creek
102
14-11-33-500
Irrigation
District—
Silt, sand,
& dirt
100,000 cy
Reservoir size is
12 acres
McKenzie
Reservoir
Whychus
Creek
Irrigation
250,000
Reservoir
103
14-I I-33-500
District
Sand &
to
expansion size is
McKenzie
dirt300,000
cy
20 acres
Reservoir
Expansion
161136 -DO -
00100
Tumalo
Potential reservoir
357
161100-00-
Irrigation
Cinders
Not significant
site
10400, 10300
161136 -DO -
357
00100,
Tumalo
S & G
Not -significant
Potential reservoir
161100-00-
Irrigation
site
10400, 10300
161136 -DO -
357
00100,
Tumalo
Pumice
Not -significant
Potential reservoir
161100-00-
Irrigation
site
10400, 10300
* Quantity in cubic yards unless otherwise noted
Source: 1979 Deschutes County Comprehensive Plan as revised
DESCHUTES COUNTY COMPREHENSIVE PLAN — 201 I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.8 SURFACE MINING INVENTORIES
EXHIBIT "E" TO ORDINANCE NO. 2019-002
scoff -DK -5.12 LegisLati-ve History
Background
This section contains the legislative history of this Comprehensive Plan.
Table 5.-1412.1 Comprehensive Plan Ordinance History
Ordinance
Date Adopted/
Effective
Chapter/Section
Amendment
2011-003
8-10-1 I/ I 1-9-1 I
All, except
Transportation, Tumalo
and Terrebonne
Community Plans,
Deschutes Junction,
Destination Resorts and
ordinances adopted in
2011
Comprehensive Plan update
2011-027
10-31-11/1 1-9-11
2.5, 2.6, 3.4, 3.10, 3.5,
4.6, 5.3, 5.8, 5. I I ,
23.40A, 23.40B,
23.40.065, 23.01.010
Housekeeping amendments to
ensure a smooth transition to
the updated Plan
2012-005
8-20-12/11-19-12
23.60, 23.64 (repealed),
3.7 (revised), Appendix C
(added)
Updated Transportation
System Plan
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
2013-002
1-7-13/1-7-13
4.2
Central Oregon Regional
Large -lot Employment Land
Need Analysis
2013-009
2-6-13/5-8-13
1.3
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture to
Rural Residential Exception
Area
2013-012
5-8-13/8-6-13
23.01.010
Comprehensive Plan Map
Amendment, including certain
property within City of Bend
Urban Growth Boundary
2013-007
5-29-13/8-27-13
3.10, 3.1 1
Newberry Country: A Plan
for Southern Deschutes
County
1
DESCHUTES COUNTY COMPREHENSIVE PLAN - 201 1
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT "F" TO ORDINANCE NO. 2019-002
2013-016
10-21-13/10-21-13
23.01.010
Comprehensive Plan Map
Amendment, including certain
property within City of Sisters
Urban Growth Boundary
2014-005
2-26-14/2-26-14
23.01.010
Comprehensive Plan Map
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.
2014-021
8-27-14/11-25-14
23.01.010, 5.10
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Sunriver Urban
Unincorporated Community
Forest to Sunriver Urban
Unincorporated Community
Utility
2014-021
8-27-14/11-25-14
23.01.010, 5.10
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Sunriver Urban
Unincorporated Community
Forest to Sunriver Urban
Unincorporated Community
Utility
2014-027
12-15-14/3-31-15
23.01.010, 5.10
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture to
Rural Industrial
2015-021
1 1-9-15/2-22-16
23.01.010
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture to
Surface Mining.
2015-029
11-23-15/11-30-15
23.01.010
Comprehensive Plan Map
Amendment, changing
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.
DESCHUTES COUNTY COMPREHENSIVE PLAN - 201 I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.4-1-12 LEGISLATIVE HISTORYCOAL 5 ADOPTED ORDINANCES
EXHIBIT "F" TO ORDINANCE NO. 2019-002
2
2015-010
12-2-15/12-2-15
2.6
Comprehensive Plan Text and
Map Amendment recognizing
Greater Sage -Grouse Habitat
Inventories
2016-001
12-21-15/04-5-16
23.01.010; 5.10
Comprehensive Plan Map
Amendment, changing
designation of certain
property from, Agriculture to
Rural Industrial (exception
area)
2016-007
2-10-16/5-10-16
23.01.010; 5.10
Comprehensive Plan
Amendment to add an
exception to Statewide
Planning Goal 11 to allow
sewers in unincorporated
lands in Southern Deschutes
County
2016 -005
11-28-16/2-16-17
23.01.010, 2.2, 3.3
Comprehensive Plan
Amendment recognizing non -
resource lands process
allowed under State law to
change EFU zoning
2016-022
9-28-16/11-14-16
23.01.010, 1.3, 4.2
Comprehensive plan
Amendment, including certain
property within City of Bend
Urban Growth Boundary
2016-029
12-14-16/12/28/16
23.01.010
Comprehensive Plan Map
Amendment, changing
designation of certain
property from, Agriculture to
Rural Industrial
2017-007
10-30-17/10-30-17
.
23.01.010
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture to
Rural Residential Exception
Area
2018-002
1-3-18/1-25-18
23.01, 2.6
Comprehensive Plan
Amendment permitting
churches in the Wildlife Area
Combining Zone
3
DESCHUTES COUNTY COMPREHENSIVE PLAN - 201 I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5. I2 LEGISLATIVE HISTORY
EXHIBIT "F" TO ORDINANCE NO. 2019-002
2018-006
8-22-18/11-20-18
23.01.010, 5.8, 5.9
Housekeeping Amendments
correcting tax lot numbers in
Non -Significant Mining Mineral
and Aggregate Inventory;
modifying Goal 5 Inventory of
Cultural and Historic
Resources
2018-011
9-12-18/12-11-18
23.01.010
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture to
Rural Residential Exception
Area
2018-005
9-19-18/10-10-18
23.01.010, 2.5, Tumalo
Community Plan,
Newberry Country Plan
Comprehensive Plan Map
Amendment, removing Flood
Plain Comprehensive Plan
Designation; Comprehensive
Plan Amendment adding Flood
Plain Combining Zone
purpose statement.
2018-008
9-26-18/10-26-18
23.01.010, 3.4
Comprehensive Plan
Amendment allowing for the
potential of new properties to
be designated as Rural
Commercial or Rural
Industrial
2019-002
1-2-19/4-2-19
23.01.010, 5.8
Comprehensive Plan Map
Amendment changing
designation of certain
property from Surface Mining
to Rural Residential Exception
Area; Modifying Goal 5
Mineral and Aggregate
Inventory; Modifying Non -
Significant Mining Mineral and
Aggregate Inventory
DESCHUTES COUNTY COMPREHENSIVE PLAN - 20 I I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.-1-1-12 LEGISLATIVE HISTORYGoAL 5 ADOPTED ORDINANCES
EXHIBIT "F" TO ORDINANCE NO. 2019-002
4
DECISION OF THE BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
FILE NUMBERS:
APPLICANT/
OWNER:
APPLICANT'S
ATTORNEY:
APPELLANTS:
PROPOSAL:
STAFF REVIEWER:
HEARINGS OFFICER:
HEARINGS OFFICER
DECISION ISSUED:
247-17-000775-ZC, 247 -17 -000776 -PA (247-18-000241-A, 247-18-
000247-A)
Tumalo Irrigation District ("TID")
c/o Bryant, Lovlien &Jarvis, P.C.
591 SW Mill View Way
Bend, Oregon 97702
Garrett Chrostek
Bryant, Lovlien & Jarvis, P.C.
591 SW MiII View Way
Bend, Oregon 97702
Tumalo Irrigation District
c/o Bryant, Lovlien & Jarvis, P.C.
591 SW Mill View Way
Bend, Oregon 97702
Central Oregon LandWatch ("LandWatch")
50 SW Bond Street, Suite 4
Bend, Oregon 97702
The applicant requests a Comprehensive Plan Amendment to
change the designation of the subject property from Surface Mine
to Rural Residential Exception Area, and a Zone Change from
Surface Mining to Multiple Use Agricultural.
The request includes removing Surface Mining Site No. 357 from the
County's Surface Mining Mineral and Aggregate Inventory, adding Site
No. 357 to the Non -Significant Mining and Aggregate Inventory, and
removing the associated Surface Mining Impact Area Combining Zone.
Cynthia Smidt, Associate Planner
Dan R. Olsen
February 22, 2018, Mailed February 23, 2018
247-17-000775-ZC, 247 -17 -000776 -PA, 247-18 000241-A, 247-18-000247-A
EXHIBIT"G"TO ORDINANCE 2019-002 Page 1
APPEALS FILED: March 6, 2018 (LandWatch Appeal 247-18-000241-A)
March 7, 2018 (TID Appeal 247-18-000247-A)
BOARD HEARINGS: July 25, 20181
RECORD CLOSED: August 8, 2018 at 5:00 pm
I. SUMMARY OF DECISION:
In this decision, the County Board of Commissioners ("Board") considers the appellants'
appeals of the February 22, 2018 Hearings Officer Decision (247-17-000775-ZC, 247 -17-
000776 -PA, "Hearings Officer Decision"). The Board exercised its discretion to hear the
appeals de novo. The Board received a Memorandum about the appeals from Associate
Planner Cynthia Smidt, dated October 15, 2018, which outlined the applicants' proposal,
the Hearings Officer Decision denying requested zone change and plan amendment, and
a summary of the key issues in the two Notices of Appeal. The Board's Decision in this
appeal will refer to and incorporate the Hearings Officer's Decision and summary of issues
in both Staff Memorandum, unless otherwise noted
On October 24, 2018, at a regular business meeting, the Board deliberated on the two
appeals. Following deliberations, the Board voted 3-0 finding the proposed zone change
and plan amendment complies with all applicable review criteria and standards of the
Deschutes County Zoning Ordinance, State Land Use Goals, Oregon Administrative Rules
(OAR), and State Statutes (ORS) and overturned the Hearings Officer's Decision denying
the proposed zone change and plan amendment.
II. APPLICABLE STANDARDS AND CRITERIA:
Title 18, Deschutes County Zoning Ordinance
Chapter 18.32. Multiple Use Agricultural Zone
Chapter 18.52. Surface Mining Zone
Chapter 18.56. Surface Mining Combining Zone
Chapter 18.136. Amendments
Title 22, Deschutes County Development Procedures Ordinance
Deschutes County Comprehensive Plan
Chapter 2, Resource Management
Chapter 3, Rural Growth Management
Chapter 5, Supplemental Sections
Appendix C, Transportation System Plan
1 Board deliberations were held on October 24, 2018
247-17-000775-ZC, 247 -17 -000776 -PA, 247-18 000241-A, 247-18-000247-A
EXHIBIT "G" TO ORDINANCE 2019-002 Page 2
Oregon Administrative Rules, Chapter 660
Division 12, Transportation Planning
Division 15, Statewide Planning Goals and Guidelines
Division 23, Procedures and Requirements for Complying with Goal 5
III. BASIC FINDINGS:
The Board adopts and incorporates by reference the code interpretations, findings of fact,
and conclusions of law set forth in the following parts of Section II of the Hearings Officer's
Decision: Basic Findings, subsections A (Location), B (Lot of Record), C (Zoning), D (Site
Description), E (Surrounding Land Uses); F (Soils), G (Surface Mine Designation History); H
(Proposal), I (Public Agency Comments); J (Notice Requirements); K (Review Period); and L
(Hearing). The following additions are made to the basic findings in the Hearings Officer's
Decision.
M. PROCEEDINGS ON APPEAL: The Hearings Officer issued the Hearings Officer's Decision
on February 22, 2018, which was mailed on February 23, 2018. Timely appeals of the
Hearings Officer's Decision were filed by LandWatch and TID on March 6 and 7th
respectively. A public hearing before the Board was held on July 25, 2018.
Tumalo Irrigation District was represented by Garrett Chrostek of the law firm of Bryant,
Lovlien & Jarvis, P.C. LandWatch was represented by staff attorney Rory Isbell. Jim Holt
participated in the proceedings on appeal and was unrepresented. Written comments
were submitted by Jennifer Bragar of the firm of Tomasi, Salyer, and Martin on behalf of
Thomas and Dorbina Bishop, Trustees of the Bishop Family Trust. The Board heard
testimony and allowed all parties to file post -hearing submissions. The record closed on
August 8, 2018 at 5:00 pm. The Board's review included the record below before the
Hearings Officer, as well as the evidence, testimony, and written submissions in the
proceedings on appeal before the Board.
The Board conducted deliberations at a regular Business Meeting on October 24, 2018.
IV. FINDINGS
Except as otherwise provided herein, the Board adopts and incorporates by reference the
code interpretations, findings of fact, and conclusions contained in the Hearings Officer's
Decision in Section III. Findings, except for the findings relating to the Deschutes County
Code (DCC) Sections identified below. To the extent there are conflicts between any of
the findings and conclusions in the Hearings Officer's Decision and the findings and
conclusions herein, the findings and conclusions herein shall control.
247-17-000775-ZC, 247 -17 -000776 -PA, 247-18 000241-A, 247-18-000247-A
EXHIBIT "G" TO ORDINANCE 2019-002 Page 3
Title 18, Deschutes County Zoning Ordinance.
CHAPTER 18.136. AMENDMENTS
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:
C. That changing the zoning will presently serve the public health, safety and
welfare considering the following factors:
1. The availability and efficiency of providing necessary public
services and facilities.
2. The impacts on surrounding land use will be consistent with the
specific goals and policies contained within the Comprehensive Plan.
FINDING: The Hearings Officer concluded that the applicant had not met its burden
because there was "insufficient information about the impacts of potential development,
the carrying capacity and condition of existing roads and what, if anything can be done to
mitigate such impacts." The Board rejects the Hearings Officer's conclusion under this
section and adopts the following finding.
This provision of the DCC is often misunderstood because a zone change, in and of itself,
does not create any demand for public services or impact surrounding land uses.
Moreover, other land use regulations in the DCC require the availability of public services
and facilities prior to approving any physical development. Specifically, the DCC requires
additional transportation analysis for any development generating 50 or more daily trips
(i.e. a subdivision of 5 or more residential lots), which will determine whether there is
adequate capacity to support the proposed development. See DCC 18.116.310(C).
The consistent interpretation of this provision is that under Section (C)(1), the applicant
for a zone change must demonstrate that public services and facilities are either presently
available for specified development or that there are no significant impediments to
providing public services and facilities when site specific development, within the context
of the proposed zoning, is actually proposed.
The Board finds that the Hearings Officer's findings are inconsistent with the record and
the Board's interpretation of this provision. The record shows that Bill Martin Road was
constructed to County standards, damaged during an extreme weather event, but was
then repaired with additional improvements. The problem was that the road lacked
sufficient drainage facilities to allow water to move underneath the roadway. Subsequent
to this incident, the damage to Bill Martin Road was repaired and improvements were
247-17-000775-ZC, 247 -17 -000776 -PA, 247-18 000241-A, 247-18-000247-A
EXHIBIT "G" TO ORDINANCE 2019-002 Page 4
made to address drainage issues. The property owner/applicant contributed financially
to these efforts. There is no evidence in the record suggesting that repairs were
insufficient or otherwise not to County standards.2
Staff indicated that (a) there are no known safety issues associated with Bill Martin Road,
(b) Bill Martin Road experiences extremely low traffic volumes as it serves only a few
properties, and (c) Bill Martin Road has sufficient capacity to handle the theoretical worst-
case scenario under the Multiple Use Agricultural ("MUA-10") Zone. Even though no
specific development is proposed, the record indicates that transportation facilities are
presently provided.
Accordingly, neither staff nor TID's transportation engineer identified any impacts in need
of mitigation nor any undue impact on other users of Bill Martin Road. The opponents
did not supply any counter evidence from professionals in transportation planning or
road design. To the extent the opponents presented conflicting evidence that constitutes
substantial evidence, not mere speculation, the Board finds that testimony of staff and
TID's transportation engineer is more persuasive.
The Board further notes that Bill Martin Road is not the only road serving the subject
property. The property also fronts both Mock Road and Tumalo Reservoir Road. There
are no identified issues with the ability of these roads to serve the subject property.
The subject property is presently served with facilities sufficient to serve reasonably
anticipated development and there are no apparent obstacles to providing additional
facilities should they be warranted to serve specific development. Consequently, there
are no undue impacts on adjacent properties/other road users or disharmony with any
Comprehensive Plan policies. This criterion is satisfied.
Title 22, Deschutes County Development Procedures Ordinance
Chapter 22.20 Review of Land Use Action Applications
1. Section 22.20.015 Code Enforcement and Land Use
A. Except as described in (D) below, if any property is in violation of
applicable land use regulations and/or conditions of approval of any
previous land use decisions or building permits previously issued by the
County, the County shall not:
1. Approve any application for land use development;
2 Opponents only point to issues prior to the repairs. While there is suggestion the underlying issues still
exist, there is no evidence to contradict County staff testimony that the repairs were sufficient.
247-17-000775-ZC, 247 -17 -000776 -PA, 247-18 000241-A, 247-18-000247-A
EXHIBIT "G" TO ORDINANCE 2019-002 Page 5
2. Make any other land use decision, including land divisions and/or
property line adjustments;
3. Issue a building permit.
B. As part of the application process, the applicant shall certify:
1. That to the best of the applicant's knowledge, the property in
question, including any prior development phases of the property,
is currently in compliance with both the Deschutes County Code
and any prior land use approvals for the development of the
property; or
2. That the application is for the purposes of brining the property into
compliance with the Deschutes County land use regulations and/or
prior land use approvals.
C. A violation means the property has been determined to not be in
compliance either through a prior decision by the County or other tribunal,
or through the review process of the current application, or through an
acknowledgement by the alleged violator in a signed voluntary
compliance agreement ("VCA").
D. A permit or other approval, including building permit applications, may be
authorized if:
1. It results in the property coming into full compliance with all
applicable provisions of the federal, state, or local laws, and
Deschutes County Code, including sequencing of permits or other
approvals as part of a voluntary compliance agreement;
2. It is necessary to protect the public health or safety;
3. It is for work related to and within a valid easement over, on, or
under the affected property; or
4. It is for emergency repairs to make a structure habitable or a road
or bridge to bear traffic.
E. Public Health and Safety.
1. For the purposes of this section, public health and safety means the
actions authorized by the permit would cause abatement of
conditions found to exist on the property that endanger life, health,
personal property, or safety of the residents of the property or the
public.
2. Examples of that situation include, but are not limited to issuance
of permits to replace faulty electrical wiring, repair or install
furnace equipment; roof repairs; replace or repair compromised
utility infrastructure for water, sewer, fuel or power; and actions
necessary to stop earth slope failure.
FINDING: The Board adopts the findings of the Hearings Officer with respect to this
finding, but provides supplemental interpretation and findings as follows.
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EXHIBIT"G"TO ORDINANCE 2019-002 Page 6
Implementation of the provision:
As DCC 22.20.015 is a relatively new provision first adopted in 2015 and frequently arises
in contested land use hearings, the Board takes this opportunity to provide interpretation
and guidance on the implementation of this provision.
As discussed more fully below, the Board interprets DCC 22.20.015 to require a sequential
three-step analysis.
1. Is there a previously "adjudicated violation" on the property?
2. Does the subject land use application present the best forum for adjudicating a
new allegation, i.e. is there time to investigate something more than a vague
allegation?
3. When there is an "adjudicated violation" or the property is found to be in violation
as part of the land use application process, can the land use permit nevertheless
be issued pursuant to DCC 22.20.015(D) and (E)?
First, the Board starts by noting that the primary purpose (and benefit) of DCC 22.20.015
is to address "adjudicated violations," i.e. violations that were already conclusively
determined through the normal applicable code enforcement process prior to an
applicant submitting a land use application. This interpretation is supported by the use
of the past tense in the codified definition of "violation" in DCC 22.20.015(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 an acknowledgment by the alleged
violator in a signed voluntary compliance agreement ('VCA')" (emphasis added).
Second, differing from the "adjudicated violations" scenario described above, there are
cases where the Board anticipates that a County hearings body will need to determine if
a property is in violation during the land use application process. DCC 22.20.015(C)
addresses this possibility by including in the definition of "violation" the phrase "or
through the review process of the current application." However, the Board cautions that
County hearings bodies should take up this inquiry in rare cases because of the obvious
practical difficulties born from comingling the County's land use application process with
the separate and distinct code enforcement process. For example, when a vague
allegation is alleged by an opponent late in the land use application process, there rarely
will be time to comprehensively investigate and appropriately adjudicate that violation
due to the 150 -day time limit for issuing final decisions per ORS 215.427. Nothing within
DCC 22.20.015 requires a County hearings body to process a code complaint pursuant to
the County's adopted Code Enforcement Policy and Procedures Manual and conclusively
determine the status of a previously un -adjudicated violation solely on the basis that an
opponent submits a vague and unsubstantiated allegation during the land use application
process.
247-17-000775-ZC, 247 -17 -000776 -PA, 247-18 000241-A, 247-18-000247-A
EXHIBIT "G" TO ORDINANCE 2019-002 Page 7
As such, the Board interprets DCC 22.20.015 to require something more than a vague
allegation (i.e., clear evidence of a violation) to compel the County hearings body to
determine if a property is in violation and the pending land use application process is the
appropriate forum in which to determine whether a violation exists. As discussed below,
this case does not provide a sufficient basis for determining what more is needed and the
Board thereby will wait for a subsequent case to establish a bright -line rule. Further, prior
to electing to adjudicate an allegation as part of the land use application process, the
Board interprets DCC 22.20.015 as necessitating the County hearings body to likewise
consider procedural, equitable, and legal issues, including but not limited to the time it
will take to conduct an investigation pursuant to the Code Enforcement Policy and
Procedures Manual, the severity of the alleged violation (i.e., clear cutting vegetation in a
wetland is severe while minimal solid waste that is not creating a public health hazard is
not), and the 150 -day land use decision making clock.
Third, the Board takes this opportunity to reiterate what is self-evident in DCC 22.20.015.
A County hearings body's inquiry is not completed by simply noting a past "adjudicated
violation" or finding that a property is in violation. DCC 22.20.015(D) and (E) compel a
subsequent analysis to determine, for example, if the permit "protect[s] the public health
and safety" or "results in the property coming into full compliance." Further, the final
phrase of DCC 22.20.015(D)(1) notes that "coming into fully compliance" also "include[s]
sequencing of permits or other approvals as part of a voluntary compliance agreement."
The Board thereby interprets that aforementioned language to specifically allow a County
hearings body to approve a land use permit conditioned on the applicant subsequently
executing and complying with a voluntary compliance agreement even for an unrelated
violation on the same property.
Scope of the provision:
A related issue is the appropriate scope of DCC 22.20.015. Subsection (A) provides that
"violation[s] 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" preclude
further approvals for "land use development", "land use decisions" or building permits
(emphasis added). Opponents to land use applications have asserted all manner of
alleged violations in contested land use decisions. For example, opponents have alleged
that violations under various state and federal statutes and regulations concerning public
health or regulated industries implicate DCC 22.20.015.
"Land use regulations" is not defined in the Deschutes County Code, but is defined under
ORS 197.015(11) as follows:
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"Land use regulation" means any local government zoning ordinance, land
division ordinance adopted under ORS 92.044 or 92.046 or similar general
ordinance establishing standards for implementing a comprehensive plan.
The Board adopts the statutory definition of "land use regulation." This definition is
appropriate because the County only has jurisdiction, competency, and resources to
evaluate its local enactments governing land use. If the County desires to enforce a
provision of state or federal law under DCC 22.20.015, then it is incumbent on the County
to incorporate such provision of law into its land use regulations, or into a prior land use
permit condition of approval applicable to a specific development.
The Board notes that there is a reference to state and federal laws in DCC 22.20.015(D)(1).
However, that reference to state and federal laws is for a different purpose and does not
alter the aforementioned interpretation of DCC 22.20.015(A) incorporating the statutory
definition of "land use regulation." The reference in DCC 22.20.015(D) ensures that the
County may authorize land use or building permits even when violations exist on a
property to address issues that may arise now or in the future from state or federal laws
such as the Americans with Disabilities Act, Endangered Species Act, etc. The same reference
to state and federal laws is purposely omitted from DCC 22.20.015(A) because the County
does not intend to be the adjudicator of alleged violations of state and federal law through
our local land use application process.
Application of the provision in this case:
With the foregoing as background, the Board finds that none of the claims made by
opponents as to violations of various state laws regarding roads and drainage are subject
to review in the present proceedings. With regard to the three-step analysis set forth
above, nothing in the record suggests that there are "adjudicated violations" on the
property (step 1). Nor have the opponents raised anything other than "vague allegations"
(step 2). In addition to the alleged violations concerning the Bill Martin Road lawsuit
discussed above, a code complaint was filed on April 24, 2018 alleging various additional
violations. In this particular case, however, it appears that there was sufficient time to
investigate those additional allegations. The complaint itself does not appear in the
record but is alluded to by opponents of the application. To the extent the complaint is
properly before the Board, after conducting an investigation, County staff informed the
Board that the case was closed on August 8, 2018.
With regard to Bill Martin Road, the record shows that repairs were made such that
drainage issues have been resolved. As stated above, there is no evidence in the record
disputing testimony from County staff that the repairs were sufficient and in accordance
with County standards. When the County accepted dedication of Bill Martin Road for
public use, it determined that the road had been constructed to County standards.
County Code Section 17.52.100 only requires Local Access Roads such as Bill Martin Road
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to be constructed to County Standards and specifies that the County is not responsible
for maintenance. It does not assign maintenance responsibility to any particular party
and does not specify any type of violation for alleged maintenance failures. Even if it did,
the record shows that repairs were made to Bill Martin Road. The record does not show
that Bill Martin Road is presently known to not comply with any County standards.
The Hearings Officer correctly determined that DCC 17.16.105 is only applicable to a
proposal for a subdivision. This provision was found not applicable in prior land use
decisions that have long become final. The Board rejects the theories on subdivision
versus partition raised by the opponents on the merits and further notes that raising this
issue now constitutes a collateral attack on those prior land use decisions.
Thereby, the Board finds that both the additional allegations levied in April as well as the
Bill Martin Road allegations are unsubstantiated "vague allegations" that require no
further review or action from this Board. The Board thereby ends its inquiry pursuant to
DCC 22.20.015 at step 2 as described above.
Deschutes County Comprehensive Plan
2. Section 3.3 Rural Housing
LandWatch argues that lands can only be designated as Rural Residential Exception Areas
if an exception is taken. The Board has addressed this issue before, but desires to provide
further clarification.
LandWatch's argument is essentially two -fold. First, LandWatch cites the following
language from Section 3.3:
As of 2010 any new Rural Residential Exception Areas need to be justified
through initiating a nonresource plan amendment and zone change by
demonstrating the property does not meet the definition of agricultural or forest
land, or taking exceptions to farm, forest, public facilities and services and
urbanization regulations, and follow guidelines set out in the OAR.
According to LandWatch, the applicant must either submit evidence contradicting the
Natural Resource and Conservation Service (NRCS) data that indicates the subject
property constitutes "agricultural land," or take an exception.
The applicant in this case is pursuing the first option identified in the quoted language of
initiating a non -resource plan amendment and zone change. As explained in detail below,
the County already reviewed whether the property meets the definition of agricultural or
forest lands. The subject property was excluded from agricultural land inventories
performed by the County, which were incorporated into the Comprehensive Plan and
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acknowledged by the state. Based on these inventories, the subject property was never
assigned an agricultural or forestry Comprehensive Plan designation and was never
assigned Exclusive Farm Use ("EFU") or any type of forestry zoning.
The Board finds that this language does not impose any procedural or policy
requirements. In other words, the quoted language does not independently establish
requirements for a zone change or plan amendment to Rural Residential Exception Area.
Rather, it summarizes, in general terms, the process of obtaining the Rural Residential
Exception Area designation. To the extent it imposes any type of requirement, the Board
finds that TID meets its burden based on the County's prior determinations that the
property does not constitute agricultural or forest lands.
Opponents also argue that the term Rural Residential Exception Area inherently means
that an exception is required. The quoted language from Section 3.3 plainly demonstrates
that there is a path to the Rural Residential Exception Area designation that does not
require an exception. Thus, use of the words "Exception Area" does not implicitly mean
that an exception is required. The Hearings Officer in file nos. PA-11-7/ZC-11-2 (the "DSL
Case") analyzed this argument as follows:
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 decision discussed above, there appears to be
instances in which rural residential zoning has been applied without the
underlying land necessarily being identified as an exception area. This makes
the title of the "Rural Residential Exception Area" designation confusing, and in
some cases inaccurate, because no exception is associated with the underlying
land in question. However, it is understandable that since this designation is the
only one that will allow rural residential development, that it has become a
catchall designation for land types that are authorized for rural residential
zoning. That is the case with the current proposal, and again, for the same
reasons set forth in Hearings Officer Green's decision in Pagel, I cannot find a
reason why the County would be prohibited from this practice.
The County Commissioners adopts this analysis. Although potentially misleading, the
term "Rural Residential Exception Area" is a Comprehensive Plan designation that has
carried over since the initial Comprehensive Plan. The Board concludes that it is merely
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a "catchall designation for land types that are authorized for rural residential zoning" and
does not impose any procedural or substantive requirements for properties to obtain an
exception in order to receive the Rural Residential Exception Area designation.
To summarize, the Rural Residential Exception Area is not limited to properties subject to
an exception and neither the term itself or the cited language in Section 3.3 impose any
requirement to take an exception in order to designate land as Rural Residential Exception
Area.
2. Section 5.8 Goal 5 Inventory Mineral and Aggregate Resources
Table 5.8.2 - Deschutes County Non -Significant Mining Mineral and Aggregate Inventory
LandWatch, the Holts, and the Bishops all argue that the property is not eligible for
inclusion on Table 5.8.2 of the Comprehensive Plan, which is the County's inventory of
"Non -Significant Mining Mineral and Aggregate Inventory." The applicant requested the
site be included on this list because DCC 18.128.280 requires that mining of non -Goal 5
resources can only occur if the site is listed on the Non -Significant Mining Mineral and
Aggregate Inventory. To the extent any of TID's activities constitute "surface mining" TID
desires to preserve the possibility to obtain approvals under DCC 18.128.280.
The parties are in agreement that Table 5.8.2 and the provisions of DCC 18.128.280 are
obsolete and unnecessary in light of Beaver State Sand and Gravel, Inc. v. Douglas County,
187 Or App 241 (2003). Nonetheless, these provisions exist in the Comprehensive Plan
and County Code and any property owner can request inclusion.
Neither the Comprehensive Plan nor Title 18 provides relevant approval criteria to
determine whether a property should be included on a non-significant surface mining
inventory. There are no applicable Comprehensive Plan goals and policies in Section 2.10,
Surface Mining, that pertain to amending Table 5.8.2, "Non -Significant Mining Mineral and
Aggregate Inventory." Additionally, no approval criteria for post acknowledgement plan
amendments, in general, are included in the County Code. In the absence of any express
approval criteria, the Board finds that, implicitly, the only applicable criterion is that the
subject property not qualify as a Goal 5 mineral resource.
The applicant demonstrated that the subject property does not have the requisite
quantity or quality of mineral or aggregate resource to qualify as a Goal 5 significant
resource. There is no evidence in the record contradicting reports provided by TID
demonstrating a lack of a significant resource. Therefore, TID meets the applicable criteria
for inclusion in Table 5.8.2. All other arguments regarding Table 5.8.2 are not responsive
to the very limited criteria associated with including a site on Table 5.8.2.
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Opponents have argued, in general, that Goal 5 precludes surface mining of anything
other than "significant" mineral resources. However, little if any authority is cited in
support of such a broad statement. The County is only aware of ORS 215.298(2), which
was interpreted in Beaver State Sand and Gravel as precluding surfacing mining activities
on EFU zoned properties unless the property is included in a Goal 5 significant mineral
resource inventory. The plain implication here is that surface mining of non-significant
mineral resources is contemplated by state law, but such surface mining cannot occur on
EFU zoned properties. If this were not the case, then every conceivable zoning designation
would have a provision similar to ORS 215.298(2). The subject property is not zoned EFU
nor proposed to be zoned EFU. ORS 215.298(2) is not applicable to the subject property.
Oregon Administrative Rules, Chapter 660
DIVISION 12, TRANSPORTATION PLANNING (OAR 660-012)
1. OAR 660-012-0060. Plan and Land Use Regulation Amendments
(1) If an amendment to a functional plan, an acknowledged comprehensive
plan, or a land use regulation (including a zoning map) would significantly
affect an existing or planned transportation facility, then the local
government must put in place measures as provided in section (2) of this
rule, unless the amendment is allowed under section (3), (9) or (10) of this
rule. A plan or land use regulation amendment significantly affects a
transportation facility if it would:
(a) Change the functional classification of an existing or planned
transportation facility (exclusive of correction of map errors in an
adopted plan);
(b) Change standards implementing a functional classification system; or
(c) Result in any of the effects listed in paragraphs (A) through (C) of
this subsection based on projected conditions measured at the end
of the planning period identified in the adopted TSP. As part of
evaluating projected conditions, the amount of traffic projected to
be generated within the area of the amendment may be reduced if
the amendment includes an enforceable, ongoing requirement that
would demonstrably limit traffic generation, including, but not
limited to, transportation demand management. This reduction
may diminish or completely eliminate the significant effect of the
amendment.
(A) Types or levels of travel or access that are inconsistent with
the functional classification of an existing or planned
transportation facility;
(B) Degrade the performance of an existing or planned
transportation facility such that it would not meet the
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performance standards identified in the TSP or
comprehensive plan; or
(C) Degrade the performance of an existing or planned
transportation facility that is otherwise projected to not
meet the performance standards identified in the TSP or
comprehensive plan.
(2) Where a local government determines that there would be a significant
effect, compliance with section (1) shall be accomplished through one or
a combination of the following:
(a) Adopting measures that demonstrate allowed land uses are
consistent with the planned function, capacity, and performance
standards of the transportation facility.
(b) Amending the TSP or comprehensive plan to provide transportation
facilities, improvements or services adequate to support the
proposed land uses consistent with the requirements of this
division; such amendments shall include a funding plan or
mechanism consistent with section (4) or include an amendment to
the transportation finance plan so that the facility, improvement,
or service will be provided by the end of the planning period.
(c) Altering kind use designations, densities, or design requirements to
reduce demand for automobile travel and meet travel needs
through other modes.
(d) Amending the TSP to modify the planned function, capacity or
performance standards of the transportation facility.
(e) Providing other measures as a condition of development or through
a development agreement or similar funding method, including
transportation system management measures, demand
management or minor transportation improvements. Local
governments shall as part of the amendment specify when
measures or improvements provided pursuant to this subsection
will be provided.
(3) Notwithstanding sections (1) and (2) of this rule, a local government may
approve an amendment that would significantly affect an existing
transportation facility without assuring that the allowed land uses are
consistent with the function, capacity and performance standards of the
facility where:
(a) The facility is already performing below the minimum acceptable
performance standard identified in the TSP or comprehensive plan
on the date the amendment application is submitted;
(b) In the absence of the amendment, planned transportation facilities,
improvements and services as set forth in section (4) of this rule
would not be adequate to achieve consistency with the identified
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function, capacity or performance standard for that facility by the
end of the planning period identified in the adopted TSP;
(c) Development resulting from the amendment will, at a minimum,
mitigate the impacts of the amendment in a manner that avoids
further degradation to the performance of the facility by the time
of the development through one or a combination of
transportation improvements or measures;
(d) The amendment does not involve property located in an
interchange area as defined in paragraph (4)(d)(C); and
(e) For affected state highways, ODOT provides a written statement
that the proposed funding and timing for the identified mitigation
improvements or measures are, at a minimum, sufficient to avoid
further degradation to the performance of the affected state
highway. However, if a local government provides the appropriate
ODOT regional office with written notice of a proposed amendment
in a manner that provides ODOT reasonable opportunity to submit
a written statement into the record of the local government
proceeding, and ODOT does not provide a written statement, then
the local government may proceed with applying subsections (a)
through (d) of this section.
FINDING: The Board rejects the Hearings Officer's findings under this criterion and
instead adopts the following.
The applicant proposed to rezone and re -designate the subject property from Surface
Mining to MUA-10/Rural Residential Exception Area. Such a proposal implicates the
foregoing OAR, which is commonly referred to as the "transportation planning rule" or
"TPR" because the application involves an amendment to the County's Comprehensive
Plan and Zoning Map.
As stated in Barnes v. City of Hillsboro, 61 Or LUBA 375 (2010), the Board must evaluate the
TPR by comparing "reasonable worst-case scenarios" of transportation demand under
both the existing and the proposed zones. Pursuant to Barnes, if the reasonable "worst-
case" scenario under the proposed zone would result in fewer impacts on transportation
facilities than the reasonable "worst-case" scenario under the existing zone, then no
further inquiry under the TPR is required.
The applicant's initial traffic analysis concluded that the "reasonable worst-case scenario"
for future development in the MUA-10 zone would be 54 dwellings. This conclusion
results from a straightforward residential subdivision of the roughly 541 acres in
accordance with the minimum lot size in the MUA-10 of 10 acres. Such a subdivision is
outright permitted in the MUA-10 zone. Per Trip Generation, 9th Edition produced by the
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Institute of Transportation Engineers (the "ITE Manual"), 54 dwellings potentially generate
54 peak p.m. trips.
The ITE Manual does not publish trip generation rates for surface mining. Accordingly, the
initial transportation analysis relied upon a survey of trip generation analyses from
surface mining operations around the state, including three surface mining operations
within Deschutes County with one site located proximate to the subject property. The
survey yielded several potential trip generation rates. One approach was to take a simple
average of PM Peak Hour Trips from the surveyed sites. A second approach determined
the average trip generation rate per acre of the surveyed sites and then extrapolates that
rate to the acreage of the subject property. The third approach was to utilize a modified
average trip generation rate per acre that excluded the highest and lowest trip generating
sites, as those might constitute outliers, and extrapolate the resulting rate to the acreage
of the subject property. The three approaches yielded 53, 643, and 357 P.M. peak hour
trips. To be conservative, the analysis assumed the lowest trip generation rate of 53 PM
Peak Hour trips and determined the additional trip generated by 54 residential dwellings
would not have any significant impacts to existing or planned transportation facilities.
The analysis was reviewed by the County Transportation Planner, who agreed with the
methodology and conclusions of the analysis. Staff concluded that the proposal is
consistent with the identified function, capacity, and performance standards of the
County's transportation facilities in the area. Furthermore, the proposal will not change
the functional classification of any existing or planned transportation facility or change
the standards implementing a functional classification system. It will not allow types or
levels of land uses that would result in levels of travel or access and that are inconsistent
with the functional classification of nearby transportation facilities. In addition, the
proposal will not reduce the performance standards of the facility below the minimum
acceptable level the County's transportation system plan.
Before the Hearings Officer, LandWatch argued that the MUA-10 zone, as a conditional
use, allows cluster developments, which can be developed at a density of one dwelling
per 7.5 acres. Theoretically, this would allow for a total of 72 dwelling units and 72 p.m.
peak trips.' In response, the applicant argued that conditional uses are not considered
for purposes of the TPR and furthermore that it was not reasonable to assume that such
development will occur because it would require at least 9 separate conditional use and
subdivision approvals as regulations governing cluster developments limit the maximum
number of lots created from a cluster subdivision to 10 lots and one such lot must be an
open space parcel. See DCC 18.128.200. Furthermore, the applicant argued that the initial
transportation analysis employed the most conservative trip generation rate for surface
mining uses and thus did not present the worst-case scenario under the existing zoning.
3 References to 74 dwellings in the Hearings Officer's Decision are in error as 72 dwellings is the maximum
number of dwellings that could be constructed utilizing cluster developments.
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Rather, in TID's view, the higher trip generation rates should be utilized for a worst-case
scenario because the subject property is considerably larger than any surface mining
operation in the survey of mining sites.
The applicant appealed the Hearings Officer's findings on the TPR. The applicant argued
the following:
1. Conditional uses are not considered for purposes of the TPR,
2. Even if conditional uses must be considered, the nine conditional use approvals
required to achieve the theoretical worst case scenario is not reasonable, and
3. Even if the theoretical worst-case scenario was analyzed, Surface Mining ("SM")
Zone uses on the subject property nonetheless have higher trip generation
potential than the 72 dwellings theoretically possible in the MUA-10 Zone.
In support of its appeal, TID submitted a supplemental transportation analysis analyzing
the TPR under the trip generation rates of 357 and 643 PM peak hour trips referenced
above. This analysis determined that SM uses generated far more trips than the 72
dwellings conceivably developed through cluster developments. Staff again concurred in
the methodology and conclusions of the analysis that the proposal is consistent with the
identified function, capacity, and performance standards of the County's transportation
facilities in the area as discussed above.
The Board agrees with the applicant's first argument and analysis. Although no authority
cited by the parties or the Hearings Officer definitively establishes a bright -line rule that
conditional uses may or may not be considered under the TPR, the record demonstrates
that excluding conditional uses from consideration is the long-standing practice in
Deschutes County and other Oregon jurisdictions. The rationale underpinning this
approach is that there is no inherent right to develop conditional uses (as there are with
outright permitted uses) and that conditional uses are generally subject to further
transportation analysis. Furthermore, the TPR ensures that a jurisdiction's transportation
system can support levels of development reasonably likely to occur. Finally, considering
conditional uses under the TPR as a means to evaluate maximum worst-case scenarios,
would lead to an unnecessary oversizing of the transportation system.
If our finding that conditional uses are not considered for purposes of the TPR is
invalidated, the Board concurs with the applicant's second and third alternative
arguments. The Board does not find it "reasonable" to utilize a scenario that requires at
least nine separate conditional use and subdivision approvals. Conditional use approvals
are not issued as a matter of right. Such approvals are issued based on fact -specific
inquiries and satisfaction of special criteria. "Reasonable" must mean a reasonable
likelihood of obtaining such approvals. The Board cannot determine at this stage,
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whether a single conditional use would be likely, let alone the nine separate permits
necessary to achieve maximum density.
If the 72 dwellings is a "reasonable worst case scenario," the Board nonetheless finds that
the proposal satisfies the TPR. Both the initial and the supplemental transportation
analyses demonstrate that surface mining operations can have significant trip generation
potential. The Board agrees that if the most trip intensive use is considered for the MUA-
10 zone, then the Board must be equally aggressive in assuming development scenarios
under the SM Zone. If the more trip intensive mining operations from the survey of
mining sites are assumed to provide a worst-case scenario of trip generation at the
subject property,' SM uses generate substantially greater PM peak hour trips than the 72
dwellings. Opponents to the application did not provide any counter evidence, or even
argument, on TID's supplemental transportation analysis.5 Staff notes the County
Transportation System Plan (TSP) sets a Level of Service (LOS) D for existing roads and
defines LOS D for a roadway segment of 9,600 Average Daily Trips (ADT). Bill Martin Road
under any of the traffic generation assumptions will not exceed 9,600 ADT or come even
close to doing so. Staff estimates based on current development, Bill Martin Road has
less than 400 ADT.
Jim Holt, although not an appellant in these proceedings, challenged the traffic analysis in
his various submittals. The submittals appear to conflate the TPR analysis with a standard
transportation impact analysis. As identified above, the TPR does not compare existing
use of the property with a reasonable worst-case development scenario under the
proposed zoning. This is because the County's transportation planning documents
assume the properties will be developed under a reasonable worst-case scenario.
Accordingly, the transportation planning documents call for a transportation system
capable of supporting such development. It is only when the land use regulations allow
for development that exceed those assumptions that mitigation measures be taken at the
zone change stage.
Mr. Holt next argued that a development plan under the proposed development must be
submitted to evaluate compliance with the TPR. Mr. Holt cites no authority for this
position nor is the Board aware of any such requirement. Barnes and similar cases were
specifically developed in recognition that zone changes generally occur before proposals
for site-specific development.
4 The Board notes that three of the sites from survey are in Deschutes County and thus subject to the same
development regulations as uses on the subject property. These sites are thus inherently reflective of
development scenarios for the subject property.
5 LandWatch and Jim Holt argue that Bill Martin Rd. cannot handle 72 additional PM peak hour trips, but
did not challenge the relevant analysis of the TPR, which is whether the 72 additional trips under the
proposed MUA-10 zone is Tess than the trip generation potential of surface mining uses under the existing
SM Zone.
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Mr. Holt further argued that the Board was obligated to evaluate OAR 660-012-
0060(11)(E)(c). This argument was not further developed in Mr. Holt's submittals, but the
Board's determination that SM uses are more trip intensive than MUA-10 uses obviates
the need to perform any additional analysis under the TPR including, but not limited to,
analysis of 660-012-0060(11)(E)(c). The remainder of Mr. Holt's transportation related
arguments is not relevant to the TPR or at least lack sufficient specificity to demonstrate
any connection to the TPR.
Because SM uses generate more trips under a reasonable worst case than the 72
dwellings theoretically possible under the MUA-10 Zone, there is no "significant impact"
on any transportation facilities and thus no further analysis under the TPR is required.
This criterion is satisfied.
DIVISION 15, STATEWIDE PLANNING GOALS (OAR 660-015)
3. Goal 3: Agricultural Lands and Goal 4 Forest Lands
To preserve and maintain agricultural lands.
FINDING: Before the Hearings Officer, LandWatch argued that an exception to Goal 3 is
required. Specifically, LandWatch contends that the soils on the site are predominately
rated by the NRCS as Class VI without irrigation and Class III and IV when irrigated. In
LandWatch's view, this makes the subject property "categorically agricultural lands."
Moreover, LandWatch argues that the property is not included on the Exceptions Area
Maps produced by the County in 1977 or anywhere else in the Comprehensive Plan.
The Hearings Officer determined that a Goal 3 exception was not required. The Hearings
Officer's rationale is set forth in the Hearings Officer's Decision, but can be briefly
summarized with the following:
1. The County never considered the property to be "agricultural lands" and thus
it was never subject to Goal 3,
2. Because the subject property was not agricultural lands, the Economic, Social,
Environmental, and Energy analysis ("ESEE") for the subject property did not
mandate that the property be rezoned to EFU after exhaustion of the mineral
resource as it might otherwise have been required,
3. That the determination that property is not agricultural lands is not subject to
subsequent challenge,
4. That the SM Zone provides further justification that the property in not
agricultural lands, and
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5. The County has consistently determined that zone changes of properties that
do not constitute agricultural lands do not require an exception to Goal 3.
In the proceedings on appeal, LandWatch raises the same arguments regarding the
significance of the NRCS data, but raises new challenges as to the significance of the SM
zoning designation. To resolve the underlying issue and the issue on appeal, the Board
makes its own findings and interpretations of the Comprehensive Plan and County Code.
The record shows that the subject property has been historically mined and there is no
evidence of prior agricultural use. Pursuant to Goal 3, counties were required to inventory
all agricultural land within their jurisdiction and apply Exclusive Farm Use Zoning to such
lands unless an exception applied. Deschutes County conducted the required analysis,
which included review of NRCS data and site-specific analysis. This resulted in the
production of the agricultural lands map included in the record by as TID's Exhibit 16.
Because the subject property was not identified as agricultural land, it was not assigned
EFU zoning or an agricultural designation in the County's first comprehensive plan. See
TID Exhibit 17. Instead, it was assigned zoning and designations for surface mining. These
decisions and the resulting plans and maps were acknowledged.
The subject property's status as other than agricultural land was further confirmed in the
ESEE for Site No. 357. Ordinarily, the ESEE identifies the post -mining uses and zoning for
properties deemed Goal 5 significant mineral resources. The ESEE for the subject
property does not include any such discussion. The Board's interpretation of this
omission is that had the subject property been classified as agricultural land, then the
ESEE would have specified EFU zoning. The ESEE for other mining sites in Deschutes
County make such a designation and specify such a post -mining use. The ESEE, adopted
as part of the County's Comprehensive Plan, was also acknowledged.
In 1992, as part of periodic review and a revamping of the County's agricultural lands
program, the County again inventoried its agricultural lands. Once again, the County did
not classify the subject property as agricultural land. The agricultural land analysis was
incorporated into the County's Comprehensive Plan, which was again acknowledged.
In 2011, Oregon Department of Geology and Mineral Industries ("DOGAMI") determined
that the subject property was successful reclaimed. Despite using materials from the site
for reclamation, the site exhibits very sparse vegetation and has not been used for any
form of agriculture. The Board notes that the NRCS data proffered by LandWatch includes
disclaimers as to the accuracy of the data at the property level. Because prior agricultural
inventories adopted as part of the Comprehensive Plan were conducted on a property -
by -property basis, and considered soils data, the Board finds the agricultural lands
inventories more persuasive.
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Based on the prior agricultural land inventories adopted as part of the County's
Comprehensive Plan, current site conditions, and questions surrounding the current
NRCS data, the Board does not believe the subject property constitutes agricultural land.
Because the subject property does not constitute agricultural lands, it is not subject to
Goal 3 and no exception to Goal 3 is required for the proposed rezone.
To the extent the NRCS data presented by LandWatch evidences a mistake in prior zoning
or agricultural land inventories, the Board finds that Caldwell v Klamath County, 45 LUBA 548
(No. 2003-115, 2003) governs the present application. Deschutes County has in fact
determined that the property is not agricultural land and those prior determinations were
incorporated into the County's acknowledged Comprehensive Plan. Those determinations
are binding and not subject to challenge as part of a subsequent land use decision.
Because the subject property is not designated as agricultural land in the County's
Comprehensive Plan, the subject property is not subject to Goal 3. An exception to Goal
3 is therefore not required. Because a Goal 3 exception is not required, there are no
procedural errors associated with notice of a Goal 3 exception or automatic review before
the Board.
The Board desires to clarify the significance of the SM Zone. As evidenced by
Comprehensive Plan language, the SM Zone was intended to be a distinct zoning and
Comprehensive Plan designation and the properties designated as other than "resource
lands" (lands subject to Goals 3 and 4).6 Thus, the Board concurs with the Hearings Officer
that the SM designation of the subject property is material to the determination that the
subject property does not constitute "resource land."'
Subsequent to initial adoption of this zone and Comprehensive Plan designation, the
County rezoned several "resource lands" to surface mining when the mineral resource on
the land qualifies as a Goal 5 resource. The ESEE for those surface mining sites specify a
post mining use and zoning designation consistent with the prior zoning as it was
generally assumed that those properties previously designated as resource lands would
return to resource use after mining activities concluded.
Consistent with our determination in the present case, the Board finds that the prior
zoning and ESEE for a mining site are instructive for determining future zoning. If the ESEE
specifies resources uses as the post -mining uses and zoning, then the applicable resource
use is the appropriate zoning unless the applicant can otherwise demonstrate that the
subject property does not qualify as resource lands or is eligible for an exception to the
6 The SM zoning includes uses that plainly could not be permitted on resource lands such as asphalt batch
plants and mineral processing facilities.
' The Board notes under ORS 215.298, the County could simply authorize mining activities in the EFU zone.
Thus, the choice to establish and maintain a distinct zoning designation is significant.
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applicable resource goal. Where the ESEE is silent, and there are no other indicators of a
resource designation, then the subject property is not considered resource lands under
the County's Comprehensive Plan and is eligible for a non -resource zoning designation
without the need to take any exception to the resource goals.
7. Goal 7: Areas Subject to Natural Hazards
To protect people and property from natural hazards.
FINDING: For the first time in the appeal before the Board, LandWatch argues that an
exception to Goal 7 is required. The Board's understanding of the argument is that (1) the
County was implicitly notified by DOGAMI that the subject property is at heightened risk
for sinkholes associated with reclamation on the mining site, (2) such notice obligates the
County to update its Goal 7 program. If the County does not elect to conduct such an
update, according to LandWatch, then TID must seek an exception to Goal 7 for the
requested zone change.
To the extent not waived by failing to raise this issue below, the Board does not find any
basis to deny the application with respect to Goal 7. As LandWatch acknowledges, Goal 7
applies to natural hazards and the County's Comprehensive Plan does not establish
special policies related to sinkholes. As a preliminary matter, the Board does not find that
sinkholes associated with the settling of a reclaimed mine constitute a "natural hazard"
subject to Goal 7. This hazard is purely man made and unique to a specific property as
opposed to a countywide concern.
The Board also does not find any reason to expand its Goal 7 Comprehensive Plan policies
or otherwise amend its Goal 7 program. The communications from DOGAMI were not
directed to the "Department" (DLCD) for purposes of Goal 7, part B, and there is no
apparent intent from the DOGAMI communications to identify deficiencies in the County's
Goal 7 program. Unless and until the County receives notice from DLCD that its Goal 7
program is deficient, there is no requirement for the County to amend its acknowledged
Goal 7 program.
Even if sinkholes associated with a reclaimed mine was subject to Goal 7, and the County
was obligated to update its Goal 7 program, LandWatch's argument appears to present a
"goal post rule" issue. The County cannot impose standards on a quasi-judicial application
that were not in place at the time the application was filed.
Because neither Goal 7, nor the County's Comprehensive Plan policies implementing Goal
7, establishes any requirements for sinkholes associated with reclaimed mines, the Board
finds that no exception to Goal 7 is required.
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The Board concurs with the Hearings Officer that any issues associated with sinkholes will
be addressed through implementation of the County's development regulations. The
record shows that similar surface mines were successfully reclaimed to support
substantially more intensive development than what is permitted in the MUA-10 Zone.
Because remediation techniques exist, it is not appropriate to restrict any portion of the
property from development. If additional remediation is in fact necessary, it will be up to
the applicant to either employ such remediation or avoid locating development in areas
requiring further reclamation.
When development is proposed, the County's existing regulations require the applicant
to provide grading and drainage plans prepared by a licensed engineer. Such plans will
document what if any additional remediation the applicant intends to pursue and the
County can determine whether such additional remediation is sufficient for the specific
proposed development at that time. To avoid any doubt that the subject property is
subject to these requirements, the Board imposes the following condition of approval:
As part of any application for development on reclaimed portions of the
subject property, the applicant shall provide evidence from a professional
engineer licensed in the State of Oregon demonstrating sufficient ground
stability to support the proposed development. If further reclamation is
needed to support the proposed development, the applicant will submit
plans or other evidence from a professional engineer licensed in the State
of Oregon describing the proposed reclamation and demonstrating the
sufficiency of such additional reclamation.
12. Goal 12: Transportation
To provide and encourage a safe, convenient and economic transportation
system.
FINDING: This goal is implemented through OAR 660-012, which was addressed above.
OTHER ISSUES
DOGAMI Identified Post -Mining Use
LandWatch and Holt argue that the post -mining use identified in DOGAMI permits and/or
reclamation plans/certificates are binding on the post mining zoning designation.
The Board finds that the County is solely vested with determining the post -mining zoning
designation of the subject property. There is no authority cited in the record, nor is the
County aware of any authority, that transfers our land use authority to a state agency
such as DOGAMI. The record shows agreement with this conclusion.
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The Board further concurs with correspondence from DOGAMI included in the record that
any DOGAMI identified post mining use is a reclamation standard and not a restriction on
future uses of the property. Nothing precludes an applicant from pursuing additional
reclamation, if needed, to pursue a different post mining use.
Other Issues
The Board finds that all other arguments and issues raised by the opponents are either
not relevant to the applicable approval criteria or are insufficiently developed to apprise
the Board of the nature of the argument.
V. DECISION
Based on the foregoing Findings of Fact and Conclusions of Law, the Board hereby
APPROVES the applicant's proposed plan amendment from Surface Mining to Rural
Residential Exception Area, zone change from SM to MUA-10, and inclusion of the subject
property on Table 5.8.2 of the Comprehensive Plan, SUBJECT TO THE FOLLOWING
CONDITIONS OF APPROVAL:
A. This approval is based upon the applicant's submitted burdens of proof,
supplemental materials, and written and oral testimony. Any substantial change
to the approved plan amendment and zone change will require new land use
application(s) and approval(s).
B. The applicant/owner shall submit to the Planning Division a metes -and -bounds
description of the subject site to be re -designated and rezoned.
C. As part of any application for development on reclaimed portions of the subject
property, the Applicant shall provide evidence from a professional engineer
licensed in the State of Oregon demonstrating sufficient ground stability to
support the proposed development. If further reclamation is needed to support
the proposed development, the applicant will submit plans or other evidence from
a professional engineer licensed in the State of Oregon describing the proposed
reclamation and demonstrating the sufficiency of such additional reclamation.
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Mailing Date:
Friday, February 23, 2018
HEARINGS OFFICER DECISION
FILE NUMBERS: 247-17-000775-ZC and 247 -17 -000776 -PA
HEARING DATE: December 12, 2017, 6:00 p.m.
APPLICANT/OWNER: Tumalo Irrigation District
c/o Bryant, Lovlien & Jarvis, P.C.
591 SW Mill View Way
Bend, Oregon 97702
ATTORNEY:
REQUEST:
Garrett Chrostek
Bryant, Lovlien & Jarvis, P.C.
591 SW Mill View Way
Bend, Oregon 97702
The applicant requests a Comprehensive Plan Amendment to
change the designation of the subject property from Surface Mine
to Rural Residential Exception Area, and a Zone Change from
Surface Mining to Multiple Use Agricultural.
The request includes removing Surface Mining Site No. 357 from
the County's Surface Mining Mineral and Aggregate Inventory,
adding Site No. 357 to the Non -Significant Mining and Aggregate
Inventory, and removing the associated Surface Mining Impact
Area Combining Zone.
STAFF: Cynthia Smidt, Associate Planner
HEARINGS OFFICER: Dan R. Olsen
SUMMARY OF DECISION: DENIED
I. APPLICABLE CRITERIA:
Title 18, Deschutes County Zoning Ordinance
Chapter 18.32. Multiple Use Agricultural Zone
Chapter 18.52. Surface Mining Zone
Chapter 18.56. Surface Mining Combining Zone
Chapter 18.136. Amendments
Title 22, Deschutes County Development Procedures Ordinance
Deschutes County Comprehensive Plan
Chapter 2, Resource Management
Chapter 3, Rural Growth Management
Chapter 5, Supplemental Sections
Appendix C, Transportation System Plan
EXHIBIT "H" TO ORDINANCE 2019-002
Oregon Administrative Rules, Chapter 660
Division 12, Transportation Planning
Division 15, Statewide Planning Goals and Guidelines
Division 23, Procedures and Requirements for Complying with Goal 5
II. BASIC FINDINGS:
A. LOCATION: The subject property is located at 19300 and 19310 Tumalo Reservoir
Road, Bend and is identified on Deschutes County Assessor's map 16-11 (index map)
as tax lots 10300 and 10400 and map 16-11-36D as tax lot 100.
B. LOT OF RECORD: Pursuant to Hearings Officer's decision in file ZC-08-4, Belveron,
legal lot of record status is not applicable to a rezoning application. However, Deschutes
County has recognized the three tax Tots — 100, 10300, and 10400 — that make up the
subject property as one legal Lot of Record based on land use development permits
(e.g. CU -08-81).
C. ZONING AND PLAN DESIGNATION: The Deschutes County Comprehensive Plan
designates the subject property as Surface Mine. Additionally, the subject property is
zoned Surface Mining (SM). The mine is designated as Site No. 357 in the County's
Goal 5 Surface Mining Mineral and Aggregate Inventory.
A small region in the northeastern corner of tax lot 10400 is also within the Landscape
Management (LM) Combining Zone associated with Highway 20. The proposal is not
subject to the LM site plan review as no development is proposed. The County will
review compliance with LM Zone regulations when development is proposed.
D. SITE DESCRIPTION: The subject property, as shown below in Figure 1, is comprised of
three tax lots equaling 541.23 total acres. Tax Tots 10300 and 10400 (index map 16-11)
are approximately 40 acres and 424.56 acres, respectively. Tax lot 100 (map 16-11-
36D) is approximately 76.67 acres. The property has varying terrain that rises to Laidlaw
Butte in the northern region. Previously developed with mine Site No. 357, the surface
mine is no longer active and was ultimately reclaimed as documented in a September
2011 letter from Oregon Department of Geology and Mineral Industries (DOGAMI).
Since the property was previously used as a surface mine, most of it is devoid of
vegetation except in the northeast and southwest regions where native vegetation of
juniper trees, sagebrush, and groundcover exist. In addition, some of the disturbed areas
have been revegetated. The property does not contain water rights. At the top of Laidlaw
Butte, the site is developed with three wireless telecommunication towers and ground
equipment. Tumalo Reservoir Road and Mock Road are adjacent to the property's
southern and western boundaries. Mock Road intersects with Pinehurst Road near the
northwestern corner of the property. Bill Martin Road travels generally in a north to south
direction through the property. Access to the property appears to be taken from Tumalo
Reservoir Road, Mock Road, and Bill Martin Road. According to the Flood Insurance
Rate Map (FIRM) for Deschutes County and the National Wetlands Inventory,
respectively, the subject property is not located in the 100 -year flood plain and contains
no mapped wetlands.
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SUBJECT
PROPERTIES
Tax map 16-11-00
Tax tot 10400
lIIMAI O RFSFRVOIR RD
Tax map 16-11-00
Tax lot 10300
Bill MARTINR
Tax map 16-11-36D
Tax lot 100
0
0
0
FIGURE 1. Subject Property, consisting of three tax lots
E. SURROUNDING LAND USES: The area surrounding the subject property is a mixture
of Exclusive Farm Use (EFU) and Multiple Use Agricultural (MUA-10) properties and two
districts within the Tumalo Urban Unincorporated Community Zone. Farm -zoned parcels
are located to the northeast, southwest, north, and across Tumalo Reservoir Road to the
south. Residential properties, zoned MUA-10, are located to the northwest, southeast,
and further north beyond the farm -zoned parcels. Adjacent to the eastern boundary are
two zoning districts — Residential 5 -acre minimum (TuR5) and Research and
Development (TuRE) — that are within the Tumalo Urban Unincorporated Community
Zone. Tumalo Reservoir Road is adjacent to the property's southern boundary. Mock
road is adjacent to the western boundary and intersects with Pinehurst Road near the
northwestern corner of the property. Bill Martin Road travels through the property in a
north to south direction.
The applicant's burden of proof statement provides the following description of the
development pattern in the area surrounding the subject property:
South of the Subject Property, but north of Tumalo Reservoir Road are several
MUA-10 properties along Coyote Run Ln. and Quail Dr. These properties are all
in residential uses and are roughly 5 acres or smaller in size. Properties to the
immediate south, but across Tumalo Reservoir Road are zoned EFU-TRB.
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These properties exhibit a mix or irrigated and un -irrigated farming activities with
most properties less than 40 acres in size.
To the west and along the southern half of the Subject Property are EFU-TRB
properties north of Tumalo Reservoir Rd. There are no apparent agricultural uses
at these properties and these properties were previously part of mining
operations (Site Nos. 355 and 356). Along the northern half of the western
boundary are MUA-10 properties that are 5 to 10 acres in size. Some of these
properties demonstrate the use of irrigation, but most of the immediately adjacent
parcels are dry.
Immediately adjacent parcels to the north are zoned EFU-TRB. These properties
are 10-20 acres in size with only one adjacent parcel evidencing any irrigated
agriculture. Further north are properties zoned MUA-10 that are in a mix of
agricultural and residential uses. To the northeast is another SM zoned property
owned by Deschutes County.
Properties to the east and along the northern half of the Subject Property are un-
irrigated EFU-TRB parcels including property owned by the Applicant. Along the
southern portion of the eastern boundary are TUR5 parcels. Further east is the
Bend Research, Inc.'s Tumalo Site in the Tumalo Research and Development
District. Even further east is the unincorporated community of Tumalo.
F. SOILS: According to Soil Resource Inventory for Deschutes National Forest, there are
ten soil units mapped on the subject property, which are identified in the following table.
Mapping Unit Symbol
Mapping Unit Name
31 B
Deschutes sandy loam, 3 to 8 percent slopes
34C
Deschutes-Stukel complex, 0 to 15 percent slopes
36A
Deskamp loamy sand, 0 to 3 percent slopes
67A
Houstake sandy loam, very gravelly substratum, 0 to 3
percent slopes
72C
Laidlaw sandy loam, 0 to 15 percent slopes
101D
Redcliff-Lickskillet-Rock outcrop complex, 15 to 30
percent south slopes
141C
Stukel-Deschutes-Rock outcrop complex, 0 to 15 percent
slopes
151D
Tetherow-Clovkamp complex, 8 to 50 percent slopes
152A
Tumalo sandy loam, 0 to 3 percent slopes
152B
Tumalo sandy loam, 3 to 8 percent slopes
A small portion of 31 B, together with the 67A and 72C areas, is similar in shape to the
existing Surface Mining area. The 72C soil mapping units are nonhigh value soils. The
31B and 67A soil is considered high value when irrigated.
G. SURFACE MINE DESIGNATION HISTORY: The subject property (approximately
541.23 acres) was identified as mining mine Site No. 357 on the County's Surface
Mining Mineral and Aggregate Inventory, and the site was zoned for surface mining in
1990 through the adoption of Ordinances 90-014, 90-025, 90-028, and 90-029. All four
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ordinances established an effective date of July 16, 1990. The applicant provides the
following site and mining history for the property:
The vesting deed is attached as Exhibit 3. The Applicant's predecessor
Deschutes County Municipal Improvement District acquired a very large tract of
land, including what is now the Subject Property, in the early 1900's. There have
been numerous deeds conveying out portions of the original acquisition leaving
the present configuration of approximately 541 acres.
Initial County Zoning Maps show the Subject Property as zoned SM. In the late
1980's the Land Conservation and Development Commission's (LCDC's)
acknowledgement of the County's Comprehensive Plan provisions addressing
mineral and aggregate resources under Goal 5 was reversed and remanded by
the Court of Appeals in Coats v. LCDC, 67 Or App 504 (1984). Pursuant to a
subsequent LCDC order, the County undertook a lengthy process to inventory
mineral and aggregate resources in the County, to develop a plan to preserve
and protect those resources, and to amend the County's Comprehensive Plan
and Zoning Ordinance to adopt the inventory and measures to protect sites.
These plans were implemented through several ordinances that (i) listed Site No.
357 on the Goal 5 inventory, (10 adopted a site-specific ESEE (Economic, Social,
Environmental and Energy) analysis for Site No. 357, and (iii) imposed the SM
and SMIA zoning (Ordinance Nos. 90-014, 90-025, 90-028, and 90-029). In
1993, the County adopted Ordinance Nos. 93-021 and 93-022 to correct an error
in the acreage of Site No. 357.
Aside from the communications tower described above, the property has only
been used for mining purposes. In September of 2011, the Department of
Geology & Mineral Industries (DOGAMI) closed the permit (No. 09-0009) to Site
No. 357 following successful reclamation of the Subject Property. In total, 312.75
acres were reclaimed, which included re -contouring the disturbed area, adding 1
foot of topsoil, and drill -seeding the area with grasses.
H. PROPOSAL: The applicant is requesting a Comprehensive Plan Amendment to change
the designation of the subject property from Surface Mine (SM) to Rural Residential
Exception Area (RREA). The request includes removing Surface Mining Site No. 357
from the County's Surface Mining Mineral and Aggregate Inventory and adding it to the
Non -Significant Mining and Aggregate Inventory. The applicant also requests approval of
a Zone Change from Surface Mining to Multiple Use Agricultural for the subject property.
The removal of the SM zoning on the subject property also would remove the existing
Surface Mining Impact Area Combining Zone (SMIA) zoning on property located within
one-half mile of the SM Zone.
Regarding the request to move Site No. 357 to the Non -Significant Mining and
Aggregate Inventory, the applicant states the following:
Applicant anticipates that a portion of the Subject Property may be used as a
recharge reservoir for the various irrigation piping projects applicant is pursuing
in the area. A recharge reservoir assists in ensuring that there is sufficient water
pressure in irrigation pipe to supply water to all connections during periods of
joint use. To ensure applicant can construct and maintain these facilities, should
they be developed in the future, applicant desires to add Site No. 357 to the Non-
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Significant Mining Mineral and Aggregate Inventory contained within Table 5.8.2
of the Deschutes County Comprehensive Plan. (Footnote omitted) The
construction of irrigation reservoirs in the MUA-10 zone requires conditional use
approval. If applicant moves forward with developing the recharge reservoir,
applicant will seek conditional use approval.
I. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice to several
agencies and received the following comments:
1. Deschutes County Transportation Planner: Peter Russell, Senior Transportation
Planner, submitted the following comments on November 29, 2017.
I have reviewed the transmittal materials for 247-17-000775-ZC/776-PA,
which proposes changing the zoning from Surface Mining (SM) to Multiple
Use Agricultural (MUA-10) for approximately 541 acres at 19300 and 19310
Tumalo Reservoir Road, aka 16-11-00, Tax Lots 10300 and 10400 and 16-
11-36D, Tax Lot 100. I agree with the submitted traffic study's methodology,
conclusions, and recommendations. The submittal complies with the
Transportation Planning Rule (TPR) and demonstrates the land use would
have no significant effect upon Bill Martin Road, a local access road. The
study also complies with the requirements of Deschutes County Code (DCC)
18.116.310.
2. Deschutes County Road Department: Cody Smith, County Engineer, submitted the
following comments on November 29, 2017.
I have reviewed the application materials for the above -referenced file
numbers, requesting a Zone Change, Comprehensive Plan Amendment, and
changes to the County's Surface Mining Mineral and Aggregate Inventory for
Tax Lots 10300 and 10400 on Tax Map 16-11 and Tax Lot 100 on Tax Map
16-11-36D. The subject properties have frontage to Tumalo Reservoir Road,
Mock Road, and Bill Martin Rd. Tumalo Reservoir Rd is a County -maintained
rural collector road, while Mock Rd is a County -maintained rural local road.
Bill Martin Rd is local access road under County jurisdiction but not County -
maintained.
Deschutes County Road Department has no comments regarding the burden
of proof findings or traffic study submitted by the applicant.
3. Oregon Department of Fish and Wildlife (ODFW): The following comments were
submitted by Andrew Walch, Wildlife Habitat Biologist, on November 16, 2017.
The Oregon Department of Fish & Wildlife (ODFVV) is submitting the following
comments regarding Tumalo Irrigation District's applications (File #247-17-
000775-ZC and 247 -17 -000776 -PA), located at 19300 and 19310 Tumalo
Reservoir Rd, Bend, OR 97701.
The area of the proposed Zone Change and Comprehensive Plan
Amendment is located just outside of the Wildlife Area Combining Zone, but
within biological winter range for mule deer. ODFW is concerned about the
continued loss and development of open spaces on biological winter range.
Due to multiple factors, including habitat loss/alterations, the Tumalo mule
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deer herd, the herd potentially affected by this proposal, is estimated at 28%
of its population management objective as of spring 2017.
Development of a 541.23 -acre property into 10 -acre minimum rural
residential properties would lead to miles of new fencing on the landscape.
To reduce impact to wildlife, ODFW urges Deschutes County planners to
ensure that any new fences constructed on the property are wildlife -friendly,
as outlined in county code 18.88.070.
As per ODFW wildlife damage policy, we will not respond to any wildlife
damage complaints within this potential rural residential development due to
the change in land use.
4. The following agencies did not respond or had no comments: Bend Fire Department,
Central Electric Cooperative, Deschutes County Assessor, Deschutes County Road
Department, Oregon Department of Environmental Quality, Oregon Department of
Geology and Mineral Industries (DOGAMI), Oregon Department of Land
Conservation and Development, PG&E Gas Transmission NW, Pacific Power and
Light, and Watermaster — District 11.
J. NOTICE REQUIREMENT: The applicant complied with the posted notice requirements
of Section 22.23.030(B) of Deschutes County Code (DCC) Title 22. The applicant
submitted a Land Use Action Sign Affidavit, dated November 15, 2017, indicating the
applicant posted notice of the land use action on November 15, 2017.
Notice of the public hearing was sent to all property owners within 750 of the subject
property on November 6, 2017. Notification of the public hearing was posted in the Bend
Bulletin newspaper on November 12, 2017.
K. REVIEW PERIOD: The applications for 247-17-000775-ZC and 247 -17 -000776 -PA were
submitted to the Planning Division on September 21, 2017. According to Deschutes
County Code (DCC) 22.20.040(D), the review of the proposed quasi-judicial plan
amendment application is not subject to the 150 -day review period.
L. HEARING: The hearing was opened at 6:00 pm. on December 12, 2017. I provided the
required statutory disclosures. I indicated that I had no conflicts of interest and had had
no ex parte contacts. I did not conduct a site visit. I asked for but received no procedural
or other objections to my conducting the hearing. A request to keep the written record
open was received and granted as follows, with all submittals to be actually received by
the County at close of business:
December 22, 2017 New submittals
January 2, 2018
January 12, 2018
Materials submitted in response to submittals during the
first open record period.
Applicant's final rebuttal but no new evidence.
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III. FINDINGS AND CONCLUSIONS:
Title 22, Deschutes County Development Procedures Ordinance
A. Chapter 22.20 Review of Land Use Action Applications
1. Section 22.20.015 Code Enforcement and Land Use
A. Except as described in (D) below, if any property is in violation of
applicable land use regulations and/or conditions of approval of any
previous land use decisions... the County shall not:
1. Approve any application for land use development;
2. Make any other land use decision, including land divisions
and/or property line adjustments;
3. Issue a building permit...
C. A violation means the property has been determined to not be in
compliance either through a prior decision by the County or other
tribunal, or through the review process of the current application...
D. A permit or other approval... may be authorized if:
1. It results in the property coming into full compliance...
2. It is necessary to protect the public health or safety...
FINDING: Several commenters have alleged that the property is in violation of
applicable land use regulations or conditions of approval and, therefore, I am precluded
from approving any application or making a land use decision.
As I understand it, properties adjacent to the northern boundary of the subject property
were partitioned and sold. The current owners have filed an action in circuit court against
Deschutes County and TID alleging, among other things, that the partitions were, or
should have been, processed as a subdivision. Accordingly, Bill Martin Rd., should have
been constructed to County standards and accepted by the County for maintenance
pursuant to DCC 17.16.105. Central Oregon Landwatch (COLW) asserts that failure of
either TID or Deschutes County to maintain Bill Martin Rd., therefore, a violation. See
e.g., Jan. 2, 2018 submittal at 3-4, Holt hearing submittal H-4.
Bill Martin Road crosses a portion of the subject property. The County considers it to be
a local access road not maintained by the County. The County has not flagged the
subject property as a violation.
County Counsel responded to staff that there has been no decision that TID violated any
County land use regulation or approval. Further, neither the County nor TID believe any
violation occurred. He also states that the existence of a pending lawsuit does not
constitute a violation that would justify rejection of the current application.
I agree with COLW that DCC 22.20.015 generally authorizes the review authority to
determine whether a violation exists regardless of the County's position. But, for the
reasons stated below, I find that this provision does not preclude me from deciding the
application before me.
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As I understand it, the land use application(s) that are the subject of the lawsuit involve
adjacent property that happened to be owned by TID. Dec. 22, 2017 staff
memorandum. The lawsuit alleges numerous positions, including that the County did in
fact, establish Bill Martin Road as a county road and that the county had accepted
maintenance responsibility. It also alleges that TID has responsibility for maintenance or
had a duty to inform purchasers that they must maintain the road. It seeks a declaratory
ruling that TID must maintain the road and that the County had a non -discretionary duty
to treat the partition approvals as a subdivision and either maintain the road or require
TID to do the maintenance. As near as I can tell, it does not seek to invalidate the
partition approvals. See, Fourth Amended Complaint.
DCC 22.20.015 only references the property, which almost certainly means the subject
property. The subject property was not the one allegedly improperly divided. This section
does not appear to extend to other property owned by the applicant. To the extent, if
any, that a property is in violation it is the property now owned by plaintiffs and they do
not allege that they are unable to obtain building or other permits. At least some of the
allegations appear to be a collateral attack on the partition approvals which as far as I
can tell were not appealed and became final. To the extent, if any, that the IGA
referenced in the pleadings or some other source outside the Development Code
imposed a duty on TID or the County, that is beyond the scope of DCC 22.20.015. To
the extent the County, as alleged, breached some duty, that also is not within the scope
of this provision. Further, is not at all clear that I have jurisdiction on this issue given the
circuit court filing, otherwise, there could be two competing conclusions from two
different bodies. Finally, the record is not complete enough for me to reach a conclusion
— the allegedly improper land use decisions, for example, are not in the record. It is not
clear to me that the Code envisions the applicant's burden in this proceeding to extend
to proving the absence of a violation at least under these facts. Thus, it also appears that
the opponents have not raised this issue with enough specificity for me to decide. For
these reasons, I conclude that this section does not bar me from issuing a decision.
Deschutes County Comprehensive Plan
Before I may consider the zone change, the applicant must first demonstrate that it has
met its burden in satisfying the criteria for the requested plan amendment. COLW contends
that the applicant must apply for and obtain an exception to Goals 3, 4 and 14 and,
therefore, this application must be denied as no exception is sought. Accordingly, I am
reordering staffs approach to first address these issues.
A. CHAPTER 2 RESOURCE MANAGEMENT
1. Section 2.1 Introduction
Purpose
The concept of sustainability is that resources used today should be managed
so that there are still resources available for future generations. Sustainability
encourages balancing economic, environmental and social concerns. The
Deschutes County Comprehensive Plan has long acknowledged this through
policies that require new development to consider the carrying capacity of
environment.
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The purpose of the Resource Management chapter is to effectively manage
Deschutes County's agricultural, forest, natural and cultural resources to meet
the needs of today while retaining their value for future generations. These
resources include:
Other Resources
• Goal 5 Overview (Section 2.4)
• Mineral and Aggregate Resources (Section 2.10)
2. Section 2.4 Goal 5 Overview
Purpose of Goal 5
The purpose of identifying Goal 5 related lands is to effectively manage
Deschutes County's natural and cultural resources to meet the needs of today
while retaining their value for future generations....
Goals and Policies
Goal 1 Protect Goal 5 resources.
Policy 2.4.4 Incorporate new information into the Goal 5 inventory as
requested by an applicant or as County staff resources allow.
FINDING: The applicant is proposing to remove Surface Mining Site No. 357 from
the County's Surface Mining Mineral and Aggregate Inventory.
The request is based on new information regarding the reclamation of Site No. 357.
In addition, the request includes adding Site No. 357 to the Non -Significant Mining
and Aggregate Inventory.
3. Section 2.10 Surface 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.
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Policy 2.10.1 Goal 5 mining inventories, ESEEs and programs are retained and
not repealed.
Policy 2.10.2 Cooperate and coordinate mining regulations with the Oregon
Department of Geology and Mineral Industries.
Policy 2.10.3 Balance protection of mineral and aggregate resources with
conflicting resources and uses.
Policy 2.10.5 Review surface mining site inventories as described in Section
2.4, including the associated Economic, Social, Environmental
and Energy (ESEE) analyses.
Policy 2.10.6 Support efforts by private property owners and appropriate
regulatory agencies to address reclamation of Goal 5 mine sites
approved under 660-016 following mineral extraction.
FINDINGS: Staff states that an aggregate resource site may be placed on the non-
significant mining and aggregate inventory when the resource does not meet the
Goal 5 significance criteria listed in OAR 660-023-0180(3). Staff concluded that the
site is eligible to be removed from the Goal 5 inventory and placed on the non-
significant resource inventory.
The applicant states that the mining resources at Site No. 357 "have been
exhausted." The applicant submitted a geotechnical reconnaissance by Siemens &
Associates dated August 22, 2016. The report provides an "assessment of the type,
quality and quantity of the mineral resources that have been extracted from Site
357," which includes a review of the cinders, pumice, and crushed sand and gravel
extracted from the site. According to the report, mining activities occurred between
1993 and 2005.
The geotechnical reconnaissance evaluated the significant and non-significant
resources available at the site. The resources identified at Site No. 357 include
cinders, pumice, and sand and gravel ("S & G"). The report indicates that cinders
and pumice, are not considered significant (OAR 660-023-0180), because they "fail
to meet the identified ODOT specification for base rock since the particles are
weak...." Therefore, the identified significant resource for the site would be sand and
gravel. The following is the applicant's summary of the reconnaissance analysis:
Despite the indication of significant sand and gravel in the Goal 5 Inventory,
Mr. Siemens concludes that the geology of the Subject Property could only
have yielded trace amounts of sand and gravel. This conclusion is consistent
with mining activities as no significant sand and gravel was harvested from
the site despite the large percentage of the property subject to mining
activities.
Even if the pumice and cinders met ODOT standards, a sufficient amount of
these materials has been removed such that the site does not possess the
500,000 -ton significance threshold for sites outside of the Willamette Valley.
Based on aerial photographs, site geology, and on-site investigations, Mr.
Siemens estimates that approximately one million cubic yards of cinder and
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more than 2.8 million tons on pumice have been extracted from the site. This
is all of the cinder and substantially more of the pumice than was originally
thought to be contained at the site by the Goal 5 Inventory. To the extent the
site ever met the OAR 660-023-0180(3)(a) standard for significance, all
significant material has been removed such there is no longer a "deposit" on
the site.
The Oregon Department of Geology and Mineral Industries formally closed the
permit for Site No. 357 on September 13, 2011, after reclamation to DOGAMI
specifications was completed on the property.
The Holt's, COLW and others note that the September 13, 2011, DOGAMI report
designated post -mining use as Open Space/Range compared to the other choices
such as agriculture, recreation, wildlife/wetlands, or housing/construction. They
argue that a comprehensive plan amendment/zone change to something other than
open space or range would be inconsistent with that determination.
The Holt's also expressed concern about the environmental hazards such as "sink
holes and cave ins" that have occurred in the reclaimed area. Significant erosion and
sink holes where documented during the reclamation process (see DOGAMI
September 30, 2008 onsite inspection report). However, three years later, DOGAMI
issued a letter indicating reclamation was completed.
I do not find any evidence in the record contradicting the applicant's position that the
significant resource no longer exists. COLW, Nunzie Gould and others argue that
there must be significant resources left because the applicant intends to excavate a
portion of the property for a reservoir. I can find nothing, however, indicating that
such excavation necessarily means that a resource is present. It is likely that will be
removed is non -resource material. More importantly, the applicant is not applying for
a new mining operation or development of a reservoir. Any such proposal will need
conditional use approval if the requested plan amendment and zone change are
granted. As DOGAMI noted in its Dec. 19, 2017 email, sites previously mined could
be mined again with the appropriate land us approvals and permits, assuming there
is commodity available.
COLW asserts that termination of the Surface Mining Zoning and Surrounding
Surface Mining Impact Area Combining Zone may preclude mining for the reservoir,
citing Beaver State Sand and Gravel v Douglas County, 187 Or App 241 (2003). See
Dec. 22, 2017 submittal. That case interpreted ORS 215.298 and concluded that the
statute, in conjunction with the administrative rules, precluded use of a non-
significant aggregate site in county comprehensive plans. It also held that LUBA was
not premature in determining that nonsignificant aggregate sites are ineligible for a
conditional use permit under ORS 215.298(2). The applicant responds in its Third
Supplemental Burden of Proof that ORS 215.298(2), and Beaver State only apply to
EFU lands. I concur with the applicant. Beaver State involved EFU land. I do not
think the title of the statute is particularly relevant, but the statute expressly
references ORS 215.213 (2) and 215.283(2) which govern uses on EFU land. It must
be read in context with those statutes. I do not see how Beaver State precludes
listing non-EFU land on a nonsignificant inventory. Further, the facts in that case
clearly involved the ability to mine in the future. Although it appears that being on the
non-significant resource inventory for some reason is a prerequisite to excavation for
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a reservoir under the Deschutes Code, I have been cited to nothing that makes such
a proposal ipso facto mining. To be clear, COLW may be correct that listing the
property on the non-significant inventory may preclude the applicants potential use
for a reservoir, but nothing in Beaver State or the statute requires me to reach that
issue or a basis for denial. That is an issue for the applicant to address if or when it
seeks approval of such a use.
Regarding the DOGAMI open space/range classification, staff notes that the
designation on the DOGAMI application is the responsibility of the applicant. The
applicant submitted a December 19, 2017 email from DOGAMI confirming that
DOGAMI considers that to be related to reclamation standards, it is "not a restriction
on future use of the reclaimed property." Rather, DOGAMI acknowledges that the
decision on appropriate zoning and future uses is "solely vested" in the local
government. I have been cited to no authority in state law, administrative rules or the
Plan that is inconsistent with that position.
As staff notes, it appears that the Holt's and others have legitimate concerns about
continued subsidence, sink holes and related problems with the site. But DOGAMI
issued a reclamation determination and has not moved to revoke or otherwise exert
authority over the site. The applicant coordinated with DOGAMI and obtained final
closure. Again, any such issues would need to be addressed when actual
development is proposed.
The applicant and COLW appear to agree that this Non -Significant Mining Mineral
and Aggregate Inventory is not a Goal 5 provision. The County has retained it
apparently to address potential use for reservoirs which may or may not require
"mining" or extraction. COLW argues that the property must remain on the Significant
Resource inventory for reservoir excavation to occur. Other commenters are
concerned that placement on the Non -Significant Inventory will permit reservoir
excavation to which they object.
There do not appear to be any express criteria for inclusion on the Non-significant
inventory. As discussed above, the applicant has met its burden of demonstrating
that the Significant designation should be terminated. Any future proposal for a
reservoir will at a minimum require development review. I do not have a proposal for
such excavation before me and he issue of whether a new reservoir may be
excavated on a property not listed as a Significant Resource will be addressed if
such development is sought.
These Plan Policies have been met.
B. CHAPTER 3 RURAL GROWTH MANAGEMENT
1. Section 3.1 Introduction
Purpose
The purpose of the Rural Growth Management chapter is to coordinate with
other chapters of this Plan to maintain the quality of life enjoyed by rural
residents.
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2. Section 3.3 Rural Housing
Background
Housing is a basic need that provides not just shelter, but connection to a
wider community. A variety of housing types and price points ensures options
for people at different life stages and needs. Oregon's statewide planning
program directs cities to retain an adequate amount of land to accommodate
residential growth. Generally counties are directed to protect farms, forests
and other rural resources like wildlife while limiting new rural development.
This section of the Plan looks specifically at housing on existing and potential
new parcels and how the County can support a diverse and affordable housing
supply.
Goals and Policies
Goal 1 Maintain the rural character and safety of housing in
unincorporated Deschutes County.
The minimum parcel size for new rural residential parcels shall
be 10 acres.
Policy 3.3.1
Policy 3.3.3
Address housing health and safety issues raised by the public,
such as:
a. The number of large animals that should be permitted on
rural residential parcels; or
b. The properties south of La Pine, in Township 22S, Range 10E,
Section 36, many of which are not in compliance with
planning and building codes.
Policy 3.3.4 Encourage new subdivisions to incorporate alternative
development patterns, such as cluster development, that
mitigate community and environmental impacts.
FINDING: The applicant is requesting to change the zone of the property from SM to
MUA-10. The MUA-10 provides alternative development patterns, such as cluster
development, that mitigate community and environmental impacts. The applicant is
not proposing a subdivision.
Policy 3.3.5 Maintain the rural character of the County while ensuring a
diversity of housing opportunities, including initiating
discussions to amend State Statute and/or Oregon
Administrative Rules to permit accessory dwelling units in
Exclusive Farm Use, Forest and Rural Residential zones.
FINDING: These policies are implemented by the zone change and development
standards in the County Zoning Ordinance. Future development on the property will
be subject to the applicable code restrictions. The applicant is proposing a zone
change from SM to MUA-10 and asserts that the MUA-10 Zone "best meets the
objectives of this policy as it maintains a more rural appearance while allowing
limited housing opportunities." Providing the option for additional housing appears to
further these policies, provided that all relevant criteria are met.
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Goal 2 Support agencies and non -profits that provide affordable
housing.
Policy 3.3.6 Support Central Oregon Regional Housing Authority and other
stakeholders to meet the housing needs of all Deschutes County
residents.
a. Assist as needed in coordinating and implementing housing
assistance programs.
b. Support efforts to provide affordable and workforce housing
in urban growth boundaries and unincorporated
communities.
Policy 3.3.7 Utilize block grants and other funding to assist in providing and
maintaining low and moderate income housing.
FINDING: The policies identified under Goal 2 are not applicable to this application.
No one contends otherwise.
3. Section 3.4 Rural Economy
Background
Economic development is critically important to maintaining quality of life.
When the Statewide Planning system was initiated, farming and forestry were
strongly protected because they were the State's primary economic drivers.
Statewide Planning Goal 9, Economic Development and Oregon Administrative
Rule (OAR) 660-009 apply to areas inside urban growth boundaries and are
intended to ensure an adequate land supply for business and employment
growth. The Rule defines the preparation of Economic Opportunity Analyses
(EOA) to identify and promote a diverse economy.
Goal and Policies
Goal 1 Maintain a stable and sustainable rural economy, compatible
with rural lifestyles and a healthy environment.
Policy 3.4.1 Promote rural economic initiatives, including home-based
businesses that maintain the integrity of the rural character and
natural environment.
a. Review land use regulations to identify legal and appropriate
rural economic development opportunities.
FINDING: The applicant provided the following response to this policy.
The Subject Property was previously capable of supporting rural economic
opportunities and the County complied with the provision by imposing the SM
zoning and designation. Now that the significant resource is exhausted it
cannot support such opportunities. Given the surrounding residential and
EFU lands and the Landscape Management overlay, it is not an appropriate
site for either rural commercial or rural industrial uses. The MUA-10 zone
allows for home occupations in accordance with this policy.
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Policy 3.4.2
Policy 3.4.3
Policy 3.4.4
Policy 3.4.5
Policy 3.4.6
Work with stakeholders to promote new recreational and tourist
initiatives that maintain the integrity of the natural environment.
Support a regional approach to economic development in
concert with Economic Development for Central Oregon or
similar organizations.
Support regional educational facilities and workforce training
programs.
Support renewable energy generation as an important economic
development initiative.
Support and participate in master planning for airports in
Deschutes County.
FINDING: The policies identified above are not applicable to this application. No one
contends otherwise.
Policy 3.4.7 Within the parameters of State land use regulations, permit
limited local -serving commercial uses in higher -density rural
communities.
FINDING: The applicant is proposing to rezone the property from surface mining to
residential. The subject property and the surrounding area is not a higher -density
rural community. These Policies have been met.
C. CHAPTER 5 SUPPLEMENTAL SECTIONS
1. Section 5.1 Introduction
Purpose
The purpose of this chapter is to provide a glossary, list all acknowledged
Goal 5 resources in one location (see Section 2.4) and list all Goal Exceptions
and Goal 5 inventories. The final section in this Chapter is a table to track all
amendments to this Plan. This table will ensure a clear legislative history is
maintained.
2. Section 5.8 Goal 5 Inventory Mineral and Aggregate Resources
Background
This section contains information from the 1979 Deschutes County
Comprehensive Plan as revised. It lists the surface mining resources in
Deschutes County. These inventories have been acknowledged by the
Department of Land Conservation and Development as complying with Goal 5.
No changes have been proposed for the 2010 Comprehensive Plan update.
Table 5.8.1 — Deschutes County Surface Mining Mineral and Aggregate
Inventory
Taxlot
Name
Type
Quantity*
Quality
Access/Location
357
161136 DO 00100,
161100 00 10400,
10300
Tumalo
4r-r-igatiee
Gindere
4-M
Jetnsen-Reads
Tale
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#
Taxlot
Name
Type
Quantity*
Quality
Access/Location
357
161136 DO 00100,
Tumalo
�c
Cinders
500,000
Geed
Johnson Road/
Tumalo
161100 00 10,100,
10300
Tumalo
Irrigation
357
161136 DO 00100,
Tumalo
�e
Punalce
600,000
Geed
Tumalo
Irrigation
161100 00 10,100,
500,000
x-0388
FINDING: As discussed above, the applicant has met its burden of demonstrating
that the property is eligible to be removed from this inventory.
Table 52.2 — Deschutes County Non -Significant Mining Mineral and Aggregate
Inventory
#
Taxlot
Name
Type
Quantity*
Quality
Access/Location
357
161136-D0-00100,
161100-00-10400,
10300
Tumalo
Irrigation
Cinders
1 M
357
Johnson Road/
Tumalo
357
161136-D0-00100,
161100-00-10400,
10300
Tumalo
Irrigation
S & G
500,000
Good
Tumalo
Irrigation
357
161136-D0-00100,
161100-00-10400,
10300
Tumalo
Irrigation
Pumice
500,000
Good
In its First Supplemental Burden of Proof, the applicant raises a valid concern
regarding staffs proposed additions to this Table. Simply transferring the quantity
and quality figures from Table 5.8.1 is inaccurate and misleading as the property no
longer contains significant resources. The reconnaissance performed by Siemens &
Associates concludes that the site probably does not have and never had significant
sand and gravel resources and that the cinder and pumice largely are depleted.
Further, the proposed table does not follow the format of the existing table.
Accordingly, I find that Table 5.82 should be amended as follows:
#
Taxlot
Name
Type
Quantity*
Comments
357
161136-D0-00100,
161100-00-10400,
10300
Tumalo
Irrigation
Cinders
Not
significant
Potential reservoir
site.**
357
161136-D0-00100,
161100-00-10400,
10300
Tumalo
Irrigation
S & G
Not-
significant
Potential reservoir
site**
357
161136-D0-00100,
161100-00-10400,
10300
Tumalo
Irrigation
Pumice
Not-
significant
Potential reservoir
site**
** Subject to land use approval.
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D. APPENDIX C, TRANSPORTATION SYSTEM PLAN
Executive Summary
Deschutes County adopted its original Transportation System Plan (TSP) in
August 1998, encompassing 1996-2016. In the intervening years, the County and
its cities saw rampant population growth and associated increases on the State
highways and County road segments, particularly those near Bend and Redmond.
The County began a TSP update in 2007, incorporating changes in population,
traffic volumes, rise of non -automotive modes, and diminishing available funding
at the federal, state, and local levels for projects. The TSP update spans 2010-2030
and lists $306.2 million in projects.
The TSP provides a roadmap to meet the needs of air, automobile bicycle, freight,
pedestrian rail, transit and other modes. A combination of technical analysis,
coordination with Oregon Department of Transportation (ODOT), coordination
with the four cities within the County, public outreach, and local knowledge
identified those needs. The TSP prioritizes projects into high (0-5 years), medium
(6-10 years) and low (11-20 years) categories and provides planning -level cost
estimates....
The goals and policies to coordinate and implement the TSP are as follows:
ARTERIAL AND COLLECTOR ROAD PLAN
Goal 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.
Policy 4.4 Deschutes County shall consider roadway function, classification
and capacity as criteria for plan map amendments and zone
changes. This shall assure that proposed land uses do not exceed
the planned capacity of the transportation system.
FINDING: This policy requires the County to consider the roadway function,
classification, and capacity as criteria for plan map amendments and zone changes. The
applicant has submitted a transportation impact analysis (TIA) with the application. The
TIA was reviewed by the County Transportation Planner, who agreed with the traffic
study's methodology, conclusions, and recommendations and concluded that it
demonstrated compliance with the TSR See, discussion below.
Oregon Administrative Rules, Chapter 660
A. DIVISION 12, TRANSPORTATION PLANNING (OAR 660-012)
1. OAR 660-012-0060. Plan and Land Use Regulation Amendments
(1) If an amendment to a functional plan, an acknowledged comprehensive
plan, or a land use regulation (including a zoning map) would significantly
affect an existing or planned transportation facility, then the local
government must put in place measures as provided in section (2) of this
rule, unless the amendment is allowed under section (3), (9) or (10) of this
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rule. A plan or land use regulation amendment significantly affects a
transportation facility if it would:
(a) Change the functional classification of an existing or planned
transportation facility (exclusive of correction of map errors in an
adopted plan);
(b) Change standards implementing a functional classification system; or
(c) Result in any of the effects listed in paragraphs (A) through (C) of this
subsection based on projected conditions measured at the end of the
planning period identified in the adopted TSP. As part of evaluating
projected conditions, the amount of traffic projected to be generated
within the area of the amendment may be reduced if the amendment
includes an enforceable, ongoing requirement that would demonstrably
limit traffic generation, including, but not limited to, transportation
demand management. This reduction may diminish or completely
eliminate the significant effect of the amendment.
(A) Types or levels of travel or access that are inconsistent with the
functional classification of an existing or planned transportation
facility;
(B) Degrade the performance of an existing or planned transportation
facility such that it would not meet the performance standards
identified in the TSP or comprehensive plan; or
(C) Degrade the performance of an existing or planned transportation
facility that is otherwise projected to not meet the performance
standards identified in the TSP or comprehensive plan.
(2) Where a local government determines that there would be a significant
effect, compliance with section (1) shall be accomplished through one or a
combination of the following:
(a) Adopting measures that demonstrate allowed land uses are consistent
with the planned function, capacity, and performance standards of the
transportation facility.
(b) Amending the TSP or comprehensive plan to provide transportation
facilities, improvements or services adequate to support the proposed
land uses consistent with the requirements of this division; such
amendments shall include a funding plan or mechanism consistent with
section (4) or include an amendment to the transportation finance plan
so that the facility, improvement, or service will be provided by the end
of the planning period.
(c) Altering land use designations, densities, or design requirements to
reduce demand for automobile travel and meet travel needs through
other modes.
(d) Amending the TSP to modify the planned function, capacity or
performance standards of the transportation facility.
(e) Providing other measures as a condition of development or through a
development agreement or similar funding method, including
transportation system management measures, demand management or
minor transportation improvements. Local governments shall as part of
the amendment specify when measures or improvements provided
pursuant to this subsection will be provided.
(3) Notwithstanding sections (1) and (2) of this rule, a local government may
approve an amendment that would significantly affect an existing
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transportation facility without assuring that the allowed land uses are
consistent with the function, capacity and performance standards of the
facility where:
(a) The facility is already performing below the minimum acceptable
performance standard identified in the TSP or comprehensive plan on
the date the amendment application is submitted;
(b) In the absence of the amendment, planned transportation facilities,
improvements and services as set forth in section (4) of this rule would
not be adequate to achieve consistency with the identified function,
capacity or performance standard for that facility by the end of the
planning period identified in the adopted TSP;
(c) Development resulting from the amendment will, at a minimum, mitigate
the impacts of the amendment in a manner that avoids further
degradation to the performance of the facility by the time of the
development through one or a combination of transportation
improvements or measures;
(d) The amendment does not involve property located in an interchange
area as defined in paragraph (4)(d)(C); and
(e) For affected state highways, ODOT provides a written statement that the
proposed funding and timing for the identified mitigation improvements
or measures are, at a minimum, sufficient to avoid further degradation
to the performance of the affected state highway. However, if a local
government provides the appropriate ODOT regional office with written
notice of a proposed amendment in a manner that provides ODOT
reasonable opportunity to submit a written statement into the record of
the local government proceeding, and ODOT does not provide a written
statement, then the local government may proceed with applying
subsections (a) through (d) of this section.
FINDING: Surface mining activities have ceased on the site and, thus, the traffic -
generated impacts associated with surface mining activities no longer exist. The
applicant is not proposing any development.
The applicant has submitted a transportation impact analysis. The TIA was reviewed
by the County Transportation Planner, who agreed with the report's methodology
and conclusions. Staff concluded that proposal is consistent with the identified
function, capacity, and performance standards of the County's transportation
facilities in the area, will not change the functional classification of any existing or
planned transportation facility or change the standards implementing a functional
classification system, not allow types or levels of land uses, which would result in
levels of travel or access, which are inconsistent with the functional classification of
nearby transportation facilities and will not reduce the performance standards of the
facility below the minimum acceptable level the County's transportation system plan.
As the applicant acknowledges in its initial burden of proof statement, the threshold
question is whether the proposal allows uses that would have a more significant
impact on a transportation facility than the uses allowed under the current plan and
zone designations. The applicant relies on its traffic analysis which concluded that
the "worst case scenario" for future development would be 54 dwellings generating
potentially 54 peak p.m. trips. In comparison development under the existing surface
mining designations would generate somewhere between 54 and 61 p.m. trips.
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Application at 20. The applicant correctly notes that the comparison is between the
property assuming use under its current designations and its maximum development
under the proposed designations. The applicant and staff appear to rely exclusively
on the conclusion that this proposal does not trigger the "threshold" for a significant
impact.
There is no contrary evidence regarding the impact of generating 54 trips and I find
that development at 54 dwelling units does not significantly impact transportation
facilities.
COLW notes that the MU -10 zone provides for cluster development as a conditional
use at one dwelling per 7.5 acres, for a total of 72 dwelling units and 72 p.m. peak
trips. See generally, Mason v. City of Corvallis, 49 Or LUBA 199 (2005) (Must
assume most traffic -intensive use allowed.) DCC 18.32.040 states that cluster and
planned development may have a density equivalent to one unit per seven and one-
half acres but DCC 18.128.200 limits each cluster development to 10 dwelling units
and 10 new lots. The applicant concedes that 74 dwellings are possible, but argues it
is not reasonable to assume that such development will occur because, the applicant
asserts, it would require 9 separate cluster conditional use approvals. See, PA -98-12
(1999) page 17. There is information in the record suggesting that the disturbed
nature and other features of this site make it a feasible, perhaps desirable, subject
for cluster or planned development housing. Absent more, I cannot conclude that it is
unreasonable to assume cluster or planned development approvals.
Counsel for the applicant also asserts in his Third Supplemental Burden of Proof that
the current designations really allow up to 2,418 p.m. peak trips. This is based on a
wide range of peak trips per acre resulting in the potential of 2,418 p.m. peak trips
from the site. As one lay person considering another lay person's traffic analysis, 1
find this questionable. More importantly it is not the analysis used or endorsed by the
traffic expert.
Since the applicant and staff found that the threshold had not been triggered, there is
no information in the record, other than staffs conclusions, that I can find regarding
the carrying capacity of the impacted facilities or the minimum acceptable
performance standards. There is some accident data in the traffic study but no
information about the condition of the transportation facilities other than the
numerous comments that Bill Martin Rd. is in poor condition. In short, there is
nothing providing a basis for me to determine whether 72 trips, in fact, has a
significant impact. I suspect that it does not, but my supposition is insufficient to
support a finding that the applicant has met its burden on this issue. See generally,
Downtown Canby v City of Canby LUBA No. 2012-097 (2013) (Further and more
technical analysis is usually necessary to determine if the amendment significantly
affects a transportation facility and, if so, whether and what measures may be
required.)
In Jaqua v City of Springfield, 193 Or App 573, 593, 91 P3d 817 (2004) the court
held that the TPR does not permit deferral of a determination of whether the proposal
would significantly impact transportation facilities. This was reaffirmed and perhaps
extended in Willamette Oaks, LLC, v City of Eugene, 232 Or App 29, 220 P.3d 445
(2009). This effectively overruled a line of LUBA cases holding that it was
permissible in some instances to condition a plan amendment or zone change to
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prohibit development that could significantly impact a transportation facility. The court
made it clear that there must be a finding on this issue at the plan amendment/zone
change stage.
I find that, on this record, the applicant has failed to demonstrate that the proposal
will not have a significant impact on transportation facilities as a conditional use
approval may authorize more trips than the existing trips relied on by the applicant
(4) Determinations under sections (1)—(3) of this rule shall be coordinated with
affected transportation facility and service providers and other affected
local governments.
FINDING: Notice of the proposed plan amendment and zone change was sent to
several public agencies. Those agencies include Deschutes County Road
Department and County Transportation Planner, Bend Fire Department, Central
Electric Cooperative, Pacific Power, PG&E Gas Transmission NW, Oregon
Department of Fish and Wildlife, Oregon Department of Environmental Quality,
Oregon Department of Geology and Mineral Industries and the Oregon Water
Resources Department — District 11. The submitted responses are listed in the
foregoing Basic Findings section. Staff believes that this notice complies with the
requirement noted above. I concur.
B. DIVISION 15, STATEWIDE PLANNING GOALS (OAR 660-015)
1. Goal 1: Citizen Involvement
To develop a citizen involvement program that insures the opportunity for
citizens to be involved in all phases of the planning process.
FINDING: During the plan amendment and zone change process, public notice of
the proposal was provided to affected agencies and property owners in the
surrounding area. Planning staff mailed and published notice of the proposal and
public hearing. The County held a public hearing before the County hearings officer.
Goal 1 is met.
2. Goal 2: Land Use Planning
To establish a land use planning process and policy framework as a basis for
all decision and actions related to use of land and to assure an adequate
factual base for such decisions and actions.
FINDING: In accordance with Goal 2, the applicant applied for the plan amendment
and zone change. Staff believes the proposed plan amendment and zone change
satisfies this goal because the proposal has been reviewed in accordance with the
County's acknowledged planning review process. I concur, and no one argues
otherwise.
3. Goal 3: Agricultural Lands and Goal 4 Forest Lands
To preserve and maintain agricultural lands.
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FINDING: The subject property is not identified as agricultural lands on the
Deschutes County Comprehensive Plan map. It is identified as Surface Mine under
the County Comprehensive Plan.
COLW argues that an exception to Goal is required. As this was not sought, I either
do not have jurisdiction to issue a decision or must deny the applications. See,
December 12 and 22, 2017 submittals.
COLW contends that the soils on the site are rated by the NCRS as Class VI without
irrigation and Class III and IV when irrigated, so they are "categorically agricultural
lands." It provided evidence that DOGAMI has reported that 21% of mined lands
have been restored to agricultural use and that approximately 35% of the property
was not mined, so is undisturbed agricultural land. It states that the property is not
included on the Exceptions Area Maps produced by the County in 1977 or anywhere
else in the comprehensive plan.
The application states that the property is an exception area for purposes of Goal 3
and 4. This appears to be at least technically incorrect as there is no evidence of a
Goal 3 or 4 exception. More importantly, the applicant asserts that the property is not
agricultural land because it was planned and zoned for mining and has been since
the inception of County zoning.
The applicant cites Caldwell v Klamath County, 45 LUBA 548 (No. 2003-115, 2003)
for the proposition that Goal 3 does not apply to a post -acknowledgement plan
amendment to change the existing zone to another designation even if it is later
discovered that the property meets the definition of agricultural land. In Caldwell, the
County approved a plan map amendment from Non -Resource to Rural Residential
and a zone change from Non -Resource to Rural Residential -10. It was undisputed
that the property contained predominately Class II -IV lands and was partially
irrigated. No exception was taken during acknowledgment. LUBA affirmed, holding
that although the county and LCDC may have erred during acknowledgement, that
question may not be revisited and, therefore, Goal 3 was not implicated.
In its January 2, 2018 submittal COLW argues that Caldwell is inapplicable because
Klamath County had expressly designated the property as non -resource and that
designation was acknowledged. It argues that the subject property was never
designated non -resource in an acknowledged plan and that the surface mining
designations are transitional or temporary.
To my knowledge, nothing in the comprehensive plan references the Surface Mining
or zoning designations as temporal or anything other than alternates to other plan
and zone designations. In its ESEE Findings and Decision for this site the Board
found that it was "committed to surface mining" although the Board noted that
agricultural uses are allowed as they can occur without irretrievably committing the
property to uses other than surface mining. The Surface Mining Zone is not an
overlay, it is just as much a zone as any other. It is not clear to me how the
distinction cited by COLW makes Caldwell inapplicable. The fact is that the County
designation was acknowledged as something other than agricultural land.
DCC 18.52.200 states that "the property shall be rezoned to the subsequent use
zone identified in the surface mining element of the Comprehensive Plan." The
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County did not adopt a subsequent zone. One can argue that, had the County done
so, it and LCDC may have had a future exception area to review during
acknowledgement. But that did not occur and LCDC acknowledged this property as
something other than agricultural land and it appears that decision may not be
revisited.
COLW also notes the plan language in Section 3.3, Residential Housing, which
states under the heading "Rural Residential Exception Areas" that:
In 1979 the County assessed that there were over 17,000 undeveloped Rural
Residential Exception Area parcels, enough to meet anticipated demand for new
rural housing. As of 2010 any new Rural Residential Exception Areas need to be
justified through taking exceptions to farm, forest, public facilities and services
and urbanization regulations, and follow guidelines set out in the OAR.
COLW states, essentially, that this means what it says, and an exception is required.
It cites Cascade Pumice PA-02-8/ZC-02-04 which involved a plan amendment and
zone change from SM to EFU. The Hearings Officer questioned why the applicant
had not sought MUA-10 zoning as the applicant indicated an intent to apply for non-
farm dwellings. He noted, however, that there was significant opposition to that
option because of the large number of potential lots that could be created and stated
that such rezoning "would require a goal exception." The applicant declined to file for
MUA-10 zoning.
I concur with the applicant that this is, at best, dicta. It is clear that no one raised, and
the Hearings Officer did not consider the issues raised herein. The Hearings Officer
does not cite Section 3.3. Further, this decision was issued before Caldwell was
decided.
The applicant relies on PA -11-02 and ZC-11-2 a comprehensive plan text and map
amendment and zone change from Agriculture to Rural Residential Exception Area
and EFU to MUA-10. The Hearings Officer addressed Section 3.3 at length. He first
noted that is not a policy. He concluded that is a statement of how the County
desires to handle future conversion of agricultural land to designations that allow
rural residential development. (Emphasis added) He concluded that the applicant
had met its burden of demonstrating that the property was not, in fact, agricultural
land. Accordingly, no exception was required. The Board of Commissioners upheld
the decision. It is not clear to me whether the record contains the entire Board
decision (It is marked page 3 of 7) and the Board did not expressly address the
discussion of Section 3.3 in the pages in the record. But it did adopt Hearings
Officer's conclusions except as specifically amended. It is difficult to see how the
Board could have affirmed if it disagreed and, therefore, this appears to be the
interpretation and application endorsed by the Board.
That decision involved land designated agricultural that was found not to be, in fact,
agricultural. The present matter involves land not designated agricultural, but which
may, in fact, be agricultural. Under Caldwell, however, the result is the same — this is
not an application to go from agricultural to MUA-10 so Section 3.3. does not apply.
I find that an exception to Goal 3 is not required.
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4. Goal 4: Forest Lands
To conserve forest lands by maintaining the forest land base and to protect the
state's forest economy by making possible economically efficient forest
practices that assure the continuous growing and harvesting of forest tree
species as the leading use on forest land consistent with sound management
of soil, air, water, and fish and wildlife resources and to provide for
recreational opportunities and agriculture.
FINDING: The subject property is not identified as forest lands on the Deschutes
County Comprehensive Plan map. As indicated previously, the subject property is
identified as Surface Mine under the County Comprehensive Plan. COLW asserts a
Goal 4 exception is required but provides no authority or analysis. No one has
provided evidence that this property is or ever has been suitable for forest use. This
Goal is met, and no exception is required.
5. Goal 5: Natural Resources, Scenic and Historic Areas, and Open Spaces
To protect natural resources and conserve scenic and historic areas and open
spaces.
FINDING: Goal 5 resources are listed in the acknowledged Comprehensive Plan.
There is an identified Goal 5 resource on the site.
Mineral and aggregate resources: The applicant's proposal includes removing
Surface Mining Site No. 357 from the County's Surface Mining Mineral and
Aggregate Inventory and adding it to the Non -Significant Mining and Aggregate
Inventory. Compliance with OAR 660-023 is addressed below in this decision. The
benefits of rezoning the property to MUA-10, including potential additional homesites,
may accrue to the property and area.
Energy sources: The subject property is not known to have significant energy
resources, such as natural gas, oil, coal, or geothermal heat.
Fish and wildlife habitat: The subject property is located outside of and approximately
950 feet north of the County's Wildlife Area Combining Zone. The site has no
designated fish habitat. There are no identified threatened or endangered species
present at the site. Although the subject property is outside of the WA Zone, ODFW
did submit comments of concern regarding the proposed zone change and future
development. The area is within a "biological winter range for mule deer," according
to ODFW, and thus there is concern regarding continued Toss from the development
of open spaces within this range. Rezoning the property to MUA-10 will not affect the
quality of the mule deer biological winter range. However, future development may
have impacts with deer travel and therefore, ODFW requests future development use
wildlife -friendly fencing (see DCC 18.88.070).
Ecologically and scientifically significant natural areas, including desert areas: There
are no identified ecologically or scientifically significant areas present on the subject
property.
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Outstanding scenic views: Nothing about the property indicates it has a significantly
better view than other sites in the vicinity.
Water areas, wetlands, watersheds, and groundwater resources: There are no
wetlands or watersheds within the subject site. There are no identified groundwater
resources present at the site. Some residents expressed concerns regarding wells
and water use. Neither the Oregon Water Resources Department nor the
watermaster expressed concerns. The applicant will need to address water in any
residential development application.
Wilderness areas: The subject property does not meet the definition of "wilderness
areas" as described within the Oregon State Goals and Guidelines.
Historic areas, sites, structures, and obiects: The subject property does not have
structures listed on the National Register of Historic Places. No structures or places
of historical significance have been determined to exist on the property. The closest
historically significant sites are centrally located within the boundaries of the Tumalo
UUC and include the Laidlaw Bank and Trust, Tumalo Community Church, and
Pickett's Island, all of which are approximately 0.5 miles east of the property.
Cultural areas: The site has no known cultural resources. See, finding above.
6. Goal 6: Air, Water and Land Resources Quality
To maintain and improve the quality of the air, water and land resources of the
state.
FINDING: The subject surface mine has been reclaimed and mining activities have
ceased. Further, the applicant does not propose a use for the property. Rezoning the
property to MUA-10 will not affect the quality of the air, water, and land resources.
7. Goal 7: Areas Subject to Natural Hazards
To protect people and property from natural hazards.
FINDING: The site does not include areas subject to flooding or landslide activity.
The natural hazard of wildfire for the site is the same as other properties in this
geographic area. The subject property is not located in a known natural disaster or
hazard area. The Holt's and others expressed concerns regarding hazards (e.g. sink
holes) that have occurred in the reclaimed area of the property. In the decision of file
nos. ZC-08-1 and PA -08-1, the Hearings Officer found that environmental concerns
"can be addressed through compliance with applicable state health and
environmental quality regulations, or through compliance with the county's
development standards." I concur. The conditions were created by development.
They can, and likely only will, be addressed through future development.
8. Goal 8: Recreational Needs
To satisfy the recreational needs of the citizens of the state and visitors and,
here appropriate, to provide for the siting of necessary recreational facilities
including destination resorts.
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FINDING: This Goal is not applicable because the proposed plan amendment and
zone change do not reduce or eliminate any opportunities for recreational facilities
either on the subject property or in the area.
9. Goal 9: Economic Development
To provide adequate opportunities throughout the state for a variety of
economic activities vital to the health, welfare, and prosperity of Oregon's
citizens.
FINDING: This Goal is to provide adequate opportunities throughout the state for a
variety of economic activities. It is met because the subject property no longer
constitutes a significant mineral and aggregate resource, and thus by allowing it to
be re -designated and rezoned for rural residential development, it will not have
adverse economic impacts.
10. Goal 10: Housing
To provide for the housing needs of citizens of the state.
FINDING: The plan amendment and zone change do not reduce or eliminate any
opportunities for housing on the subject property or in the area. This goal is not
applicable. To the extent it is, the proposal provides the opportunity for additional
housing.
11. Goal 11: Public Facilities and Services
To plan and develop a timely, orderly and efficient arrangement of public
facilities and services to serve as a framework for urban and rural
development.
FINDING: The proposal will have no adverse effect on the provision of public
facilities and services to the subject site and will not result in the extension of urban
services to the subject site.
12. Goal 12: Transportation
To provide and encourage a safe, convenient and economic transportation
system.
FINDING: This goal is implemented through OAR 660-012, commonly known as the
Transportation Planning Rule, which is addressed in a previous finding. See
discussion above in which I concluded that, although it is likely that the applicant can
demonstrate compliance, it has failed to do so in this record. This Goal is not met.
13. Goal 13: Energy Conservation
To conserve energy.
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FINDING: Planning Guideline 3 of this Goal states "land use planning should, to the
maximum extent possible, seek to recycle and re -use vacant land...." Surface mining
activities have ceased on the subject property and it has been vacant for some
years. The applicant proposes re -use of the land consistent with this guideline, and
thus this proposal is consistent with Goal 13.
14. Goal 14: Urbanization
To provide for orderly and efficient transition from rural to urban use, to
accommodate urban population and urban employment inside urban growth
boundaries, to ensure efficient use of land, and to provide for livable
communities.
FINDING: COLW asserts that the proposals violate Goal 14 as the potential for up to
72 units of housing is a "significant urbanization of land." This appears to be more of
an argument with what the zone may allow. The comprehensive plan and zone
designations sought were acknowledged. The Mixed Use Agricultural Zone is just
what the name implies — one that permits a mixture of agricultural and relatively low-
density rural housing. As discussed above, the County has concluded that the "rural
residential exception area" plan designation does not require an exception to permit
MUA-10 development. The subject property is not in or near an urban growth
boundary. COLW provides no facts, authority or significant analysis in support of its
contention. The proposal complies with Goal 14 and no exception is required.
15. Goal 15: Willamette River Greenway
Goal 16: Estuarine Resources
Goal 17: Coastal Shorelands
Goal 18: Beaches and Dunes
Goal 19: Ocean Resources
FINDING: These Goals are not applicable because the proposed amendment and
zone change area is not within the Willamette Greenway, and does not possess any
estuarine areas, coastal shorelands, beaches and dunes, or ocean resources.
C. DIVISION 23, PROCEDURES AND REQUIREMENTS FOR COMPLYING WITH GOAL
5 (OAR 660-023)
1. OAR 660-023-0250. Applicability
(1) This division replaces OAR 660, division 16, except with regard to cultural
resources, and certain PAPAs and periodic review work tasks described in
sections (2) and (4) of this rule. Local governments shall follow the
procedures and requirements of this division or OAR 660, division 16,
whichever is applicable, in the adoption or amendment of all plan or land
use regulations pertaining to Goal 5 resources. The requirements of Goal 5
do not apply to land use decisions made pursuant to acknowledged
comprehensive plans and land use regulations.
(2) The requirements of this division are applicable to PAPAs initiated on or
after September 1, 1996. OAR 660, division 16 applies to PAPAs initiated
prior to September 1, 1996. For purposes of this section "initiated" means
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that the local government has deemed the PAPA application to be
complete.
(3) Local governments are not required to apply Goal 5 in consideration of a
PAPA unless the PAPA affects a Goal 5 resource. For purposes of this
section, a PAPA would affect a Goal 5 resource only if:
(a) The PAPA creates or amends a resource list or a portion of an
acknowledged plan or land use regulation adopted in order to protect a
significant Goal 5 resource or to address specific requirements of Goal 5;
FINDING: The requested plan amendment and zone change application is
considered a post -acknowledgment plan amendment or "PAPA," which will amend
the County's Goal 5 resource list. Therefore, the rules provided in OAR 660, Division
23 are applicable to this application. Moreover, since the County has not amended
its plan or land use regulations to incorporate the Goal 5 rules, per OAR 660-023-
0250(5), the rules apply directly to the subject application.
In the zone change and plan amendment decision for files ZC-98-6 and PA -98-12,
the Hearings Officer held that the provisions of OAR 660-023-0180, concerning
mineral and aggregate resources, apply to requests for de -listing and rezoning SM
sites to the extent they reasonably can be applied to a decision to remove a site from
the County's adopted inventory. The Hearings Officer further found OAR 660-023-
180(3) identifies the pertinent standards for determining "significance," addressed
below. I concur.
2. OAR 660-023-0180. Mineral and Aggregate Resources
(2) Local governments are not required to amend acknowledged inventories or
plans with regard to mineral and aggregate resources except in response
to an application for a post acknowledgement plan amendment (PAPA) or
at periodic review as specified in section (9) of this rule. The requirements
of this rule modify, supplement, or supersede the requirements of the
standard Goal 5 process in OAR 660-023-0030 through 660-023-0050, as
follows:
(b) Local governments shall apply the criteria in section (3) or (4) of this
rule, whichever is applicable, rather than OAR 660-023-0030(4), in
determining whether an aggregate resource site is significant;
(3) An aggregate resource site shall be considered significant if adequate
information regarding the quantity, quality, and location of the resource
demonstrates that the site meets any one of the criteria in subsections (a)
through (c) of this section, except as provided in subsection (d) of this
section:
(a) A representative set of samples of aggregate material in the deposit on
the site meets applicable Oregon Department of Transportation (ODOT)
specifications for base rock for air degradation, abrasion, and
soundness, and the estimated amount of material is more than
2,000,000 tons in the Willamette Valley, or more than 500,000 tons
outside the Willamette Valley;
(b) The material meets local government standards establishing a lower
threshold for significance than subsection (a) of this section; or
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(c) The aggregate site was on an inventory of significant aggregate sites in
an acknowledged plan on September 1, 1996.
(d) Notwithstanding subsections (a) and (b) of this section, except for an
expansion area of an existing site if the operator of the existing site on
March 1, 1996, had an enforceable property interest in the expansion
area on that date, an aggregate site is not significant if the criteria in
either paragraphs (A) or (B) of this subsection apply:
(A) More than 35 percent of the proposed mining area consists of soil
classified as Class I on Natural Resource and Conservation Service
(NRCS) maps on June 11, 2004; or
(B) More than 35 percent of the proposed mining area consists of soil
classified as Class II, or of a combination of Class 11 and Class 1 or
Unique soil, on NRCS maps available on June 11, 2004, unless the
average thickness of the aggregate layer within the mining area
exceeds:
(i) 60 feet in Washington, Multnomah, Marion, Columbia, and Lane
counties;
(ii) 25 feet in Polk, Yamhill, and Clackamas counties; or
(iii)17 feet in Linn and Benton counties.
FINDING: Staff provided the following analysis of this criterion.
The aggregate resource is significant if it meets any of the three criteria. Subsection
(b) is not applicable because the local government has not established lower
standards. The subject SM Site No. 357 appears to meet subsection (c) above
because it is included in the County's inventory of significant mineral and aggregate
sites and the inventory and site were acknowledged prior to the effective date of the
Goal 5 administrative rules in 1996. However, in the finding noted below by the
Hearings Officer, subsection (c) is not applicable to this PAPA because of the
requested removal of the site from the acknowledged inventory.
In the Hearings Officer's decision for files ZC-98-6 and PA -98-12, the Hearings
Officer made the following finding.
The subject site is included in the county's inventory of significant mineral and
aggregate sites. The Hearings Officer is aware this inventory was
acknowledged prior to the effective date of the new Goal 5 administrative
rules. Therefore, I find the subject site falls within the "significant" standard in
paragraph (c). Arguably that finding would end the inquiry since under this
provision a site is considered "significant" if it meets any of the three criteria.
However, I find such a result would create a "Catch-22" where, as here, the
applicant is seeking to remove a site from the inventory as no longer
"significant." Consequently, I find the "significant" standard in paragraph (c)
should not be applied to PAPAs requesting removal of a site from an
acknowledged inventory....
Thus, for the subject site to be "significant" it must meet the criterion in
paragraph (a) requiring that the resource consist of at least 100,000 tons of
material meeting ODOT specifications for road construction base rock. As
discussed above, the site was included in the inventory based upon the
previous owners' information that it contained 750,000 cubic yards of "good"
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quality rock. The applicant submitted evidence consisting of seven
documents and testimony in support of his argument that the quantity and
quality of the resource on the subject site no longer meets the administrative
rule standard....
I concur that, as in ZC-98-6 and PA -98-12, subsections (b) and (c) are not
applicable. Therefore, the aggregate resource is significant only if it meets all the
criteria in subsection (a).
The applicant submitted a geotechnical reconnaissance by Siemens & Associates,
which provides an assessment and review of the cinders, pumice, and crushed sand
and gravel extracted from the site. Stated previously, in part, the applicant provides
the following conclusion regarding subsection (a) and the aggregate resource on the
property.
The material at the site never satisfied the OAR 660-023-0180(3)(a) standard
for significance. According to the memo attached as Exhibit 8 from J.
Andrew Siemens of Siemens & Associates, a registered engineer specializing
in geologic engineering who performed material testing at the site when it
was operation, cinders and pumice are too brittle to meet ODOT standards.
This determination is consistent with prior decisions. See PA-02-8/ZC-02-4,
p.6 ("The Hearings Officer is aware that pumice does not meet ODOT
standards for base rock" "In Central Oregon, aggregate resources meeting
ODOT standards typically consist of basalt').
Despite the indication of significant sand and gravel in the Goal 5 Inventory,
Mr. Siemens concludes that the geology of the Subject Property could only
have yielded trace amounts of sand and gravel. This conclusion is consistent
with mining activities as no significant sand and gravel was harvested from
the site despite the large percentage of the property subject to mining
activities.
Even if the pumice and cinders met ODOT standards, a sufficient amount of
these materials has been removed such that the site does not possess the
500,000 -ton significance threshold for sites outside of the Willamette Valley.
Based on aerial photographs, site geology, and on-site investigations, Mr.
Siemens estimates that approximately one million cubic yards of cinder and
more than 2.8 million tons on pumice have been extracted from the site. This
is all of the cinder and substantially more of the pumice than was originally
thought to be contained at the site by the Goal 5 Inventory. To the extent the
site ever met the OAR 660-023-0180(3)(a) standard for significance, all
significant material has been removed such there is no longer a "deposit" on
the site. (Footnote omitted)
Regarding subsection (d), the subject property does not contain any Class I, Class II,
or Unique soils as shown on the soil map included with the application materials.
The applicant is proposing to remove Surface Mining Site No. 357 from the County's
Surface Mining Mineral and Aggregate Inventory. In addition, the applicant requests
to move Site No. 357 to the Non -Significant Mining and Aggregate Inventory. Based
on the information above and elsewhere in this decision regarding the aggregate
resource being depleted and not meeting the Goal 5 significance criteria listed in
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OAR 660-023-0180(3), staff believes the site is eligible to be placed on the non-
significant resource inventory.
Except as discussed regarding excavation for the reservoir, no one has provided any
substantial evidence or argument to the contrary. Accordingly, I concur with staff that
this site is eligible for removal.
Title 18, Deschutes County Zoning Ordinance.
A. CHAPTER 18.52. SURFACE MINING ZONE
1. Section 18.52.200. Termination of the Surface Mining Zoning and Surrounding
Surface Mining Impact Area Combining Zone.
A. When a surface mining site has been fully or partially mined, and the
operator demonstrates that a significant resource no longer exists on the
site, and that the site has been reclaimed in accordance with the
reclamation plan approved by DOGAMI or the reclamation provisions of
DCC 18, the property shall be rezoned to the subsequent use zone
identified in the surface mining element of the Comprehensive Plan.
FINDING: The applicant has requested to rezone the subject property from SM to
MUA-10.
Subsection (A) above requires the operator to demonstrate that 1) the site has been
fully or partially mined; 2) a significant resource no longer exists on the site; and 3)
that the site has been reclaimed in accordance with the reclamation plan approved
by DOGAMI or DCC 18.52.0130 standards. The applicant asserts that all three
conditions are satisfied.
The site has been fully or partially mined:
According to the applicant, the mining resources at Site No. 357 "have been
exhausted." The geotechnical reconnaissance discussed above provides an
"assessment of the type, quality and quantity of the mineral resources that have
been extracted from Site 357," which includes a review of the cinders, pumice, and
crushed sand and gravel extracted from the site. According to the report, mining
activities occurred between 1993 and 2005. Staff found that based on the evidence
in the report, it appears that the site has been fully or partially mined and I concur.
A significant resource no longer exists on the site:
The significant and non-significant resources at the site were evaluated in the
geotechnical reconnaissance. The resources identified at Site No. 357 include
cinders, pumice, and sand and gravel ("S & G"). The report indicates that cinders
and pumice, are not considered significant (OAR 660-023-0180), because they "fail
to meet the identified ODOT specification for base rock since the particles are
weak...." Therefore, the identified significant resource for the site would be sand and
gravel. The applicant's summary of the reconnaissance analysis quoted above
supports this conclusion.
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Based on the evidence in the report, staff found that the applicant has demonstrated
that the significant resource no longer exists on the site. I concur as discussed
previously.
The site has been reclaimed according to DOGAMI specifications:
Oregon Department of Geology and Mineral Industries formally closed the permit for
Site No. 357 on September 13, 2011, after reclamation to DOGAMI specifications
was completed on the property. The DOGAMI documentation was provided by the
applicant.
According to DCC 18.52.200, the property shall be rezoned to the subsequent use
zone identified in the surface mining element. The surface mining element and the
ESEE analysis for Site No. 357 do not identify a subsequent use zone. The applicant
indicates that the property "can support some resource uses, but not any form of
commercial agriculture or forestry."
For the reasons discussed under Section 2.10 Surface Mining, this criterion is met.
B. Concurrent with such rezoning, any surface mining impact area combining
zone which surrounds the rezoned surface mining site shall be removed.
Rezoning shall be subject to DCC 18.136 and all other applicable sections
of DCC 18, the Comprehensive Plan and DCC Title 22, the Uniform
Development Procedures Ordinance.
This is more of a directive than a criterion. Staff states that, if the plan amendment
and zone change requests are approved, the surrounding Surface Mining Impact
Area Combining Zone should be removed as part of the adoption of Ordinances to
affect the changes. I concur.
B. CHAPTER 18.136. AMENDMENTS
1. Section 18.136.010. Amendments.
DCC Title 18 may be amended as set forth in DCC 18.136. The procedures for
text or legislative map changes shall be as set forth in DCC 22.12. A request by
a property owner for a quasi-judicial map amendment shall be accomplished
by filing an application on forms provided by the Planning Department and
shall be subject to applicable procedures of DCC Title 22.
FINDING: The applicant filed the appropriate applications for a plan amendment and
zone change. The proposal is being reviewed under the procedures of DCC Title 22.
2. Section 18.136.020. Rezoning Standards.
The applicant for a quasi-judicial rezoning must establish that the public
interest is best served by rezoning the property. Factors to be demonstrated
by the applicant are:
A. That the change conforms with the Comprehensive Plan, and the change is
consistent with the plan's introductory statement and goals.
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FINDING: Staff notes that prior Hearings Officer's decision have concluded that
comprehensive plan goals and policies do not constitute mandatory approval criteria
for quasi-judicial zone changes. Instead, the goals and policies are implemented
through the zoning ordinance, and thus if the proposed zone change is consistent
with the applicable provisions of the zoning ordinance it also will be consistent with
the plan. Further, I made findings regarding the relevant plan policies and Goals
above.
B. That the change in classification for the subject property is consistent with
the purpose and intent of the proposed zone classification.
FINDING: The applicant is proposing a zone change from SM to MUA-10. According
to DCC 18.52.200, the property shall be rezoned to the subsequent use zone
identified in the surface mining element. As noted previously, the surface mining
element and the ESEE analysis for Site No. 357, probably erroneously, do not
identify a subsequent use zone. Therefore, the change in classification will be
reviewed for consistency with the purpose and intent of the proposed zone
classification.
The purpose of the MUA-10 Zone, set forth at DCC 18.32.010
The purposes of the Multiple Use Agricultural Zone are to preserve the
rural character of various areas of the County while permitting
development consistent with that character and with the capacity of the
natural resources of the area; to preserve and maintain agricultural
lands not suited to full time commercial farming for diversified or part
time agricultural uses; to conserve forest lands for forest uses; to
conserve open spaces and protect natural and scenic resources; to
maintain and improve the quality of the air, water and land resources of
the County; to establish standards and procedures for the use of those
lands designated unsuitable for intense development by the
Comprehensive Plan, and to provide for an orderly and efficient
transition from rural to urban land use.
The applicant provides the following comments regarding how the zone change is
consistent with the purpose statement.
The MUA Zone is appropriate for the Subject Property because it is capable
of supporting some agricultural uses but will never be high quality agricultural
ground that could support full time commercial farming. Given the rural
character of the Tumalo area, a zoning designation that allows for more
intensive development would not be appropriate. The MUA-10 Zone provides
a middle ground between the EFU and Rural Residential zones by placing an
emphasis on agriculture, but not imposing regulations more appropriate for
high quality agricultural lands.
Although there is no development proposal at this time, it is anticipated that
the Subject Property will be developed with small scale agriculture, single-
family dwellings, and potentially irrigation infrastructure. These are permitted
or conditionally permitted uses within the MUA-10 Zone.
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Staff concurs with the applicant. The proposed zone change is consistent with the
purpose statement because the redevelopment of the former surface mining site will
preserve the rural character of the area while permitting development consistent with
that character and capabilities of the land and resources.
As noted in previous Hearings Officer's decision such as ZC-08-1 and PA -08-1,
where the request included rezoning a former mining site:
To the extent existing conditions affect the carrying capacity of the land, air
and water, those issues can be addressed through compliance with
applicable state health and environmental quality regulations, or through
compliance with the county's development standards.
I concur. It is evident that the applicant must address the safety, dust and other
issues to obtain development approval for dwellings. Future development of the site
is the most likely way that those conditions will be resolved. The designation allows
for clustering or planned development to maximize flexibility to minimize, for
example, placing structures in unstable areas. It promotes open space and permits a
wide range of uses. This seems particularly suitable for a degraded site that likely
has development challenges.
Mr. and Mrs. Holt also commented on DOGAMI's reclamation designation for post -
mine use. As noted above, I find that the designation on the DOGAMI has little, if
anything to do with the County's land use code and development standards.
This criterion is met.
C. That changing the zoning will presently serve the public health, safety and
welfare considering the following factors:
1. The availability and efficiency of providing necessary public services
and facilities.
2. The impacts on surrounding land use will be consistent with the
specific goals and policies contained within the Comprehensive Plan.
FINDING: COLW and others argue that this standard is not met because the site is
unsafe, and Bill Martin Rd. is in poor condition. The sinkholes appear to present a
safety issue for many uses, including agriculture, grazing, recreational and
residential. It is unlikely that the economics of agriculture and grazing would generate
sufficient revenues to correct these issues. In contrast, the MUA-10 zone does allow
the type of development that would both require, and likely make feasible, such work.
The MUA-10 zone certainly would not make the situation worse.
Regarding Bill Martin Rd., and perhaps others, I have found that the applicant failed
to meet its burden of demonstrating that there is no potential significant detrimental
impact on transportation facilities. I think this criterion has a somewhat different
focus. Adopting a zone that permits some level of development likely promotes the
provision of adequate facilities because it can be conditioned to make improvements
and it likely would be financially feasible to make those improvements. Nevertheless,
I find this criterion is not met regarding transportation because, as stated above,
there is insufficient information about the impacts of potential development, the
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carrying capacity and condition of existing roads and what, if anything, can be done
to mitigate such impacts.
D. That there has been a change in circumstances since the property was last
zoned, or a mistake was made in the zoning of the property in question.
FINDING: The significant resources have been mined and no longer are present.
DCC 18.52.200, envisions such property being rezoned to provide for productive use
of land. I concur with staff that this change represents a change in circumstances
under this criterion. I also note that many of the nearby residents have expressed a
desire to have the property converted to something other than mining as there has
been significant rural residential development in the area. Except for the argument
that there must be resources, or the applicant would not be considering a reservoir,
which I rejected, no one has argued that circumstances have not changed. This
criterion is met.
IV. CONCLUSION:
Based on the foregoing findings and conclusions, the applications are Denied for failure of
the applicant to meet its burden on the criterion identified above.
Dated this 22nd day of February 2018
Dan R. Olsen
Hearings Officer
THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY
APPEALED.
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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 January 2, 2019
DATE: December 19, 2018
FROM: Cynthia Smidt, Community Development, 541-317-3150
TITLE OF AGENDA ITEM:
SECOND READING: Ordinance No. 2019-002, Tumalo Irrigation District Comprehensive
Plan Amendment and Zone Change for Property at 19300 Tumalo Reservoir Road
BACKGROUND AND POLICY IMPLICATIONS:
The Board conducted a public hearing on July 25, 2018 to consider a Plan Amendment and Zone
Change for Tumalo Irrigation District (TID). On October 24, 2018, the Board deliberated on this matter
and instructed staff to draft an approval in response to the appeal of a Hearings Officer Decision
denying the plan amendment and zone change. The decision and associated ordinance is now
presented to the Board for consideration of second reading. The original file numbers are 247-17-
000775-ZC / 776 -PA, and the appeal file numbers are 247-18-000241-A / 247-A (appeal of the
Hearings Officer Decision).
The Board of County Commissioners (Board) will hold a second reading of Ordinance No. 2019-002 on
January 2, 2019. This is the second of two required ordinance readings. The first was conducted on
December 19, 2018. Exhibit G of the attached ordinance has been updated to reflect requested
changes but is otherwise the attached ordinance is unchanged from the first version.
FISCAL IMPLICATIONS: None.
ATTENDANCE: Cynthia Smidt, Associate Planner