2019-127-Minutes for Meeting February 27,2019 Recorded 4/11/2019C-0
BOARD OF
COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541 ) 388-6570
Recorded in Deschutes County CJ2019-127
Nancy Blankenship, County Clerk
Commissioners'Journal 04/11/2019 3:57:14 PM
1111IN1111111111111IIIII
2019-127
FOR RECORDING STAMP ONLY
10:00 AM WEDNESDAY, February 27, 2019 BARNES & SAWYER ROOMS
Present were Commissioners Phil Henderson and Anthony DeBone. Commissioner Patti Adair was
present at 10:38 a.m. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy
County Administrator; David Doyle, County Counsel; and Sharon Keith, Board Executive Assistant.
Several citizens and no identified representatives of the media were in attendance.
This meeting was audio and video recorded and can be accessed at the Deschutes County
Meeting Portal website http://deschutescountyor.igm2.com/Citizens/Default.aspx
CALL TO ORDER: Due to winter road conditions, Chair Henderson called the
meeting to order at a later time of 10:15 am.
PLEDGE OF ALLEGIANCE:
CITIZEN INPUT: None offered
CONSENT AGENDA: Before the Board was Consideration of Approval of the
Consent Agenda. Commissioner Henderson recommended pulling the Consent
Agenda Items #3 - 6, meeting minutes for further review.
BOCC BUSINESS MEETING FEBRUARY 27, 2019 PAGE 1 OF 5
DEBONE: Move Consent Agenda Items 1 and 2
HENDERSON: Second
VOTE: DEBONE: Yes
ADAIR: Absent, excused
HENDERSON: Chair votes yes. Motion Carried
Consent Agenda Items:
1. Consideration of Board Signature of Letters Appointing Pat Stone and Jamie
Donahue to the Deschutes County Special Transportation Fund Advisory
Committee
2. Consideration of Board Signature on Letter Thanking Grand Jury Members
for their service
3. Approval of Minutes of the January 28, 2019 Work Session
4. Approval of Minutes of the January 29, 2019 Planning Session
5. Approval of Minutes of the January 30, 2019 Business Meeting
6. Approval of Minutes of the January 30, 2019 Work Session
ACTION ITEMS:
7. Consideration of Letter of Support for Public Health Re -accreditation
Health Services staff Hillary Saraceno and Channa Lindsay presented the
context of the accreditation process. Ms. Saraceno requested consideration
of Board signature for a letter of support.
DEBONE: Move approval of signature.
HENDERSON: Second
VOTE: DEBONE: Yes
ADAIR: Absent, excused
HENDERSON: Chair votes yes. Motion Carried
BOCC BUSINESS MEETING FEBRUARY 27, 2019 PAGE 2 OF 5
Dr. George Conway presented information relative to House Bill 3063 and
has presented a draft letter supporting the stance against preventable
diseases. Commissioner Henderson requested a copy of the house bill.
Commissioner DeBone suggested the item come back to this afternoon's
Work Session.
8. Consideration of Chair Signature of Document No. 2019-136, Notice of
Intent to Award Deschutes County Fair & Expo Center Roof Panel
Replacement Project
Facilities Director Lee Randall and Project Manager Dan Hopper presented
this item in consideration of the project for roof panel replacement at the
Fair and Expo Center.
DEBONE: Move chair signature of Document No. 2019-136
ADAIR: Second
vnTF- nFRnNF* Yes
ADAIR: Yes
HENDERSON: Chair votes yes. Motion Carried
Commissioner Henderson presented a letter of support in opposition of
Senate Bill 365 relative to removing the system development charge fee for
marijuana grow operations.
DEBONE: Move signature
ADAIR: Second
VOTE: DEBONE:
ADAIR:
HENDERSON:
Yes
Yes
Chair votes yes. Motion Carried
ROCC BUSINESS MEETING FEBRUARY 27, 2019 PAGE 3 OF 5
9. PUBLIC HEARING: Eastside Bend Plan Amendment and Zone Change
Nicole Mardell, Community Development Department Planner presented.
Hearing no conflicts or challenges to the Commissioners. Commissioner
Henderson opened the public hearing. Ms. Mardell gave the staff report.
Tia Lewis, attorney representing the applicant Eastside Bend presented
testimony and details of the application.
No opposition testimony was presented during the hearing.
Hearing no requested public testimony, Commissioner Henderson closed the
public hearing. Discussion held on the timeframe of the record.
Commissioner DeBone reviewed the hearing's officer process and supports
deliberations. Commissioner Adair concurs. Commissioner Henderson
expressed support.
Commissioner DeBone observed the Urban Growth Boundary and
opportunity for future improvements and supports the Ordinance.
Commissioner Henderson opined he prefers there weren't cluster
developments on a housing perspective.
DEBONE: Move approval of First reading of Ordinance No. 2019-006, by
title only
ADAIR: Second
VOTE: DEBONE: Yes
ADAIR: Yes
HENDERSON: Chair votes yes. Motion Carried
Commissioner Henderson read the Ordinance by title only.
Ms. Mardell will prepare the finalized Ordinance No. 2019-006. The
Ordinance will be presented for the second reading in two weeks.
BOCC BUSINESS MEETING FEBRUARY 27, 2019 PAGE 4 OF 5
OTHER ITEMS:
Community Development Department Director Nick Lelack presented a handout on
Senate Bill 365 relative to proposed restrictions on marijuana that he will be
presenting at the legislative hearing in Salem tomorrow, February 28, 2019. The
Board, County Counsel, and County Administrator made recommendations for
edits.
The Board will call in to the legislative session hearings that are scheduled for
Thursday, February 28.
Being no further items to come before the Board, the meeting was adjourned at 11:40 p.m.
DATED this Day of /�_ 2019 for the Deschutes County Board of
Commissioners. � r\ A
ATTEST:
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TTI ADAIR, VICE CHAIR
ANTHONY % 3 4. +O NE COMMISSIONER
BOCC BUSINESS MEETING FEBRUARY 27, 2019 PAGE 5 OF 5
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o Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - www.deschutes.or�
BUSINESS MEETING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
10:00 AM, WEDNESDAY, FEBRUARY 27, 2019
Barnes Sawyer Rooms - Deschutes Services Center - 1300 NW Wall Street - Bend
This meeting is open to the public. To watch it online, visit www.deschutes.org/meetings. Business Meetings are
usually streamed live online and video recorded.
Pursuant to ORS 192.640, this agenda includes a list of the main topics that are anticipated to be considered or
discussed. This notice does not limit the Board's ability to address other topics.
Meetings are subject to cancellation without notice. Item start times are estimated and subject to change without
notice.
CALL TO ORDER
PLEDGE OF ALLEGIANCE
CITIZEN INPUT
CONSENT AGENDA
1. Consideration of Board Signature of Letters Appointing Pat Stone and Jamie
Donahue to the Deschutes County Special Transportation Fund Advisory
Committee
2. Consideration of Board Signature on Letter Thanking Grand Jury members for their
Service
3. Approval of Minutes of the January 28, 2019 Work Session
4. Approval of Minutes of the January 29, 2019 Planning Session
Board of Commissioners Business Meeting Agenda Wednesday, February 27, 2019 Page 1
of 2
5. Approval of Minutes of the January 30, 2019 Business Meeting
6. Approval of Minutes of the January 30, 2019 Work Session
ACTION ITEMS
7. 10:15 AM Consideration of Letter of Support for Public Health Reaccreditation -
Hillary Saraceno, Health Services Deputy Director Add -On
8. 10:30 AM Consideration of Chair Signature of Document No. 2019-136, Notice of
Intent to Award Deschutes County Fair & Expo Center Roof Panel
Replacement Project - Dan Hopper, Project Manager
9. 10:45 AM PUBLIC HEARING: Eastside Bend Plan Amendment and Zone Change -
Nicole Mardell, Associate Planner
OTHER ITEMS
These can be any items not included on the agenda that the Commissioners wish to discuss as part of
the meeting, pursuant to ORS 192.640.
At any time during the meeting, an executive session could be called to address issues relating to ORS
192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor
negotiations, ORS 192.660(2)(b), personnel issues; or other executive session categories.
Executive sessions are closed to the public; however, with few exceptions and under specific guidelines,
are open to the media.
ADJOURN
Deschutes County encourages persons with disabilities to participate in all programs and activities. To
request this information in an alternate format please call (541) 617-4747.
FUTURE MEETINGS.
Additional meeting dates available at www deschutes.or /g meetingcalendar
Meeting dates and times are subject to change. If you have question, please call (541) 388-6572.
Board of Commissioners Business Meeting Agenda Wednesday, February 27, 2019 Page 2
of 2
ETES C
O
o Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - www.deschutes.or�
BUSINESS MEETING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
10:00 AM, WEDNESDAY, FEBRUARY 27, 2019
Barnes Sawyer Rooms - Deschutes Services Center - 1300 NW Wall Street - Bend
This meeting is open to the public. To watch it online, visit www.deschutes.org/meetinprs. Business Meetings are
usually streamed live online and video recorded.
Pursuant to ORS 192.640, this agenda includes a list of the main topics that are anticipated to be considered or
discussed. This notice does not limit the Boards ability to address other topics.
Meetings are subject to cancellation without notice. Item start times are estimated and subject to change without
notice.
CALL TO ORDER
PLEDGE OF ALLEGIANCE
CITIZEN INPUT
CONSENT AGENDA
1. Consideration of Board Signature of Letters Appointing Pat Stone and Jamie
Donahue to the Deschutes County Special Transportation Fund Advisory
Committee
2. Consideration of Board Signature on Letter Thanking Grand Jury members for their
Service
3. Approval of Minutes of the January 28, 2019 Work Session
4. Approval of Minutes of the January 29, 2019 Planning Session
Board of Commissioners Business Meeting Agenda Wednesday, February 27, 2019 Page 1
of 2
5. Approval of Minutes of the January 30, 2019 Business Meeting
6. Approval of Minutes of the January 30, 2019 Work Session
ACTION ITEMS
7. 10:15 AM Consideration of Chair Signature of Document No. 2019-136, Notice of
Intent to Award Deschutes County Fair & Expo Center Roof Panel
Replacement Project - Dan Hopper, Project Manager
8. 10:30 AM PUBLIC HEARING: Eastside Bend Plan Amendment and Zone Change -
Nicole Mardell, Associate Planner
OTHER ITEMS
These can be any items not included on the agenda that the Commissioners wish to discuss as part of
the meeting, pursuant to ORS 192.640.
At any time during the meeting, an executive session could be called to address issues relating to ORS
192.660(2)(e). real aroaerty negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor
negotiations; ORS 192.660(2)(b), personnel issues; or other executive session categories.
Executive sessions are closed to the public, however, with few exceptions and under specific guidelines,
are open to the media.
ADJOURN
Deschutes County encourages persons with disabilities to participate in all programs and activities. To
request this information in an alternate format please call (541) 617-4747.
FUTURE MEETINGS.
Additional meeting dates available at www deschutes.org/meetingcalendar
Meeting dates and times are subject to change. If you have question, please call (541) 388-6572.
Board of Commissioners Business Meeting Agenda Wednesday, February 27, 2019 Page 2
of 2
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Time to Take a Stance Against Preventable Diseases
Since Edward Jenner's development of the first effective vaccine in 1796,$o prevent smallpox,_
medicine and public health have been able to greatly diminish many deadly infectious diseases
through the widespread immunization of children. One example was diphtheria, which caused
tremendous mortality among American children. After the introduction of an effective vaccine,
the death rate dropped over 99% in the U.S. Likewise, my schoolmate, who was permanently
disabled in the 1950s, was in the last American generation to suffer the ravages of polio. In
order to keep these diseases from resurfacing, enough children need to be immunized to have
effective "herd" protection within the school population. In the case of a highly -contagious
childhood illness like measles, the effective level is between 96 and 99% immunized
(https•//iamanetwork com/journals/iamapediatrics/fullarticle/2203906 ). When immunization
rates fall below the necessary level for "herd immunity", it becomes very easy for an infectious
disease to spread (https://www.cdc.gov/vaccines/vac-gen/whatifstop.htm). When we have
high community immunization rates, we are not only protecting our own children from serious
diseases, we are also protecting those in our community who are medically fragile or too young
to receive vaccines.
Unfortunately, due to the rise of misinformation and the fact that many U.S. parents haven't
seen the devastating effects of these diseases, there has been an increase year after year of
parents refusing vaccination for their children. Vaccination exemptions of children starting
kindergarten in Oregon for non-medical reasons (attached graph),has continued upward (with
one slight correction occurring in 2014-2015, due to the passage of SB 895 in 2014, which
requires that parents receive vaccine education in order to claim a non-medical exemption for
their child).
While lack of vaccination and the resulting risk for vaccine -preventable diseases is generally
concentrated in lower income (impoverished) populations worldwide, the pattern of non -
Deleted:
Commented [WHt]: I would recommend that we remove
hyperlinks within text and provide them as footnotes
(although they may get edited out altogether).
- Deleted: school
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medical exemptions in the U.S., particularly on the West Coast is the opposite, often
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concentrating in schools serving higher income communities. This pattern of immunization
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exemption rates is apparent in Deschutes county, which is now in the highest > 8% non- pp Y g (,
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medical exemptions at kindergarten entry) category in Oregon. This makes our children
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vulnerable to serious vaccine -preventable illnesses such as measles, which is what happened in
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Deleted in multiple public places in Deschutes County li
Clark , WA last mont Count Clark Counow as 62 reported cases of measles -which. is
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Creatines a si nificant communit impact. The outbreak has�spread to nei hborin Multnomah
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County,and caused a measles exposure Local) that_ e cared J)eschutes County} ublic lealth to
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contact numerous families of exposed children and encourage the unimmunized to be
Deleted: health
immunized. Mercifully, no local cases have occurred in our county as a result, but the cost of
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disease
this response has exceeded $20 000. --
Deleted. communicable team
- -
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Measles is still a deadly disease worldwide, claiming the lives of 110,000 children in 2017,
primarily in developing nations with inadequate vaccination programs. Before the introduction
of measles vaccine in the U.S., measles sickened one-half million children and killed 500
Americans tach year. Since the introduction of measles vaccine in the US., cases and deaths
`Deleted: annually j
- --
have dropped over 95%, but outbreaks continue to occur among inadequately vaccinated
populations.
After measles rapidly spread at Disney,and during an outbreak in 2014 sickening hundreds of
Deleted: r
children, California removed its non-medical exemption option for childhood vaccination
requirements for school attendance. It is time for Oregon to do the same, as an essential
measure to keep our children safe and well.
George A. Conway, MD, MPH
Director, Deschutes County Health Services Department
Bend, OR
george.conwav@deschutes.org
_
]1(541)322-750
Commented [WH2]: The Bulletin requires an address for
_ -
verification. Additionally, this will need to be signed before
it is submitted per their op-ed policy.
L
Time to Take a Stance Against Preventable Diseases
Since Edward Jenner's development of the first effective vaccine in 1796,jo prevent smallpox,_ Deleted: — —�
medicine and public health have been able to greatly diminish many deadly infectious diseases
through the widespread immunization of children. One example was diphtheria, which caused
tremendous mortality among American children. After the introduction of an effective vaccine,
the death rate dropped over 99% in the US. Likewise, my schoolmate, who was permanently
disabled in the 1950s, was in the last American generation to suffer the ravages of polio. In
order to keep these diseases from resurfacing, enough children need to be immunized to have
effective "herd" protection within the school population. In the case of a highly -contagious
childhood illness like measles, the effective level is between 96 and 99% immunized
(https://iamanetwork.com/journals/*amapediatrics/fullarticle/2203906 ). When immunization
rates fall below the necessary level for "herd immunity", it becomes very easy for an infectious
disease to spread (https://www.cdc.gov/vaccines/vac-gen/whatifstop.htm). When we have
high community immunization rates, we are not only protecting our own children from serious
diseases, we are also protecting those in our community who are medically fragile or too young
to receive vaccines.
Unfortunately, due to the rise of misinformation and the fact that many U.S. parents haven't
seen the devastating effects of these diseases, there has been an increase year after year of
parents refusing vaccination for their schoolchildren. Vaccination exemptions of children
starting kindergarten in Oregon for non-medical reasons (attached graph) has continued
upward (with one slight correction occurring in 2014-2015, due to the passage of SB 895 in
2014, which requires that parents receive vaccine education in order to claim a non-medical
exemption for their child).
While lack of vaccination and the resulting risk for vaccine -preventable diseases is generally
concentrated in lower income (impoverished) populations worldwide, the pattern of non-
medical exemptions in the US, particularly on the West Coast is the opposite, often
concentrating in schools serving higher income communities. This pattern of immunization
exemption rates is apparent in Deschutes county, which is now in the highest (> 8% non-
medical exemptions at kindergarten entry) category in Oregon. This makes our children
vulnerable to serious vaccine -preventable illnesses such as measles, which is what happened in
Clark County, WA last month, now with 62 reported cases. The outbreak also spread to
Multnomah County, OR and caused a measles exposure in multiple public places in Deschutes
County requiring our public health communicable disease team to contact numerous families of
exposed children and encourage the unimmunized to be immunized. Mercifully, no local cases
have occurred in our county as a result, but the cost of this response has exceeded $20K.
Measles is still a deadly disease worldwide, claiming the lives of 110,000 children in 2017,
primarily in developing nations with inadequate vaccination programs. Before the introduction
of measles vaccine in the US, measles sickened one-half million children and killed 500
Americans annually. Since the introduction of measles vaccine in the US, cases and deaths have
dropped over 95%, but outbreaks continue to occur among inadequately vaccinated
populations. After measles rapidly spread at Disney Land during an outbreak in 2014 sickening
hundreds of children, California removed its non-medical exemption option for childhood
vaccination requirements for school attendance. It is time for Oregon to do the same, as an
essential measure to keep our children safe and well.
George A. Conway, MD, MPH
Director, Deschutes County Health Services Department
Bend, OR
george.conway@deschutes.org
(541)322-7502
February 28, 2019
Senate Committee on Business and General Government
Attn: Chair Riley, Vice -Chair Girod and Committee Members
Hearing Room B
RE: Testimony in opposition to SB 365
Dear Chair Riley, Vice -Chair Girod and Committee Members,
Thank you for the opportunity to submit testimony in opposition of SB 365, which if passed, would prohibit Oregon
counties from collecting System Development Charges (SDCs) for marijuana grow operations.
Background
Deschutes County is one of the fastest growing counties in the United States, and this growth has had a
tremendous impact on transportation system infrastructure. The County's Transportation Capital
Improvement Plan contains $300M in transportation system improvements to accommodate future
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_t--_.4 F.. .�n..nlr.r.rr.er�t toholn mitia7tn the �ncf nf OYn IAltl'1 cn that eXictina
growth. SDCs are lees charged to neve development w helpp �•S� p• na
taxpayers are not burdened with the cost of oversizing infrastructure to accommodate growth. The SDC
is an essential funding tool in the toolbox of local government in a state which historically has not always
prioritized transportation system investment.
Transportation System Impact of the Marijuana Industry in Deschutes County
To date, Deschutes County has received 63 applications for marijuana grow operations with a combined
canopy area approaching 1,000,000 square feet. By our conservative estimates and calculations, the
marijuana industry is responsible for approximately 1,600 new daily trips added to the transportation
system and 175 trips added during the peak hour. This collective impact is equivalent to several
McDonalds restaurants scattered throughout the county.
Deschutes County's SDC is $4,240 per peak hour trip. The average SDC per marijuana grow operation is
$11,835 (less than three peak hour trips and roughly equivalent to the development of three single family
homes).
An applicant for a marijuana grow operation will often claim that they have a negligible impact to the
transportation system. Yet the same applicant will also claim that they are creating 5 to 10 jobs. While
we appreciate the job creation of this new industry, it contradicts the claims of no impact to the
transportation system; when jobs are created, the transportation system is impacted.
1300 NW Wall SCreeC Bend, Oregon 97703
`i(541) 388-6571 r@ board@deschui:es .org ®wwvj.deschut.es.org
An example of this is provided via Google Earth images which show a marijuana grow operation east of
Bend.
The below image from July, 2014 shows a pre -development image of a future marijuana grow operation.
The below image from May, 2017 shows the same parcel after development of approximately 40,000
square feet of growing space. Note the parking lot with 16 parked vehicles and a 17th vehicle leaving the
site.
While some marijuana grow operations have basic infrastructure for growing marijuana, others have
very sophisticated floor plans. The below floor plan for a recent 10,000 SF marijuana grow facility
proposal includes a conference room an employee break room and lab space.
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It is clear to Deschutes County that marijuana grow operations are active developments which generate
vehicle trips which impact the transportation system.
SB 365 would prohibit the collection of SDCs by counties and therefore pass the cost of transportation
mitigation of marijuana grow operations to existing taxpayers.
SB 365 Discriminates Against Rural Taxpayers
Indoor grow operations are developing within industrial areas in cities throughout Oregon. The above
grow facility proposal would be subject to a SDC in any city with SDC fees. SB 365 imposes a prohibition
on SDCs for grow operations only on Exclusive Farm Use (EFU) zoned property, all of which is located
outside of cities.
The transportation system cannot tell the difference between a vehicle trip that was generated from a
marijuana grow facility within industrial zoned property in a city or EFU zoned property in an
unincorporated area. If SB 365 passes, the Oregon Legislature indeed will be making that finding and
discriminating against rural taxpayers who will be responsible for the transportation mitigation of vehicle
trips generated by marijuana grow facilities.
SB 365 is a Step Back from Local Control
There are many types of land use and development that draw sympathy with regard to the imposition of
SDCs; churches, schools, parks, day care, affordable housing, etc. Yet, the statues which govern SDCs
(ORS 223.297 — 223.314), which have been in existence for 30 years, do not isolate any specific land use
for SDC exemption.
Local governments currently have the ability to exempt or exclude types of land use from SDCs. That
exemption is a function of a local government's individual priorities. The ability to exempt marijuana
grow operations and farm use is well within existing allowances to local government provided by state
statute. SB 365 forces counties to ignore or absorb the impact of marijuana grow operations on
transportation infrastructure.
SB 365 is Bad Policy
SB 365 will impair local government's ability to mitigate and manage growth. It will open the door for
future SDC exemptions for other types of land use. The SDCs charged by Deschutes County and other
counties have been implemented based on fair, reasoned and equitable methodologies based on impact
to the transportation system. Oregon's SDC statutes are founded on the premise that "growth pays for
growth". Exempting a specific land use from payment of SDCs via state statute erodes the foundation
on which the SDC statues are established.
Nobody likes to pay SDCs — but at least when SDCs are applied fairly and equitably across the board —
applicants can understand and appreciate the rational of a fair mitigation of impact to the public's
transportation system. SB 365 will disrupt our ability to employ this concept in fairness to our citizens.
Please Reject SB 365
We appreciate the opportunity to provide testimony to the Senate Committee on Business and General
Government. We respectfully request the Committee reject SB 365.
Yours Truly,
Philip G. Henderson, Chair
Patti Adair, Vice -Chair
Tony DeBone, Commissioner
n < 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 February 27, 2019
DATE: February 20, 2019
FROM: Nicole Mardell, Community Development,
TITLE OF AGENDA ITEM:
PUBLIC HEARING: Eastside Bend Plan Amendment and Zone Change
BACKGROUND AND POLICY IMPLICATIONS:
The Board will conduct a public hearing to consider a request for a Plan Amendment and Zone
Change (file nos. 247 -18 -000485 -PA, 486-ZC) for a 59.24 -acre property to the east of the City
of Bend. The main address associated with the property is 21588 Highway 20, Bend. The
applicant, Eastside Bend LLC, is requesting approval to redesignate the subject property from
Agriculture to Rural Residential Exception Area on the Comprehensive Plan Map and to
m7nna the nrnnPrty thin nrnnPrtv from Exclusive Farm Use to Multiple Use Agricultural on the
County's Zoning Map.
FISCAL IMPLICATIONS: None.
ATTENDANCE: Nicole Mardell, Associate Planner
MEMORANDUM
TO: Deschutes County Board of Commissioners (Board)
FROM: Nicole Mardell, Associate Planner
DATE: February 20, 2019
SUBJECT: Public Hearing - Eastside Bend Plan Amendment and Zone Change
The Board of County Commissioners (Board) is conducting a public hearing on February 27, 2019, to
consider a request for a Plan Amendment and Zone Change (file nos. 247 -18 -000485 -PA, 486-ZC) for
a 59.24 -acre property to the east of the City of Bend. This will be the second of two required public
hearings.
I. BACKGROUND
The applicant, Eastside Bend, LLC, is requesting a Comprehensive Plan Amendment to redesignate
the subject property from Agriculture to Rural Residential Exception Area and a Zoning Map
Amendment to rezone the property from Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA-
10). The applicant finds that the property was mistakenly identified as agricultural land and does not
contain high-value soils or other characteristics of high value farmland. Additional background on the
application was provided to the Board during their February 20, 2019 work session'.
II. PUBLIC COMMENT AND PREVIOUS HEARINGS BODY RECOMMENDATIONS
Two public comment letters were received (Vogt and McJunkin) raising concerns related to traffic
impacts on Highway 20 and Ward/Hamby Road and the potential of marijuana production on the
property. A third letter (Porter Kelly Burns Landholdings) was provided to the Board during their
February 20, 2019 work session and expressed support for the application.
The initial public hearing was held on December 4, 2018. On December 18, 2018, the Deschutes
County Hearings Officer issued a decision evaluating compliance with all applicable review criteria
and recommending approval of the proposed Plan Amendment and Zone Change, with a condition
that the soil study for Tax Lot 1400 receive certification from the Department of Land Conservation
and Development (DLCD). A representative from DLCD provided certification of the soil study to staff
on January 23, 2019.
1 http://deschutescountyor.igm2.com/Citizens/FileOpen.aspx?Type=1&ID=2023&Inline=True
Ill. BOARD CONSIDERATION
As the property includes lands designated for agricultural use, Deschutes County Code (DCC) Section
22.28.030(C) requires the application to be heard de novo before the Board, regardless of the
determination of the Hearings Officer. Per DCC Section 22.20.040(D), the review of the proposed
quasi-judicial plan amendment and zone change is not subject to the 150 -day review period typically
associated with land use decisions.
The record is available for inspection at the Planning Division and at the following link:
https://dial.deschutes.org/Real/DevelopmentDocs/119045. Moreover, the complete record will be
available at the public hearing. As a courtesy, staff has prepared a printed copy of these materials
which is available for the Board in the Administration offices.
IV. NEXT STEPS
At the conclusion of the public hearing, the Board can choose one of the following options:
• Continue the hearing to a date and time certain;
• Close the oral portion of the hearing and leave the written record open to a date and time
certain;
• Close the hearing and commence deliberations.
ATTACHMENTS:
1. Area Maps
^� Draft Orli.-.-,.� ce 2)n'l 9_006- and Exhibits
L. LJ
Draft L vi un iai i�c Ll! 1 7 -VV V ai lu "^I uviuo
Exhibit A: Legal Description
Exhibit B: Proposed Comprehensive Plan Map
Exhibit C: Proposed Zoning Map
Exhibit D: Comprehensive Plan Section 23.01.010, Introduction
Exhibit E: Comprehensive Plan Section 5.12, Legislative History
Exhibit F: Hearings Officer Decision
Page 2 of 2
Legend
247 -18 -000485 -PA / 247-18-000486-ZC
Applicant: Eastside Bend, LLC
Taxl-ots Taxlot Numbers: 17-12-35-00-01600, 17-12-35-00-01601, 17-12-35-00-01400
NRCS Soil Type Address: 21457 Hwy 20, 21510 Bear Creek Road, 21588 Hwy 20, Bend
EFUTRB - Tumalo/Redmond/Bend Subzone
MUA10 - Multiple Use Agricultural ° a° °° 32F-
1 in=80ft
December 3, 2018
247 -18 -000485 -PA / 247-18-000486-ZC
Legend
Taxl-ots Applicant: Eastside Bend, LLC
Bend UGB Taxlot Numbers: 17-12-35-00-01600, 17-12-35-00-01601, 17-12-35-00-01400
NRCS Soil Type Address: 21457 Hwy 20, 21510 Bear Creek Road, 21588 Hwy 20, Bend
21,11 EFUTRB - Tumalo/Redmond/Bend Subzone
MUA10 - Multiple Use Agricultural ° 80 to®Fee,
1in=80ft
December 3, 2018
REVIEWED
LEGAL COUNSEL
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Deschutes County Code
Title 23, the Deschutes County Comprehensive Plan, * ORDINANCE NO. 2019-006
to Change the Comprehensive Plan Map Designation
for Certain Property From Agriculture to Rural
Residential Exception Area, and Amending
Deschutes County Code Title 18, the Deschutes
County Zoning Map, to Change the Zone
Designation for Certain Property From Exclusive
Farm Use to Multiple Use Agricultural.
WHEREAS, Eastside Bend, LLC, applied for changes to both the Deschutes County Comprehensive Plan
Map (247 -18 -000485 -PA) and the Deschutes County Zoning Map (247-18-000486-ZC), to change a portion of
the subject property from an Agricultural (AG) designation to a Rural Residential Exception Area (RREA)
designation and a corresponding zone change from Exclusive Farm Use (EFU) to Multiple Use Agricultural
(MUA-10): and
WHEREAS, after notice was given in accordance with applicable law, a public hearing was held on
December 4, 2018, before the Deschutes County Hearings Officer and, on December 18, 2018, the Hearings
Officer recommended approval of both the Comprehensive Plan Map change and Zoning Map change; and
WHEREAS, after notice was given in accordance with applicable law, a de novo public hearing was held
on February 27, 2019, before the Board of County Commissioners ("Board"); and
WHEREAS, the Board, after review conducted in accordance with applicable law, both approved the plan
amendment to change the Comprehensive Plan Map designation from Agriculture to Rural Residential Exception
Area, and approved the Zoning Map amendment to change from Exclusive Farm Use (EFU) to Multiple Use
Agricultural (MUA-10); now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. AMENDMENT. DCC Title 23, Deschutes County Comprehensive Plan Map, is
amended to change the plan designation for certain property described in Exhibit "A" and depicted on the map set
forth as Exhibit `B", with both exhibits attached and incorporated by reference herein, from Agriculture to
Redmond Urban Growth Area.
PAGE 1 OF 2 - ORDINANCE NO. 2019-006
Section 2. AMENDMENT. DCC Title 18, Zoning Map, is amended to change the zone designation
from Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA-10) for certain property described in Exhibit "A"
and depicted on the map set forth as Exhibit "C."
Section 3. 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 4. AMENDMENT. Deschutes County Comprehensive Plan Section 5.12, Legislative
History, is amended to read as described in Exhibit "E" attached and incorporated by reference herein, with new
language underlined.
Section 5. FINDINGS. The Board adopts as its findings in support of this Ordinance, the Decision
of the Hearings Officer as set forth in Exhibit "F", and incorporated by reference herein.
Dated this of , 2019 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
Recording Secretary
Date of 1st Reading:
Date of 2nd Reading:
PHILIP G. HENDERSON, Chair
PATTI ADAIR, Vice Chair
ANTHONY DEBONE
day of , 2019.
day of , 2019.
Record of Adoption Vote:
Commissioner Yes No Abstained Excused
Philip G. Henderson
Patti Adair
Anthony DeBone _
Effective date: day of , 2019.
PAGE 2 OF 2 - ORDINANCE NO. 2019-006
Exhibit "A"
Tax Lot 1400
That portion of the Northeast Quarter of the Southeast Quarter of Section 35,
Township 17 South, Range 12 East of the Willamette Meridian, Deschutes County,
Oregon, lying Northerly of U.S. Highway 20.
Excepting therefrom the following described tract of land:
Beginning at the Northeast Corner of the Northeast Quarter of the Southeast Quarter
of Section 35, Township 17 South, Range 12 East of the Willamette Meridian,
Deschutes County, Oregon; thence South along the East line of said Northeast
Quarter of the Southeast Quarter a distance of 495 feet; thence Westerly, parallel
with the North line of said Northeast Quarter of the Southeast Quarter a distance of
1320 feet, more or less to a point on the West line of said Northeast Quarter of the
Southeast Quarter; thence Northerly along said West line 495 feet to the Northwest
corner of the Northeast Quarter of the Southeast Quarter of said Section; thence
Easterly along the North line of said Northeast Quarter of the Southeast Quarter a
distance of 1320 feet, more or less to the point of beginning.
Also excepting therefrom that portion conveyed to J.B. Casey, et ux by Deed recorded
December 2, 1965, In Book 146, Page 360, Deed Records Deschutes county, Oregon.
Also excepting therefrom any portion lying within the limits of Roads or Highways.
Tax Lot 1600
All that portion of the Southeast Quarter of the Southeast Quarter and the Northeast
Quarter of the Southeast Quarter of Section 35, Township 17 South, Range 12 East
of the Willamette Meridian, Deschutes County, Oregon lying southerly of U.S.
Highway 20.
Excepting therefrom the following:
Beginning at the Southwest corner of the Southeast Quarter of the Southeast
Quarter of Section 35, Township 17 South, Range 12 East of the Willamette Meridian,
Deschutes County, Oregon; thence North along the West line of said Southeast
Quarter of the Southeast Quarter, 534 feet; thence Easterly, parallel with the South
PAGE 1 OF 1- EXHIBIT A TO ORDINANCE NO. 2019-006
line of said Southeast Quarter of the Southeast Quarter, 370 feet; thence South and
parallel to the West line of said Southeast Quarter of the Southeast Quarter, 534 feet
to a point on the south line of said Southeast Quarter of the Southeast t Quarter;
thence Westerly along said South line 370 feet to the point or beginning.
Also excepting therefrom any portion lying within the limits of Roads or Highways.
Also Excepting that portion conveyed to Deschutes County by Warranty Deed
recorded November 8, 1990 In Book 222, Page 2181, Deschutes County Records.
Tax Lot 1601
A tract of land in the Southeast Quarter of the Southeast Quarter (SE1/4SE1/4) of
Section 35, Township 17 South, Range 12 East of the Willamette Meridian, Deschutes
County, Oregon, beginning at the Southwest corner of said SE1/4SE1/4, 370.0 feet;
thence South and parallel to the West line of said SE1 /4SE1 /4, 534.0 feet; thence West
370.0 feet to the point of beginning.
Excepting therefrom Richardson Road, now known as Bear Creek Road.
PAGE 1 OF 1- EXHIBIT ATO ORDINANCE NO. 2019-006
Legend
Proposed Plan Amendment Boundary
1 i Bend Urban Growth Boundary
Comprehensive Plan Designation
AG -Agriculture
RREA- Rural Residential Exception Area
URA - Urban Reserve Area
PROPOSED BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
COMPREHENSIVE PLAN MAP
Exhibit "B"
to Ordinance 2019-006
V V
0 900 800 1.200
IRRIFeet
February 12, 2019
Philip G. Henderson, Chair
Patti Adair, Vice Chair
DeBone, Commissioner
ATTEST: Recording Secretary
Dated this day of , 2019
Effective Date: , 2019
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Legend
Proposed Plan Amendment Boundary
1 i Bend Urban Growth Boundary
Comprehensive Plan Designation
AG -Agriculture
RREA- Rural Residential Exception Area
URA - Urban Reserve Area
PROPOSED BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
COMPREHENSIVE PLAN MAP
Exhibit "B"
to Ordinance 2019-006
V V
0 900 800 1.200
IRRIFeet
February 12, 2019
Philip G. Henderson, Chair
Patti Adair, Vice Chair
DeBone, Commissioner
ATTEST: Recording Secretary
Dated this day of , 2019
Effective Date: , 2019
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Legend
Proposed Zone Change Boundary
Bend Urban Growth Boundary
Zoning
EFUTRB - Tumalo/Redmond/Bend Subzone
MUA10 - Multiple Use Agricultural
UAR10 - Urban Area Reserve
PROPOSED BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ZONING MAP
Exhibit "C"
to Ordinance 2019-006
6
0 900 000 1,200
Feet
February 12, 2019
Philip G. Henderson, Chair
Patti Adair, Vice Chair
Tony DeBone, 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.
.._____ !,_� l .. I l a t 'd.^"ted -j the Rnar�l in (lydinanr_.e
.I. The Deschutes Coullty liVmpre11Gll.Jl v e 1 lalt alileitulilen�s, u r �
2014-005, are incorporated by reference herein.
K. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-006, are incorporated by reference herein.
L. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-012, are incorporated by reference herein.
M. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-021, are incorporated by reference herein.
N. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-027, are incorporated by reference herein.
O. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2015-021, are incorporated by reference herein.
P. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2015-029, are incorporated by reference herein.
Q. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2015-018, are incorporated by reference herein.
R. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2015-010, are incorporated by reference herein.
S. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-001, are incorporated by reference herein.
T. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-022, are incorporated by reference herein.
U. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-005, are incorporated by reference herein.
PAGE 1 OF 2 — EXHIBIT D TO ORDINANCE NO. 2019-006
V. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-027, are incorporated by reference herein.
W. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-029, are incorporated by reference herein.
X. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2017-007, are incorporated by reference herein.
Y. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2018-002, are incorporated by reference herein.
Z. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2018-006, are incorporated by reference herein.
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.
EE. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-001, are incorporated by reference herein.
FF. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-003, are incorporated by reference herein.
GG. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-004, are incorporated by reference herein.
HH The Deschutes County Comprehensive Plan amendments adopted by the Board in Ordinance
2019-006 are incorporated by reference herein.
(Ord. 2019-006 §1, 2019, Ord. 2019-004 §1, 2019; Ord. 2019-003 §1, 2019; Ord. 2019-001 §1,
2019; Ord. 2019-002 §1, 2019; Ord. 2018-008 §1, 2018; Ord. 2018-005 §2, 2018; Ord. 2018-011 §1,
2018; Ord. 2018-006 §1, 2018; Ord. 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. 2019-006
sect�ow 57-12 LegLsLat%ve f-I-%storU
Background
This section contains the legislative history of this Comprehensive Plan.
Table S. 12.1 Comprehensive Plan Ordinance History
Ordinance
Date Adopted/
Chapter/Section
Amendment
Effective
All, except
Transportation, Tumalo
and Terrebonne
2011-003
8-10-1 1/ 1 1-9-1 1
Community Plans,
Deschutes Junction,
Comprehensive Plan update
Destination Resorts and
ordinances adopted in
2011
2.5, 2.6, 3.4, 3.10, 3.5,
Housekeeping amendments to
2011-027
10-31-1 1 / 1 1-9-1 1
4.6, 5.3, 5.8, 5.1 1,
23.40A, 23.40B,
ensure a smooth transition to
23.40.065, 23.01.010
the updated Plan
23.60, 23.64 (repealed),
Updated Transportation
2012-005
8-20-12/11-19-12
3.7 (revised), Appendix C
System Plan
(added)
La Pine Urban Growth
2012-012
8-20-12/8-20-12
4.1, 4.2
Boundary
Housekeeping amendments to
2012-016
12-3-12/3-4-13
3.9
Destination Resort Chapter
Central Oregon Regional
2013-002
1-7-13/1-7-13
4.2
Large -lot Employment Land
Need Analysis
Comprehensive Plan Map
Amendment, changing
designation of certain
2013-009
2-6-13/5-8-13
1.3
property from Agriculture to
Rural Residential Exception
Area
Comprehensive Plan Map
Amendment, including certain
2013-012
5-8-13/8-6-13
23.01.010
property within City of Bend
Urban Growth Boundary
Newberry Country: A Plan
2013-007
5-29-13/8-27-13
3.10, 3.1 1
for Southern Deschutes
County
DESCHUTES COUNTY COMPREHENSIVE PLAN - LO I I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT "E" TO ORDINANCE NO. 2019-006
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT "E" TO ORDINANCE NO. 2019-006
Comprehensive Plan Map
2013-016
10-21-13/10-21-13
23.0 1.010
Amendment, including certain
property within City of Sisters
Urban Growth Boundary
Comprehensive Plan Map
Amendment, including certain
2014-005
2-26-14/2-26-14
23.01.010
property within City of Bend
Urban Growth Boundary
Housekeeping amendments to
2014-012
4-2-14/7-1-14
3.10, 3.1 1
Title 23.
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Sunriver Urban
2014-021
8-27-14/11-25-14
23.01.010, 5.10
Unincorporated Community
Forest to Sunriver Urban
Unincorporated Community
Utility
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Sunriver Urban
2014-021
8-27-14/11-25-14
23.01.010, 5.10
Unincorporated Community
Forest to Sunriver Urban
Unincorporated Community
Utility
Comprehensive Plan Map
Amendment, changing
2014-027
12-15-14/3-31-15
23.01.010, 5.10
designation of certain
property from Agriculture to
Rural Industrial
Comprehensive Plan Map
Amendment, changing
2015-021
11-9-15/2-22-16
23.01.010
designation of certain
property from Agriculture to
Surface Mining.
Comprehensive Plan Map
Amendment, changing
2015-029
1 1-23-15/11-30-15
23.01.010
designation of certain
property from Tumalo
Residential 5 -Acre Minimum
to Tumalo Industrial
2015-018
12-9-15/3-27-16
23.01.010, 2.2, 4.3
Housekeeping Amendments
to Title 23.
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT "E" TO ORDINANCE NO. 2019-006
DESCHUTES COUNTY COMPREHENSIVE PLAN - 201 1
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT "E" TO ORDINANCE NO. 2019-006
Comprehensive Plan Text and
Map Amendment recognizing
2015-010
12-2-15/12-2-15
2.6
Greater Sage -Grouse Habitat
Inventories
Comprehensive Plan Map
Amendment, changing
designation of certain
2016-001
12-21-15/04-5-16
23.01.010; 5.10
property from, Agriculture to
Rural Industrial (exception
area)
Comprehensive Plan
Amendment to add an
exception to Statewide
2016-007
2-10-16/5-10-16
23.01.010; 5.10
Planning Goal I I to allow
sewers in unincorporated
lands in Southern Deschutes
County
Comprehensive Plan
Amendment recognizing non -
2016 -005
11-28-16/2-16-17
23.01.010, 2.2, 3.3
resource lands process
allowed under State law to
change EFU zoning
Comprehensive plan
-2
Amendment, including certain
�,....�,
IV O-v/.Z-
a no til I d Z
moo- �� I I - I _T- I
1-2 n1 n1n 1 A 7
�� �� �� --
property within City of Bend
Urban Growth Boundary
Comprehensive Plan Map
Amendment, changing
2016-029
12-14-16/12/28/16
23.01.010
designation of certain
property from, Agriculture to
Rural Industrial
Comprehensive Plan Map
Amendment, changing
designation of certain
2017-007
10-30-17/10-30-17
23.0 1.010
property from Agriculture to
Rural Residential Exception
Area
Comprehensive Plan
Amendment permitting
2018-002
1-3-18/1-25-18
23.01, 2.6
churches in the Wildlife Area
Combining Zone
DESCHUTES COUNTY COMPREHENSIVE PLAN - 201 1
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT "E" TO ORDINANCE NO. 2019-006
DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT "E" TO ORDINANCE NO. 2019-006
Housekeeping Amendments
correcting tax lot numbers in
Non -Significant Mining Mineral
2018-006
8-22-18/11-20-18
23.01.010, 5.8, 5.9
and Aggregate Inventory;
modifying Goal 5 Inventory of
Cultural and Historic
Resources
Comprehensive Plan Map
Amendment, changing
2018-011
9-12-18/12-11-18
23.01.010
designation of certain
property from Agriculture to
Rural Residential Exception
Area
Comprehensive Plan Map
Amendment, removing Flood
23.01.010, 2.5, Tumalo
Plain Comprehensive Plan
2018-005
9-19-18/10-10-18
Community Plan,
Designation; Comprehensive
Newberry Country Plan
Plan Amendment adding Flood
Plain Combining Zone
purpose statement.
Comprehensive Plan
Amendment allowing for the
2018-008
9-26-18/10-26-18
23.01.010, 3.4
potential of new properties to
be designated as Rural
<_OfT1fT1@fClal Of RUQ al
Industrial
Comprehensive Plan Map
Amendment changing
designation of certain
property from Surface Mining
2019-002
1-2-19/4-2-19
23.01.010, 5.8
to Rural Residential Exception
Area; Modifying Goal 5
Mineral and Aggregate
Inventory; Modifying Non -
Significant Mining Mineral and
Aggregate Inventory
Comprehensive Plan and Text
2019-001
1-16-19/4-16-19
1.3, 3.3, 4.2, 5.10, 23.01
Amendment to add a new
zone to Title 19: Westside
Transect Zone.
DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT "E" TO ORDINANCE NO. 2019-006
DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT "E" TO ORDINANCE NO. 2019-006
Comprehensive Plan Map
Amendment changing
designation of certain
2019-003
TBD/TBD
23.01.010, 4.2
property from Agriculture to
Redmond Urban Growth
Area for the Large Lot
Industrial Program
Comprehensive Plan Map
Amendment changing
designation of certain
property from Agriculture to
2019-004
TBD/TBD
23.01.010, 4.2
Redmond Urban Growth
Area for the expansion of the
Deschutes County
Fairgrounds and relocation of
Oregon Military Department
National Guard Armory.
Comprehensive Plan Map
Amendment, changing
2019-006
TBD/TBD
23.01.010,
designation of certain
property from Agriculture to
Rural Residential Exception
Area
DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT "E" TO ORDINANCE NO. 2019-006
HEARINGS OFFICER DECISION
FILE NUMBERS: 247 -18 -000485 -PA, 247-18-000486-ZC
HEARING: December 4, 2018, 6:00 p.m.
Barnes & Sawyer Rooms
Deschutes Services Center
1300 NW Wall Street
Bend, OR 97708
APPLICANT/OWNER:
AGENTFOR
APPLICANT:
TRANSPORTATION
ENGINEER:
Eastside Bend, LLC
Tia M. Lewis
Schwabe, Williamson & Wyatt, P.C.
Joe Bessman
Transight Consulting, LLC
PROPOSAL: The applicant requests approval of a Comprehensive Plan
Amendment to change the designation of the property from
Agricultural (AG) to Rural Residential Exception Area (RREA)
designation. The applicant also requests approval of a corresponding
Zone Change to rezone the property from Exclusive Farm Use (EFU) to
Multiple Use Agricultural (MUA-10).
STAFF REVIEWER: Nicole Mardell, Associate Planner
Nicole.Mardell deschutes.org, 541-317-3157
HEARINGS OFFICER: Will Van Vactor
I. APPLICABLE STANDARDS AND CRITERIA:
Deschutes County Code Title 18 County Zoning Ordinance
Chapter 18.04, Title, Purpose, and Definitions
Chapter 18.16, Exclusive Farm Use Zones
Chapter 18.32, Multiple Use Agricultural Zone
Chapter 18.136, Amendments
Deschutes County Code Title 22 Procedures Ordinance
Deschutes County Comprehensive Plan
Chapter 2, Resource Management
Chapter 3, Rural Growth Management
Appendix C, Transportation System Plan
Eastside Bend LLC
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Exhibit T" to Ordinance 2019-006
Oregon Administrative Rules (OAR), Chapter 660
Division 6, Forest Lands
Division 12, Transportation Planning
Division 15, Statewide Planning Goals and Guidelines
Division 33, Agricultural Land
Oregon Revised Statues (ORS)
Chapter 215.211, Agricultural Land, Detailed Soils Assessment.
II. FINDINGS OF FACT:
A. LOCATION: The subject property is a 59.24 -acre tract containing three separate parcels under
the same ownership and identified on the Deschutes County Assessor's Map as 17-12-35, tax
lots 1400, 1600, and 1601. The corresponding addresses are 21588 Highway 20 (tax lot 1400),
21457 Highway 20 (Tax Lot 1600), and 21510 Bear Creek Road (Tax Lot 1601).
B. LOT OF RECORD: Tax lots 1400 and 1600 were verified as legal lots of record per previous
county land use approvals, the most recent being a property line adjustment in 2003 that
altered the acreages of the property to their current configuration. Tax lot 1400 is 20.55 acres
and Tax lot 1600 is 34.4 acres in size. Tax lot 1601 has not previously been verified as a legal
lot of record. Per DCC 22.04.040 Verifying Lots of Record, lot of record verification is required
for certain permits:
B. Permits requiring verification
1. Unless an exception applies pursuant to subsection (8)(2) below, verifying a
lot parcel pursuant to subsection (C) shall be required to the issuance of the
following permits:
a. Any land use permit for a unit of land in the Exclusive Farm Use Zones
(DCC Chapter 18.16), Forest Use Zone — F1 (DCC Chapter 18.36), or
Forest Use Zone — F2 (DCC Chapter 18.40);
b. Any permit for a lot or parcel that includes wetlands as show on the
Statewide Wetlands Inventory;
C. Any permit for a lot or parcel subject to wildlife habitat special
assessment,
d. In all zones, a land use permit relocating property lines that reduces
in size a lot or parcel;
e. In all zones, a land use, structural, or non -emergency on-site sewage
disposal system permit if the lot or parcel is smaller than the
minimum area required in the applicable zone;
In the Powell/Ramsey (PA -14-2, ZC-14-2), the hearings officer in that case held to a prior
decision (Belveron ZC-08-04) that a property's lot of record status was not required to be
verified as part of a plan amendment and zone change application. Rather, the applicant
would be required to receive lot of record verification prior to any development on the
subject property. The Hearings Officer here agrees. Thus, this criterion does not apply.
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Figure 1. Subject Property Map
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C. PROPOSAL: The applicant requests approval of a Comprehensive Plan Map Amendment to
change the designation of the subject property from Agricultural (AG) designation to a Rural
Residential Exception Area (RREA) designation. The applicant also requests approval of a
corresponding Zoning Map Amendment to change the zoning of the subject property from
Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA-10). The applicant asks that
Deschutes County change the zoning and the plan designation because the subject property
does not qualify as "agricultural land" under Oregon Revised Statutes (ORS) or Oregon
Administrative Rules (OAR) definitions. The applicant proposed that no exception to
Statewide Planning Goal 3, Agricultural Land is required because the subject property is not
agricultural land.
The applicant submitted an application form, a burden of proof statement, and other
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supplemental materials, all of which are included in the record for the subject applications.
With its application, the applicant submitted an Order 1 Soil Survey for tax lots 1600 and 1601,
titled "Agricultural Soils Capability Assessment" ("Borine study") prepared by soil scientist
Roger Borine, CPSC, CPSS, PWS of Sage West, LLC. Prior to the hearing, the applicant also
submitted a site-specific soil study for tax lot 1400 that was prepared by Brian Rabe, CPSS,
WWS of Cascade Earth Sciences ("Rabe study"). The applicant has also submitted a traffic
analysis prepared by Transight Consulting, LLC titled "Eastside Bend, LLC' ("traffic study").
D. ZONING AND PLAN DESIGNATIONS: The Deschutes County Comprehensive Plan map
designates the subject property as Agriculture. The property is zoned Exclusive Farm Use —
Tumalo/Redmond/Bend subzone (EFU-TRB).
E. SITE DESCRIPTION: The subject property encompasses approximately 59.24 acres and is
divided by State Highway 20. Tax lot 1400 is located to the north of Highway 20 and west of
Hamby Road while tax lots 1600 and 1601 are located south of Highway 20 and west of Ward
Road.
The property is not in farm tax deferral and does not contain any irrigation water rights or
irrigated area. A Central Oregon Irrigation District (COID) irrigation can runs through the
center of tax lot 1400, although the property does not contain any irrigated areas, nor does
it hold irrigation water rights. Historical images of the subject property provide evidence of
irrigated pasture on tax lots 1400 and 1600, as recently as 2011. The applicant stated in the
burden of proof that the tax lots formerly had water rights but lost the rights due to a lack of
beneficial use. Tax lot 1600 is developed with a manufactured home placed on the property
in 1984. Tax lot 1601 is developed with a residence that appears to have been constructed in
1935. Tax lot 1400 is currently vacant. Vegetation on site consists of juniper and sagebrush
scattered sparingly throughout.
F. SURROUNDING LAND USES: Land uses in the area vary in scale. The subject property is
located approximately 0.25 miles from the City of Bend city limits and urban growth
boundary. Within the city limits, land uses consist of residential subdivisions, apartment
buildings, a nursery, and several strip malls with commercial uses. Outside of city limits and
adjacent to the subject property are EFU-zoned parcels, many containing single family
residences and a few vacant properties, none of which are in farm tax deferral. The property
immediately adjacent to the west of tax lot 1400 was recently approved for a commercial dog
kennel and training facility. Farther east of the property is Grace Community Church, Christian
Life Center, and a Pacific Power and Light substation. Farther south is property zoned MUA-
10, developed with residences on 1 -acre parcels platted as part of the Dobbin Acres
subdivision. A property to the southeast (TL 1500) recently received approval for a plan
amendment and zone change to redesignate the property from Agricultural to Rural
Residential Exception Area, and to rezone the property from EFU-TRB to MUA-10.
G. SOILS: According to Natural Resources Conservation Service (NRCS) maps of the area, the
subject property contains two different soil types, as described below. Pursuant to the NRCS,
tax lot 1400 is designated entirely as 58C — Gosney-Rock Outcrop, Deskamp complex. The
NRCS shows lots 1600 and 1601 each contain 58C — Gosney-Rock Outcrop, Deskamp complex
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and 36A — Deskamp loamy sand.
The applicant submitted two soil studies. The Borine study determined tax lots 1600 and 1601
are comprised of soils that do not qualify as Agricultural Land pursuant to OAR 660-033. The
Borine study did not include Tax Lot 1400. The purpose of this Borine study was to inventory
and assess the soils on the tax lots 1600 and 1601 and to provide more detailed data on soil
classifications and ratings than is contained in the NRCS soils maps. The findings are addressed
in more detail below.
The Rabe study determined that tax lot 1400 is also comprised of soils that do not qualify as
agricultural lands as defined by OAR 660-033. The purpose of the Rabe study was (1) to
present the results of a site-specific assessment to verify, and where necessary, refine the
soils, map units, and boundaries of the previously prepared NRCS study for tax lot 1400, and
(2) determine whether the soils on the tax lot 1400 meet the land classification criterion for
a non -resource zoning designation. The Rabe study is also addressed in more detail below.
The NRCS soil map units identified on the property are described below.
36A Deskamp loamy sand, 0 to 3 percent slopes: This soil complex is composed of 85 percent
Deskamp soil and similar inclusions, and 15 percent contrasting inclusions. The Deskamp soils
are somewhat excessively drained with a rapid over moderate permeability, and about 5
inches of available water capacity. Major uses of this soil type are irrigated cropland and
livestock grazing. The agricultural capability rating for 36A soils are 3S when irrigated, and 6S
when not irrigated. This soil is high-value when irrigated. Approximately 37.6 percent of the
subject parcel is made up of this soil type.
58C Gosney-Rock Outcrop-Deskamp complex, 0 to 15 percent slopes: This soil type is
comprised of 50 percent Gosney soil and similar inclusions, 25 percent rock outcrop, 20
percent Deskamp soil and similar inclusions, and 5 percent contrasting inclusions. Gosney
soils are somewhat excessively drained with rapid permeability. The available water capacity
is about 1 inch. Deskamp soils are somewhat excessively drained with rapid permeability.
Available water capacity is about 3 inches. The major use for this soil type is livestock grazing.
The Gosney soils have ratings of 7e when unirrigated, and 7e when irrigated. The rock outcrop
has a rating of 8, with or without irrigation. The Deskamp soils have ratings of 6e when
unirrigated, and 4e when irrigated. Approximately 62.4 percent of the subject parcel is made
up of this soil type.
Further discussion regarding soils is found in Section III below.
H. PUBLIC AND PRIVATE AGENCY COMMENTS: The Planning Division mailed notice of the
application and notice of the public hearing to several agencies and the following comments
were received:
Bend Park & Recreation District
Bend Park and Recreation District's Comprehensive Plan calls for a park in the vicinity of the
property addressed 21588 Highway 20. The District would like to coordinate with the property
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owner as their plans progress for this area.
Staff received an additional email comment from Sarah Bodo on behalf of Bend Parks and
Recreation District on December 4, 2018. It was received before the close of the hearing and
record. The Hearings Officer therefore includes the email in the record. In that email, Bend
Parks and Rec encourages the applicant to consider park and trail connectivity to the west
and notes that when development occurs, the property will be subject to Systems
Development Charges.
Central Oregon Irrigation District
COID Facilities:
• The subject's property has the A-24 sub lateral that runs through it.
o It has a 40' canal right of way along with a 20' road right of way along the
west side of the canal
o No structures are allowed within COID's right of way
o No crossings are allowed without first obtaining a crossing license
COID Water Rights:
• None
COID Guideline Statement
• None
Deschutes County Building; Division
NOTICE: The Deschutes County Building Safety Divisions code mandates that Access, Egress,
Cathnrlec Firp A I ife .Snfety. Fire Fighting Water Supplies, etc. must be specifically addressed
during the appropriate plan review process with regard to any proposed structures and
occupancies.
Accordingly, all Building Code required items will be addressed, when a specific structure,
occupancy, and type of construction is proposed and submitted for plan review.
Deschutes County Transportation Planner
Note: This section contains comments following a revised traffic study submitted on October
26, 2018. Mr. Russell's original comments can be found in the full record.
I have read the revised traffic study for the roughly 59 -acre rezone from EFU>MUA-10
adjacent to the intersection of Hamby-Ward/US 20. 1 agree with the report's methodology,
findings, and conclusions.
I've cc'd Cody as the report assesses the crash history at Bear Creek/Ward and recommends
several countermeasures.
The following; agencies either had no comment or did not respond to the notice: Bend / La
Pine School District, Bend City Engineering, Bend Fire Department, Bend Growth
Management Department, Bend Planning Department, Bend Public Works Department, BLM
— Prineville District Deschutes Field Manager, Central Electric Cooperative, Department of
Environmental Quality, Department of Land Conservation and Development — Bend Office,
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Department of Land Conservation and Development — Salem Office, Deputy State Fire
Marshal, Deschutes County Assessor, Deschutes County Environmental Soils Division,
Deschutes County Road Department, Pacific Power & Light, Watermaster — District 11, ODOT.
I. PUBLIC COMMENTS: On June 20, 2018, the Planning Division mailed a Notice of Application
to all property owners within 750 feet of the subject property.
By letter dated June 27, 2018, Kendra Vogt submitted written comments. She expressed
concern with use of the property to grow marijuana. She also expressed concern regarding
traffic impact.
On December 4, 2018, prior to the hearing, staff received an email from Sandy McJunkin. Ms.
McJunkin expressed concern about developing multiple housing and apartments on the
property. Specifically, she is concerned that development will increase the number of vehicle
and bicycle accidents in the area. Road and traffic concerns are addressed below under the
Transportation Planning Rule.
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 June 19, 2017, indicating the applicant posted notice of
the land use action on the property on that same date. On November 6, 2018 the Planning
Division mailed a Notice of Public Hearing to all property owners within 750 feet of the subject
property and agencies. A Notice of Public Hearing was published in the Bend Bulletin on
Sundav, November 11, 2018. Notice of the first evidentiary hearing was submitted to the
Department of Land Conservation and Development on October 29, 2018.
K. PUBLIC HEARING: On December 4, 2018, at 6:00 pm the Hearings Officer conducted a public
hearing. The Hearings Officer read the preliminary statement, including the normal disclosure
regarding biases, conflict of interest, and ex parte contacts. There were no objections to the
Hearings Officer conducting the hearing.
L. REVIEW PERIOD: The application was submitted on June 14, 2018. The application was
deemed incomplete on July 13, 2018. Upon submission of additional application materials,
the application was deemed complete on October 26, 2018. According to Deschutes County
Code 22.20.040(D), the review of the proposed quasi-judicial plan amendment and zone
change application is not subject to the 150 -day review period.
As a procedural note, the hearing on December 4, 2018, was the first of two required de novo
hearings since this applicant's request concerns land designated for agricultural use. DCC
22.28.030(c). The second de novo hearing will be heard in front of the Board of County
Commissioners.
M. LAND USE HISTORY: Previous land use decisions for the property include the following:
Tax Lot 1400
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LR -03-12: Lot of Record verification confirming the property is a legal lot of record.
LL -03-20: Lot line adjustment with Tax Lot 1600. Tax Lot 1400 decreased in size from
21.18 acres to 20.55 acres.
Tax Lot 1600
• TU -84-40: Temporary Use Permit to place a manufactured home on a farm property.
• CU -84-86: Conditional Use Permit to allow the permanent placement of a
manufactured home on a farm property.
• LM -98-142: Approval of Landscape Management Review to replace the manufactured
home on the property.
• LL -03-20: Lot line adjustment with Tax Lot 1400. Tax Lot 1600 increased in size from
33.77 to 34.4 acres in size.
• 247 -17 -000184 -CE: Code enforcement case regarding garbage on the property, case
closed.
Tax Lot 1601
• No land use permits to date.
III. CONCLUSIONS OF LAW
TITLE 18 OF THE DESCHUTES COUNTY CODE — ZONING ORDINANCE
Chapter 18.136, Amendments
Section 18.136.010, Amendments
DCC Title 18 may be amended as set forth in DCC 18.136. The procedures for text or
legislative map changes shall be as set forth in DCC 22.12. A request by a property owner
for a quasi-judicial map amendment shall be accomplished by filing an application on forms
provided by the Planning Department and shall be subject to applicable procedures of DCC
Title 22.
FINDING: The applicant, also the property owner, has requested a quasi-judicial plan amendment
and filed the applications for a plan amendment and zone change. The applicant has filed the required
land use application forms for the proposal. The application will be reviewed utilizing the applicable
procedures contained in Title 22 of the Deschutes County Code.
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
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with the plan's introductory statement and goals.
FINDING: The applicant provided the following response in its burden of proof:
Per prior Hearings Officers decisions {Powell/Ramsey and Landholdings} for plan amendments
and zone changes on EFU-zoned property, this paragraph establishes two requirements: (1) that
the zone change conforms to the Comprehensive Plan and (2) that the change is consistent with
the plan's introductory statements and goals. Both requirements are addressed below:
1. Conformance with the Comprehensive Plan: The applicant proposes a plan amendment
to change the Comprehensive Plan designation for the subject property from
Agriculture to Rural Residential Exception Area. The proposed rezoning from EFU-TRB
to MUA-10 will need to be consistent with its proposed new plan designation.
2. Consistency with the Plan's Introductory Statement and Goals: In previous decisions,
the Hearings Officer found the introductory statements and goals are not approval
criteria for the proposed plan amendment and zone change. However, the Hearings
Officer in the Landholdings decision found that depending on the language, some plan
provisions may apply and found the following amended comprehensive plan goals and
policies require consideration and that other provisions of the plan do not apply as
stated below in the Landholdings decision:
"Comprehensive plan statements, goals and policies typically are not intended to,
and do not. constitute mandatory approval criteria for quasi-judicial/and use
permit applications. Save Our Skyline v. City of Bend, 48 Or LUBA 192 (2004). There,
LUBA held:
'As intervenor correctly points out, local and statutory requirements that land use
decisions be consistent with the comprehensive plan do not mean that all parts of
the comprehensive plan necessarily are approval standards. [Citations omitted.]
Local governments and this Board have frequently considered the text and context
of cited parts of the comprehensive plan and concluded that the alleged
comprehensive plan standard was not an applicable approval standard. [Citations
omitted.] Even if the comprehensive plan includes provisions that can operate as
approval standards, those standards are not necessarily relevant to all quasi-
judicial land use permit applications. [Citation omitted.] Moreover, even if a plan
provision is a relevant standard that must be considered, the plan provision might
not constitute a separate mandatory approval criterion, in the sense that it must
be separately satisfied, along with any other mandatory approval criteria, before
the application can be approved. Instead, that plan provision, even if it constitutes
a relevant standard, may represent a required consideration that must be balanced
with other relevant considerations. [Citations omitted.]'
LUBA went on to hold in Save Our Skyline that it is appropriate to 'consider first whether
the comprehensive plan itself expressly assigns particular role to some or all of the
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plan's goals and policies.' Section 23. 08. 020 of the county's comprehensive plan
provides as follows:
The purpose of the Comprehensive Plan for Deschutes county is not to provide a site-
specific identification of the appropriate land uses which may take place on a particular
piece of land but rather it is to consider the significant factors which affect or are affects
by development in the county and provide a general guide to the various decision which
must be made to promote the greatest efficiency and equity possible, which managing
the continuing growth and change of the area. Part of that process is identification of
an appropriate land use plan which is then interpreted to make decision about specific
sites (most often in zoning and subdivision administration) but the plan must also
consider the sociological, economic and environmental consequences of various
actions and provide guidelines and policies for activities which may have effects beyond
physical changes of the land. (emphases added by applicant)
The Hearings Officer previously found that the above -underscored language strongly
suggests the county's plan statements, goals and policies are not intended to establish
approval standards for quasi-judicial land use permit applications.
In Bothman v. City of Eugene, 51 Or LUBA 426 (2006), LUBA found it appropriate also
to review the language of specific plan policies to determine whether and to what
extent they may in fact establish decisional standards. The policies at issue in that case
included those ranging from aspirational statements to planning directives to the city
M policies with language providing 'quidance for decision-making' with respect to
specific rezoning proposals. In Bothman LUBA concluded the planning commission
erred in not considering in a zone change proceeding a plan policy requiring the city to
'[r]ecognize the existing general office and commercial uses located * * * [in the
geographic area including the subject property] and discourage future rezonings of
these properties.' LUBA held that:
*** even where a plan provision might not constitute an independently applicable
mandatory approval criterion, it may nonetheless represent a relevant and
necessary consideration that must be reviewed and balanced with other relevant
considerations, pursuant to ordinance provisions that require*** consistency with
applicable plan provision.' (Emphasis added.)
The county's comprehensive plan includes a large number of goals and policies. The
applicant's burden of proof addresses goals for rural development, economy,
transportation, public facilities, recreation, energy, natural hazards, destination
resorts, open spaces, fish and wildlife, and forest lands. The Hearings Officer finds
these goals are aspirational in nature and therefore are not intended to create
decision standards for the proposed zone change."
Hearings Officer Karen Green adhered to these findings in the Powell/Ramsey decision
(file nos. PA-14-2/ZC-14-2), and found the above referenced introductory statements
and goals are not approval criteria for the proposed plan amendment and zone change.
This Hearings Officer also adheres to the above findings herein. Nevertheless,
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depending upon their language, some plan provisions may require "consideration"
even if they are not applicable approval criteria. Save Our Skyline v. City of Bend, 48 Or
LUBA 192, 209 (2004). I find that the following amended comprehensive plan goals and
policies require such consideration, and that other provisions of the plan do not apply:"
The comprehensive plan goals and polices that the Landholdings Hearings Officer
found to apply include the following...
The applicant utilizes the analysis provided in prior hearings officers decisions to determine and
respond to only the goals and policies in the County's Comprehensive Plan that apply. Those goals
and policies are listed in this Decision. The Hearings Officer agrees with the applicant's analysis and
finds this provision to be met.
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 provided the following response in the burden of proof:
The applicant is proposing to change the zone classification from EFU to MUA-10. Approval of
the application is consistent with the purpose of the MUA-10 zoning district, which stated in
DCC 18.32.010 as follows:
"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 agricuirurai
lands not suited to full-time commercial farming for diversified or part-time agricultural uses;
to conserve forest lands for forest uses, to conserve open spaces and protect natural and scenic
resources; to maintain and improve the quality of the air, water and land resources of the
County; to establish standards and procedures for the use of those lands designated unsuitable
for intense development by the Comprehensive Plan, and to provide for an orderly and efficient
transition from rural to urban land use. "
The subject property is not suited to full-time commercial farming as discussed in the findings
above. The MUA-10 zone will allow property owners to engage in hobby farming. The low-
density of development allowed by the MUA-10 zone will conserve open spaces and protect
natural and scenic resources. In the Landholding's case, the Hearings Officer found:
I find that the proposed change in zoning classification from EFU is consistent with the
purpose and intent of the MUA-10 zone. Specifically, the MUA-10 zone is intended to
preserve the rural character of various areas of the County while permitting
development consistent with that character and with the capacity of the natural
resources of the area. Approval of the proposed rezone to MUA-10 would permit
applications for low-density development, which will comprise a transition zone
between EFU rural zoning, primarily to the east and City zoning to the west.
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The maximum density of the approximately 60 -acre property if developed with a cluster
development under Title 18 is 11 lots. This low density will preserve open space, allow owners
to engage in hobby farming, if desired, and preserve natural and scenic resources and maintain
or improved the quality of air, water, and land resources. The MUA-10 zoning provides a proper
transition zone from City, to rural zoning to EFU zoning.
The Hearings Officer finds the applicant has demonstrated the change in classification is consistent
with the purpose and intent of the MUA-10 Zone. This provision 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.
FINDING: Although there are no current plans to develop the property, the criterion specifies if the
zone change will presently serve public health, safety, and welfare. The applicant provides the
following response in the burden of proof:
Necessary public facilities and services are available to serve the subject property and include
will -serve letters from PacifiCorp, Central Electric Cooperative, and Avian Water Company, Inc.,
as well as logs in the area show that electric power and water services are available to serve
the property. Exhibits 10 and 12.
The subject property arlinins four major roadways: Highway 20, Hamby Road and Ward Road,
and Bear Creek Road. The impact of rezoning the subject property will have minimal impacts to
the road system. MUA-10 zoning and a standard subdivision would allow the creation of up to
six residential lots. If developed with a cluster development, the property would generate up to
55 additional daily trips. The existing road network is available to serve the use. The traffic
report by Transight Consulting found that the proposed rezone does not change the functional
classification of Hamby Road - Ward Road - or result in levels of travel that would be inconsistent
with the roadway function and concluded that a "significant affect does not occur with the
proposed rezone."
The property receives police services from the Deschutes County Sheriff. The property is in a
rural fire protection district and the nearest fire station is nearby. It is efficient to provide
necessary services to the property because the property is already served by these service
providers and the property is close to the City limits of Bend and adjacent to large tracts of land
zoned MUA-10 that are extensively developed with rural and urban density residences.
Neighboring properties contain residential and commercial uses, which have water service from a
quasi -municipal source or wells, on-site sewage disposal systems, electrical service, telephone
services, etc. There are no known deficiencies in public services or facilities that would negatively
impact public health, safety, or welfare. Prior to development of the property, the applicant would
be required to comply with the applicable requirements of the Deschutes County Code, including
possible land use permit, building permit, and sewage disposal permit processes. Through these
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development review processes, assurance of adequate public services and facilities will be verified.
The Hearings Officer finds this provision is met.
2. The impacts on surrounding land use will be consistent with the specific goals and
policies contained within the Comprehensive Plan.
FINDING: The applicant reviews potential impacts on surrounding land uses in their response to each
individual policy and goal item. Further analysis is detailed below.
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 applicant is proposing to rezone the property from EFU to MUA-10 and redesignate
the property from Agriculture to Rural Residential Exception Area, as the property was improperly
designated as farmland. The applicant has provided the following response in the burden of proof:
1. Mistake: The EFU zoning designation was likely based on the best available soils data that
the County had at the time in the County in the late 1970's when the comprehensive plan and
map were adopted.
2. Change in Circumstances: There clearly has been a change in circumstances since the
property was last zoned in the 1970s:
Soils: New soils data provided in the Borine soils report shows the property does not have
agricultural soils.
Traffic: Increased traffic along the road systems fronting and bisecting the subject property.
Highway 20, Bear Creek Road, Hamby Road, and Ward Road have all experienced an
increase in traffic over the past 30 years, making it increasingly difficult to operate farm
equipment and graze cattle.
Farming economics in Central Oregon have significantly changed, the evidence is clear that
it is difficult to make a profit in farming, particularly on smaller parcels such as the subject
property.
Viability of farm uses are not viable on the property or on other area properties and, as a
result, many property owners are choosing to forego irrigating their properties.
Decline in farm operations have steadily declined in Deschutes County between 2007 and
2012, with only a small fraction of farm operators achieving a net profit from farming in
2011. (Exhibit 13).
Encroaching development in the City of Bend to the west of the subject property has brought
both traffic and higher intensity commercial uses to the area.
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The above analysis from the applicant's burden of proof regarding traffic, farming economics, viability
of farm uses, decline in farm operations, and encroaching development demonstrates that there has
been a change in circumstances. Additionally, the Borine and Rabe soil studies (as discussed below)
show and otherwise confirm that the subject property does not have agricultural soils. For the
reasons described by the applicant, the Hearings Officer finds that there was a mistake made when
the property was zoned and that a change in circumstances has occurred since the property was last
zoned.
TITLE 23 OF THE DESCHUTES COUNTY CODE — COMPREHENSIVE PLAN
Chapter 2, Resource Management
Section 2.2, Agricultural Lands Policies
Goal 1, Preserve and maintain agricultural lands and the agricultural industry.
FINDING: The applicant is pursuing a plan amendment and zone change on the basis that the subject
property does not constitute "agricultural lands", and therefore, the subject lands are not necessary
to preserve or maintain as such. The applicant states the following in the burden of proof:
In the Landholdings decision (and Powell/Ramsey decision) the Hearings Officer found that this
goal is an aspirational goal and not an approval criterion...
The Borine soils report and the NRCS data show the subject property consist[s] predominantly
(63.7%) of Class 7 and 8 non-agricultural soils. According to Mr. Borine, these soils have severe
limitations for farm use as well as poor soil fertility, shall and very shallow soils, surface
stoniness, low available water capacity, and limited availability of livestock forage. In addition,
the property is isolated from farmlands being surrounded by high traffic roadways near the City
of Bend, including Highway 20, Bear Creek Road, Hamby, and Ward Roads, and other non-
agricultural and unproductive agricultural lands.
After submitting its burden of proof, the applicant submitted the Rabe study for Tax Lot 1400. In that
study, Mr. Rabe notes the entire tax lot to be within map unit 58C (Gosney, Rock outcrop, Deskamp
complex). Gosney soils are Class 7, rock outcrops are Class 8, and Deskamp are Class 6. According to
Mr. Rabe, map unit 58C is expected to consist of about 75% Class 7 and 8 soils.
Mr. Rabe's site specific study determined the soils to be "generally consistent" with the NRCS soil
survey. Rabe study, pg. 3. He found that of the 20.33 acres, 11.41 (56%) are Class 7 and Class 8 soils
in map units 57B and 109. The remaining 8.92 acres (44%) are Class 6 soils in map unit 36B. In sum,
Mr. Rabe determined that since 56% of the soils are Class 7 and 8, the site is not considered
Agricultural Land. Rabe study, pg. 4 and 6.
While the Hearings Officer agrees with the applicant's general conclusion relating to this policy (as
quoted above), it is not clear, in light of the Rabe study, that the above quoted figures are accurate.
Specifically, the Hearings Officer is not sure how the "63.7%" was calculated.
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The Hearings Officer notes, though, that the Borine study is substantial evidence that tax lots 1600
and 1601 are comprised of 58% (22.4) Class 7 and 8 soils (see Table 3, pg. 5, Borine study), and the
Rabe study is substantial evidence that tax lot 1400 is comprised of 56% (11.4 acres) Class 7 and Class
8 soils (see Rabe study, pg. 4). Thus, of the 59.2 acres that make up the subject property, 57% (33.8
acres) are Class 7 and Class 8 soils.
In addition to the soil class, both the Rabe and Borine studies describe the severe limitations for farm
use, including poor soil fertility and limited livestock forage. Additionally, the subject property is
isolated from farmlands and surrounded by high traffic roadways.
For these reasons, and as described in more detail below, the subject property is not agricultural land
and does not need to be preserved or maintained as such. The proposed plan amendment and zone
change are consistent with this policy.
Policy 2.2.2 Exclusive Farm Use sub -zones shall remain as described in the 1992 Farm
Study and shown in the table below, unless adequate legal findings for amending the
sub -zones are adopted or an individual parcel is rezoned as allowed by Policy 2.2.3.
FINDING: The applicant is not asking to amend the subzone that applies to the subject property;
rather, the applicant is seeking a change under Policy 2.2.3 and has provided evidence to support
rezoning the subject property to MUA-10.
Policy 2.2.3 Allow comprehensive plan and zoning map amendments for individual EFU
Parrplg as allowed by State Statute, Oregon Administrative Rules and this
Comprehensive Plan.
FINDING: The applicant is seeking approval of a plan amendment and zone change to redesignate
and rezone the property from Agricultural to Rural Residential Exception Area. The applicant is not
seeking an exception to Goal 3 — Agricultural Lands, but rather is attempting to demonstrate that the
subject property does not meet the state definition of "Agricultural Land", as defined in Statewide
Planning Goal 3 (OAR 660-033-0020).
Deschutes County has allowed this approach in previous Hearings Officer's decisions including Porter
Kelly Burns Landholdings (247-16-000317-ZC/318-PA), Department of State Lands (PA-11-7/ZC-11-2),
Pagel (PA-08-1/ZC-08-1), and the Daniels Group (PA -08-1, ZC-08-1). Additionally, the Land Use Board
of Appeals (LUBA) allowed this approach in Wetherell v. Douglas County, 52 Or LUBA 677 (2006).
In Wetherell v. Douglas County, LUBA states at pp. 678-679:
As we explained in DLCD v. Klamath County, 16 Or LUBA 817, 820 (1988), there are two ways a
county can justify a decision to allow nonresource use of land previously designated and zoned
for farm use or forest uses. One is to take an exception to Goal 3 (Agricultural Lands) and Goal
4 (Forest Lands). The other is to adopt findings which demonstrate the land does not qualify
either as forest lands or agricultural lands under the statewide planning goals. When a county
pursues the latter option, it must demonstrate that despite the prior resource plan and zoning
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designation, neither Goal 3 or Goal 4 applies to the property. Caine v. Tillamook County, 25 Or
LUBA 209, 218 (1993); DLCD v. Josephine County, 18 Or LUBA 798, 802 (1990).
The facts presented by the applicant in the burden of proof for the subject application are sufficiently
similar to those in the Wetherall decisions and in the aforementioned Deschutes County plan
amendment and zone change applications. Therefore, the Hearings Officer agrees the applicant has
the potential to prove the property is not agricultural land and does not require an exception to Goal
3 under state law.
Policy 2.2.4 Develop comprehensive policy criteria and code to provide clarity on when
and how EFU parcels can be converted to other designations.
FINDING: This plan policy provides direction to Deschutes County to develop new policies to provide
clarity when EFU parcels can be converted to other designations. Thus, the Hearings Officer finds this
does policy does not apply to a specific property owner or applicant. The Hearings Officer concurs,
though, with the County's previous determinations in plan amendment and zone change applications
and finds the proposal is consistent with this policy.
Goal 3, Ensure Exclusive Farm Use policies, classifications and codes are consistent with local
and emerging agricultural conditions and markets.
Policy 2.2.13 Identify and retain accurately designated agricultural lands.
FINDING- Thic nlan nnlir-v makes it clear that it is County's policy to identify and retain agricultural
lands that are accurately designated. The applicant proposes that the subject property was not
accurately designated as demonstrated by the soil study, NRCS soil data, and the applicant's burden
of proof. Further discussion on the soil analysis provided by the analysis is detailed under the OAR
Division 33 criteria below.
Section 2.5, Water Resources Policies
Goal 6, Coordinate land use and water policies.
Policy 2.5.24 Ensure water impacts are reviewed and, if necessary, addressed for
significant land uses or developments.
FINDING: The applicant is not proposing a specific development proposal at this time. Therefore, the
applicant is not required to demonstrate the water impacts associated with development. Rather,
the applicant will be required to address this criterion during development of the subject property,
which would be reviewed under any necessary land use process for the site (e.g. conditional use
permit, tentative plat). This criterion does not apply.
Section 2 7 Open Spaces Scenic Views and Sites
Goal 1, Coordinate with property owners to ensure protection of significant open spaces
and scenic views and sites.
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Policy 2.7.3 Support efforts to identify and protect significant open spaces and visually
important areas including those that provide a visual separation between communities
such as the open spaces of Bend and Redmond or lands that are visually prominent.
Policy 2.7.5 Encourage new development to be sensitive to scenic view and sites.
FINDING: The applicant addressed this criterion in their burden of proof, stating:
...The majority of the property has an overlay of Landscape Management Combining Zone (LM).
The applicable Landscape Management road as identified in Section 5.5, Goal Inventory, Open
Spaces, Scenic Views and Sites of the Comprehensive Plan, is "Highway 20 east to the County
Line" which is about 25 miles. The LM area extends Xmile on either side from the centerline of
Highway 20. Thus, as shown on page 3 of Exhibit 6 of the Burden of Proof, the majority of the
subject properties are located in the LM zone. Chapter 18.84 of Deschutes County Code (DCC) is
the implementing code that addresses the Landscape Management Combining Zone (LM). Per
Section 18.84.050, Use Limitations, subsection (A) LM review is not triggered until a use or
structure requires a building permit or an agriculture structure... The proposed plan amendment
and zone change does not contain any changes to the existing LM overly and will not trigger LM
review as no development is proposed at this time. Any future development will be subject to
LM review and be sensitive to the scenic views as seen from Highway 20.
...If the plan amendment and zone change were approved, the applicant would likely develop
the property for residential purposes and cluster the homes in one area leaving the remainder
of the property in "open space" and undeveloped.
The Landscape Management (LM) Combining Zone associated with Highway 20 extends over the
entirety of the subject property. The applicant's response demonstrates sensitivity to the potential
impact on the scenic corridor from development scenarios. As no actual development of the property
is proposed at this time, though, the Hearings Officer finds these policies do not apply to the subject
proposal.
Chapter 3, Rural Growth
Section 3.2, Rural Development
Growth Potential
As of 2010, the strong population growth of the last decade in Deschutes County was
thought to have leveled off due to the economic recession. Besides flatter growth patterns,
changes to State regulations opened up additional opportunities for new rural
development. The following list identifies general categories for creating new residential
lots, all of which are subject to specific State regulations.
• Some farm lands with poor soils that are adjacent to rural residential uses can be
rezoned as rural residential
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FINDING: This section of the Comprehensive Plan does not contain goals or policies but does provide
the guidance above. In response to this section, the applicant's burden of proof provides the
following:
In the Landholdings case, the Hearings Officer found that the "County's Comprehensive Plan
and the County Code provisions anticipate the need for additional rural residential lots as the
region continues to grow. The Plan and the Code provide for a mechanism to rezone farm lands
with poor soils to a rural residential zoning designation". The applicant has demonstrated that
the subject property is comprised of poor shallow rocky soils, is adjacent to rural residential
property located west of tax lots 1600 and 1601 and south of Bear Creek Road, and partially
isolated by State and County road systems serving Bend. Rezoning the subject property to MUA-
10 is consistent with this criterion, as it will provide for an orderly and efficient transition from
the Bend Urban Growth Boundary to rural and agricultural land.
The Hearings Officer notes that the MUA-10 Zone is a rural residential zone and as discussed in the
Findings of Fact above, there are many adjacent properties to the south and west that are zoned
MUA-10 or RR -10. Additionally, many properties to the west are within urban residential zones within
the city limits of Bend. Other MUA-10 and RR -10 zoned properties are located farther south, east,
and north of the subject property.
The above policy notes that lands with poor soil can be rezoned to rural residential. The two soil
studies submitted by the applicant demonstrate that the three tax lots that are the subject of this
application all have poor soils. The Hearings Officer therefore finds that this policy applies to the
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subject property and that it shouI0 L)e rezoned to rural Iesiden ial (I'Alu l -LV
Section 3.3. Rural Housin
Rural Residential Exception Areas
In Deschutes County most rural lands are designated for farms, forests or other resources
and protected as described in the Resource Management chapter of this Plan. The majority
of the land not recognized as resource lands or Unincorporated Community is designated
Rural Residential Exception Area. The County had to follow a process under Statewide Goal
2 to explain why these lands did not warrant farm or forest zoning. The major determinant
was that many of these lands were platted for residential use before Statewide Planning
was adopted.
In 1979 the County assessed that there were over 17,000 undeveloped Rural Residential
Exception Area parcels, enough to meet anticipated demand for new rural housing. As of
2010 any new Rural Residential Exception Areas need to be justified through taking
exceptions to farm, forest, public facilities and services and urbanization regulations, and
follow guidelines set out in the OAR.
FINDING: The applicant provided the following response to this provision in the burden of proof:
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The Hearings Officer in the Landholdings decision found that the language set forth above in
Section 3.3 is "background text and not a plan policy or directive" as stated below:
"The Hearings Officer finds that the language set forth above under Section 3.3 of the County
Comprehensive Plan is background text and not a plan policy or directive. As set forth in the
findings above, incorporated herein by this reference, no goal exception is required for the
subject applications because the Hearings Officer has made findings that the land does not
qualify as forest lands or agricultural lands under the statewide planning goal. The Hearings
Officer relies in part on the Hearings Officer's decision for PA-11-17/ZC-11-2 (Daniels Group)
concerning this language of Section 3.3 in which, Hearings Officer Kenneth Helm, states at page
11 of the decision:
To the extent that the quoted language above represents a policy, it appears to be directed
at a fundamentally different situation than the one presented in this application. The quoted
language addresses conversions of 'farm" or 'forest" land to rural residential use. In those
cases, the language indicates that some type of exception under state statute and DLCD
rules will be required in order to support a change in Comprehensive Plan designation. See
ORS 197.732 and OAR 660, Division 004. That is not what this application seeks to do. The
findings below explain that the applicant has been successful in demonstrating that the
subject properly is composed predominantly of nonagricultural soil types. Therefore, it is
permissible to conclude that the properly is not 'farmland" as defined under state statute,
DLCD rules, and that it is not correctly zoned for exclusive farm use. As such, the application
does not seek to convert "agricultural/and" to rural residential use. If the land is
demonstrated to not be composed of agricultural soils, then there is no "exception" to be
taken. There is no reason that the applicant should be made to demonstrate a reasons,
developed or committed exception under state law because the subject property is not
composed of the type of preferred land which the exceptions process was designed to
protect. For all these reasons, the Hearings Officer concludes that the applicant is not
required to obtain an exception to Goal 3.
There is one additional related matter which warrants discussion in connection with this
issue. It appears that part of Staff's hesitation and caution on the issue of whether an
exception might be required is rooted in the title of the Comprehensive Plan designation that
would ultimately apply to the subject property - which is "Rural Residential Exception Area."
There appears to be seven countywide Comprehensive Plan designations as identified in the
plan itself. These include "Agriculture, Airport Development, Destination Resort Combining
Zone, Forest, Open Space and Conservation, Rural Residential Exception Area, and Surface
Mining." Of the seven designations, only rural Residential Exception Area provides for
associated zoning that will allow rural residential development. As demonstrated by
reference to the Pagel decision discussed above, there appears to be instances in which rural
residential zoning has been applied without the underlying land necessarily being identified
as an exception area. This makes the title of the "Rural Residential Exception Area"
designation confusing and in some cases inaccurate, because no exception is associated with
the underlying land in question. However, it is understandable that since this designation is
the only one that will allow rural residential development, that it has become a catchall
designation for land types that are authorized for rural residential zoning. That is the case
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with the current proposal, and again, for the some reason set forth in the Hearings Officer
Green's decision in Pagel, I cannot find a reason why the County would be prohibited from
this practice. (emphasis added).1 find that Deschutes County has interpreted the RREA plan
designation as the property "catchall" designation for non -resource land. As a result, the
Hearings Officer finds that the RREA plan designation is the appropriate plan designation
for the subject property.
As stated above, the Hearings Officer finds that the language set forth above under Section 3.3
of the County Comprehensive Plan is background text and not a plan policy or directive. In
addition, the County has interpreted the RREA plan designation as the proper "catchall"
designation for non -resource land and therefore, the RREA plan designation is the appropriate
plan designation for the subject property.
The Hearings Officer agrees with the above quoted language that Section 3.3 is not a policy and does
not require an exception to the applicable Statewide Planning Goal 3. Therefore, the RREA plan
designation is the appropriate plan designation to apply to the subject property.
Section 3.7 Transportation
Appendix C — Transportation System Plan
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 applies to the County and advises it to consider the roadway function,
classification and capacity as criteria for plan amendments and zone changes. The County can comply
with this direction by determining compliance with the Transportation System Planning Rule (TPR),
as described below.
OREGON ADMINISTRATIVE RULES CHAPTER 660, LAND CONSERVATION AND DEVELOPMENT
DEPARTMENT
Division 6, Goal 4 — Forest Lands
OAR 660-006-0005, Definitions
(7) "Forest lands" as defined in Goal 4 are those lands acknowledged as forest lands, or,
in the case of a plan amendment, forest lands shall include:
(a) Lands that are suitable for commercial forest uses, including adjacent or nearby
lands which are necessary to permit forest operations or practices; and
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(b) Other forested lands that maintain soil, air, water and fish and wildlife
resources.
FINDING: The subject property is not zoned for forest lands, nor are any of the properties within a
two-mile radius. The property does not contain merchantable tree species and there is no evidence
in the record that the property has been employed for forestry uses historically. None of the soil units
comprising the parcel are rated for forest uses according to NRCS data. The property does not qualify
as forest land.
Division 33 - Agricultural Lands & Statewide Planning Goal 3 - Agricultural Lands;
OAR 660-015-0000(3)
To preserve and maintain agricultural lands.
Agricultural lands shall be preserved and maintained for farm use, consistent with existing
and future needs for agricultural products, forest and open space and with the state's
agricultural land use policy expressed in ORS 215.243 and 215.700.
FINDING: Goal 3 continues on to define "Agricultural Land", which is repeated in OAR 660-033-
0020(1). The Hearings Officer makes findings on this topic below and incorporates those findings
herein by reference.
OAR 660-033-0020, Definitions
For purposes of this division, the definitions in ORS 197.015, the Statewide Planning Goals,
and OAR Chapter 660 shall apply. In addition, the following definitions shall apply:
(1)(a) "Agricultural Land" as defined in Goal 3 includes:
(A) Lands classified by the U.S. Natural Resources Conservation Service (NRCS) as
predominantly Class I-IV soils in Western Oregon and I -VI soils in Eastern
Oregon'..-
FINDING:
regon';
FINDING: The applicant does not request an exception to Goal 3 because it believes that the subject
property does meet the definition of "Agricultural Land". In support, the applicant offers the
following:
The subject property is not properly classified as Agricultural Land and does not merit protection
under Goal 3. The soils are predominately Class 7 and 8 soils as shown by the more detailed
soils report prepared by soils scientist Roger Borine, which State law, OAR 660-033-0030, allows
the County to rely on for more accurate soils information. Mr. Borine found that approximately
58% of the soils on Tax Lots 1600 and 1601 (40 acres) is Land Capability Class 7 and 8 soils that
1 OAR 660-033-0020(5): "Eastern Oregon" means that portion of the state lying east of a line beginning at the
intersection of the northern boundary of the State of Oregon and the western boundary of Wasco County, then south
along the western boundaries of the Counties of Wasco, Jefferson, Deschutes and Klamath to the southern boundary
of the State of Oregon.
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have severe limitations for farm use. He also found the site to have poor soil fertility, shallow
and very shallow soils, surface stoniness, low available water capacity, and limited availability
of livestock forage, which are considerations for the determination for suitability for farm use.
The Hearings Officer has reviewed Borine study and agrees with the applicant's representation of the
data for tax lots 1600 and 1601. The Hearings Officer has also reviewed the Rabe study. The Rabe
study demonstrates that tax lot 1400 is comprised predominantly of Class 7 and 8 soils and thus does
not meet the definition of "Agricultural Land". As noted previously, 57% of the subject property is
Class 7 and 8 soil, so it does not meet the definition of "Agricultural Land" under OAR 660-033-
0020(1)(a)(A) because it is not predominantly Class I -VI soils.
(B) Land in other soil classes that is suitable for farm use as defined in ORS
215.203(2)(a), taking into consideration soil fertility; suitability for grazing;
climatic conditions; existing and future availability of water for farm irrigation
purposes; existing land use patterns; technological and energy inputs required;
and accepted farming practices; and
FINDING: The applicant's basis for not requesting an exception to Goal 3 is based on the proposal
that the subject property does not meet the definition of "Agricultural Land". The applicant provides
the following analysis of this determination in the burden of proof.
This part of the definition of "Agricultural Land" requires the County to consider whether the
Class 7 and 8 soils found on the subject property are suitable for farm use despite their Class 7
and 8 classification. The Oregon Supreme Court has determined that the term 'farm use" as
used in this rule and Goal 3 means the current employment of land for the primary purpose of
obtaining a profit in money through specific farming -related endeavors. The costs of engaging
inform use are relevant to determining whether farm activities are profitable and this is a factor
in determining whether land is agricultural land. Wetherell v. Douglas County, 342 Or 666, 160
P3d 614 (2007).
According to Deschutes County records, a portion of the property on tax lot 1600 at one time
was irrigated and used to grow hay crop and grazing purposes. Central Oregon Irrigation
District's (COID) research shows the property (tax lot 1600) had 20 acres of appurtenant
irrigation that was conveyed to COID in 2012 and later removed via a water transfer with
Oregon Water Resources Department in 2014. CO1D's records also show that tax lot 1601 had
2.0 acres of appurtenant irrigation that was conveyed to COID in 2006 and later removed in
2008. Tax lot 1400 had 9.5 acres of water rights that were transferred in 1997. The extremely
poor soils found on the property prevent it from providing sufficient feed for livestock for
dryland grazing. The dry climate, the proximity to US Highway 20 and area development
prevent grazing from being a viable or potentially profitable use of the property. The soils are
so poor that they would not support the production of crops for a profit, assuming irrigation
water rights could be obtained for that purpose.
The primary agricultural use conducted on properties with poor soils is grazing cattle. Given the
high cost of irrigating and maintaining the property as pasture or cropland (high labor costs,
labor-intensive, high cost of irrigation equipment and electricity, high cost of fertilizer, etc.), dry
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land grazing is the accepted farm use of poor soils in Deschutes County. This use can be
conducted until the native vegetation is removed by grazing (see the discussion of the suitability
of the property for grazing, below). When assessing the potential income from dry land grazing,
Deschutes County uses a formula and assumptions developed by the OSU Extension Service.
This formula is used by the County to decide whether EFU-zoned land is generally unsuitable for
farm use.
• One AUM is the equivalent to the forage required for a 1000 lb. cow and calf to graze for
30 days (900 pounds of forage).
• On good quality forage, an animal unit will gain 2 pounds per day.
• Two animal units will eat as much in one month as one animal unit will eat in two months.
• Forage production on dry land is not continuous. Once the forage is eaten, it generally
will not grow back until the following spring.
• An average market price for beef is $1.20 per pound.
Based upon these assumptions, the value of beef production on the entire subject property can
be calculated using the following formula:
30 days x2#/day/acre = 60.0 lbs. Beef/acre
(1 acre per AUM)
60.0 lbs. Beef/acre x 59.24 acres x $1.20/Ib. = $4,265.28 per year gross income
Thus, the total gross beef production potential for the subject property would be approximately
$4,265,252 anmiolhl Thic figure represents aross income and does not take into account real
property taxes, fencing costs, land preparation, purchase costs of livestock, veterinary costs, or
any other costs of production, which would exceed income. In addition, as the subject property
abuts a busy state highway and road intersections, the cost for liability insurance due to the risk
of livestock escape and the potential for a vehicle/livestock accident, would likely be expensive.
A review of the seven considerations listed in the administrative rule, below, shows why the
poor soils found on the subject property are not suitable for farm use that can be expected to
be profitable:
Soil Fertility:
Mr. Borine found the soil fertility in terms of organic matter to be "extremely low to non-
measureable and clay content is less than five percent. " In addition, Mr. Borine states that high
levels of fertilization are required for a grass crop to be produced and due to the "very low
Cation Exchange Capacity" which is important because it provides a reservoir of nutrients for
plant uptake, the fertilization is "readily leached out of the soil by irrigation and precipitation"
and ends up on the surface or in the groundwater. In addition, lime is needed as a soil
amendment to raise the soil pH to an acceptable range for plant nutrient uptake. He concludes
this section of soils fertility by saying:
To maintain a minimum level of essential nutrients for proper crop growth multiple yearly
applications of very high rates of fertilizer and soil amendments are required. Without soil
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sampling, lab analyses, proper fertilization and soil amendments these soils are nonproductive
and infertile. [Emphasis added by applicant.]
The fact that the soils are infertile unless made fertile through artificial means supports the
applicant's position that the Class 7 soils and the entire property is not suitable for farm use.
The costs to purchase and apply fertilizer and soil amendments and the costs to sample and test
soils are a part of the reason why it is not profitable to farm the subject property.
Unsuitability for Grazing:
Mr. Borine also reviewed the suitability for grazing on the property and concluded:
Soil, vegetation, climate and landscape are determinant factors for the suitability for grazing of
livestock. Limitations that are recognized on this site include very low available water for plant
growth. Restricted depth limits seeding only to drought tolerant species, and rock outcrop limits
the areas suitable for grazing. The cold climate and soil temperatures delay growth of forage
and low water retention in the soil and no summer moisture shortens the growing season.
Reestablishment of the native vegetation is likely impossible due to the pumice ash surface layer
and past land alterations. Restricted depth limits seeding only to drought tolerant species, and
rock outcrop limits the areas suitable for grazing.
Existing and Future Availability of Water for Farm Irrigation Purposes:
No new irrigation water rights are expected to be available to the Central Oregon Irrigation
District (COID) in the foreseeable future. In order to obtain water rights, the applicant would
need to convince another COID customer to remove water rights from their property and sell
them to the applicant and obtain State and COID approval to apply the water rights to the
subject property. In such a transaction, water rights would be taken off productive farm ground
and applied to the nonagricultural soils found on the subject property. Such a transaction runs
counter to the purpose of Goal 3 to maintain productive Agricultural Land in farm use.
Given the poor quality of these soils, it is highly unlikely that Central Oregon Irrigation District
would approve a transfer of water rights to this property. In addition, no person intending to
make a profit informing would go to the expense of purchasing water rights, mapping the water
rights and establishing an irrigation system to irrigate the lands on the subject property.
Given the dry climate, it is necessary to irrigate the subject property to grow a hay crop and to
maintain a pasture. Irrigating the soils found on the subject property, according to Mr. Borine,
leaches nutrients from the soil so that expensive testing, soils amendments and fertilizers are
needed to grow crops. A farmer would need to also spend significant sums of money to purchase
additional water rights, purchase irrigation systems, maintain the systems, pay laborers to
move and monitor equipment, obtain electricity, pay irrigation district assessments and pay
increased liability insurance premiums for the risks involved with farming operations.
Termination of Historic Irrigation Water Rights:
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As described earlier in the burden of proof, the subject property had water rights in the past but
failed to put the water to beneficial use and the water rights were terminated. Restoring the
water rights would not improve the NRCS soils rating of the property to the point where a
majority of the property would be Class 1 through 6 soils, and become "Agricultural Land" as
defined by Statewide Goal 3. The lack of beneficial use of the water rights, at times prior to high
land values and development pressure, is a reflection that irrigating this property and its very
poor soils was not prudent.
Existing Land Use Patterns:
Existing land use patterns in the area are a mixture of urban, rural, and farm -zoned lands that
are in use, not so much for farm uses, but for other conditionally allowed uses in the EFU zone,
including churches, electrical substations, and solar farms. There are no large-scale commercial
farming operations in the area, only small, hobby farms. Further, the subject property is
surrounded and bisected by a busy highway and roadway systems that lead to the City of Bend's
urban landscape. Specifically:
North of tax lot 1400 is a 5 -acre rectangular -shaped parcel zoned EFU that is developed with a
1978 home and outbuildings. East of Hamby are two churches, including one with an outdoor
amphitheater, and a vacant 11.2 -acre parcel zoned EFU. Properties further east include an
electrical power substation and solar farms. East of Ward Road is a privately -owned 43.89 -acre
vacant and dry parcel zoned EFU receiving farm tax deferral.
lei....+—r +I,—LIM .,r... +„JJIUV�ILY ..,, 4 . rrh of /-linhIeinv 9n nra nrivntaly nininad lends zoned F_FU that are
VVU3L UJvacant, unirrigated, and no known agricultural uses being employed. West and south of
Highway 20 is an approximate 35 -acre EFU zoned privately owned parcel (Tax Lot 17-12-35-
1500). This property is adjacent to the Bend City limits and recently received Board of County
Commissioners of Deschutes County approval to change the Comprehensive Plan designation
from Agriculture to Rural Residential Exception Area and to change the zone from EFU-TRB to
Multiple Use Agricultural (MUA-10, see Landholdings decision (Exhibit 1 ). The County found
and concluded that the property does not constitute "Agricultural Land" and that no goal
exception is required for the property because the land does not qualify as forest lands or
agricultural lands under the statewide planning goal.
South of Bear Creek Road are exception lands zoned MUA-10 and include several subdivisions
many of which are developed with homes, with small acres of irrigation for pasture and other
hobby farm uses. South and west of Bear Creek Road is a larger 53- acre parcel zoned EFU-TRB
that is developed with a homes, is irrigated and engaged in hay production and receiving farm
tax deferral.
The close proximity to the City of Bend, the busy highway and residential areas limits the types
of agricultural activities that could reasonably be conducted for profit on the subject property.
The subject property would not be suitable for raising animals that are disturbed by noise.
Additionally, the property owner would bear the burden of paying for harm that might be
caused by livestock escape along the extremely busy highway, in particular livestock and vehicle
collisions. Any agricultural use that requires the application of pesticides and herbicides would
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Exhibit T" to Ordinance 2019-006
be very difficult to conduct on the property given the numerous homes located in close proximity
to the property and the heavy traffic along Highway 20 due to aerial drift of these chemicals. In
addition, the creation of dust which accompanies the harvesting of crops is a major concern on
this property due to the close proximity of Highway 20 and the significant amount of traffic
using the highway on a daily basis. Heavy dust could limit vision along the highway and be a
concern for major traffic accidents in this area.
Technological and Energy:
According to Mr. Borine, "[t]his parcel requires technology and energy inputs over and above
that considered acceptable farming practices. Excessive fertilization and soil amendments, very
frequent irrigation applications pumped from a pond with limited availability, and marginal
climatic conditions restrict cropping alternatives" [Emphasis added by applicant].
Accepted Farming Practices:
Farming lands comprised of soils that are predominately Class 7 and 8 is not an accepted farm
practice in Central Oregon. Dryland grazing, the farm use that can be conducted on the poorest
soils in the County, typically occur on Class 6 non -irrigated soils that have a higher soils class if
irrigated. The applicant would have to go above and beyond accepted farming practices to even
attempt to farm the property for drylond grazing. Crops are typically grown on soils in soil class
3 and 4 that have irrigation, which this property has neither. Past use of the property to irrigate
and grow hay was not sufficient enough to achieve a profit in farming and does not qualify as
farm use per ORS 215.203(2)(a).
Similarly, the Rabe study notes that in addition to the poor soils, the subject property "does not
warrant retention as agricultural land based on OAR 660-033-0020(1)(a)(B) because of:
1. Soils Fertility
2. Suitability for Grazing
3. Climatic Conditions
4. Existing and Future Availability for Irrigation
5. Existing Land Use Patterns
6. Technological and Energy Inputs Required
7. Accepted Farming Practices
Each of these limitations is discussed in more detail on pages 4-6 of the Rabe study. The Hearings
officer incorporates those findings in this Decision as evidence that factors (as required by OAR 660-
033-0020(1)(a)(B)), in addition to the poor soils, indicate that the subject property is not agricultural
land.
For the above reasons, the Hearings Officer finds that many factors not relating to soil class — such as
the proximity to the City of Bend city limits, current residential and non-agricultural related land uses
in the area, soil fertility, and lack of availability of water rights prevent the possibility of farming on
the entire subject property.
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Exhibit T" to Ordinance 2019-006
For the above reasons, the Hearings Officer finds that the subject property is not suitable for farm
use.
(C) Land that is necessary to permit farm practices to be undertaken on adjacent or
nearby agricultural lands.
FINDING: The applicant provided a detailed analysis of land uses and agricultural operations
surrounding the subject property on pages 31-32 of the burden of proof. The applicant found that
the only agricultural zoned lands currently engaged in an agricultural use are found south of Bear
Creek Road and operate independently from each other, and from other properties. Barriers for the
subject property to engage with in farm use with these properties include: poor quality soils, lack of
irrigation, proximity, and physical barriers such as Highway 20 and Bear Creek Road.
The Hearings Officer agrees with the applicant's analysis; the subject property is not necessary to
permit farm practices to be undertaken on adjacent or nearby agricultural lands.
(1b) Land in capability classes other than 1-IV/I-VI that is adjacent to or intermingled with
lands in capability classes I-IV/1-VI within a farm unit, shall be inventoried as
agricultural lands even though this land may not be cropped or grazed,
FINDING: The applicant provided the following response in the burden of proof:
The subject property is not and has not been a part of a farm unit that includes other lands not
currently owned by the applicant.
Goal 3 applies a predominant soil type test to determine if a property is "agricultural land". If a
majority of the soils is Class 1-6 in in Central or Eastern Oregon, it must be classified "agricultural
land. " 1000 Friends position is that this is a 100% Class 7 -8 soils test rather than a 51 % Class 7
and 8 soils test because the presence of any Class 1-6 soil requires the County to identify the
entire property "agricultural land." Case law indicates that the Class 1-6 soil test applies to a
subject property proposed for a non-agricultural plan designation while the farm unit rule looks
out beyond the boundaries of the subject property to consider how the subject property relates
to lands in active farming in the area that were once a part of the area proposed for rezoning.
It is not a test that requires that 100% of soils on a subject property be Class 1-6.
The farm unit rule is written to preserve large farming operations in a block. It does this by
preventing property owners from dividing farmland into smaller properties that, alone, do not
meet the definition of "agricultural land." The subject property is not formerly part of a larger
area of land that is or was used for farming operations and was then divided to isolate poor
soils so that land could be removed from EFU zoning.
The subject property is not inform use and has not been inform use of any kind (hobby farming
or commercial farming) from at least 1997 when water rights were removed from tax lot 1400,
in 2006 where 2.0 acres of water rights were removed from tax lot 1601, to 2012 where all
water rights were removed from tax lot 1600. It has no known history of commercial farm use
and contains soils that make the property generally unsuitable for farm use as the term is
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defined by State law. It is not a part of a farm unit with other land. The subject property is
predominately Class 7 and 8 soils and would not be considered a farm unit itself nor part of a
larger farm unit based on the poor soils and the fact that none of the adjacent property is
farmed.
As shown by the soils capability study by Borine, the predominant soil type found on the subject
property south of Highway 20 is Class 7 and 8, nonagricultural land (22.36 acres Class 7-8; 16.48
acres Class 3-4 or 42%). The area north of Highway 20 on tax lot 1400 consists of one NRCS soil
mapping unit, 58C, which has predominantly 75% Classes 7 and 8. The entire property including
the area north of Highway 20 consists of 63.7% of Class 7 and 8 soils. The predominance test
says that the subject property is not agricultural soil and the farm unit rule does not require that
the Class 7-8 soils that comprise the majority of the subject property be classified as agricultural
land due to the presence of a small amount of Class 1-6 soils on the subject property that are
not employed inform use and are not part of a farm unit. As a result, this rule does not require
the Class 7 and 8 soils on the subject property to be classified agricultural land because a
minority of the property contains soils rated Class 7 and 8.
The subject property is not part of a farm tract or unit. Therefore, the Hearings Officer finds that the
three tax lots that make up the subject property do not need to be inventoried as agricultural land
under this rule.
(c) "Agricultural Land" does not include land within acknowledged urban growth boundaries
or land within acknowledged exception areas for Goal 3 or 4.
FINDING: The subject property is not within an acknowledged urban growth boundary or land within
acknowledged exception areas for Goals 3 or 4.
OAR 660-033-0030 IdentifVing Agricultural Land
(1) All land defined as "agricultural land" in OAR 660-033-0020(1) shall be inventoried as
agricultural land.
(2) When a jurisdiction determines the predominant soil capability classification of a lot or
parcel it need only look to the land within the lot or parcel being inventoried. However,
whether land is "suitable for farm use "requires an inquiry into factors beyond the mere
identification of scientific soil classifications. The factors are listed in the definition of
agricultural land set forth at OAR 660-033-0020(1)(a)(B). This inquiry requires the
consideration of conditions existing outside the lot or parcel being inventoried. Even if
a lot or parcel is not predominantly Class I-IV soils or suitable for farm use, Goal 3
nonetheless defines as agricultural "lands in other classes which are necessary to
permit farm practices to be undertaken on adjacent or nearby lands". A determination
that a lot or parcel is not agricultural land requires findings supported by substantial
evidence that addresses each of the factors set forth in 660-033-0020(1).
FINDING: The applicant addressed the factors in 660-033-0020(1) above. As an initial note, the soils
on the subject property are predominantly Class 7 and 8. As this rule notes, though, that alone does
not make the subject property non-agricultural. The property is also subject to other barriers to farm
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Exhibit "F" to Ordinance 2019-006
use including: lack of irrigation, proximity, and physical barriers such as Highway 20 and Bear Creek
Road. Moreover, there is no evidence in the record that the subject property is necessary to permit
farm practices on adjacent or nearby lands.
(3) Goal 3 attaches no significance to the ownership of a lot or parcel when determining
whether it is agricultural land. Nearby or adjacent land, regardless of ownership, shall
be examined to the extent that a lot or parcel is either "suitable for farm use" or
"necessary to permit farm practices to be undertaken on adjacent or nearby lands"
outside the lot or parcel.
FINDING: The applicant -submitted evidence that shows that the subject property is not suitable for
farm use and is not necessaryto permit farm practices to be undertaken on adjacent or nearby lands,
has not assigned any significance to the ownership of the subject or adjoining properties.
(5)(a) More detailed data on soil capability than is contained in the USDA Natural
Resources Conservation Service (NRCS) soil maps and soil surveys may be used to
define agricultural land. However, the more detailed soils data shall be related to
the NRCS land capability classification system.
(b) if a person concludes that more detailed soils information than that contained in the
Web Soil Survey operated by the NRCS as of January 2, 2012, would assist a county
to make a better determination of whether land qualifies as agricultural land, the
person must request that the department arrange for an assessment of the
capability of the land by a professional soil classifier who is chosen by the person,
usina the process described in OAR 660-033-0045.
FINDING: The Borine and Rabe studies provide more detailed soils information than contained in the
NRCS Web Soil Survey. Both soil studies relate to the NRCS land capability classification system (LCC)
that classifies the soils as class 1 through 8. An LCC rating is assigned to each soil type based on rules
provided by the NRCS.
NRCS sources provide general soils data for large units of land. The site specific Borine and Rabe soil
studies provide detailed and accurate information about the subject property based on numerous
soil samples taken from the property.
The NRCS mapping for the subject property is shown in Figure 2. According to the NRCS Web Soil
Survey tool, the subject property (all tax lots) contains approximately 37.6% 36A soil and contains
62.4% 58C soil.
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Exhibit T" to Ordinance 2019-006
Figure 2. NRCS Soil Map (dial.deschutes.org)
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Exhibit T" to Ordinance 2019-006
The Borine study found the soil types on tax lots 1600 and 1601 vary from the NRCS identified soil
types. The soil types are described below and the characteristics and LCC rating are shown in Table 1
below.
Table 1. Summary of Order I Soil Survey—Tax
Lots
1600 and 1601
Symbol Revised Order 1 Map Units composer}t u
ICC
TL 160tl 4.1601
(34.55 U)
i x t.at
16Q0
Tax lac 1G01
1RIi NIRR
Ac
Vo
Ac
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°rb
A fees yarn 3osna , deep, 0-31 Deskarip 65 �
p r- y n
Pt the J, ilePC7 LS
ti_
3 6
_
10.48
11.'99
42
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31
9.5.58
_...
H1.29
45
__
33
0-90
..
0-70
71
_._._
16
'�
-
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Ua
Gosu? 7eta-Rock outcrop.,
Gosney
4
7
3-15%4 ,lnpes
Zeta
25
7 —
Rock outcrop
20
8
C
Gosney-Zeta-Roc`s uotcresa,
Gosnry
`0
7
3.92
26
7.48
22
2.41
57
F , slapos
Zeta
25
7
(2n�-4 rutrrc�r�
1..
E"
D e1a 1ar'd )isturbcd ins+d 90 8
45
0,20
<1
0.25
4,29
6
1
28.84
StYi)
34,:55
100
The Rabe study found the soil type on tax lot 1400 to be composed of 56 percent (11.41 acres) Gosney
(Class 7) or Rock Outcrop (Class 8) in map units 57B and 109. The remaining 44 percent (8.92 acres)
are Deskamp soils (Class 6) in map unit 368. Mr. Rabe concluded that since tax lot 1400 is
predominantly composed of Class 7 and 8 soils, it is not agricultural land. Rabe Study, pg. 4.
(c) This section and OAR 660-033-0045 apply to:
(A) A change to the designation of land planned and zoned for exclusive fart 1 UuSe,
forest use or mixed farm forest use to a non -resource plan designation and
zone on the basis that such land is not agricultural land; and
FINDING: The applicant is seeking approval of a non -resource plan designation on the basis that the
subject property is not defined as agricultural land.
(d) This section and OAR 660-033-0045 implement ORS 215.211, effective on October 1,
2011. After this date, only those soils assessments certified by the department under
section (9) of this rule may be considered by local governments in land use
proceedings described in subsection (c) of this section. However, a local government
may consider soils assessments that have been completed and submitted prior to
October 1, 2011.
FINDING: The Borine study is dated August 22, 2015. The soils study was submitted following the ORS
215.211 effective date. Staff received acknowledgement via email on June 18, 2018 from Tim
Murphy, Farm and Forest Lands Specialist with the Oregon Department of Land Conservation and
Development (DLCD) that the soil study is complete and consistent with DLCD's reporting
requirements.
As of the hearing date, the applicant the Rabe study for tax lot 1400. The Rabe study is dated after
the effective date of this rule. However, DLCD has not certified that the study is complete and
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Exhibit T" to Ordinance 2019-006
consistent with its reporting requirements. This rule can be complied with if the applicant submits
the required certification before the required BOCC hearing, though. Therefore, the Hearings Officer,
requires as a condition of approval, that prior to the BOCC hearing, the applicant submit the required
certification from DLCD.
Condition of Approval:
1. Prior to the required Board of County Commissioners hearing, the applicant shall submit to
the record certification from DLCD confirming the Soil Study prepared by Cascade Earth
Science (Rabe) for tax lot 1400 meets DLCD requirements for such studies.
(e) This section and OAR 660-033-0045 authorize a person to obtain additional
information for use in the determination of whether land qualifies as agricultural
land, but do not otherwise affect the process by which a county determines whether
land qualifies as agricultural land as defined by Goal 3 and OAR 660-033-0020.
FINDING: Here, Deschutes County is relying on the more detailed soil studies. This requirement is
met, though, because the County is utilizing its normal process to determine whether the land
qualifies as agricultural land.
DIVISION 12, TRANSPORTATION PLANNING
OAR 660-012-0060 Plan and Land use Regulation Amendments
(1) If an amendment to a functional plan, an acknowledged comprehensive plan, or a land
use regulation (including a zoning map) would significantly affect an existing or planned
transportation facility, then the local government must put in place measures as
provided in section (2) of this rule, unless the amendment is allowed under section (3),
(9) or (10) of this rule. A plan or land use regulation amendment significantly affects a
transportation facility if it would:
(a) Change the functional classification of an existing or planned transportation facility
(exclusive of correction of map errors in an adopted plan);
(b) Change standards implementing a functional classification system; or
(c) Result in any of the effects listed in paragraphs (A) through (C) of this subsection
based on projected conditions measured at the end of the planning period identified
in the adopted TSP. As part of evaluating projected conditions, the amount of traffic
projected to be generated within the area of the amendment may be reduced if the
amendment includes an enforceable, ongoing requirement that would
demonstrably limit traffic generation, including, but not limited to, transportation
demand management. This reduction may diminish or completely eliminate the
significant effect of the amendment.
(A) Types or levels of travel or access that are inconsistent with the functional
classification of an existing or planned transportation facility;
(8) 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
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Exhibit T" to Ordinance 2019-006
(C) Degrade the performance of an existing or planned transportation facility that
is otherwise projected to not meet the performance standards identified in the
TSP or comprehensive plan.
FINDING: As referenced in the agency comments section in the Findings of Fact above, the Senior
Transportation Planner for Deschutes County requested revised details than what the initial traffic
study materials provided. The applicant submitted an updated report from Transight Consulting LLC
dated October 25, 2018, to address concerns related to the Bear Creek/Ward and US 20/Hamby-
Ward intersections. The update included adjustments to total daily trip generation and p.m. peak
hour trips, a review of potential high impact land use scenarios, as well as an extension of the traffic
analysis to the year 2038. In response to this criterion, the applicant's burden of proof provides the
following:
Attached as Exhibit 14 is a transportation impact analysis memorandum prepared by traffic
engineer, Joe Bessman, PE. Mr. Bessman made the following findings with regard to the
proposed zone change and concluded that a significant affect does not occur with the proposed
rezone:
• Rezoning of the 59.24 -acre property from EFU-TRB to MUA could generate up to
55 additional daily trips, including six additional trips during the weekday p.m. peak
hour.
• County plans show that Hamby -Ward Road operates well within its carrying
capacity as a Rural Arterial. The proposed rezone does not change the functional
classification of the facility or result in levels of travel that would be inconsistent
with the roadway function.
• The Deschutes County TSP identifies failing conditions in 2030 along US 20 west of
Hamby -Ward Road and a need for improvements at the US 20/Hamby-Ward Road
intersection to convert the intersection to a roundabout. This improvement is
identified in the TSP as a low priority.
• The County SOC ordinance includes the US 20/Hamby-Ward Road intersection
improvements to mitigate long-term needs. Based on OAR 660-12-0060(4)(b)(B)
this is considered as a planned improvement that can be relied on in determining
whether a significant affect occurs.
• Review of crash patterns shows a high incidence of turning and angle crashes at
the US 20/Hamby Road -Ward Road intersection over the past five years. Several
safety measures have been implemented at the intersection to increase awareness.
Review of crash records and field review showed that enhancing and ensuring clear
sight lines could further improve safety, particularly with the observed crash
pattern between westbound and northbound motorists. Long-term installation of
a roundabout as identified in County plans would significantly reduce crashes.
• The Bear Creek Road/Ward Road intersection experiences a crash rate higher than
the 90th percentile of similar unsignalized intersections. It is recommended that
increased warning treatments be provided on the intersection approaches. The
specific treatments should be coordinated by Deschutes County balancing
installation costs, effectiveness, and maintenance costs.
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• Based on this review a significant affect does not occur with the proposed rezone.
Mr. Bessman also recommended that while available sight lines are adequate, that Deschutes
County and ODOT work with the property owners on each of the intersection quadrants to
ensure that the intersection remains free of sight line obstructions from the stop bar and
potentially for vehicles one position back.
Based on the traffic analysis and findings by Mr. Bessman, the application complies with the
TPR.
There were some concerns expressed about the traffic impact the plan amendment and zone change
might have on area roads. The Hearings Officer notes no development is currently proposed and that
County staff and the applicant's engineer do not believe the zone change will have a significant impact
on the transportation facilities in the area.
Based on the County Senior Transportation Planner's comments and the amended traffic study from
Transight Consulting LLC, the Hearings Officer finds compliance with the Transportation Planning Rule
has been effectively demonstrated
OAR 660-015 Division 15 Statewide Planning Goals and Guidelines
FINDING: The Statewide Planning Goals are outlined below in the applicant's burden of proof:
Goal 1, Citizen Involvement. Deschutes County will provide notice of the application to the
pi,hlir through mailed notice to affected property owners and by requiring the applicant to post
a "proposed land use action sign" on the subject property. Notice of the public hearings held
regarding this application will be placed in the Bend Bulletin. A minimum of two public hearings
will be held to consider the application.
Goal 2, Land Use Planning. Goals, policies, and processes related to zone change application
are included in the Deschutes County Comprehensive Plan and Titles 18 and 23 of the Deschutes
County Code. The outcome of the application will be based on findings of act and conclusions
of law related to the applicable provisions of those laws as required by Goal 2.
Goal 3, Agricultural Lands. The applicant has shown that the subject property is not agricultural
land because it is comprised predominantly of Class 7 and 8 soils that are not suitable for farm
use. Therefore, the proposal is consistent with Goal 3.
Goal 4, Forest Lands. Goal is not applicable because the subject property does not include any
lands that are zoned for, or that support, forest uses.
Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. The majority of the
subject property is located in the Landscape Management Combining Zone (LM Zone). The LM
Zone is a Goal 5 resource acknowledged by DLCD that is set out to protect scenic views as seen,
in this case, from Highway 20 through a Landscape Management Combining Zone that extends
'4 mile on either side of the centerline of the designated roadway. The County typically requires
LM site plan review when a building permit is required for a new or substantial alteration to an
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Exhibit T" to Ordinance 2019-006
existing structure. The proposal is consistent with Goal 5 because the LM zoning requirements
apply when development is proposed and the rezone and plan amendment is not development,
and therefore, will not impact any Goal 5 resource.
Goal 6, Air, Water and Land Resources Quality. The approval of this application will not impact
the quality of the air, water, and land resources of the County. Any future development of the
property would be subject to local, state and federal regulations that protect these resources.
Goal 7, Areas Subject to Natural Disasters and Hazards. This goal is not applicable because the
subject property is not located in an area that is recognized by the comprehensive plan as a
known disaster or hazard area.
Goal 8, Recreational Needs. This goal is not applicable because there is no development
proposed and the property is not planned to meet the recreational needs of Deschutes County.
Goal 9, Economy of the State. This goal does not apply to this application because the subject
property is not designated as Goal 9 economic development land. In addition, the approval of
this application will not adversely affect economic activities of the state or area.
Goal 10, Housing. The County's Comprehensive Plan Goal 10 analysis anticipates that farm
properties with poor soils, like the subject property, will be converted from EFU to MUA-10 or
RR -10 zoning and that these lands will help meet the need for rural housing. Approval of this
application, therefore, is consistent with Goal 10 as implemented by the acknowledged
Deschutes County Comprehensive Plan.
Goal 11, Public Facilities and Services. The approval of this application will have no adverse
impact on the provision of public facilities and services to the subject site. Utility service
providers have confirmed that they have the capacity to serve the subject property.
Goal 12, Transportation. The application complies with the Transportation System Planning
Rule, OAR 660-012-0060, the rule that implements Goal 12. Compliance with that rule also
demonstrates compliance with Goal 12.
Goal 13, Energy Conservation. The approval of this application does not impede energy
conservation. The subject property is located adjacent to the city limits for the City of Bend.
Providing homes in this location as opposed to more remote rural locations will conserve energy
needed for residents to travel to work, shopping and other essential services provided by the
City of Bend.
Goal 14, Urbanization. This goal is not applicable because the applicant's proposal does not
involved property within an urban growth boundary and does not involve the urbanization of
rural land. The MUA-10 Zone is an acknowledged rural residential zoning district that limits the
intensity and density of developments to rural levels. The compliance of this zone with Goal 14
was recently acknowledged when the County amended its comprehensive plan. The plan
recognizes the fact that the MUA-10 and RR zones are the zones that will be applied to lands
designated Rural Residential Exception Areas.
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Exhibit T" to Ordinance 2019-006
Goals 15 through 19. These goals do not apply to land in Central Oregon.
The Hearings Officer accepts the applicant's responses and finds compliance with the applicable
Statewide Planning Goals has been effectively demonstrated.
IV. DECISION
The Hearings Officer concludes that with the adoption of the below listed condition of approval, the
applicant has met the burden of proof necessary to justify changing the Plan Designation from
Agriculture to Rural Residential Exception Area and Zoning of the subject property from Exclusive
Farm Use to Multiple Use Agricultural through demonstrating compliance with the applicable criteria
of DCC Title 18 (The Deschutes County Zoning Ordinance), the Deschutes County Comprehensive
Plan, and applicable sections of OAR and ORS. The requested plan amendment and zone change is
APPROVED subject to the following condition of approval:
1. Prior to the required Board of County Commissioners hearing, the applicant shall submit to
the record certification from DLCD confirming the Soil Study prepared by Cascade Earth
Science (Rabe) for tax lot 1400 meets DLCD requirements for such studies.
This decision becomes final twelve (12) days after the date of mailing, unless appealed by a party of
interest.
Will Van Vactor, Hearings Officer
Eastside Bend LLC
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Exhibit T" to Ordinance 2019-006
-cis c
a ?� BOARD OF COMMISSIONERS' MEETING
REOUEST TO SPEAK
Citizen Input or Testimony
Sub'ect: �5 5 tc�-�� ivy Date:
J (?
Name _ 4
Address
Phone #s
E-mail address
dIn Favor F] Neutral/Undecided ❑ Opposed
Are you submitting written documents as part of testimony? F-] Yes
If so, please give a copy to the Recording Secretary for the record.
SUBMIT TO
RECORDING SECRETARY BEFORE MEETING BEGINS
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DESCHUTES COUNTY MARIJUANA PROGRAM OVERVIEW
2014 Deschutes County voted in support of Ballot Measure 91 with 51.6 percent vote. However,
rural/unincorporated county residents voted 54.6 percent against Ballot Measure 91.
2015-2016 The County developed TPM (time, place, and manner) regulations per HB 3400 to encourage then -
medical marijuana grow sites to convert to the recreational program to mitigate adverse impacts
(odor, lighting, etc.), and to allow this emerging industry in the County. The TPM regulations also
addressed the County's unique rural land use patterns, zoning, small parcels, lack of vegetation
(natural buffers), and more. The County created a Marijuana Advisory Committee consisting of
marijuana growers and representatives, rural residents, and others to help develop TPM regulations.
During this process, the County temporarily prohibited (opted out) of allowing the six categories of
state licensed or registered marijuana businesses in the unincorporated area.
2016 The Board of County Commissioners (Board) adopted the TPM regulations, rescinded the opt -out
ordinance, and agreed to evaluate the new program after one year. The regulations were not
appealed to LUBA. At the time, Deschutes County was the easternmost county in Oregon to opt in to
the recreational marijuana program. After the initial TPM regulations were implemented, a
marijuana grower brought a declaratory judgment action in circuit court. That case was voluntarily
dismissed by the grower because the TPM regulations are land use regulations, and thereby not
within the circuit court's jurisdiction to review. Later, aggrieved neighbors also appealed the
approval of a marijuana production greenhouse to LUBA. LUBA affirmed Deschutes County's
interpretation and application of the TPM regulations in that case.
2017-2018 The County conducted and completed an evaluation of its marijuana program in the spring of 2018.
The evaluation encompassed data analyses, outreach to public agencies (OLCC, OWRD, ODA, OHA,
and the Deschutes County Sheriff and Code Enforcement), industry and rural resident focus groups,
an online survey, and public hearings.
2018 At the end of the evaluation period, the Board initiated amendments to the County's marijuana land
use regulations, including conducting public hearings. The Board adopted the amendments in
November 2018, which are currently under appeal to LUBA.
Overview of Amended Deschutes County Time, Place, Manner (TPM) Regulations
• Clarified requirements for odor mitigation • Increased time to appeal decisions
• Increased requirements for water usage • Increased separation distances and added
documentation additional categories
• Increased annual reporting • Additional changes apply to the MUA-10 Zone,
requirements/inspections Setback Distances, Lighting
• Increased public notifications to nearby neighbors • Clarified/reduced requirements for noise mitigation
Recreational Marijuana Applications: September 2016 — February 22, 2019
• 49 production approvals. 89% approved. • 7 denials
• 7 processing approvals. 88% approved. • 13 withdrawn
• 3 wholesaling approvals. 100% approved. • 8 pending
• 2 retail approvals. 67% approved.
For more information: www.deschutes.org/mariivana
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