2019-479-Minutes for Meeting October 30,2019 Recorded 12/4/2019ES
BOARD OF
COMMISSIONERS
1300 NW Wall Street, fiend, Oregon
(541) 388-6570
Recorded in Deschutes County CJ2019-479
Nancy Blankenship, County Clerk
Commissioners' .Journal 12/04/2019 3:43:05 PM
co
o � 2019-479
FOR RECORDING STAMP ONLY
10:00 AM WEDNESDAY, October 30, 2019 BARNES & SAWYER ROOMS
Present were Commissioners Phil Henderson, Patti Adair, and Anthony DeBone. Also present were
Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David Doyle, County
Counsel; and Sharon Keith, Board Executive Assistant. Several citizens and identified representatives of
the media were in attendance.
This meeting was audio and video recorded and can be accessed at the Deschutes County
Meeting Portal website htt,p://desch.utescountyor.iq,m2.com/Citizens/Default.aspx
CALL TO ORDER: Chair Henderson called the meeting to order at 10:00 am
PLEDGE OF ALLEGIANCE:
CITIZEN INPUT:
• Carl Shoemaker -presented comment on politics of decency and spoke on
his family history in the County and of his concern of gun safety and his
concern for easy access to guns.
BOCC MEETING OCTOBER 30, 2019 PAGE 1 OF 10
CONSENT AGENDA: Before the Board was Consideration of Approval of the
Consent Agenda.
ADAIR: Move approval of Consent Agenda
DEBONE: Second
VOTE: ADAI R: Yes
DEBONE: Yes
HENDERSON: Chair votes yes. Motion Carried
Consent Agenda Items:
1. Consideration of Board Signature of Resolution No. 2019-050, Approving
Appropriation of Funds within the Program and FTE in the Natural Resources
Fund.
2. Consideration of Board Signature of Resolution No. 2019-054, Approving
New Grant Funds in the Health Services Fund
3. Consideration of Board Signature of Document No. 2019-761, Amendment
#3 Updating Public Health Modernization IGA with Oregon Health Authority
4. Consideration of Board Signature of Document No. 2019-778, Amendment
#4 Updating Public Health Modernization IGA with Oregon Health Authority
5. Approval of Minutes of the October 21, 2019 BOCC Meeting
ACTION ITEMS:
6. PUBLIC HEARING: Time Extensions for Dwellings in Resource Zones and
Expansion of Nonconforming Schools in the Exclusive Farm Use Zone
Text Amendment
Isabella Liu, Community Development Department outlined the hearing
procedures. Hearing no conflict of interest or challenges, Commissioner
Henderson opened the public hearing. Ms. Liu presented the staff report.
Staff recommends the record remain open until December 31 to be
consistent with administrative rules presently under consideration at the
BOCC MEETING OCTOBER 30, 2019 PAGE 2 OF 10
State.
Commissioner Henderson asked for public testimony and hearing none,
closed the hearing. The record will remain open for written testimony to
December 31, 2019.
ADAI R: Move approval to keep the written record open until December
31, 2019
DEBONE: Second
VOTE: ADAI R: Yes
DEBONE Yes
HENDERSON: Chair votes yes. Motion Carried
CONVENE AS THE GOVERNING BODY OF THE DESCHUTES COUNTY EXTENSION /
4H SERVICE DISTRICT
• Consideration of Chair Signature of Document No. 2019-654, a
Promissory Note for Extension / 4H Service District
• Consideration of Chair Signature of Document No. 2019-767, Deschutes
County Loan Agreement with Extension 4H Service District
Erik Kropp, Deputy County Administrator presented the document for
consideration. Upon discussion, the Board questioned why the dollar
amount of the loan is expressed as a Not to Exceed. Staff responded that
final costs are still pending and that all payments (except the final payment)
are amounts certain.
DEBONE: Move approval of Document No. 2019-654 and Document No.
2019-767
ADAIR: Second
VOTE: DEBONE: Yes
ADAI R: Yes
HENDERSON: Chair votes yes. Motion Carried
BOCC MEETING OCTOBER 30, 2019 PAGE 3 OF 10
RECONVENE AS THE GOVERNING BODY OF DESCHUTES COUNTY
• Approval of Documents No. 2019-654 and 2019-767 as the Governing Body
of Deschutes County
ADAIR: Move approval of Document No. 2019-654 and Document No.
2019-767
DEBONE: Second
VOTE: ADAIR: Yes
DEBONE: Yes
HENDERSON: Chair votes yes. Motion Carried
OTHER ITEMS:
• Potential Appeal of Thornburgh Destination Resort
Jacob Ripper, Community Development Department and Assistant Legal
Counsel Adam Smith presented continued discussions from the BOCC
meeting of Monday, October 28, 2019. Staff recommends review of the
appeal but to hold the entire review on the record. Mr. Smith encouraged
the Commissioners to review the Hearings Officer's hearing video relative to
this file. Mr. Smith also explained the applicant has requested to waive the
transcript requirements. The Board expressed support of proceeding with
the review of the appeal on the record and agreed to waive the transcript
requirement.
ADAIR: Move approval of Order No. 2019-043
DEBONE: Second
VOTE: ADAI R: Yes
DEBONE: Yes
HENDERSON: Chair votes yes. Motion Carried
A two part preparation for staff to discuss evidence with the Board was
outlined.
BOCC MEETING OCTOBER 30, 2019 PAGE 4 OF 10
Deschutes Basin Habitat Conservation Plan
Peter Gutowsky, Planning Manager presented continued discussions on the
draft Deschutes Basin Habitat Conservation Plan and the interest in drafting
a letter for the Board's consideration. The public comment period has been
extended to December 3. Mr. Gutowsky will arrange for the various agencies
to present to the Board on November 13. Mr. Gutowsky will share a link to
the Habitat Conservation Plan.
COMMISSIONER UPDATES:
• Commissioners Henderson and DeBone attended the Homeless Coalition
Meeting yesterday. Commissioner Henderson suggested an option of using
empty space at our juvenile justice department. County Administrator
Anderson will research the option but believes the space is leased to J Bar J.
Commissioner Adair had suggested an old fire station on Hamby. The fire
station is being used for storage and is not zoned for a temporary shelter.
Commissioner Henderson spoke on ancillary uses for certain buildings.
Commissioner Adair will reach out to various churches in the city for options.
Commissioner Henderson commented on the need for organizations to plan
prior to the cold weather.
EXECUTIVE SESSION:
At the time of 11:23 a.m., the Board recessed to the Allen Conference Room and
went into Executive Session at 11:31 p.m. under ORS 192.660(2) (h) Litigation. At
12:04 p.m. the Board came out of Executive Session to direct staff to proceed as
discussed.
COMMISSIONER UPDATES:
Commissioner Henderson stated that he was recently made aware that AOC
BOCC MEETING OCTOBER 30, 2019 PAGE 5 OF 10
may have reached out to Tammy Baney with regard to its open Executive
Director position. Commissioner Henderson asked Commissioner DeBone,
Tom Anderson, Erik Kropp and Dave Doyle if they had any information.
Commissioner DeBone noted that he is on the search committee and that a
number of candidates are set for interviews but Tammy Baney is not on that
list.
As a follow-up to the Homeless Winter Weather Shelter, County
Administrator Anderson reported the County owned building formerly
known as Phil's Electric on Greenwood and whether it might be retrofitted for
use as a winter weather shelter for homeless. Anderson stated that staff are
working on cost estimates and ascertaining possible paths forward relative
to zoning, building, fire and other applicable codes. Commissioner DeBone
suggested a tour of the building during today's recess. Commissioner
DeBone has had conversations with Shephard's House and they would be
interested in managing a shelter if there was a building available.
RECESS: At the time of 12:14 p.m., the Board went into recess and reconvened the
meeting at 1:03 p.m. in the Barnes Sawyer Rooms.
7. PUBLIC HEARING: Lower Bridge Planned Unit Development Appeal
Commissioner Henderson read the opening statement. Will Groves,
Community Development Department outlined the hearing procedures.
Hearing no bias, conflicts or challenges, Commissioner Henderson opened
the public hearing. Mr. Groves provided the staff report. The
Commissioners conducted individual site visits to the property on October
25, 2019. Commissioner Adair commented on the historical signs on the
rocks and the view is spectacular. Commissioner DeBone gave his
observation on the perspective of elevation changes. Commissioner
Henderson commented on the beauty of the area and the habitat and likes
the idea of improving the land and he was surprised there was no rimrock
dividing the land.
BOCC MEETING OCTOBER 30, 2019 PAGE 6 OF 10
Tia Lewis attorney representing Lower Bridge Planned Development and
applicant Greg Daniels along with the planning and design team presented
the background on the proposed development. A copy of the presentation is
attached to the record. Mr. Daniels gave testimony on his experience on
prior property developments. He has invested over $3 million on this
property since 2008. Scott Wallace of the Wallace Group was retained to
begin working through the environmental conditions and explained the
process of cleanup over of the property. There are two groundwater
monitoring wells on the property.
The Tim Ramis of Jordan Ramis PC, attorney representing CALFA Holdings,
LLC provided testimony and summarized issues on the policy implications
and precedent in this particular appeal. A copy of the appeal memorandum
is attached to the record.
Liz Dickson attorney representing the Friends of Lower Bridge gave
testimony on their opposition of the development and stresses this is not
compatible with surrounding uses. Ms. Dickson stated the application
doesn't meet the cluster development criteria. Ms. Dickson commented on
the surface mining that has been done on the property for years. Ms.
Dickson will submit more information for the record. She asks for the record
to remain open.
David Jenkins lives due east of the proposed development gave testimony of
concerns of the property history. Mr. Jenkins stated the property has three
lives and gave history on the property from 1921 - 1936. In 1936 the mine
was operated until 1963 affecting health and safety. Mr. Jenkins showed a
photo taken in 2006 from the mine showing a furnace. A photo taken 1954
by Great Lakes Carbon Corporation shows the old mine buildings and water
tower. Several photos were submitted for the record. Mr. Jenkins provided
information on the dump sites on the property including photographs. Mr.
Jenkins stated the third life from 1976 - 1983 was an illegal hazardous waste
site.
Ms. Dickson presented a copy of a handout summarizing the "Life of the
Mine" details. Ms. Dickson commented on flood plain criteria. Mr. Jenkins
recommends an independent environmental survey. Ms. Dickson presented
a letter dated March 7, 2016 from the US Department of the Interior, a copy
of the 1969 Solid Waste Management Plan, a wire bound copy of materials
BOCC MEETING OCTOBER 30, 2019 PAGE 7 OF 10
entitled "Closing Open Dumps", and a copy of the Bulletin article "PCBs found
at former Terrebonne mine site" dated August 14, 2008 for the record.
Carol MacBeth, attorney with Central Oregon LandWatch presented
testimony on protecting the flood plan zone. Ms. MacBeth spoke on the 80
acre minimum size and the need to protect our riparian areas. Written
materials were provided by Ms. MacBeth to CDD staff for the record.
Bob Swartz with Oregon Department of Environmental Quality reported on
the 113 acre no further action determination. The data used evaluated the
file and the site inspection. Mr. Swartz noted DEQ worked with the Wallace
Group on a work plan for ground water testing and air monitoring. The
Wallace Group did air testing on the east side and that was the data reviewed
by DEQ. The soil testing was identified in the 2007 assessment. There was
potential for petroleum and asbestos contaminated soil. Confirmation
testing was done after the excavation work and was determined to have
removed any contamination. Mr. Swartz had prepared a staff report in 2017
reporting the results. Mr. Swartz has no concerns based on what he has
reviewed.
Corey Heath and Andrew Walsh with the Oregon Department of Fish and
Wildlife clarified a letter submitted to Deschutes County on Jul 12, 2019
regarding the project to address impacts of mule deer winter range, riparian
area management plan, and rim habitat. There are impacts to wildlife in that
area including a decline in mule deer population.
RECESS: At the time 3:23 p.m. the Board took a recess and reconvened the meeting
at 3:31 p.m.
Commissioner Henderson called for public testimony.
Diane Lozito, is a realtor specializing in rural properties and is a land owner
with 27 acres in the subdivision of Eagle Rock Estates and is opposed to the
development as both a property owner and a realtor. She submitted
exhibits for the record including maps of showing set -backs and septic
feasibility of the proposed lots.
BOCC MEETING OCTOBER 30, 2019 PAGE 8 OF 10
Stephen Williams lives a mile from the mine site and feels the application
should be denied. Mr. Williams stated flood plain zone property cannot be
used for development according to Deschutes County code. He expressed
concern of health of residents based on the history of toxic waste on the
property and on the environmental impact of the proposed development.
Ed Beard presented a map for the record and commented on the wildlife in
the area. He has been a resident near the subject property for 24 years. Mr.
Beard commented on his concern on the impact on wildlife and asked the
Board to deny the appeal.
John Berreen lives due east of the proposed development. He feels a
housing development on a wild and scenic waterway is a recipe for disaster.
Mike Huitt is a building contractor from Sisters and has walked the property
of the proposed development and heard testimony today. Mr. Hewitt
doesn't see any issues with development on the lot size.
Eva Eagle lives in Sisters and doesn't live near the property. She cares about
the beauty of the area and this proposal refuses to die. She is concerned
that lots can be taken along the river and considered for development. Ms.
Eagle asked the Board to deny the appeal.
Rex Barber is a property owner of 1750 acres called Big Falls Ranch and
testified in support of the project. Mr. Barber doesn't see any negative
aspects to this project.
Leah Ross is a Bend resident and realtor and gave testimony in support of
the proposed development. She has done research on the development for
years.
Nunzie Gould provided testimony and submitted a USGS map to the
Commissioners and spoke on the natural environment in Deschutes County.
Ms. Gould spoke on the east parcel regarding water concerns and would like
to see the results of water monitoring testing. Ms. Gould requests the
Commissioners consider the conservation easement that has not yet been
signed and would like to know what staff is responsible to oversee that
process.
BOCC MEETING OCTOBER 30, 2019 PAGE 9 OF 10
Rebuttal testimony was provided by Tia Lewis and applicant, Greg Daniels
and environmental consultant Scott Wallace. Mr. Daniels clarified he is a
representative of the applicant. Mr. Wallace addressed the environmental
concerns. Ms. Lewis reviewed the history of the floor plain amendment
process and of the environmental clean-up of the former mine site on the
property. Ms. Lewis asked the Board for tentative plan review and to adopt
the hearings officer's findings. Ms. Lewis stated the applicant has the
finances to complete this project. She also commented on trail access to the
river that will include signage to keep people out of the riparian area.
Upon hearing no further testimony, Commissioner Henderson closed the
oral portion of the hearing/record.
Will Groves, Community Development Department reviewed the calendar for
the written record and rebuttal period and final record period and directed
the public for guidelines on submitting items to the record. Both the
applicant and appellant agreed to the specified 21 -day record period.
OTHER ITEMS: None offered
Being no further items to come before the Board, the meeting was adjourned at 5:09 p.m.
DATED this iDay of 1 2019 for the Deschutes County Board of
Commissioners.
ATTESTWSECRETARY OR
MAN
BOCC MEETING OCTOBER 30, 2019 PAGE 10 OF 10
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - www.deschutes.org
BOCC MEETING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
10:00 AM, WEDNESDAY, OCTOBER 30, 2019
Barnes Sawyer Rooms - Deschutes Services Center - 1300 NW Wall Street - Bend
This meeting is open to the public, usually streamed live online and video recorded. To watch it online, visit
www.deschutes.org/meetings. 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
This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues
that are not already on the agenda. Please complete a sign-up card (provided), and give the card to the
Recording Secretary. Use the microphone and clearly state your name when the Board Chair calls on you to
speak. PLEASE NOTE., Citizen input regarding matters that are or have been the subject of a public hearing not
being conducted as a part of this meeting will NOT be included in the official record of that hearing.
If you offer or display to the Board any written documents, photographs or other printed matter as part of your
testimony during a public hearing, please be advised that staff is required to retain those documents as part of the
permanent record of that hearing.
CONSENT AGENDA
1. Consideration of Board Signature of Resolution No. 2019-050, Approving
Appropriation of Funds Within the Program and FTE in the Natural Resources Fund.
Board of Commissioners BOCC Meeting Agenda Wednesday, October 30, 2019 Page 1
of 3
2. Consideration of Board Signature of Resolution No. 2019-054, Approving New Grant
Funds in the Health Services Fund.
3. Consideration of Board Signature of Document No. 2019-761, Amendment #3
Updating Public Health Modernization IGA with Oregon Health Authority
4. Consideration of Board Signature of Document No. 2019-778, Amendment #4
Updating Public Health Modernization IGA with Oregon Health Authority
5. Approval of Minutes of the October 21, 2019 BOCC Meeting
ACTION ITEMS
6. 10:10 AM PUBLIC HEARING: Time Extensions for Dwellings in Resource Zones
and Expansion of Nonconforming Schools in the Exclusive Farm Use
Zone Text Amendment - Isabella Liu, Associate Planner
CONVENE AS THE GOVERNING BODY OF DESCHUTES COUNTY EXTENSION / 4H
SERVICE DISTRICT
Consideration of Chair Signature of Document No. 2019-654, a Promissory Note
for Extension/41-1 Service District - Erik Kropp, Deputy County Administrator
Consideration of Chair Signature of Document No. 2019-767, Deschutes County
Loan Agreement with Ext/4H Service District - Erik Kropp, Deputy County
Administrator
RECONVENE AS THE GOVERNING BODY OF DESCHUTES COUNTY
Approval of Documents No.2019-654 and 2019-767 as the Governing Body of
Deschutes County
LUNCH RECESS
7. 1:00 PM PUBLIC HEARING: Lower Bridge Planned Unit Development Appeal -
William Groves, Senior Planner
OTHER ITEMS
Board of Commissioners BOCC Meeting Agenda Wednesday, October 30, 2019 Page 2
of 3
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.
EXECUTIVE SESSION
At any time during the meeting, an executive session could be called to address issues relating to ORS
192.660(2)(e), real property negotiations, ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor
negotiations, ORS 192.660(2)(b), personnel issues, or other executive session categories.
Executive sessions are closed to the public, however, with few exceptions and under specific guidelines,
are open to the media.
Executive Session under ORS 192.660 (2) (h) Litigation
ADJOURN
To watch this meeting on line, go to: www.deschutes.org/meetings
Please note that the video will not show up until recording begins. You can also view past
meetings on video by selecting the date shown on the website calendar.
Deschutes County encourages persons with disabilities to participate in all programs
and activities. This event/location is accessible to people with disabilities. If you need
accommodations to make participation possible, please call (541) 617-4747.
FUTURE MEETINGS:
Additional meeting dates available at www,deschutes.org/meetingcalendar
(Please note: Meeting dates and times are subject to change. All meetings take place in the Board of
Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions
regarding a meeting, please call 388-6572.)
Board of Commissioners BOCC Meeting Agenda Wednesday, October 30, 2019 Page 3
of 3
\�l ES c�G
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 BOCC Wednesday Meeting of October 30, 2019
DATE: October 23, 2019
FROM: Isabella Liu, Community Development,
TITLE OF AGENDA ITEM:
PUBLIC HEARING: Time Extensions for Dwellings in Resource Zones and Expansion of
Nonconforming Schools in the Exclusive Farm Use Zone Text Amendment
BACKGROUND AND POLICY IMPLICATIONS:
Deschutes County must adopt changes to local code in response to House Bill 2106 and 3384.
FISCAL IMPLICATIONS: None.
ATTENDANCE: Izze Liu, Associate Planner
MEMORANDUM
TO: Deschutes Board of County Commissioners
FROM: Izze Liu, Associate Planner
DATE: October 23, 2019
SUBJECT: 2019 Legislative Session Text Amendments
Expiration of Approval in the Resource Zones - HB 2106
Expansion of Nonconforming Schools in the Exclusive Farm Use Zone - HB 3384
Following the 2019 State Legislative session, the County must adopt changes to local code in response
to new legislation. The Planning Commission conducted a work session on September 26, 2019 for
review of these amendments prior to the Deschutes Board of County Commissioners ('Board") public
hearing.
The proposed amendments to Chapter 18.120 - Exceptions and Chapter 22.36 - Limitations on
Approvals would allow the expansion of nonconforming schools in the Exclusive Farm Use Zone and
amend the County's procedures ordinance for filing additional extensions for residential
development in the Exclusive Farm Use and Forest Use Zones. Attached to this memorandum are
staffs findings, House Bill 2106, and House Bill 3384.
I. OVERVIEW
The following bills are mandatory, meaning Deschutes County is required to adopt the updated
requirements for consistency between local and state requirements.
House Bill 2106
In addition to the four-year approval and two-year extension presently allowed, this bill allows five
additional one-year extensions for the following dwellings in the Exclusive Farm Use and Forest Use
Zones:
• Nonfarm dwelling
• Lot of record dwelling
• Large tract dwelling
• Template dwelling
• Alteration restoration or replacement of a lawfully established dwelling in the Forest Use
Zones
• Caretaker residences for public parks and public fish hatcheries'
The county may approve these additional one-year extensions if:
The applicant makes a written request for the additional extension prior to the expiration of
an extension;
The applicable residential development statute has not been amended following the approval
of the permit;
An applicable rule or land use regulation has not been amended following the issuance of the
permit, unless allowed by the county, which may require that the applicant comply with the
amended rule or land use regulation.
Staff notes these new extensions are a result of the Legislature responding to a LUBA interpretation
of statutory provisions for resource -zoned -dwelling extension S2. In County Code, the new one-year
extensions effectively replace two-year extensions that are no longer allowed under statute and case
law.
House Bill 3384
Allows the expansion of nonconforming schools in the Exclusive Farm Use Zone. The Bill states that
a nonconforming public or private school in effect before January 1, 2010, including all buildings
essential to the operation of the school, may be expanded provided:
• The expansion complies with ORS 215.296;
• The school was established on or before January 1, 2009;
• The expansion occurs on:
o The tax lot on which the school was established; or
o Contiguous to and, on January 1, 2015, under the same ownership as the tax lot on
which the school was established; and
• The school is a public or private school for kindergarten through grade 12.
In addition, the Bill states:
A county may not deny an expansion under this section upon any rule or condition
establishing:
1 The underlined uses were previously erroneously omitted from the resource -zoned, residential approvals eligible for four-
year approvals.
2 LUBA 2018-093 - https://www.oregon.gov/LUBA/docs/Opinions/2019/01-19/18093.pdf
Page 2 of 3
o A maximum capacity of people in the structure or group of structures;
o A minimum distance between structures; or
o A maximum density of structures per acre.
II. ATTACHMENTS
Exhibit A -Staff Findings
Exhibit B - Proposed Text Amendments
Exhibit C - House Bill 2106
Exhibit D - House Bill 3384
Page 3 of 3
REVIEWED
LEGAL COUNSEL
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Deschutes County Code
Titles 18 and 22 to Incorporate Changes to State Law * ORDINANCE NO. 2019-017
Related to the Expiration of Approval of Residential
Development in Resource Zones and Allowing the
Expansion of Nonconforming Schools in the
Exclusive Farm Use Zone.
WHEREAS, the Deschutes County Community Development Department (CDD) initiated amendments
(Planning Division File No. 247 -19 -000624 -TA) to the Deschutes County Code (DCC) Title 18, Chapters 18.120,
Exceptions, to allow five additional one-year extensions for residential development in the resource zones and
Title 22, Chapter 22.36, Limitations on Approvals, to allow the expansion of nonconforming schools in the
Exclusive Farm Use Zone; and
WHEREAS, the Deschutes County Planning Commission reviewed the proposed changes on September
26, 2019, and forwarded to the Deschutes County Board of County Commissioners ("Board"), a unanimous
recommendation of approval; and
WHEREAS, the Board considered this matter after a duly noticed public hearing on October 30, 2019,
and concluded that the public will benefit from the proposed changes to the Deschutes County Code Titles 18 and
22; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. AMENDMENT. DCC 18.120, Exceptions, is amended to read as described in Exhibit
"A" attached and incorporated by reference herein, with new language underlined.
Section 2. AMENDMENT. DCC 22.36, Limitations on Approvals, is amended to read as described
in Exhibit "B" attached and incorporated by reference herein, with new language underlined.
Section 3. FINDINGS. The Board adopts as its findings Exhibit "C" attached and incorporated by
reference herein.
PAGE 1 OF 2 - ORDINANCE NO. 2019-017
Dated this of , 2019 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
PHILIP G. HENDERSON, Chair
PATTI ADAIR, Vice Chair
ATTEST:
Recording Secretary ANTHONY DEBONE
Date of 1St Reading: day of , 2019.
Date of 2nd Reading: day of , 2019.
Record of Adoption Vote:
Commissioner Yes No Abstained Excused
Philip G. Henderson
Patti Adair
Anthony DeBone
Effective date: day of 52019.
PAGE 2 OF 2 - ORDINANCE NO. 2019-017
Chapter 18.120. EXCEPTIONS
18.120.010.
Nonconforming Uses.
18.120.020.
Nonconforming Lot Sizes.
18.120.030.
Exceptions to Yard Requirements.
18.120.040.
Building Height Exceptions.
18.120.050.
Fill and Removal Exceptions.
18.120.010. Nonconforming Uses.
Except as otherwise provided in DCC Title 18, the lawful use of a building, structure or land existing on the
effective date of DCC Title 18, any amendment thereto or any ordinance codified therein may be continued
although such use or structure does not conform with the standards for new development specified in DCC
Title 18. A nonconforming use or structure may be altered, restored or replaced subject to DCC 18.120.010.
No nonconforming use or structure may be resumed after a one-year period of interruption or abandonment
unless the resumed use conforms with the provisions of DCC Title 18 in effect at the time of the proposed
resumption.
A. Expansion or Replacement of a Nonconforming Structure.
1. Nonconforming Structure. For the purposes of DCC 18.120.010, a nonconforming structure is one
that was lawfully established and violates current setbacks of DCC Title 18 but conforms with respect
to use.
2. Replacement or Expansion without Additional Encroachment in Setback Area. A nonconforming
structure may be replaced with a new structure of the same size on the same footprint as the
preexisting nonconforming structure or may be expanded with an addition that does not project into
the required setback area at any point, subject to all other applicable provisions of DCC Title 18.
3. Replacement or Expansion with Additional Encroachment in Setback Area. Replacement or
expansion of a nonconforming structure that would involve an additional projection into the front,
side or rear yard setback area at any point along the footprint of the existing or preexisting structure
may be allowed provided such additional projection into the setback area (1) does not exceed 900
square feet; (2) does not exceed the floor space of the existing or preexisting structure; (3) does not
cause the structure to project further toward the front, side or rear property lines than the closest point
of the existing or preexisting structure; and (4) meets the variance approval standards set forth in DCC
18.132.025(A)(1) through (4).
B Expansion of a Nonconforming School in the Exclusive Farm Use Zone.
1 Notwithstanding ORS 215.130, 215.213 or 215.283 or any local zoning ordinance or regulation, a
public or private school including all buildings essential to the operation of the school, formerly
allowed pursuant to ORS 215 213(1)(a) or 215.283(1)(a)as in effect before January 1, 2010, may be
expanded provided:
a The expansion complies with ORS 215.286;
b The school was established on or before January 1, 2009;
c. The expansion occurs on a tax lot:
i. On which the school was established; or
ii. Contiguous to and on January 1 2015 under the same ownership as the tax lot on which the
school was established; and
d The school is a public or private school for kindergarten through grade 12.
2 A county may not deny an expansion under this section upon any rule or condition establishing:
a A maximum capacity of people in the structure or group of structures;
b. A minimum distance between structures, or
c A maximum density of structures per acre.
Chapter 18.120 1 (10/2011)
Such replacements or expansions must conform with all other applicable provisions of DCC Title 18.
-BC. Verification of Nonconforming Use.
1. Subject to the procedures set forth in DCC 18.120.010 and in DCC Title 22 for processing declaratory
rulings, the planning division will verify whether or not a use constitutes a valid nonconforming use
in accordance with the provisions of DCC 18.120.010 and applicable state law. Verification of the
existence of a nonconforming use is required prior to or concurrent with any application to alter or
restore the use.
2. Subject to DCC 18.120.010(F)(2), the applicant shall demonstrate all of the following:
a. The nonconforming use was lawfully established on or before the effective date of the provisions
of the zoning ordinance prohibiting the use or had proceeded so far toward lawful completion as
of the date it became nonconforming that a right to complete and maintain the use would be
vested;
b. The nonconforming use as it existed on the date it became nonconforming, considering the nature
and the extent of the actual use of the property, has continued without abandonment or
interruption; and
c. Any alteration in the nature and extent of the nonconforming use was done in compliance with
applicable zoning ordinance standards governing alterations of non -conforming uses.
3. For purposes of determining whether an abandonment or interruption of use has occurred, the
following shall apply:
a. The reference period for determining whether an abandonment or interruption of a
nonconforming use or an aspect thereof has occurred shall be one year.
b. An abandonment or interruption in a use or portion thereof may arise from the complete cessation
of actual use of a property for a one-year period or may arise from a change in the nature or extent
of the use made of the property for a one-year period or more.
c. An interruption or abandonment that constitutes less than full cessation of the use or a portion
thereof may, in accordance with DCC 18.120.010(F)(4), result in a declaration of a continuing
use, but of a lesser intensity or scope than what would have been allowable if the nature and
extent of the use as of the date it became nonconforming had continued.
d. Absent an approved alteration, a change in the nature of the use may result in a determination
that the use has been abandoned or has ceased if there are no common elements between the
activities of the previous use and the current use.
e. Change of ownership or occupancy shall not constitute an interruption or abandonment, provided
that, absent an approved alteration, the continuing use made of the property falls within the
allowed scope of use made of the property by previous owners or occupants.
f. Factors to be considered in determining whether there has been a change in the nature and/or
extent of a use shall include, but are not limited to, consideration of the type of activities being
conducted, the operating characteristics of the activities associated with the use (including off-
site impacts of those activities), the frequency of use, the hours of operation, changes in structures
associated with the use and changes in the degree to which the activities associated with the use
occupy the site.
ED.Maintenance of a nonconforming use. Normal maintenance of a verified nonconforming use or structure
shall be permitted. Maintenance does not include alterations which are subject to DCC 18.120.010(E).
44E. Restoration or replacement of a nonconforming use. A verified nonconforming use may be restored or
replaced if all of the following criteria are met:
1. Restoration is made necessary by fire, natural disaster or other casualty;
2. The nonconforming use is restored or replaced on the same location and is the same size or smaller
than it was prior to the damage or destruction; and
3. The restoration or replacement of the nonconforming use is commenced within one year of the
damage or destruction.
EF. Alteration of a nonconforming use.
Chapter 18.120 2 (10/2011)
1. The alteration of a nonconforming use shall be permitted when necessary to comply with any lawful
requirement.
2. Any other alteration to a nonconforming use may be permitted subject to all applicable provisions of
DCC Title 18, including site plan review and upon a finding that the alteration will have no greater
adverse impact on the neighborhood.
3. For the purposes of DCC 18.120.010(E)(2), an "alteration of a nonconforming use" shall include any
change in the use of the property that would constitute a change in the nature or extent of the use of
the property.
Chapter 18.120 3 (10/2011)
FG. Procedure.
1. Any application for verification of a nonconforming use or to expand, alter, restore or replace a
nonconforming use shall be processed in conformance with the applicable procedures set forth in DC
18.120.010 and the applicable procedures of DCC Title 22, the Deschutes County Uniform
Development Procedures Ordinance.
2. Notwithstanding DCC 22.20.010, the initial decision on an application for an alteration of a
nonconforming use shall be made administratively, without a public hearing. The Planning Director
may give prior notice of the pending application pursuant to DCC 22.20.020.
3. Except as allowed by DCC 18.120.010(F)(3)(a), the burden of proof shall be on a verification
applicant to prove the existence, continuity, nature and extent of the use.
a. Notwithstanding DCC 22.24.050, if an applicant demonstrates by a preponderance of the
evidence that the nature and extent of the use sought to be verified is of the same nature and extent
as the use of the property for the ten-year period immediately preceding the application, without
interruption or abandonment, it shall be presumed that the nonconforming use, as proven,
lawfully existed at the time the use became nonconforming and has continued without
interruption or abandonment until the date of application.
b. The presumption may be rebutted by a preponderance of evidence showing that the use was
unlawful prior to the time it became nonconforming, or that the use prior to the ten-year period
was of a different nature or different in extent than the use, as proven, or that the use prior to the
ten-year period was interrupted or abandoned. If the presumption is so rebutted, the presumption
shall disappear and be of no further aid to the applicant.
4. If the proof demonstrates the continued existence of a valid non -conforming use, but of a different
nature or extent than that claimed by the applicant, the Hearings Body may declare there to be a valid
nonconforming use to the extent proven.
5. An approval of a verification, replacement or restoration of a nonconforming use verification shall
not be conditioned; an approval shall be sufficiently detailed to describe the allowed parameters of
the verified use. However, an approval of an alteration of a nonconforming use may be conditioned
in a manner calculated to ensure mitigation of adverse impacts so that the change has no greater
adverse impact to the neighborhood.
6. After a decision has been rendered on an application for a verification of a nonconforming use
(including any appeals provided for under DCC Title 22 and under state law), the applicant shall not
be entitled to reapply under DCC 22.28.040 for another verification determination involving the same
use of the property.
(Ord. 2004-013 §13, 2004; Ord. 98-037 §1, 1998; Ord. 95-050 §1, 1995; Ord. 93-043 §20, 1993; Ord. 91-038
§1, 1991)
Chapter 18.120 4 (10/2011)
Chapter 22.36. LIMITATIONS ON APPROVALS
22.36.010. Expiration of Approval.
22.36.020. Initiation of Use.
22.36.025. Transition Rules - Applicability.
22.36.030. Extensions to Avoid Environmental or Health Hazards.
22.36.040. Modification of Approval.
22.36.050. Transfer of Permit.
22.36.060. Revocation of Approvals.
22.36.010. Expiration of Approval.
A. Scope.
1. Except as otherwise provided herein, DCC 22.36.010 shall apply to and describe the duration of all
approvals of land use permits provided for under the Deschutes County Land Use Procedures
Ordinance, the various zoning ordinances administered by Deschutes County and the
subdivision/partition ordinance.
2. DCC 22.36.010 does not apply to:
a. Those determinations made by declaratory ruling, such as verifications of nonconforming uses,
verifying a lot or parcel meets the "lot of record" definition in 18.04.030, and expiration
determinations, that involve a determination of the legal status of a property, land use or land use
permit rather than whether a particular application for a specific land use meets the applicable
standards of the zoning ordinance. Such determinations, whether favorable or not to the applicant
or landowner, shall be final, unless appealed, and shall not be subject to any time limits.
b. Temporary use permits of all kinds, which shall be governed by applicable ordinance provisions
specifying the duration of such permits.
c. Quasi-judicial map changes.
B. Duration of Approvals.
1. Except as otherwise provided under DCC 22.36.010 or under applicable zoning ordinance provisions,
a land use permit is void two years after the date the discretionary decision becomes final if the use
approved in the permit is not initiated within that time period.
2. Except as otherwise provided under applicable ordinance provisions, preliminary approval of plats or
master plans shall be void after two years from the date of preliminary approval, unless the final plat
has been submitted to the Planning Division for final approval within that time period, an extension
is sought under DCC 22.36.0 10 or the preliminary plat or master plan approval has been initiated as
defined herein.
3. In cases of a land use approval authorized under applicable approval criteria to be completed in
phases, each phase must be initiated within the time specified in the approval, or initiated within two
years of completion of the prior phase if no timetable is specified.
4. The approval period for the following dwellings in the Exclusive Farm Use and Forest Use Zones is
for 4 years:
a. Nonfarm dwelling
b. Lot of record dwelling
c. Large tract dwelling
d. Template dwelling.
e Alteration restoration or replacement of a lawfully established dwelling in Forest Use Zones
f Caretaker residences for public parks and public fish hatcheries
Chapter 22.36 1 (11/2017)
C. Extensions.
1. The Planning Director may grant one extension of up to one year for a land use approval or a phase
of a land use approval, and two years for those dwellings listed in DCC 22.36.010(B)(4) above,
regardless of whether the applicable criteria have changed, if:
a. An applicant makes a written request for an extension of the development approval period;
b. The request, along with the appropriate fee, is submitted to the County prior to the expiration of
the approval period;
c. The applicant states reasons that prevented the applicant from beginning or continuing
development or meeting conditions of approval within the approval period; and
d. The County determines that the applicant was unable to begin or continue development or meet
conditions of approval during the approval period for reasons for which the applicant was not
responsible, including, but not limited to, delay by a state or federal agency in issuing a required
permit.
2. Up to two additional one-year extensions, tensiens fef these dwellings listed "nde
DG,G, 2-2.36.0- 1 O(B)(4) .,boy may be granted under the above criteria by the Planning Director or the
Planning Director's designees where applicable criteria for the decision have not changed. This
subsection does not apply for those dwellings listed under DCC 22.36.010(B)(4) above.
3 Up to five additional one-year extensions for those dwelling listed under DCC 22.36.010(B)(4) may
be granted if:
a The applicant makes a written request for the additional extension prior to the expiration of an
extension;
b The applicable residential development statute has not been amended following the approval of
the permit; and
c An applicable rule or land use regulation has not been amended following the issuance of the
permit unless allowed by the county which may require that the applicant comply with the
amended rule or land use regulation.
34. In addition to the extensions granted in DCC 22.36.010(0)(1), one additional two-year extension for
a land use approval or a phase of a land use approval may be granted by the Planning Director or the
Planning Director's designee under the criteria listed under DCC 22.36.010(C)(1) for approvals
issued prior to June 8, 2011. This subsection does not apply for those dwellings listed under DCC
22.36.010(B)(4) above.
D. Procedures.
1. A determination of whether a land use has been initiated shall be processed as a declaratory ruling.
2. Approval of an extension granted under DCC 22.36.010 is an administrative decision, is not a land
use decision described in ORS 197.015 or Title 22 and is not subject to appeal as a land use decision
and shall be processed under DCC Title 22 as a development action, except to the extent it is necessary
to determine whether the use has been initiated.
E. Effect of Appeals. The time period set forth in DCC 22.36.010(B) shall be tolled upon fling of an appeal
to LUBA until all appeals are resolved.
(Ord. 2017-015§5, 2017; Ord. 2015-017 §s5, 2015; Ord. 2011-016, 2011; Ord. 2004-001 §4, 2004; Ord.
95-045 §43A, 1995; Ord. 95-018 §1, 1995; Ord. 90-007 §1, 1990)
22.36.020. Initiation of use.
A. For the purposes of DCC 22.36.020, development action undertaken under a land use approval described
in DCC 22.36.010, has been "initiated" if it is determined that:
1. The proposed use has lawfully occurred;
2. Substantial construction toward completion of the land use approval has taken place; or
3. Where construction is not required by the approval, the conditions of a permit or approval have been
substantially exercised and any failure to fully comply with the conditions is not the fault of the
applicant.
Chapter 22.36 2 (11/2017)
B. For the purposes of DCC 22.36.020, "substantial construction" has occurred when the holder of a land
use approval has physically altered the land or structure or changed the use thereof and such alteration or
change is directed toward the completion and is sufficient in terms of time, labor or money spent to
demonstrate a good faith effort to complete the development.
(Ord. 95-018 §2, 1995; Ord. 90-007 §1, 1990)
22.36.025. Transition Rules - Applicability.
A. The two-year duration period set forth in DCC 22.36.010(B) shall be applied only to land use approvals
issued after the effective date of Ordinance 95-018.
B. Notwithstanding any condition to the contrary in an individual approval, a determination may be made
for any land use approval described in DCC 22.36.010(B) whether or not issued prior to the effective date
of Ordinance 95-018, under DCC 22.36.010(D)(1) as to whether a use was "initiated" within the duration
of the land use approval. If it is determined that the use was "initiated" during the life of the permit, the
permit will be considered to be a valid existing permit and any land use described in the permit will be
deemed to be authorized under the County's ordinances, subject to any applicable revocation provisions.
C. For any land use approvals whose initial term had not expired as of the effective date of this ordinance,
extensions may be granted under DCC 22.36.010(C) or, except for permits in the farm and forest zones,
as a matter of discretion by the Planning Director as set forth under former DCC 22.36.020 otherwise
repealed by Ordinance 95-018.
(Ord. 95-071 §3, 1995; Ord. 95-018 §2(A), 1995)
22.36.030. Extensions to Avoid Environmental or Health Hazards.
A. In addition to extensions granted pursuant to DCC 22.36.010(C) and notwithstanding any other provision
of the Deschutes County Code, a one-time extension may be granted to a tentative plat approval and any
associated land use permits regarding the time for final plat approval where conditions of the approval, or
extensions thereof, require or can be read to require approvals from other agencies for sewer or water
systems and (1) the applicant can show that without such extension or extensions, a health or
environmental hazard or risk thereof would continue to exist, be exacerbated or likely would be created
and (2) the applicant submits a time frame and plan for meeting the outstanding conditions with the
concurrence of a homeowner's association having an ownership interest in project lands and such
concurrence is demonstrated in the application.
B. Such an extension shall be administrative, in writing, and not subject to appeal and shall, subject to the
termination provisions of DCC 22.36.030(C), be granted for a time period not to exceed one year.
C. In lieu of submittal of the time frame and plan and concurrence of the homeowner's association with the
application, that requirement of DCC 22.36.030(A) may be satisfied by conditioning approval of the
extension to require establishment of the agreed -to time frame and plan within the first 60 days of the
extension period, which time line and plan shall thereupon be deemed to be a condition of the extension
approval.
D. An extension under DCC 22.36.030 shall be conditioned upon adherence to the time lines and plan
proposed in the extension application or as agreed to pursuant to DCC 22.36.030(C).
E. Failure to demonstrate compliance with any extension condition shall, after notice and hearing under DCC
Title 22, result in termination of the extension granted under DCC 22.36.030.
(Ord 94-059 § 1, 1994)
22.36.040. Modification of Approval.
A. An applicant may apply to modify an approval at any time after a period of six months has elapsed from
the time a land use action approval has become final.
B. Unless otherwise specified in a particular zoning ordinance provision, the grounds for filing a
modification shall be that a change of circumstances since the issuance of the approval makes it desirable
Chapter 22.36 3 (11/2017)
to make changes to the proposal, as approved. A modification shall not be filed as a substitute for an
appeal or to apply for a substantially new proposal or one that would have significant additional impacts
on surrounding properties.
C. An application to modify an approval shall be directed to one or more discrete aspects of the approval,
the modification of which would not amount to approval of a substantially new proposal or one that would
have significant additional impacts on surrounding properties. Any proposed modification, as defined in
DCC 22.36.040, shall be reviewed only under the criteria applicable to that particular aspect of the
proposal. Proposals that would modify an approval in a scope greater than allowable as a modification
shall be treated as an application for a new proposal.
D. An application for a modification shall be handled as a land use action.
(Ord. 95-045 §44,1995)
22.36.050. Transfer of Permit.
A. A land use action permit shall be deemed to run with the land and be transferable to applicant's successors
in interest.
B. The Planning Division may require that an applicant record a notice of land use permit and conditions of
approval agreement in the Deschutes County Records. Such an agreement shall set forth a description of
the property, describe the permit that has been issued and set forth the conditions of approval. The
Planning Director is authorized to sign the notice and agreement on behalf of the County.
C. The terms of the approval agreement may be enforced against the applicant and any successor in interest.
(Ord. 95-045 §45, 1995)
22.36.060. Revocation of Approvals.
A. Approvals shall be subject to revocation according to standards set forth in the applicable zoning
ordinances.
B. Revocations shall be processed as a declaratory ruling under DCC Title 22. DCC 22.20.010
notwithstanding, a public hearing shall be held in all revocation proceedings.
(Ord. 95-045 §46,1995)
Chapter 22.36 4 (11/2017)
FINDINGS
FILE NUMBER: 247 -19 -000624 -TA
APPLICANT: Deschutes County Community Development
117 NW Lafayette Avenue
Bend, Oregon 97703
PROPERTY: N/A
OWNER:
REQUEST: Text Amendments to the Deschutes County Code to incorporate changes to
state law regarding the Expiration of Approval in resource zones, per House
Bill 2106, and the expansion of nonconforming schools in the Exclusive Farm
Use Zone, per House Bill 3384.
STAFF CONTACT: Izze Liu, Associate Planner
I. PROPOSAL:
The proposed text amendments to Deschutes County Code (DCC) Title 18, County Zoning, and DCC
Title 22, Deschutes County Development Procedures Ordinance, are detailed in the referenced
ordinance attached hereto with additional text identified by underline and deleted text by
r,tr0kothrA- gh Below are summaries of the proposed changes.
DCC CHAPTER 22.36, LIMITATIONS ON APPROVALS
DCC 22.36.010(C) - Proposing to amend the number and duration of additional extensions
allowed for residential development in the Exclusive Farm Use and Forest Use Zones. Add
previously omitted resource -zoned -residential approvals eligible for four-year approvals.
Remove two-year extensions for these approvals that are no longer allowed under statute
and case law
DCC CHAPTER 18.120, EXCEPTIONS
DCC 18.120.010(B) - Proposing to amend the nonconforming uses section to include the
expansion of nonconforming schools in the Exclusive Farm Use Zone.
II. REVIEW CRITERIA:
Deschutes County lacks specific criteria in DCC Titles 18, 19, 22, or 23 for reviewing a legislative plan
amendment. Nonetheless, since Deschutes County is initiating one, the County bears the
responsibility forjustifying that the amendments are consistent with Statewide Planning Goals and
its existing Comprehensive Plan.
A. HOUSE BILL 2106
House Bill 2106 came into effect on June 20, 2019. Deschutes County must amend its procedural
code, Deschutes County Code (DCC) 22.3.010, Expiration of Approval to be consistent with state law.
The amendment allows five additional one-year extensions allowed for residential development in
the Exclusive Farm Use and Forest Use Zones.
B. HOUSE BILL 3384
House Bill 3384 came into effect on June 17, 2019. Deschutes County must amend its code to
allow nonconforming schools in the Exclusive Farm Use Zone, including all buildings essential to
the operation of the school, to be expanded.
III. FINDINGS:
CHAPTER 22.12, LEGISLATIVE PROCEDURES
Section 22.12.010. Hearing Required.
No legislative change shall be adopted without review by the Planning Commission and a
public hearing before the Board of County Commissioners. Public hearings before the
Planning Commission shall be set at the discretion of the Planning Director, unless
otherwise required by state law.
FINDING: This criterion will be met because a public hearing will be held before the Deschutes
County Board of County Commissioners.
Section 22.12.020. Notice
A. Published Notice
1. Notice of a legislative change shall be published in a newspaper of general
circulation in the county at least 10 days prior to each public hearing.
2. The notice shall state the time and place of the hearing and contain a
statement describing the general subject matter of the ordinance under
consideration.
FINDING: This criterion will be met by notice being published in the Bend Bulletin newspaper.
247 -19 -000624 -TA Page 2 of 7
B. Posted Notice. Notice shall be posted at the discretion of the Planning Director and
where necessary to comply with ORS 203.045.
FINDING: This criterion will be met when notice is posted in the bulletin board in the lobby of the
Deschutes County Community Development Department, 117 NW Lafayette, Bend.
C. Individual Notice. Individual notice to property owners, as defined in DCC
22.08.010(A), shall be provided at the discretion of the Planning Director, except as
required by ORS 215.503.
FINDING: Given the proposed legislative amendments do not apply to any specific property, no
individual notices were sent.
D. Media Notice. Copies of the notice of hearing shall be transmitted to other
newspapers published in Deschutes County.
FINDING: Notice will be provided to the County public information official for wider media
distribution. This criterion has been met.
Section 22.12.030. Initiation of Legislative Changes.
A legislative change may be initiated by application of individuals upon payment of
required fees as well as by the Board of County Commissioners.
FINDING: The application was initiated by the Deschutes County Planning Division, which received
a fee waiver. This criterion has been met.
Section 22.12.040. Hearings Body
A. The following shall serve as hearings or review body for legislative changes in this
order.
1. The Planning Commission.
2. The Board of County Commissioners.
B. Any legislative change initiated by the Board of County Commissioners shall be
reviewed by the Planning Commission prior to action being taken by the Board of
Commissioners.
FINDING: These criteria will be met.
Section 22.12.050. Final Decision
All legislative changes shall be adopted by ordinance
FINDING: The proposed legislative changes included in File no. 247 -19 -000624 -TA will be
implemented by ordinances upon approval and adoption by the Board. This criterion will be met.
247 -19 -000624 -TA Page 3 of 7
IV. STATEWIDE PLANNING GOALS
Goal 1: Citizen Involvement
FINDING: The amendments do not propose to change the structure of the County's citizen
involvement program. Notice of the proposed amendments was provided to the Bulletin for the
Board public hearing. A Planning Commission work session was held on September 26, 2019 and a
public hearing will be held before the Board of County Commissioners on October 30, 2019.
Goal 2: Land Use Planning
FINDING: This goal is met because ORS 197.610 allows local governments to initiate post
acknowledgments plan amendments (PAPA). The Oregon Land Conservation and Development
Department 35 -day notice will be initiated on September 25, 2019. A Planning Commission work
session was held on September 26, 2019, to be followed by a public hearing with the Board of
County Commissioners on October 30, 2019. The Findings document provides the adequate factual
basis for the amendments. The amendments to the Deschutes County Code will be adopted by
ordinance, as required by Goal 2, Part I. Any future development taking place pursuant to the
proposed amendments will be expressly defined and permitted by the provisions of state law in
House Bills 2106 and 3384.
Goal 3: Agricultural Lands and Goal 4: Forest Lands
FINDING: This goal is not applicable since the proposed text amendments do not propose to change
the County's Plan policies or implementing regulations for compliance with Goal 3 or 4. House Bills
2106 and 3384 are related to existing entitlements or development in resource zones and the
Deschutes County Code (DCC) utilizes the Exclusive Farm Use and Forest Use Zones to regulate new
development which is consistent with Goal 3 and 4.
Goal S. Open Spaces, Scenic and Historic Areas, and Natural Resources
FINDING: This goal is not applicable since the proposed text amendments do not propose to
change the County's Plan policies or implementing regulations for compliance with Goal 5. Any
future development taking place pursuant to the proposed amendments will be expressly defined
and permitted by the provisions of state law in House Bills 2106 and 3384.
Goal 6. Air, Water and Land Resources Quality
FINDING: This goal is not applicable since the proposed text amendments do not propose to change
the County's Plan policies or implementing regulations for compliance with Goal 6. Any future
development taking place pursuant to the proposed amendments will be expressly defined and
permitted by the provisions of state law in House Bills 2106 and 3384, and will be subject to code
provisions that are designed to protect air, water, and land resource quality.
Goal 7: Areas Subject to Natural Disasters and Hazards
247 -19 -000624 -TA Page 4 of 7
FINDING: This goal is not applicable because the proposed text amendments do not propose to
change the County's Plan or implementing regulations regarding natural disasters and hazards. Any
future development taking place pursuant to the proposed amendments will be expressly defined
and permitted by the provisions of state law in House Bills 2106 and 3384.
Goal 8: Recreational Needs
FINDING: This goal is not applicable because the proposed text amendments do not propose to
change the County's Plan or implementing regulations regarding recreational needs. Any future
development taking place pursuant to the proposed amendments will be expressly defined and
permitted by the provisions of state law in House Bills 2106 and 3384.
Goal 9: Economy of the State
FINDING: This goal is not applicable because Goal 9 and its implementing regulations focus on
economic analysis and economic development planning required in urban Comprehensive Plans.
The proposed amendments apply only to resource lands and do not propose to amend the
Comprehensive Plan.
Goal 10. Housing
FINDING: This goal is not applicable because, unlike municipalities, unincorporated areas are not
obligated to fulfill certain housing requirements. Any future development taking place pursuant to
the proposed amendments will be expressly defined and permitted by the provisions of state law
in House Bills 2106 and 3384.
Goal 11: Public Facilities and Services
FINDING: This goal is not applicable because the proposed text amendments do not propose to
change the Countys Plan or implementing regulations regarding public facilities and services. No
development or land use changes are being proposed that impact public facilities.
Goal 12: Transportation
FINDING: Goal 12 is implemented by Oregon Administrative Rules Chapter 660, Division 12. Local
governments are required to adopt a Transportation System Plan and land use regulations to
implement the TSP. This proposal does not include amendments to the County's TSP or
transportation -related land use regulations. No development or land use changes are being
proposed at this time that impact local or state transportation facilities. In addition, the text
amendments do not propose any changes to the functional classifications, performance standards,
or access management standards of any County roads or State highways. Any future development
taking place pursuant to the proposed amendments will be expressly defined and permitted by the
provisions of state law in House Bills 2106 and 3384.
247 -19 -000624 -TA Page 5 of 7
Goal 13: Energy Conservation
FINDING: This goal is not applicable because the proposed text amendments do not propose to
change the County's Plan or implementing regulations regarding energy conservation. No
development or land use changes are being proposed that raise energy conservation issues.
Goal 14: Urbanization
FINDING: This goal is not applicable because no expansion of an urban area is proposed by these
amendments, nor do the amendments propose to change the County's Plan or implementing
regulations regarding urbanization. Any future development taking place pursuant to the proposed
amendments will be expressly defined and permitted by the provisions of state law in House Bills
2106 and 3384.
Goals 15 through 19
FINDING: These goals are not applicable to the proposed text amendments because the County
does not contain these types of lands.
V. DESCHUTES COUNTY COMPREHENSIVE PLAN
Chapter 1, Comprehensive Planning
Section 1.2, Community Involvement
FINDING: As noted in the findings for Statewide Goal 1, this goal and policy is met because the
amendments do not propose to change the structure of the Countys citizen involvement program.
Notice of the proposed amendments was provided to the Bulletin for the Board public hearing. A
Planning Commission work session was held on September 26, 2019 and a public hearing will be
held before the Board of County Commissioners on October 30, 2019.
Section 1.3, Land Use Planning
FINDING: As noted in the findings for Statewide Goal 2, this goal and policy is met because ORS
197.610 allows local governments to initiate post acknowledgments plan amendments (PAPA). The
Oregon Land Conservation and Development Department 35 -day notice will be initiated on
September 25, 2019. A Planning Commission work session was held on September 26, 2019, to be
followed by a public hearing with the Board of County Commissioners on October 30, 2019. The
Findings document provides the adequate factual basis for the amendments. The amendments to
the Deschutes County Code will be adopted by ordinance, as required by Goal 2, Part I.
VI. CONCLUSION:
247 -19 -000624 -TA Page 6 of 7
Based on the information provided herein, staff recommends approval of the proposed text
amendments to incorporate changes to state law regarding the Expiration of Approval, per House
Bill 2106 and the expansion of nonconforming schools in the Exclusive Farm Use Zone, per House
Bill 3384.
247 -19 -000624 -TA Page 7 of 7
80th OREGON LEGISLATIVE ASSEMBLY --2019 Regular Session
Enrolled
House Bill 2106
Sponsored by Representative CLEM; Representative SMITH DB (Presession filed.)
CHAPTER ...........
AN ACT
Relating to land use; amending ORS 215.213 and 215.417; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 215.213, as amended by section 1, chapter 119, Oregon Laws 2018, is amended
to read:
215.213. (1) In counties that have adopted marginal lands provisions under ORS 197.247 (1991
Edition), the following uses may be established in any area zoned for exclusive farm use:
(a) Churches and cemeteries in conjunction with churches.
(b) The propagation or harvesting of a forest product.
(c) Utility facilities necessary for public service, including wetland waste treatment systems but
not including commercial facilities for the purpose of generating electrical power for public use by
sale or transmission towers over 200 feet in height. A utility facility necessary for public service
may be established as provided in:
(A) ORS 215.275; or
(B) If the utility facility is an associated transmission line, as defined in ORS 215.274 and
469.300.
(d) A dwelling on real property used for farm use if the dwelling is occupied by a relative of the
farm operator or the farm operator's spouse, which means a child, parent, stepparent, grandchild,
grandparent, stepgrandparent, sibling, stepsibling, niece, nephew or first cousin of either, if the farm
operator does or will require the assistance of the relative in the management of the farm use and
the dwelling is located on the same lot or parcel as the dwelling of the farm operator.
Notwithstanding ORS 92.010 to 92.192 or the minimum lot or parcel size requirements under ORS
215.780, if the owner of a dwelling described in this paragraph obtains construction financing or
other financing secured by the dwelling and the secured party forecloses on the dwelling, the se-
cured party may also foreclose on the homesite, as defined in ORS 308A.250, and the foreclosure
shall operate as a partition of the homesite to create a new parcel.
(e) Nonresidential buildings customarily provided in conjunction with farm use.
(f) Subject to ORS 215.279, primary or accessory dwellings customarily provided in conjunction
with farm use. For a primary dwelling, the dwelling must be on a lot or parcel that is managed as
part of a farm operation and is not smaller than the minimum lot size in a farm zone with a mini-
mum lot size acknowledged under ORS 197.251.
(g) Operations for the exploration for and production of geothermal resources as defined by ORS
522.005 and oil and gas as defined by ORS 520.005, including the placement and operation of
compressors, separators and other customary production equipment for an individual well adjacent
Enrolled House Bill 2106 (HB 2106-B) Page 1
to the wellhead. Any activities or construction relating to such operations shall not be a basis for
an exception under ORS 197.732 (2)(a) or (b).
(h) Operations for the exploration for minerals as defined by ORS 517.750. Any activities or
construction relating to such operations shall not be a basis for an exception under ORS 197.732
(2)(a) or (b).
(i) One manufactured dwelling or recreational vehicle, or the temporary residential use of an
existing building, in conjunction with an existing dwelling as a temporary use for the term of a
hardship suffered by the existing resident or a relative of the resident. Within three months of the
end of the hardship, the manufactured dwelling or recreational vehicle shall be removed or demol-
ished or, in the case of an existing building, the building shall be removed, demolished or returned
to an allowed nonresidential use. The governing body or its designee shall provide for periodic re-
view of the hardship claimed under this paragraph. A temporary residence approved under this
paragraph is not eligible for replacement under paragraph (q) of this subsection.
0) Climbing and passing lanes within the right of way existing as of July 1, 1987.
(k) Reconstruction or modification of public roads and highways, including the placement of
utility facilities overhead and in the subsurface of public roads and highways along the public right
of way, but not including the addition of travel lanes, where no removal or displacement of buildings
would occur, or no new land parcels result.
(L) Temporary public road and highway detours that will be abandoned and restored to original
condition or use at such time as no longer needed.
(m) Minor betterment of existing public road and highway related facilities, such as maintenance
yards, weigh stations and rest areas, within right of way existing as of July 1, 1987, and contiguous
public -owned property utilized to support the operation and maintenance of public roads and high-
ways.
(n) A replacement dwelling to be used in conjunction with farm use if the existing dwelling has
been listed in a county inventory as historic property as defined in ORS 358.480.
(o) Creation, restoration or enhancement of wetlands.
(p) A winery, as described in ORS 215.452 or 215.453.
(q) Subject to section 2, chapter 462, Oregon Laws 2013, alteration, restoration or replacement
of a lawfully established dwelling.
(r) Farm stands if:
(A) The structures are designed and used for the sale of farm crops or livestock grown on the
farm operation, or grown on the farm operation and other farm operations in the local agricultural
area, including the sale of retail incidental items and fee-based activity to promote the sale of farm
crops or livestock sold at the farm stand if the annual sale of incidental items and fees from pro-
motional activity do not make up more than 25 percent of the total annual sales of the farm stand;
and
(B) The farm stand does not include structures designed for occupancy as a residence or for
activity other than the sale of farm crops or livestock and does not include structures for banquets,
public gatherings or public entertainment.
(s) An armed forces reserve center, if the center is within one-half mile of a community college.
For purposes of this paragraph, "armed forces reserve center" includes an armory or National
Guard support facility.
(t) A site for the takeoff and landing of model aircraft, including such buildings or facilities as
may reasonably be necessary. Buildings or facilities shall not be more than 500 square feet in floor
area or placed on a permanent foundation unless the building or facility preexisted the use approved
under this paragraph. The site shall not include an aggregate surface or hard surface area unless
the surface preexisted the use approved under this paragraph. An owner of property used for the
purpose authorized in this paragraph may charge a person operating the use on the property rent
for the property. An operator may charge users of the property a fee that does not exceed the
operator's cost to maintain the property, buildings and facilities. As used in this paragraph, "model
aircraft" means a small-scale version of an airplane, glider, helicopter, dirigible or balloon that is
Enrolled House Bill 2106 (HB 2106-B) Page 2
used or intended to be used for flight and is controlled by radio, lines or design by a person on the
ground.
(u) A facility for the processing of farm crops or for the production of biofuel, as defined in ORS
315.141, if the facility is located on a farm operation that provides at least one-quarter of the farm
crops processed at the facility, or an establishment for the slaughter, processing or selling of poultry
or poultry products pursuant to ORS 603.038. If a building is established or used for the processing
facility or establishment, the farm operator may not devote more than 10,000 square feet of floor
area to the processing facility or establishment, exclusive of the floor area designated for prepara-
tion, storage or other farm use. A processing facility or establishment must comply with all appli-
cable siting standards but the standards may not be applied in a manner that prohibits the siting
of the processing facility or establishment.
(v) Fire service facilities providing rural fire protection services.
(w) Irrigation reservoirs, canals, delivery lines and those structures and accessory operational
facilities, not including parks or other recreational structures and facilities, associated with a dis-
trict as defined in ORS 540.505.
(x) Utility facility service lines. Utility facility service lines are utility lines and accessory fa-
cilities or structures that end at the point where the utility service is received by the customer and
that are located on one or more of the following:
(A) A public right of way;
(13) Land immediately adjacent to a public right of way, provided the written consent of all ad-
jacent property owners has been obtained; or
(C) The property to be served by the utility.
(y) Subject to the issuance of a license, permit or other approval by the Department of Envi-
ronmental Quality under ORS 454.695, 459.205, 46813.050, 46813.053 or 46813.055, or in compliance with
rules adopted under ORS 46813.095, and as provided in ORS 215.246 to 215.251, the land application
of reclaimed water, agricultural or industrial process water or biosolids, or the onsite treatment of
septage prior to the land application of biosolids, for agricultural, horticultural or silvicultural
production, or for irrigation in connection with a use allowed in an exclusive farm use zone under
this chapter. For the purposes of this paragraph, onsite treatment of septage prior to the land ap-
plication of biosolids is limited to treatment using treatment facilities that are portable, temporary
and transportable by truck trailer, as defined in ORS 801.580, during a period of time within which
land application of biosolids is authorized under the license, permit or other approval.
(z) Dog training classes or testing trials, which may be conducted outdoors or in [preexisting]
farm buildings in existence on January 1, 2019, when:
(A) The number of dogs participating in training does not exceed 10 dogs per training class and
the number of training classes to be held on-site does not exceed six per day; and
(13) The number of dogs participating in a testing trial does not exceed 60 and the number of
testing trials to be conducted on-site is limited to four or fewer trials per calendar year.
(aa) A cider business, as described in ORS 215.451.
(2) In counties that have adopted marginal lands provisions under ORS 197.247 (1991 Edition),
the following uses may be established in any area zoned for exclusive farm use subject to ORS
215.296:
(a) A primary dwelling in conjunction with farm use or the propagation or harvesting of a forest
product on a lot or parcel that is managed as part of a farm operation or woodlot if the farm op-
eration or woodlot:
(A) Consists of 20 or more acres; and
(13) Is not smaller than the average farm or woodlot in the county producing at least $2,500 in
annual gross income from the crops, livestock or forest products to be raised on the farm operation
or woodlot.
(b) A primary dwelling in conjunction with farm use or the propagation or harvesting of a forest
product on a lot or parcel that is managed as part of a farm operation or woodlot smaller than re-
quired under paragraph (a) of this subsection, if the lot or parcel:
Enrolled House Bill 2106 (HB 2106-B) Page 3
(A) Has produced at least $20,000 in annual gross farm income in two consecutive calendar
years out of the three calendar years before the year in which the application for the dwelling was
made or is planted in perennials capable of producing upon harvest an average of at least $20,000
in annual gross farm income; or
(B) Is a woodlot capable of producing an average over the growth cycle of $20,000 in gross an-
nual income.
(c) Commercial activities that are in conjunction with farm use, including the processing of farm
crops into biofuel not permitted under ORS 215.203 (2)(b)(K) or subsection (1)(u) of this section.
(d) Operations conducted for:
(A) Mining and processing of geothermal resources as defined by ORS 522.005 and oil and gas
as defined by ORS 520.005, not otherwise permitted under subsection (1)(g) of this section;
(B) Mining, crushing or stockpiling of aggregate and other mineral and other subsurface re-
sources subject to ORS 215.298;
(C) Processing, as defined by ORS 517.750, of aggregate into asphalt or portland cement; and
(D) Processing of other mineral resources and other subsurface resources.
(e) Community centers owned by a governmental agency or a nonprofit community organization
and operated primarily by and for residents of the local rural community, hunting and fishing pre-
serves, public and private parks, playgrounds and campgrounds. Subject to the approval of the
county governing body or its designee, a private campground may provide yurts for overnight
camping. No more than one-third or a maximum of 10 campsites, whichever is smaller, may include
a yurt. The yurt shall be located on the ground or on a wood floor with no permanent foundation.
Upon request of a county governing body, the Land Conservation and Development Commission may
provide by rule for an increase in the number of yurts allowed on all or a portion of the
campgrounds in a county if the commission determines that the increase will comply with the
standards described in ORS 215.296 (1). A public park or campground may be established as provided
under ORS 195.120. As used in this paragraph, "yurt" means a round, domed shelter of cloth or
canvas on a collapsible frame with no plumbing, sewage disposal hookup or internal cooking appli-
ance.
(f) Golf courses on land determined not to be high-value farmland as defined in ORS 195.300.
(g) Commercial utility facilities for the purpose of generating power for public use by sale. If the
area zoned for exclusive farm use is high-value farmland, a photovoltaic solar power generation fa-
cility may be established as a commercial utility facility as provided in ORS 215.447.
(h) Personal -use airports for airplanes and helicopter pads, including associated hangar, main-
tenance and service facilities. A personal -use airport as used in this section means an airstrip re-
stricted, except for aircraft emergencies, to use by the owner, and, on an infrequent and occasional
basis, by invited guests, and by commercial aviation activities in connection with agricultural op-
erations. No aircraft may be based on a personal -use airport other than those owned or controlled
by the owner of the airstrip. Exceptions to the activities permitted under this definition may be
granted through waiver action by the Oregon Department of Aviation in specific instances. A
personal -use airport lawfully existing as of September 13, 1975, shall continue to be permitted sub-
ject to any applicable rules of the Oregon Department of Aviation.
(i) A facility for the primary processing of forest products, provided that such facility is found
to not seriously interfere with accepted farming practices and is compatible with farm uses de-
scribed in ORS 215.203 (2). Such a facility may be approved for a one-year period which is
renewable. These facilities are intended to be only portable or temporary in nature. The primary
processing of a forest product, as used in this section, means the use of a portable chipper or stud
mill or other similar methods of initial treatment of a forest product in order to enable its shipment
to market. Forest products, as used in this section, means timber grown upon a parcel of land or
contiguous land where the primary processing facility is located.
0) A site for the disposal of solid waste approved by the governing body of a city or county or
both and for which a permit has been granted under ORS 459.245 by the Department of Environ-
mental Quality together with equipment, facilities or buildings necessary for its operation.
Enrolled House Bill 2106 (HB 2106-B) Page 4
(k)(A) Commercial dog boarding kennels; or
(B) Dog training classes or testing trials that cannot be established under subsection (1)(z) of
this section.
(L) Residential homes as defined in ORS 197.660, in existing dwellings.
(m) The propagation, cultivation, maintenance and harvesting of aquatic species that are not
under the jurisdiction of the State Fish and Wildlife Commission or insect species. Insect species
shall not include any species under quarantine by the State Department of Agriculture or the United
States Department of Agriculture. The county shall provide notice of all applications under this
paragraph to the State Department of Agriculture. Notice shall be provided in accordance with the
county's land use regulations but shall be mailed at least 20 calendar days prior to any adminis-
trative decision or initial public hearing on the application.
(n) Home occupations as provided in ORS 215.448.
(o) Transmission towers over 200 feet in height.
(p) Construction of additional passing and travel lanes requiring the acquisition of right of way
but not resulting in the creation of new land parcels.
(q) Reconstruction or modification of public roads and highways involving the removal or dis-
placement of buildings but not resulting in the creation of new land parcels.
(r) Improvement of public road and highway related facilities such as maintenance yards, weigh
stations and rest areas, where additional property or right of way is required but not resulting in
the creation of new land parcels.
(s) A destination resort that is approved consistent with the requirements of any statewide
planning goal relating to the siting of a destination resort.
(t) Room and board arrangements for a maximum of five unrelated persons in existing resi-
dences.
(u) A living history museum related to resource based activities owned and operated by a gov-
ernmental agency or a local historical society, together with limited commercial activities and fa-
cilities that are directly related to the use and enjoyment of the museum and located within
authentic buildings of the depicted historic period or the museum administration building, if areas
other than an exclusive farm use zone cannot accommodate the museum and related activities or if
the museum administration buildings and parking lot are located within one quarter mile of the
metropolitan urban growth boundary. As used in this paragraph:
(A) "Living history museum" means a facility designed to depict and interpret everyday life and
culture of some specific historic period using authentic buildings, tools, equipment and people to
simulate past activities and events; and
(B) "Local historical society" means the local historical society, recognized as such by the
county governing body and organized under ORS chapter 65.
(v) Operations for the extraction and bottling of water.
(w) An aerial fireworks display business that has been in continuous operation at its current
location within an exclusive farm use zone since December 31, 1986, and possesses a wholesaler's
permit to sell or provide fireworks.
(x) A landscape contracting business, as defined in ORS 671.520, or a business providing land-
scape architecture services, as described in ORS 671.318, if the business is pursued in conjunction
with the growing and marketing of nursery stock on the land that constitutes farm use.
(y) Public or private schools for kindergarten through grade 12, including all buildings essential
to the operation of a school, primarily for residents of the rural area in which the school is located.
(z) Equine and equine -affiliated therapeutic and counseling activities, provided:
(A) The activities are conducted in existing buildings that were lawfully constructed on the
property before January 1, 2019, or in new buildings that are accessory, incidental and subordinate
to the farm use on the tract; and
(B) All individuals conducting therapeutic or counseling activities are acting within the proper
scope of any licenses required by the state.
Enrolled House Bill 2106 (HB 2106-13) Page 5
(3) In counties that have adopted marginal lands provisions under ORS 197.247 (1991 Edition),
a single-family residential dwelling not provided in conjunction with farm use may be established
on a lot or parcel with soils predominantly in capability classes IV through VIII as determined by
the Agricultural Capability Classification System in use by the United States Department of Agri-
culture Soil Conservation Service on October 15, 1983. A proposed dwelling is subject to approval
of the governing body or its designee in any area zoned for exclusive farm use upon written findings
showing all of the following:
(a) The dwelling or activities associated with the dwelling will not force a significant change in
or significantly increase the cost of accepted farming practices on nearby lands devoted to farm use.
(b) The dwelling is situated upon generally unsuitable land for the production of farm crops and
livestock, considering the terrain, adverse soil or land conditions, drainage and flooding, location
and size of the tract. A lot or parcel shall not be considered unsuitable solely because of its size
or location if it can reasonably be put to farm use in conjunction with other land.
(c) Complies with such other conditions as the governing body or its designee considers neces-
sary.
(4) In counties that have adopted marginal lands provisions under ORS 197.247 (1991 Edition),
one single-family dwelling, not provided in conjunction with farm use, may be established in any
area zoned for exclusive farm use on a lot or parcel described in subsection (7) of this section that
is not larger than three acres upon written findings showing:
(a) The dwelling or activities associated with the dwelling will not force a significant change in
or significantly increase the cost of accepted farming practices on nearby lands devoted to farm use;
(b) If the lot or parcel is located within the Willamette River Greenway, a floodplain or a
geological hazard area, the dwelling complies with conditions imposed by local ordinances relating
specifically to the Willamette River Greenway, floodplains or geological hazard areas, whichever is
applicable; and
(c) The dwelling complies with other conditions considered necessary by the governing body or
its designee.
(5) Upon receipt of an application for a permit under subsection (4) of this section, the governing
body shall notify:
(a) Owners of land that is within 250 feet of the lot or parcel on which the dwelling will be
established; and
(b) Persons who have requested notice of such applications and who have paid a reasonable fee
imposed by the county to cover the cost of such notice.
(6) The notice required in subsection (5) of this section shall specify that persons have 15 days
following the date of postmark of the notice to file a written objection on the grounds only that the
dwelling or activities associated with it would force a significant change in or significantly increase
the cost of accepted farming practices on nearby lands devoted to farm use. If no objection is re-
ceived, the governing body or its designee shall approve or disapprove the application. If an ob-
jection is received, the governing body shall set the matter for hearing in the manner prescribed in
ORS 215.402 to 215.438. The governing body may charge the reasonable costs of the notice required
by subsection (5)(a) of this section to the applicant for the permit requested under subsection (4) of
this section.
(7) Subsection (4) of this section applies to a lot or parcel lawfully created between January 1,
1948, and July 1, 1983. For the purposes of this section:
(a) Only one lot or parcel exists if:
(A) A lot or parcel described in this section is contiguous to one or more lots or parcels de-
scribed in this section; and
(B) On July 1, 1983, greater than possessory interests are held in those contiguous lots, parcels
or lots and parcels by the same person, spouses or a single partnership or business entity, separately
or in tenancy in common.
(b) "Contiguous" means lots, parcels or lots and parcels that have a common boundary, includ-
ing but not limited to, lots, parcels or lots and parcels separated only by a public road.
Enrolled House Bill 2106 (HB 2106-B) Page 6
(8) A person who sells or otherwise transfers real property in an exclusive farm use zone may
retain a life estate in a dwelling on that property and in a tract of land under and around the
dwelling.
(9) No final approval of a nonfarm use under this section shall be given unless any additional
taxes imposed upon the change in use have been paid.
(10) Roads, highways and other transportation facilities and improvements not allowed under
subsections (1) and (2) of this section may be established, subject to the approval of the governing
body or its designee, in areas zoned for exclusive farm use subject to:
(a) Adoption of an exception to the goal related to agricultural lands and to any other applicable
goal with which the facility or improvement does not comply; or
(b) ORS 215.296 for those uses identified by rule of the Land Conservation and Development
Commission as provided in section 3, chapter 529, Oregon Laws 1993.
(11) The following agri-tourism and other commercial events or activities that are related to and
supportive of agriculture may be established in any area zoned for exclusive farm use:
(a) A county may authorize a single agri-tourism or other commercial event or activity on a
tract in a calendar year by an authorization that is personal to the applicant and is not transferred
by, or transferable with, a conveyance of the tract, if the agri-tourism or other commercial event
or activity meets any local standards that apply and:
(A) The agri-tourism or other commercial event or activity is incidental and subordinate to ex-
isting farm use on the tract;
(B) The duration of the agri-tourism or other commercial event or activity does not exceed 72
consecutive hours;
(C) The maximum attendance at the agri-tourism or other commercial event or activity does not
exceed 500 people;
(D) The maximum number of motor vehicles parked at the site of the agri-tourism or other
commercial event or activity does not exceed 250 vehicles;
(E) The agri-tourism or other commercial event or activity complies with ORS 215.296;
(F) The agri-tourism or other commercial event or activity occurs outdoors, in temporary
structures, or in existing permitted structures, subject to health and fire and life safety require-
ments; and
(G) The agri-tourism or other commercial event or activity complies with conditions established
for:
(i) Planned hours of operation;
(ii) Access, egress and parking;
(iii) A traffic management plan that identifies the projected number of vehicles and any antic-
ipated use of public roads; and
(iv) Sanitation and solid waste.
(b) In the alternative to paragraphs (a) and (c) of this subsection, a county may authorize,
through an expedited, single -event license, a single agri-tourism or other commercial event or ac-
tivity on a tract in a calendar year by an expedited, single -event license that is personal to the ap-
plicant and is not transferred by, or transferable with, a conveyance of the tract. A decision
concerning an expedited, single -event license is not a land use decision, as defined in ORS 197.015.
To approve an expedited, single -event license, the governing body of a county or its designee must
determine that the proposed agri-tourism or other commercial event or activity meets any local
standards that apply, and the agri-tourism or other commercial event or activity:
(A) Must be incidental and subordinate to existing farm use on the tract;
(B) May not begin before 6 a.m. or end after 10 p.m.;
(C) May not involve more than 100 attendees or 50 vehicles;
(D) May not include the artificial amplification of music or voices before 8 a.m. or after 8 p.m.;
(E) May not require or involve the construction or use of a new permanent structure in con-
nection with the agri-tourism or other commercial event or activity;
Enrolled House Bill 2106 (HB 2106-B) Page 7
(F) Must be located on a tract of at least 10 acres unless the owners or residents of adjoining
properties consent, in writing, to the location; and
(G) Must comply with applicable health and fire and life safety requirements.
(c) In the alternative to paragraphs (a) and (b) of this subsection, a county may authorize up to
six agri-tourism or other commercial events or activities on a tract in a calendar year by a limited
use permit that is personal to the applicant and is not transferred by, or transferable with, a
conveyance of the tract. The agri-tourism or other commercial events or activities must meet any
local standards that apply, and the agri-tourism or other commercial events or activities:
(A) Must be incidental and subordinate to existing farm use on the tract;
(B) May not, individually, exceed a duration of 72 consecutive hours;
(C) May not require that a new permanent structure be built, used or occupied in connection
with the agri-tourism or other commercial events or activities;
(D) Must comply with ORS 215.296;
(E) May not, in combination with other agri-tourism or other commercial events or activities
authorized in the area, materially alter the stability of the land use pattern in the area; and
(F) Must comply with conditions established for:
(i) The types of agri-tourism or other commercial events or activities that are authorized during
each calendar year, including the number and duration of the agri-tourism or other commercial
events and activities, the anticipated daily attendance and the hours of operation;
(ii) The location of existing structures and the location of proposed temporary structures to be
used in connection with the agri-tourism or other commercial events or activities;
(iii) The location of access and egress and parking facilities to be used in connection with the
agri-tourism or other commercial events or activities;
(iv) Traffic management, including the projected number of vehicles and any anticipated use of
public roads; and
(v) Sanitation and solid waste.
(d) In addition to paragraphs (a) to (c) of this subsection, a county may authorize agri-tourism
or other commercial events or activities that occur more frequently or for a longer period or that
do not otherwise comply with paragraphs (a) to (c) of this subsection if the agri-tourism or other
commercial events or activities comply with any local standards that apply and the agri-tourism or
other commercial events or activities:
(A) Are incidental and subordinate to existing commercial farm use of the tract and are neces-
sary to support the commercial farm uses or the commercial agricultural enterprises in the area;
(B) Comply with the requirements of paragraph (c)(C), (D), (E) and (F) of this subsection;
(C) Occur on a lot or parcel that complies with the acknowledged minimum lot or parcel size;
and
(D) Do not exceed 18 events or activities in a calendar year.
(12) A holder of a permit authorized by a county under subsection (11)(d) of this section must
request review of the permit at four-year intervals. Upon receipt of a request for review, the county
shall:
(a) Provide public notice and an opportunity for public comment as part of the review process;
and
(b) Limit its review to events and activities authorized by the permit, conformance with condi-
tions of approval required by the permit and the standards established by subsection (11)(d) of this
section.
(13) For the purposes of subsection (11) of this section:
(a) A county may authorize the use of temporary structures established in connection with the
agri-tourism or other commercial events or activities authorized under subsection (11) of this sec-
tion. However, the temporary structures must be removed at the end of the agri-tourism or other
event or activity. The county may not approve an alteration to the land in connection with an
agri-tourism or other commercial event or activity authorized under subsection (11) of this section,
including, but not limited to, grading, filling or paving.
Enrolled House Bill 2106 (HB 2106-B) Page 8
(b) The county may issue the limited use permits authorized by subsection (11)(c) of this section
for two calendar years. When considering an application for renewal, the county shall ensure com-
pliance with the provisions of subsection (11)(c) of this section, any local standards that apply and
conditions that apply to the permit or to the agri-tourism or other commercial events or activities
authorized by the permit.
(c) The authorizations provided by subsection (11) of this section are in addition to other au-
thorizations that may be provided by law, except that "outdoor mass gathering" and "other gather-
ing," as those terms are used in ORS 197.015 (10)(d), do not include agri-tourism or other commercial
events and activities.
SECTION 2. ORS 215.213, as amended by section 7, chapter 462, Oregon Laws 2013, section 2,
chapter 148, Oregon Laws 2017, section 4, chapter 253, Oregon Laws 2017, section 4, chapter 504,
Oregon Laws 2017, and section 2, chapter 119, Oregon Laws 2018, is amended to read:
215.213. (1) In counties that have adopted marginal lands provisions under ORS 197.247 (1991
Edition), the following uses may be established in any area zoned for exclusive farm use:
(a) Churches and cemeteries in conjunction with churches.
(b) The propagation or harvesting of a forest product.
(c) Utility facilities necessary for public service, including wetland waste treatment systems but
not including commercial facilities for the purpose of generating electrical power for public use by
sale or transmission towers over 200 feet in height. A utility facility necessary for public service
may be established as provided in:
(A) ORS 215.275; or
(B) If the utility facility is an associated transmission line, as defined in ORS 215.274 and
469.300.
(d) A dwelling on real property used for farm use if the dwelling is occupied by a relative of the
farm operator or the farm operator's spouse, which means a child, parent, stepparent, grandchild,
grandparent, stepgrandparent, sibling, stepsibling, niece, nephew or first cousin of either, if the farm
operator does or will require the assistance of the relative in the management of the farm use and
the dwelling is located on the same lot or parcel as the dwelling of the farm operator.
Notwithstanding ORS 92.010 to 92.192 or the minimum lot or parcel size requirements under ORS
215.780, if the owner of a dwelling described in this paragraph obtains construction financing or
other financing secured by the dwelling and the secured party forecloses on the dwelling, the se-
cured party may also foreclose on the homesite, as defined in ORS 308A.250, and the foreclosure
shall operate as a partition of the homesite to create a new parcel.
(e) Nonresidential buildings customarily provided in conjunction with farm use.
(f) Subject to ORS 215.279, primary or accessory dwellings customarily provided in conjunction
with farm use. For a primary dwelling, the dwelling must be on a lot or parcel that is managed as
part of a farm operation and is not smaller than the minimum lot size in a farm zone with a mini-
mum lot size acknowledged under ORS 197.251.
(g) Operations for the exploration for and production of geothermal resources as defined by ORS
522.005 and oil and gas as defined by ORS 520.005, including the placement and operation of
compressors, separators and other customary production equipment for an individual well adjacent
to the wellhead. Any activities or construction relating to such operations shall not be a basis for
an exception under ORS 197.732 (2)(a) or (b).
(h) Operations for the exploration for minerals as defined by ORS 517.750. Any activities or
construction relating to such operations shall not be a basis for an exception under ORS 197.732
(2)(a) or (b).
(i) One manufactured dwelling or recreational vehicle, or the temporary residential use of an
existing building, in conjunction with an existing dwelling as a temporary use for the term of a
hardship suffered by the existing resident or a relative of the resident. Within three months of the
end of the hardship, the manufactured dwelling or recreational vehicle shall be removed or demol-
ished or, in the case of an existing building, the building shall be removed, demolished or returned
to an allowed nonresidential use. The governing body or its designee shall provide for periodic re -
Enrolled House Bill 2106 (HB 2106-B) Page 9
view of the hardship claimed under this paragraph. A temporary residence approved under this
paragraph is not eligible for replacement under paragraph (q) of this subsection.
0) Climbing and passing lanes within the right of way existing as of July 1, 1987.
(k) Reconstruction or modification of public roads and highways, including the placement of
utility facilities overhead and in the subsurface of public roads and highways along the public right
of way, but not including the addition of travel lanes, where no removal or displacement of buildings
would occur, or no new land parcels result.
(L) Temporary public road and highway detours that will be abandoned and restored to original
condition or use at such time as no longer needed.
(m) Minor betterment of existing public road and highway related facilities, such as maintenance
yards, weigh stations and rest areas, within right of way existing as of July 1, 1987, and contiguous
public -owned property utilized to support the operation and maintenance of public roads and high-
ways.
(n) A replacement dwelling to be used in conjunction with farm use if the existing dwelling has
been listed in a county inventory as historic property as defined in ORS 358.480.
(o) Creation, restoration or enhancement of wetlands.
(p) A winery, as described in ORS 215.452 or 215.453.
(q) Alteration, restoration or replacement of a lawfully established dwelling that:
(A) Has intact exterior walls and roof structure;
(B) Has indoor plumbing consisting of a kitchen sink, toilet and bathing facilities connected to
a sanitary waste disposal system;
(C) Has interior wiring for interior lights;
(D) Has a heating system; and
(E) In the case of replacement:
(i) Is removed, demolished or converted to an allowable nonresidential use within three months
of the completion of the replacement dwelling. A replacement dwelling may be sited on any part of
the same lot or parcel. A dwelling established under this paragraph shall comply with all applicable
siting standards. However, the standards shall not be applied in a manner that prohibits the siting
of the dwelling. If the dwelling to be replaced is located on a portion of the lot or parcel not zoned
for exclusive farm use, the applicant, as a condition of approval, shall execute and record in the
deed records for the county where the property is located a deed restriction prohibiting the siting
of a dwelling on that portion of the lot or parcel. The restriction imposed shall be irrevocable unless
a statement of release is placed in the deed records for the county. The release shall be signed by
the county or its designee and state that the provisions of this paragraph regarding replacement
dwellings have changed to allow the siting of another dwelling. The county planning director or the
director's designee shall maintain a record of the lots and parcels that do not qualify for the siting
of a new dwelling under the provisions of this paragraph, including a copy of the deed restrictions
and release statements filed under this paragraph; and
(ii) For which the applicant has requested a deferred replacement permit, is removed or demol-
ished within three months after the deferred replacement permit is issued. A deferred replacement
permit allows construction of the replacement dwelling at any time. If, however, the established
dwelling is not removed or demolished within three months after the deferred replacement permit
is issued, the permit becomes void. The replacement dwelling must comply with applicable building
codes, plumbing codes, sanitation codes and other requirements relating to health and safety or to
siting at the time of construction. A deferred replacement permit may not be transferred, by sale
or otherwise, except by the applicant to the spouse or a child of the applicant.
(r) Farm stands if:
(A) The structures are designed and used for the sale of farm crops or livestock grown on the
farm operation, or grown on the farm operation and other farm operations in the local agricultural
area, including the sale of retail incidental items and fee-based activity to promote the sale of farm
crops or livestock sold at the farm stand if the annual sale of incidental items and fees from pro -
Enrolled House Bill 2106 (HB 2106-B) Page 10
motional activity do not make up more than 25 percent of the total annual sales of the farm stand;
and
(B) The farm stand does not include structures designed for occupancy as a residence or for
activity other than the sale of farm crops or livestock and does not include structures for banquets,
public gatherings or public entertainment.
(s) An armed forces reserve center, if the center is within one-half mile of a community college.
For purposes of this paragraph, "armed forces reserve center" includes an armory or National
Guard support facility.
(t) A site for the takeoff and landing of model aircraft, including such buildings or facilities as
may reasonably be necessary. Buildings or facilities shall not be more than 500 square feet in floor
area or placed on a permanent foundation unless the building or facility preexisted the use approved
under this paragraph. The site shall not include an aggregate surface or hard surface area unless
the surface preexisted the use approved under this paragraph. An owner of property used for the
purpose authorized in this paragraph may charge a person operating the use on the property rent
for the property. An operator may charge users of the property a fee that does not exceed the
operator's cost to maintain the property, buildings and facilities. As used in this paragraph, "model
aircraft" means a small-scale version of an airplane, glider, helicopter, dirigible or balloon that is
used or intended to be used for flight and is controlled by radio, lines or design by a person on the
ground.
(u) A facility for the processing of farm crops or for the production of biofuel, as defined in ORS
315.141, if the facility is located on a farm operation that provides at least one-quarter of the farm
crops processed at the facility, or an establishment for the slaughter, processing or selling of poultry
or poultry products pursuant to ORS 603.038. If a building is established or used for the processing
facility or establishment, the farm operator may not devote more than 10,000 square feet of floor
area to the processing facility or establishment, exclusive of the floor area designated for prepara-
tion, storage or other farm use. A processing facility or establishment must comply with all appli-
cable siting standards but the standards may not be applied in a manner that prohibits the siting
of the processing facility or establishment.
(v) Fire service facilities providing rural fire protection services.
(w) Irrigation reservoirs, canals, delivery lines and those structures and accessory operational
facilities, not including parks or other recreational structures and facilities, associated with a dis-
trict as defined in ORS 540.505.
(x) Utility facility service lines. Utility facility service lines are utility lines and accessory fa-
cilities or structures that end at the point where the utility service is received by the customer and
that are located on one or more of the following:
(A) A public right of way;
(B) Land immediately adjacent to a public right of way, provided the written consent of all ad-
jacent property owners has been obtained; or
(C) The property to be served by the utility.
(y) Subject to the issuance of a license, permit or other approval by the Department of Envi-
ronmental Quality under ORS 454.695, 459.205, 46813.050, 468B.053 or 46813.055, or in compliance with
rules adopted under ORS 46813.095, and as provided in ORS 215.246 to 215.251, the land application
of reclaimed water, agricultural or industrial process water or biosolids, or the onsite treatment of
septage prior to the land application of biosolids, for agricultural, horticultural or silvicultural
production, or for irrigation in connection with a use allowed in an exclusive farm use zone under
this chapter. For the purposes of this paragraph, onsite treatment of septage prior to the land ap-
plication of biosolids is limited to treatment using treatment facilities that are portable, temporary
and transportable by truck trailer, as defined in ORS 801.580, during a period of time within which
land application of biosolids is authorized under the license, permit or other approval.
(z) Dog training classes or testing trials, which may be conducted outdoors or in [preexisting]
farm buildings in existence on January 1, 2019, when:
Enrolled House Bill 2106 (HB 2106-B) Page 11
(A) The number of dogs participating in training does not exceed 10 dogs per training class and
the number of training classes to be held on-site does not exceed six per day; and
(B) The number of dogs participating in a testing trial does not exceed 60 and the number of
testing trials to be conducted on-site is limited to four or fewer trials per calendar year.
(aa) A cider business, as described in ORS 215.451.
(2) In counties that have adopted marginal lands provisions under ORS 197.247 (1991 Edition),
the following uses may be established in any area zoned for exclusive farm use subject to ORS
215.296:
(a) A primary dwelling in conjunction with farm use or the propagation or harvesting of a forest
product on a lot or parcel that is managed as part of a farm operation or woodlot if the farm op-
eration or woodlot:
(A) Consists of 20 or more acres; and
(B) Is not smaller than the average farm or woodlot in the county producing at least $2,500 in
annual gross income from the crops, livestock or forest products to be raised on the farm operation
or woodlot.
(b) A primary dwelling in conjunction with farm use or the propagation or harvesting of a forest
product on a lot or parcel that is managed as part of a farm operation or woodlot smaller than re-
quired under paragraph (a) of this subsection, if the lot or parcel:
(A) Has produced at least $20,000 in annual gross farm income in two consecutive calendar
years out of the three calendar years before the year in which the application for the dwelling was
made or is planted in perennials capable of producing upon harvest an average of at least $20,000
in annual gross farm income; or
(B) Is a woodlot capable of producing an average over the growth cycle of $20,000 in gross an-
nual income.
(c) Commercial activities that are in conjunction with farm use, including the processing of farm
crops into biofuel not permitted under ORS 215.203 (2)(b)(K) or subsection (1)(u) of this section.
(d) Operations conducted for:
(A) Mining and processing of geothermal resources as defined by ORS 522.005 and oil and gas
as defined by ORS 520.005, not otherwise permitted under subsection (1)(g) of this section;
(B) Mining, crushing or stockpiling of aggregate and other mineral and other subsurface re-
sources subject to ORS 215.298;
(C) Processing, as defined by ORS 517.750, of aggregate into asphalt or portland cement; and
(D) Processing of other mineral resources and other subsurface resources.
(e) Community centers owned by a governmental agency or a nonprofit community organization
and operated primarily by and for residents of the local rural community, hunting and fishing pre-
serves, public and private parks, playgrounds and campgrounds. Subject to the approval of the
county governing body or its designee, a private campground may provide yurts for overnight
camping. No more than one-third or a maximum of 10 campsites, whichever is smaller, may include
a yurt. The yurt shall be located on the ground or on a wood floor with no permanent foundation.
Upon request of a county governing body, the Land Conservation and Development Commission may
provide by rule for an increase in the number of yurts allowed on all or a portion of the
campgrounds in a county if the commission determines that the increase will comply with the
standards described in ORS 215.296 (1). A public park or campground may be established as provided
under ORS 195.120. As used in this paragraph, "yurt" means a round, domed shelter of cloth or
canvas on a collapsible frame with no plumbing, sewage disposal hookup or internal cooking appli-
ance.
(f) Golf courses on land determined not to be high-value farmland as defined in ORS 195.300.
(g) Commercial utility facilities for the purpose of generating power for public use by sale. If the
area zoned for exclusive farm use is high-value farmland, a photovoltaic solar power generation fa-
cility may be established as a commercial utility facility as provided in ORS 215.447.
(h) Personal -use airports for airplanes and helicopter pads, including associated hangar, main-
tenance and service facilities. A personal -use airport as used in this section means an airstrip re -
Enrolled House Bill 2106 (HB 2106-B) Page 12
stricted, except for aircraft emergencies, to use by the owner, and, on an infrequent and occasional
basis, by invited guests, and by commercial aviation activities in connection with agricultural op-
erations. No aircraft may be based on a personal -use airport other than those owned or controlled
by the owner of the airstrip. Exceptions to the activities permitted under this definition may be
granted through waiver action by the Oregon Department of Aviation in specific instances. A
personal -use airport lawfully existing as of September 13, 1975, shall continue to be permitted sub-
ject to any applicable rules of the Oregon Department of Aviation.
(i) A facility for the primary processing of forest products, provided that such facility is found
to not seriously interfere with accepted farming practices and is compatible with farm uses de-
scribed in ORS 215.203 (2). Such a facility may be approved for a one-year period which is
renewable. These facilities are intended to be only portable or temporary in nature. The primary
processing of a forest product, as used in this section, means the use of a portable chipper or stud
mill or other similar methods of initial treatment of a forest product in order to enable its shipment
to market. Forest products, as used in this section, means timber grown upon a parcel of land or
contiguous land where the primary processing facility is located.
(j) A site for the disposal of solid waste approved by the governing body of a city or county or
both and for which a permit has been granted under ORS 459.245 by the Department of Environ-
mental Quality together with equipment, facilities or buildings necessary for its operation.
(k)(A) Commercial dog boarding kennels; or
(B) Dog training classes or testing trials that cannot be established under subsection (1)(z) of
this section.
(L) Residential homes as defined in ORS 197.660, in existing dwellings.
(m) The propagation, cultivation, maintenance and harvesting of aquatic species that are not
under the jurisdiction of the State Fish and Wildlife Commission or insect species. Insect species
shall not include any species under quarantine by the State Department of Agriculture or the United
States Department of Agriculture. The county shall provide notice of all applications under this
paragraph to the State Department of Agriculture. Notice shall be provided in accordance with the
county's land use regulations but shall be mailed at least 20 calendar days prior to any adminis-
trative decision or initial public hearing on the application.
(n) Home occupations as provided in ORS 215.448.
(o) Transmission towers over 200 feet in height.
(p) Construction of additional passing and travel lanes requiring the acquisition of right of way
but not resulting in the creation of new land parcels.
(q) Reconstruction or modification of public roads and highways involving the removal or dis-
placement of buildings but not resulting in the creation of new land parcels.
(r) Improvement of public road and highway related facilities such as maintenance yards, weigh
stations and rest areas, where additional property or right of way is required but not resulting in
the creation of new land parcels.
(s) A destination resort that is approved consistent with the requirements of any statewide
planning goal relating to the siting of a destination resort.
(t) Room and board arrangements for a maximum of five unrelated persons in existing resi-
dences.
(u) A living history museum related to resource based activities owned and operated by a gov-
ernmental agency or a local historical society, together with limited commercial activities and fa-
cilities that are directly related to the use and enjoyment of the museum and located within
authentic buildings of the depicted historic period or the museum administration building, if areas
other than an exclusive farm use zone cannot accommodate the museum and related activities or if
the museum administration buildings and parking lot are located within one quarter mile of the
metropolitan urban growth boundary. As used in this paragraph:
(A) "Living history museum" means a facility designed to depict and interpret everyday life and
culture of some specific historic period using authentic buildings, tools, equipment and people to
simulate past activities and events; and
Enrolled House Bill 2106 (HB 2106-B) Page 13
(B) "Local historical society" means the local historical society, recognized as such by the
county governing body and organized under ORS chapter 65.
(v) Operations for the extraction and bottling of water.
(w) An aerial fireworks display business that has been in continuous operation at its current
location within an exclusive farm use zone since December 31, 1986, and possesses a wholesaler's
permit to sell or provide fireworks.
(x) A landscape contracting business, as defined in ORS 671.520, or a business providing land-
scape architecture services, as described in ORS 671.318, if the business is pursued in conjunction
with the growing and marketing of nursery stock on the land that constitutes farm use.
(y) Public or private schools for kindergarten through grade 12, including all buildings essential
to the operation of a school, primarily for residents of the rural area in which the school is located.
(z) Equine and equine -affiliated therapeutic and counseling activities, provided:
(A) The activities are conducted in existing buildings that were lawfully constructed on the
property before January 1, 2019, or in new buildings that are accessory, incidental and subordinate
to the farm use on the tract; and
(B) All individuals conducting therapeutic or counseling activities are acting within the proper
scope of any licenses required by the state.
(3) In counties that have adopted marginal lands provisions under ORS 197.247 (1991 Edition),
a single-family residential dwelling not provided in conjunction with farm use may be established
on a lot or parcel with soils predominantly in capability classes IV through VIII as determined by
the Agricultural Capability Classification System in use by the United States Department of Agri-
culture Soil Conservation Service on October 15, 1983. A proposed dwelling is subject to approval
of the governing body or its designee in any area zoned for exclusive farm use upon written findings
showing all of the following:
(a) The dwelling or activities associated with the dwelling will not force a significant change in
or significantly increase the cost of accepted farming practices on nearby lands devoted to farm use.
(b) The dwelling is situated upon generally unsuitable land for the production of farm crops and
livestock, considering the terrain, adverse soil or land conditions, drainage and flooding, location
and size of the tract. A lot or parcel shall not be considered unsuitable solely because of its size
or location if it can reasonably be put to farm use in conjunction with other land.
(c) Complies with such other conditions as the governing body or its designee considers neces-
sary.
(4) In counties that have adopted marginal lands provisions under ORS 197.247 (1991 Edition),
one single-family dwelling, not provided in conjunction with farm use, may be established in any
area zoned for exclusive farm use on a lot or parcel described in subsection (7) of this section that
is not larger than three acres upon written findings showing:
(a) The dwelling or activities associated with the dwelling will not force a significant change in
or significantly increase the cost of accepted farming practices on nearby lands devoted to farm use;
(b) If the lot or parcel is located within the Willamette River Greenway, a floodplain or a
geological hazard area, the dwelling complies with conditions imposed by local ordinances relating
specifically to the Willamette River Greenway, floodplains or geological hazard areas, whichever is
applicable; and
(c) The dwelling complies with other conditions considered necessary by the governing body or
its designee.
(5) Upon receipt of an application for a permit under subsection (4) of this section, the governing
body shall notify:
(a) Owners of land that is within 250 feet of the lot or parcel on which the dwelling will be
established; and
(b) Persons who have requested notice of such applications and who have paid a reasonable fee
imposed by the county to cover the cost of such notice.
(6) The notice required in subsection (5) of this section shall specify that persons have 15 days
following the date of postmark of the notice to file a written objection on the grounds only that the
Enrolled House Bill 2106 (HB 2106-B) Page 14
dwelling or activities associated with it would force a significant change in or significantly increase
the cost of accepted farming practices on nearby lands devoted to farm use. If no objection is re-
ceived, the governing body or its designee shall approve or disapprove the application. If an ob-
jection is received, the governing body shall set the matter for hearing in the manner prescribed in
ORS 215.402 to 215.438. The governing body may charge the reasonable costs of the notice required
by subsection (5)(a) of this section to the applicant for the permit requested under subsection (4) of
this section.
(7) Subsection (4) of this section applies to a lot or parcel lawfully created between January 1,
1948, and July 1, 1983. For the purposes of this section:
(a) Only one lot or parcel exists if:
(A) A lot or parcel described in this section is contiguous to one or more lots or parcels de-
scribed in this section; and
(B) On July 1, 1983, greater than possessory interests are held in those contiguous lots, parcels
or lots and parcels by the same person, spouses or a single partnership or business entity, separately
or in tenancy in common.
(b) "Contiguous" means lots, parcels or lots and parcels that have a common boundary, includ-
ing but not limited to, lots, parcels or lots and parcels separated only by a public road.
(8) A person who sells or otherwise transfers real property in an exclusive farm use zone may
retain a life estate in a dwelling on that property and in a tract of land under and around the
dwelling.
(9) No final approval of a nonfarm use under this section shall be given unless any additional
taxes imposed upon the change in use have been paid.
(10) Roads, highways and other transportation facilities and improvements not allowed under
subsections (1) and (2) of this section may be established, subject to the approval of the governing
body or its designee, in areas zoned for exclusive farm use subject to:
(a) Adoption of an exception to the goal related to agricultural lands and to any other applicable
goal with which the facility or improvement does not comply; or
(b) ORS 215.296 for those uses identified by rule of the Land Conservation and Development
Commission as provided in section 3, chapter 529, Oregon Laws 1993.
(11) The following agri-tourism and other commercial events or activities that are related to and
supportive of agriculture may be established in any area zoned for exclusive farm use:
(a) A county may authorize a single agri-tourism or other commercial event or activity on a
tract in a calendar year by an authorization that is personal to the applicant and is not transferred
by, or transferable with, a conveyance of the tract, if the agri-tourism or other commercial event
or activity meets any local standards that apply and:
(A) The agri-tourism or other commercial event or activity is incidental and subordinate to ex-
isting farm use on the tract;
(B) The duration of the agri-tourism or other commercial event or activity does not exceed 72
consecutive hours;
(C) The maximum attendance at the agri-tourism or other commercial event or activity does not
exceed 500 people;
(D) The maximum number of motor vehicles parked at the site of the agri-tourism or other
commercial event or activity does not exceed 250 vehicles;
(E) The agri-tourism or other commercial event or activity complies with ORS 215.296;
(F) The agri-tourism or other commercial event or activity occurs outdoors, in temporary
structures, or in existing permitted structures, subject to health and fire and life safety require-
ments; and
(G) The agri-tourism or other commercial event or activity complies with conditions established
for:
(i) Planned hours of operation;
(ii) Access, egress and parking;
Enrolled House Bill 2106 (HB 2106-B) Page 15
(iii) A traffic management plan that identifies the projected number of vehicles and any antic-
ipated use of public roads; and
(iv) Sanitation and solid waste.
(b) In the alternative to paragraphs (a) and (c) of this subsection, a county may authorize,
through an expedited, single -event license, a single agri-tourism or other commercial event or ac-
tivity on a tract in a calendar year by an expedited, single -event license that is personal to the ap-
plicant and is not transferred by, or transferable with, a conveyance of the tract. A decision
concerning an expedited, single -event license is not a land use decision, as defined in ORS 197.015.
To approve an expedited, single -event license, the governing body of a county or its designee must
determine that the proposed agri-tourism or other commercial event or activity meets any local
standards that apply, and the agri-tourism or other commercial event or activity:
(A) Must be incidental and subordinate to existing farm use on the tract;
(B) May not begin before 6 a.m. or end after 10 p.m.;
(C) May not involve more than 100 attendees or 50 vehicles;
(D) May not include the artificial amplification of music or voices before 8 a.m. or after 8 p.m.;
(E) May not require or involve the construction or use of a new permanent structure in con-
nection with the agri-tourism or other commercial event or activity;
(F) Must be located on a tract of at least 10 acres unless the owners or residents of adjoining
properties consent, in writing, to the location; and
(G) Must comply with applicable health and fire and life safety requirements.
(c) In the alternative to paragraphs (a) and (b) of this subsection, a county may authorize up to
six agri-tourism or other commercial events or activities on a tract in a calendar year by a limited
use permit that is personal to the applicant and is not transferred by, or transferable with, a
conveyance of the tract. The agri-tourism or other commercial events or activities must meet any
local standards that apply, and the agri-tourism or other commercial events or activities:
(A) Must be incidental and subordinate to existing farm use on the tract;
(B) May not, individually, exceed a duration of 72 consecutive hours;
(C) May not require that a new permanent structure be built, used or occupied in connection
with the agri-tourism or other commercial events or activities;
(D) Must comply with ORS 215.296;
(E) May not, in combination with other agri-tourism or other commercial events or activities
authorized in the area, materially alter the stability of the land use pattern in the area; and
(F) Must comply with conditions established for:
(i) The types of agri-tourism or other commercial events or activities that are authorized during
each calendar year, including the number and duration of the agri-tourism or other commercial
events and activities, the anticipated daily attendance and the hours of operation;
(ii) The location of existing structures and the location of proposed temporary structures to be
used in connection with the agri-tourism or other commercial events or activities;
(iii) The location of access and egress and parking facilities to be used in connection with the
agri-tourism or other commercial events or activities;
(iv) Traffic management, including the projected number of vehicles and any anticipated use of
public roads; and
(v) Sanitation and solid waste.
(d) In addition to paragraphs (a) to (c) of this subsection, a county may authorize agri-tourism
or other commercial events or activities that occur more frequently or for a longer period or that
do not otherwise comply with paragraphs (a) to (c) of this subsection if the agri-tourism or other
commercial events or activities comply with any local standards that apply and the agri-tourism or
other commercial events or activities:
(A) Are incidental and subordinate to existing commercial farm use of the tract and are neces-
sary to support the commercial farm uses or the commercial agricultural enterprises in the area;
(B) Comply with the requirements of paragraph (c)(C), (D), (E) and (F) of this subsection;
Enrolled House Bill 2106 (HB 2106-B) Page 16
(C) Occur on a lot or parcel that complies with the acknowledged minimum lot or parcel size;
and
(D) Do not exceed 18 events or activities in a calendar year.
(12) A holder of a permit authorized by a county under subsection (11)(d) of this section must
request review of the permit at four-year intervals. Upon receipt of a request for review, the county
shall:
(a) Provide public notice and an opportunity for public comment as part of the review process;
and
(b) Limit its review to events and activities authorized by the permit, conformance with condi-
tions of approval required by the permit and the standards established by subsection (11)(d) of this
section.
(13) For the purposes of subsection (11) of this section:
(a) A county may authorize the use of temporary structures established in connection with the
agri-tourism or other commercial events or activities authorized under subsection (11) of this sec-
tion. However, the temporary structures must be removed at the end of the agri-tourism or other
event or activity. The county may not approve an alteration to the land in connection with an
agri-tourism or other commercial event or activity authorized under subsection (11) of this section,
including, but not limited to, grading, filling or paving.
(b) The county may issue the limited use permits authorized by subsection (11)(c) of this section
for two calendar years. When considering an application for renewal, the county shall ensure com-
pliance with the provisions of subsection (11)(c) of this section, any local standards that apply and
conditions that apply to the permit or to the agri-tourism or other commercial events or activities
authorized by the permit.
(c) The authorizations provided by subsection (11) of this section are in addition to other au-
thorizations that may be provided by law, except that "outdoor mass gathering" and "other gather-
ing," as those terms are used in ORS 197.015 (10)(d), do not include agri-tourism or other commercial
events and activities.
SECTION 3. ORS 215.417 is amended to read:
215.417. (1) If a permit is approved under ORS 215.416 for a proposed residential development
on agricultural or forest land outside of an urban growth boundary under ORS 215.010 to 215.293
or 215.317 to 215.438 or under county legislation or regulation, the permit [shall be] is valid for four
years.
(2) An extension of a permit described in subsection (1) of this section [shall be] is valid for two
years. A county may approve no more than five additional one-year extensions of a permit
if:
(a) The applicant makes a written request for the additional extension prior to the expi-
ration of an extension;
(b) The applicable residential development statute has not been amended following the
approval of the permit; and
(c) An applicable rule or land use regulation has not been amended following the issuance
of the permit, unless allowed by the county, which may require that the applicant comply
with the amended rule or land use regulation.
(3) An extension of a permit under subsection (2) of this section is not a land use decision
as defined in ORS 197.015.
[(3A (4) [For the purposes of] As used in this section, "residential development" [only includes
the] means dwellings provided for under ORS 215.213 (3) and (4), 215.284, 215.317, 215.705 (1) to (3),
215.720, 215.740, 215.750 and 215.755 (1) and (3).
SECTION 3a. If House Bill 2225 becomes law, ORS 215.417, as amended by section 3 of this
2019 Act, is amended to read:
215.417. (1) If a permit is approved under ORS 215.416 for a proposed residential development
on agricultural or forest land outside of an urban growth boundary under ORS 215.010 to 215.293
or 215.317 to 215.438 or under county legislation or regulation, the permit is valid for four years.
Enrolled House Bill 2106 (HB 2106-B) Page 17
(2) An extension of a permit described in subsection (1) of this section is valid for two years.
A county may approve no more than five additional one-year extensions of a permit if:
(a) The applicant makes a written request for the additional extension prior to the expiration
of an extension;
(b) The applicable residential development statute has not been amended following the approval
of the permit, except the amendments to ORS 215.750 by section 1, chapter _, Oregon Laws
2019 (Enrolled House Bill 2225); and
(c) An applicable rule or land use regulation has not been amended following the issuance of the
permit, unless allowed by the county, which may require that the applicant comply with the
amended rule or land use regulation.
(3) An extension of a permit under subsection (2) of this section is not a land use decision as
defined in ORS 197.015.
(4) As used in this section, "residential development" means dwellings provided for under ORS
215.213 (3) and (4), 215.284, 215.317, 215.705 (1) to (3), 215.720, 215.740, 215.750 and 215.755 (1) and
(3).
SECTION 4. ORS 215.417, as amended by section 9, chapter 462, Oregon Laws 2013, is amended
to read:
215.417. (1) If a permit is approved under ORS 215.416 for a proposed residential development
on agricultural or forest land outside of an urban growth boundary under ORS 215.010 to 215.293
or 215.317 to 215.438 or under county legislation or regulation, the permit [shall be] is valid for four
years.
(2) An extension of a permit described in subsection (1) of this section [shall be] is valid for two
years. A county may approve no more than five additional one-year extensions of a permit
if:
(a) The applicant makes a written request for the additional extension prior to the expi-
ration of an extension;
(b) The applicable residential development statute has not been amended following the
approval of the permit; and
(c) An applicable rule or land use regulation has not been amended following the issuance
of the permit, unless allowed by the county, which may require that the applicant comply
with the amended rule or land use regulation.
(3) An extension of a permit under subsection (2) of this section is not a land use decision
as defined in ORS 197.015.
[(3)] (4) [For the purposes of] As used in this section, "residential development" [only includes
the] means dwellings provided for under ORS 215.213 (1)(q), (3) and (4), 215.283 (1)(p), 215.284,
215.317, 215.705 (1) to (3), 215.720, 215.740, 215.750 and 215.755 (1) and (3).
SECTION 4a. If House Bill 2225 becomes law, ORS 215.417, as amended by section 9, chapter
462, Oregon Laws 2013, and section 4 of this 2019 Act, is amended to read:
215.417. (1) If a permit is approved under ORS 215.416 for a proposed residential development
on agricultural or forest land outside of an urban growth boundary under ORS 215.010 to 215.293
or 215.317 to 215.438 or under county legislation or regulation, the permit is valid for four years.
(2) An extension of a permit described in subsection (1) of this section is valid for two years.
A county may approve no more than five additional one-year extensions of a permit if:
(a) The applicant makes a written request for the additional extension prior to the expiration
of an extension;
(b) The applicable residential development statute has not been amended following the approval
of the permit, except the amendments to ORS 215.750 by section 1, chapter _, Oregon Laws
2019 (Enrolled House Bill 2225); and
(c) An applicable rule or land use regulation has not been amended following the issuance of the
permit, unless allowed by the county, which may require that the applicant comply with the
amended rule or land use regulation.
Enrolled House Bill 2106 (HB 2106-B) Page 18
(3) An extension of a permit under subsection (2) of this section is not a land use decision as
defined in ORS 197.015.
(4) As used in this section, "residential development" means dwellings provided for under ORS
215.213 (1)(q), (3) and (4), 215.283 (1)(p), 215.284, 215.317, 215.705 (1) to (3), 215.720, 215.740, 215.750
and 215.755 (1) and (3).
SECTION 5. This 2019 Act being necessary for the immediate preservation of the public
peace, health and safety, an emergency is declared to exist, and this 2019 Act takes effect
on its passage.
Passed by House April 18, 2019
Repassed by House June 11, 2019
..........................................................................
Timothy G. Sekerak, Chief Clerk of House
..................................................................................
Tina Kotek, Speaker of House
Passed by Senate June 6, 2019
..................................................................................
Peter Courtney, President of Senate
Received by Governor:
................M.,
Approved:
........................ M.,.
....., 2019
.....................................1 2019
Kate Brown, Governor
Filed in Office of Secretary of State:
...................... M............................................................ 2019
..................................................................................
Bev Clarno, Secretary of State
Enrolled House Bill 2106 (HB 2106-B) Page 19
80th OREGON LEGISLATIVE ASSEMBLY --2019 Regular Session
Enrolled
House Bill 3384
Sponsored by Representative WILDE, Senator BEYER; Representatives HAYDEN, NEARMAN
�N:7:3ttl
AN ACT
Relating to nonconforming schools in exclusive farm use zones; amending ORS 215.135; and declaring
an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 215.135 is amended to read:
215.135. (1) [In addition to and not in lieu of the authority in ORS 215.130 to continue, alter, re-
store or replace a use that has been disallowed by the enactment or amendment of a zoning ordinance
or regulation, a use] Notwithstanding ORS 215.130, 215.213 or 215.283 or any local zoning ordi-
nance or regulation, a public or private school, including all buildings essential to the oper-
ation of the school, formerly allowed pursuant to ORS 215.213 (1)(a) or 215.283 (1)(a), as in effect
before January 1, 2010, may be expanded [subject to] provided:
[(a) The requirements of subsection (2) of this section; and]
[(b) Conditional approval of the county in the manner provided in ORS 215.296.]
[(2) A nonconforming use described in subsection (1) of this section may be expanded under this
section if-]
(a) The expansion complies with ORS 215.296;
[(a)] (b) The [use] school was established on or before January 1, 2009; [and]
[(b) The expansion occurs on:]
[(A) The tax lot on which the use was established on or before January 1, 2009; or]
[(B) A tax lot that is contiguous to the tax lot described in subparagraph (A) of this paragraph
and that was owned by the applicant on January 1, 2009.1
(c) The expansion occurs on a tax lot:
(A) On which the school was established; or
(B) Contiguous to and, on January 1, 2015, under the same ownership as the tax lot on
which the school was established; and
(d) The school is a public or private school for kindergarten through grade 12.
(2) A county may not deny an expansion under this section upon any rule or condition
establishing:
(a) A maximum capacity of people in the structure or group of structures;
(b) A minimum distance between structures; or
(c) A maximum density of structures per acre.
SECTION 2. This 2019 Act being necessary for the immediate preservation of the public
peace, health and safety, an emergency is declared to exist, and this 2019 Act takes effect
on its passage.
Enrolled House Bill 3384 (HB 3384-B) Page 1
Passed by House April 18, 2019
Repassed by House June 6, 2019
..............................................................................
Timothy G. Sekerak, Chief Clerk of House
.....................................................................I....I.......
Tina Kotek, Speaker of House
Passed by Senate May 23, 2019
...................................................................
Peter Courtney, President of Senate
Received by Governor:
........................ M.,...............
Approved:
........................ M.........
.................................. 2019
12019
..................................................................................
Kate Brown, Governor
Filed in Office of Secretary of State:
........................ M.,.......................................................... 2019
........................................................
Bev Clarno, Secretary of State
Enrolled House Bill 3384 (HB 3384-B) Page 2
\)I E S CpG2
o 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 BOCC Wednesday Meeting of October 30, 2019
DATE: October 21, 2019
FROM: William Groves, Community Development, 541-388-6518
TITLE OF AGENDA ITEM:
PUBLIC HEARING: Lower Bridge Planned Unit Development Appeal
RECOMMENDATION & ACTION REQUESTED:
Conduct the public hearing.
BACKGROUND AND POLICY IMPLICATIONS:
The Applicant requested conditional use, tentative subdivision plan, and SMIA site plan approval
to establish a 19 -lot residential planned unit development ("PUD") on the Subject Property. The
Board of County Commissioners (Board) will conduct a public hearing on October 30, 2019, at 1:00
PM, on appeal(s) of a Hearings Officer's decision denying a conditional use, tentative subdivision
plan, and Surface Mining Impact Area ("SMIA") site plan review.
FISCAL IMPLICATIONS: None
ATTENDANCE: Will Groves
STAFF MEMORANDUM
Date: October 28, 2019
To: Board of County Commissioners
From: Will Groves, Senior Planner
Re: Appeal of Hearings Officer Decision (File Nos. 247 -19 -000405 -CU, 406 -TP, 407 -SMA, 741-
A, 757-A)
The Board of County Commissioners (Board) will conduct a public hearing on October 30, 2019, at
1:00 PM, on appeal(s) of a Hearings Officer's decision denying a conditional use, tentative
subdivision plan, and Surface Mining Impact Area ("SMIA') site plan review.
I. Application
The Applicant requested conditional use, tentative subdivision plan, and SMIA site plan approval to
establish a 19 -lot residential planned unit development ("PUD") on the Subject Property. The
residential lots would range in size from 2 to 5 acres, would comprise a total of 42.5 acres, and
would have access from Lower Bridge Way via private roads. The subdivision would include 2
common area tracts comprising 0.9 acres, 5 open space tracts comprising 94.1 acres, 4.4 acres of
private road, and 2.8 acres of right-of-way dedication for the abutting segment of Lower Bridge Way.
No development is proposed to occur within the Flood Plain Zone of the Deschutes River Canyon
area.
The present application is significantly similar to a 2015 application denied by a Hearings Officer
and withdrawn by the Applicant before the Board. This is referred to as the "2015 decision".
II. Decision
The Hearings Officer denied the application and the decision was mailed on September 24, 2019.
The Hearing Officer's decision quoted extensively from the 2015 decision. The 2019 application was
denied because:
117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
t,, (541) 388-6575 @ cdd@deschutes.org @ www.deschutes.org/cd
The Applicant did not provide required proof that sufficient financing exists to assure
the proposed development will be substantially completed within four years of
approval.
The Applicant had requested to impermissibly defer compatibility analysis with two
adjacent, non-active surface mines.
The 2019 denial differed from the 2015 denial in several important ways.
• It reevaluated the code provisions relating to including Flood Plain zoned lands in a
PUD and concluded that this was permissible. Additionally, the 2019 decision found
that Flood Plain zoned lands could be included in lot density calculations for the PUD.
It found that compliance with rimrock setbacks could be made conditions of the
approval.
• It found that the lot sizes were adequate for the proposed residential use, given
applicable setbacks and other constraints.
• It found potential dust impacts from adjacent Surface Mining zoned properties could
be addressed through a condition of approval.
• It found that environmental concerns raised by the mine's long history were
adequately addressed, for the purposes of this PUD, through recent Department of
Environmental Quality and Oregon Health Authority letters.
III. 150 -day Issuance of a Final Local Decision
The 150 -day period for issuance of a final local decision is currently January 7, 2020.
IV. Appeal
The Applicant filed an appeal of the Hearings Officer's decision concerning both reasons for denial,
listed above.
Calfa Holdings, LLC appealed the Hearings Officer's decision for the following reasons:
• The Hearings Officer erred in concluding that Flood Plain zoned areas can be used as
open space tracts in a PUD subdivision. This has authorized a density transfer to the
upland portions of any PUD or cluster development using flood plain zoned land.
File Nos. 247 -19 -000405 -CU, 406 -TP, 407 -SMA, 741-A, 757-A Page 2 of 8
• This decision has circumvented the County's requirement to perform an economic,
social, energy and environmental ("ESEE") analysis, consistent with Goal 5, which the
County had in fact done in the preliminary stages of the 2019 legislative process.
The minimum lot size for Flood Plain Zone has not been met in this case. The required
minimum lot size is 80 acres for "areas which have not received an exception to the
Statewide Planning Goals" for resource uses. The Flood Plain Zone portion of this
subject property has not received an exception to resource goals (Goals 3 and 4).
• The Hearings Officer erred in concluding that the applicant can defer until building
permit stage to show that Landscape Management Zone rimrock setbacks of 50 feet
will be met.
III. KEY ISSUES
The Board will likely be asked to deliberate and decide on the following questions:
Can a PUD application include FP zoned land?
Issue Summary: This application includes the creation of open space lots in the Flood Plain
(FP) Zone, where "Planned Development" is not one of the allowed uses. The proposed use
of FP zoned lands is the creation of lots through subdivision for the preservation of open
space. Both subdivision and open space are allowed uses in the zone. The 2015 and 2019
Hearings Officer disagreed on this question.
2015 Hearings Officer: "Neither "cluster development" nor "planned development" is a use
permitted outright or conditionally in the FP Zone. The Hearings Officer finds the text and
context of the provisions of Title 18 defining and governing the three types of subdivisions
make clear they have different characteristics and are intended to be reviewed and approved
under different substantive standards. While it may seem counterintuitive not to permit use
of FP -zoned land for open space within a planned development where such use would
protect these areas consistent with the purpose of the FP Zone, I find the plain language of
the FP Zone does not allow such development."
2019 Hearings Officer: "The Hearings Officer disagrees with the 2015 Land Use Decision
comment that " I find the plain language of the FP Zone does not allow such a development"
referring to a "cluster" and/or a "planned" development. The Hearings Officer, in this case,
believes the language used in DCC 18.96.040 is clear, plain and unambiguous. The 2015 Land
Use Decision findings for DCC 18.96.040 characterizes "cluster developments" and "planned
developments "as something separate and distinct from the act of subdividing. This Hearings
Officer, in this case, finds that "cluster developments" and "planned developments" are
subdivisions that are "subject to the provisions of DCC Title 18 and DCC Title 17."
Can FP zoned land be counted towards PUD housing density and density bonuses?
File Nos. 247 -19 -000405 -CU, 406 -TP, 407 -SMA, 741-A, 757-A Page 3 of 8
Issue Summary: Planned Unit Developments are afforded a density bonus from one unit per
10 acres to one unit per 7.5 acres, increasing the number of allowed units in the
development. This trade-off is given for the preservation of otherwise developable land as
restricted open space area. The PUD proposal relies on FP zoned land as part of density
calculation to allow for 19 residential lots.
2015 Hearings Officer: "The Hearings Officer has found the proposed PUD is not a use
permitted outright or conditionally in that zone. Therefore, I find the approximately 30 acres
of FP -zoned land included in the subject property cannot be included in the density
calculation."
2019 Hearings Officer: "The Hearings Officer, in this case, ... determined that the area
designated Open Space including area with the Flood Plan Zone, should be included in the
computation of the PUD acreage."
Does "transferring" density from FP zoned land to residential zone lands act as a plan
amendment with widespread impacts on infrastructure, housing, and Goal 5 inventoried
resources?
Issue Summary: Opponents argue that the 2019 Hearing Officer's decision allows
undevelopable land in the Flood Plain to be credited towards new additional residential
density in upland areas. Since, these additional residential units were not accounted for
when analyses of housing demand, infrastructure requirements, and protection of Goal 5
resources were conducted, this change in code interpretation undermines the assumptions
and conclusions of those analyses.
Hearings Officers: This issue was not argued in 2015 and staff believes that the 2019
Hearings Officer's decision does not directly address this issue.
Does sufficient financing exist to assure the proposed development will be substantially
completed within four years of approval?
2015 Hearings Officer: "The applicant did not submit any evidence supporting this statement.
The Hearings Officer finds a simple conclusory statement does not constitute sufficient
evidence to demonstrate compliance with this conditional use approval criterion."
2019 Hearings Officer: "The Hearings Officer finds this criterion is not satisfied by the simple
statement that "the applicant has the financial resources and demonstrated capacity to
complete the development." The Hearings Officer finds Applicant must provide something
more that such a conclusionary statement."
File Nos. 247 -19 -000405 -CU, 406 -TP, 407 -SMA, 741-A, 757-A Page 4 of 8
Are the proposed lots developable, given applicable constraints on the building lots?
Issue Summary: DCC 17.36.170 requires: 'The size, width and orientation of lots or parcels
shall be appropriate for the location of the land division and for the type of development
and use contemplated..." This requires the decision maker to find that the lot layout would
allow each lot to be developed with a house, well, and septic system, considering all
applicable constraints.
2015 Hearings Officer: "...the applicant has failed to demonstrate the size and configuration
of each proposed PUD lot will allow the siting of dwellings, on-site septic systems and
individual wells consistent with the 50 -foot setback from any rimrock and all other applicable
yard and setback requirements."
2019 Hearings Officer: "The Hearings Officer finds that with conditions set forth in the
findings for DCC 18.96.110 C, DCC 18.128.015 A, DCC 18.128.210 A this approval criterion can
be met."
Has the Flood Plain zone land received an exception to the resource use acreage standards?
(Goal 3)
Issue summary: Minimum lot sizes in resourced zoned lands (Farm) are 80 acres, with certain
exceptions, as part of the State Goal 3 program to preserve and protect farm uses. The Flood
Plain zone, accordingly, has a minimum lot size of 80 acres, where land has not "received an
exception to the Statewide Planning Goals for resource uses". On the subject property, the
Flood Plain zone has a "Surface Mining" comprehensive plan designation. Does that
designation count as an exception?
2015 Hearings Officer: "The board's 2008 plan amendment and zone change decision did not
include any FP -zoned land. Because the FP Zone was not modified and it is not considered a
"resource" zone, the Hearings Officer finds no goal exception was or is required, and
therefore the creation of new lots in the FP -zoned portions of property is subject to a 10 -acre
minimum lot size."
2019 Hearings Officer: "The Hearings Officer finds that no Goal 5 exception is required in this
case and therefore the minimum lot size is ten (10) acres."
Staff Comment: It appears that the 2019 Hearings Officer did not directly address "resource
use" and Goal 3.
Has the environmental history at the mine been adequately addressed and resolved?
Issue Summary: The site consists primarily of that portion of the former Oremite mine site
east of Lower Bridge Road. This 113 -acre area was previously used for aggregate mining and
File Nos. 247 -19 -000405 -CU, 406 -TP, 407 -SMA, 741-A, 757-A Page 5 of 8
hot -mix asphalt plant operations. Diatomite mining and processing was conducted on an
adjacent larger property on the west side of Lower Bridge Road.
In 2009, the Oregon Heath Authority ("OHA") concluded:
"...there were physical hazards posed by dilapidated structures and debris piles, and
an indeterminate public health hazard from cristobalite and inhalation of airborne
dust from the site. The indeterminate public health hazard determination was the
result of a lack of environmental sampling data to adequately evaluate the cristobalite
and airborne dust pathway of potential human exposure."
The lack of complete environmental hazard information was a major source of concern in
the 2015 Decision. The applicant continued to conduct environmental work, despite the 2015
denial. Post -2015 investigation and cleanup activities at this site included testing and removal
of asbestos containing materials and petroleum contaminated soil on the parcels east of
Lower Bridge Road.
In 2017 OHA found:
"Since the release of the 2009 Health Consultation, structures and debris piles have
been removed and additional environmental sampling data have been collected and
analyzed. The 2016 and 2017 remedial investigation and clean-up reports, mentioned
above, document that cristobalite concentrations in the soil on all portions of the site
are similar to native soils in the area. This indicates that hazards from airborne dust
originating from the site are no more dangerous than airborne dust originating from
anywhere else in the region.
Measured concentrations of contaminants in soil, groundwater, and air are too low
to harm the health of potential future residents living on the site. Therefore, EHAP is
revising all conclusions related to the former diatomaceous earth mine located at
Lower Bridge Road to no apparent public health hazard for residential use as
currently proposed by Mr. Greg Daniels."
Likewise, the Department of Environmental Quality ("DEQ") concluded in 2017:
"Based on the available information, environmental conditions are currently
protective of public health and the environment. The site requires no additional
action under Oregon Administrative Rules (OAR) 340-122-0010 through 340-122-0140
unless new or previously undisclosed information becomes available, or there are
changes in site development or land and water uses, or more contamination is
discovered."
Neighbors contest the thoroughness and conclusions of the environmental review,
conducted by the applicant's consultant under the direction of DEQ and OHA.
File Nos. 247 -19 -000405 -CU, 406 -TP, 407 -SMA, 741-A, 757-A Page 6 of 8
Will sensitive habitats associated with the Deschutes River and nearby rimrock be
adequately protected?
2015 Hearings Officer: "...the natural resource values on the subject property include: the
abutting stretch of the Deschutes River, a designated state scenic waterway, and its
associated wetlands and riparian areas; rock outcrops and native vegetation within the river
canyon; fish and wildlife and their habitats; scenic views of the river and the Cascade
mountains from the bench/plateau; and the Borden Beck Wildlife Preserve."
Deschutes River and Canyon. "...if the proposed PUD is approved on appeal, it should be
subject to a condition of approval prohibiting the construction of any structure, whether or
not it requires a building permit, closer than 50 feet from any rimrock on each PUD
residential lot."
Deschutes River Scenic Waterway. "...As discussed in the findings above, the Hearings
Officer has found that if the proposed PUD is approved on appeal, it should be subject to
conditions of approval requiring that all dwellings within the PUD be set back a minimum of
100 feet from the OHWM of the Deschutes River and at least 50 feet from any rimrock, and
that all structures be prohibited within the Deschutes River canyon."
Fish and Wildlife. The Hearings Officer found that, with conditions of approval, this resource
would be adequately protected.
Borden Beck Wildlife Preserve. 'The applicant proposes to protect all flood plain areas,
wetlands, riparian habitat and canyon associated with the Deschutes River by including such
areas within open space Tracts C and E, both of which are located across the river from the
Borden Beck Wildlife Preserve.
I find the design of the proposed PUD, and implementation of these setbacks and LM review,
will minimize impacts on the wildlife habitat."
Scenic Views. "The Hearings Officer finds that dwellings in the proposed PUD will not block
or interfere with views of the river or the Cascade Mountains from adjacent or nearby
properties to the east and north. Opponents who live across the Deschutes River east of the
proposed PUD object to having to look at dwellings on the subject property. However, I find
that with the 2008 rezoning of the subject property to RR -10, opponents no longer had
reasonable expectations that the subject property would remain undeveloped."
2019 Hearings Officer:
Deschutes River and Canyon. The Hearings Officer found that under the Riparian Area
Management Plan and associated conditions of approval, this resource would be adequately
protected.
File Nos. 247 -19 -000405 -CU, 406 -TP, 407 -SMA, 741-A, 757-A Page 7 of 8
Deschutes River Scenic Waterway. The Hearings Officer found that, with per -structure
review of homes by Oregon Parks and Recreation ("OPRD"), this resource would be
adequately protected.
Fish and Wildlife. The Hearings Officer found that, with conditions of approval, this resource
would be adequately protected. (See Borden Beck discussion, below).
Borden Beck Wildlife Preserve. The Hearings Officer finds that with conditions requiring
setbacks from the Deschutes River and rimrock, a prohibition upon Applicant seeking
exceptions to the County rimrock standards or LM review standards, a prohibition upon
Applicant seeking Scenic Waterway exceptions, and modification of the CC&R's to reflect
ODFW's request to "ban the feeding of wildlife and require "wildlife friendly fencing" (DCC
18.88.070), the Applicant has adequately addressed this issue.
Scenic Views. The Hearings Officer finds that with conditions requiring setbacks from the
Deschutes River and rimrock, a prohibition upon Applicant seeking exceptions to the County
rimrock standards or LM review standards, and a prohibition upon Applicant seeking Scenic
Waterway exceptions this issue has been adequately addressed.
IV. CONCLUSION
The Hearings Officer's decision for this application identifies all applicable zoning ordinances and
evaluates compliance with the criteria and standards of those ordinances. This memorandum only
supplements the findings of compliance with the identified ordinances in relation to the issues
raised in the Notice of Appeal.
DESCHUTES COUNTY PLANNING DIVISION
Will Groves, Senior Planner
Attachments:
1. Order No 2019-042 Signed (Order no corrected to 42 from 39)
2. Notice of BOCC Public Hearing
File Nos. 247 -19 -000405 -CU, 406 -TP, 407 -SMA, 741-A, 757-A Page 8 of 8
s' `t Community Development Department
2 PO Box 6o05 - Bend, OR 97708-6005
117 NW Lafayette Avenue - Bend, OR 97701-1925
VOLWOOD FARMS LLC
25994 HALL RD
JUNCTION CITY, OR 97448-8537
NOTICE OF PUBLIC HEARING
The Deschutes County Board of Com missioners will hold a public hearing on October 30", 2019 at
1 p.ir+. in the Deschutes County Board of Commissioners Hearing Room at 1300 NW Wall Street,
Bend, to take testimony on the following item:
FILE NUMBER/S: 247 -19 -000405 -CU, 406 -TP, 407 -SMA, 741-A, and 757-A
APPLICANT/
OWNER: Lower Bridge Road, LLC
ATTORNEY: Ti. M. Lewis
PROPOSAL: Conditional use, tentative subdivision plan, and SMIA site plan approval to
establish a 19 -lot residential planned development on three parcels totaling
144.7 ares, zoned RR -10, FP, LM and SMIA and located between the Deschutes
River and Lower Bridge Way west of Terrebonne.
LOCATION: The subject property is identified as Tax Lot 500 on Deschutes County
Assessor's Map 14-12-15, and Tax Lots 1502, 1505, and 1600 on Assessor's
Map 14-12 (index). Each of these tax lots has an assigned address in
Terrebonne as follows.
Tax Lot 500: 70465 NW 96th Court;
Tax Lot 1502: 70300 NW Lower Bridge Way,
Tax Lot 1505: 10000 NW Lower Bridge Way; and
Tax Lot 1600:70350 NW Lower Bridge Way
STAFF CONTACT: Will Grove=, Senior Planner, willggdeschutes.org, (541) 388-6518
DOCUMENTS: Can be viewed and downloaded from:
www.buildingpermits.oregon.goy and http.//dial.deschutes.org
STANDARDS AND APPLICABLE CRITERIA:
Title 18 of the Deschutes County Code:
Chapter 18.04, Title, Purpose and Definitions
Chapter 18.16, Exclusive Farm Use (EFU) Zone
117 NW L..rayatta A,.ar,ua, Ba d, Ora — 97703 1 P.O. B=x 6005, Bard, OR 97708-6005
(541) 388-6575=ae@das= utas.org ® das= tas. rgI=d
Chapter 18.52, Surface Mining (SM) Zone
Chapter 18.56, Surface Mining Im pact Area Combining (SM IA) Zone
Chapter 18.60, Rural Residential (RR -10) Zone
Chapter 18.84, Landscape Management (LM) Combining Zone
Chapter 18.96, Flood Plain (FP)
Chapter 18.116, Supplementary Provisions
Chapter 18.128, Conditional Uses
Title 17 ofthe Deschutes County Code.
Chapter 17.08, Definitions and interpretation of Language
Chapter 17.16, Approval of Subdivision Tentative Plans and Master Development Plans
Chapter 17.36, Design Standards
Chapter 17.44, Park Development
Chapter 17.48, Design and Construction Specifications
Title 22 of the Deschutes County Code, the Development Procedures Ordinance
Deschutes County Comprehensive Plan
Chapter 3, Rural Growth Management
Oregon Administrative Rules (OAR)
OAR 660-004 (7)(e), Application of Goal 14 (Urbanization) to Rural Residential Areas
All documents and evidence submitted by or on behalf of the applicant and applicable criteria are
available for inspection at no cost at the Deschutes County Com munity Development Department
(CDD) at 117 NW Lafayette Avenue. Seven (7) days prior to the public hearing, a copy of the staff
report will be available for inspection at no cost at CDD. Copies of all documents, evidence and the
staff report can be purchased at CDD for (25) cents a page.
ALL INTERESTED PERSONS MAY APPEAR, BE HEARD, BE REPRESENTED BY COUNSEL, OR SEND
WRITTEN SIGNED TESTIMONY. ANY PARTY TO THE APPLICATION IS ENTITLED TO A
CONTINUANCE OF THE INITIAL EVIDENTIARY HEARING OR TO HAVE THE RECORD LEFT OPEN
IN ACCORDANCE WITH SECTION 22.24.140 OF THE DESCHUTES COUNTY CODE.
Failure to raise an issue in person at a hearing or in writing precludes appeal by that person to the
Land Use Board of Appeals (LUBA), and that failure to provide statements or evidence sufficientto
afford the decision maker an opportunity to respond to the issue precludes appeal to LUBA based
on that issue.
Deschutes County encourages persons with disabilities to participate in all programs and activities.
This event location is accessible to people with disabilities. If you need accom modations to make
participation possible, please call the ADA Coordinator at (541) 617-4747.
DOCUMENT SUBMISSION
247 -19 -000405 -CU, 406 -TP. 407 -SMA Page 2 of 3
Any person may submit. written comments on a proposed land use action. Documents may be
submitted to our office in person, U.S. mail, or email.
In Person
1IJIM#LVA
R�f1
We accept all printed documents. Deschutes County Com munity Development
Planning Division, name ofcase planner
P.O. Box 6005
Bend, OR 97708-6005
Enn.ii
Email submittals must comply with the following guidelines.
® Submission is 20 pages or less
• Documents can be printed in black and white only
• Documents can be printed on 8.5" x 11" paper
Any email submittal which exceeds the guidelines provided above, must be submitted as a paper
copy.
Limitations
• Deschutes County does nottake responsibility for retrieving information from a website link
or personal cloud storage service. It is the submitter's responsibiIityto provide the specific
information they wish to enter into the record. We will print the email which includes the
link(.), however, we will not retrieve any information on behalf ofthe submitter.
• Deschutes County makes an effort to scan all submittals as soon as possible. Recognizing
staff availability and workload, there is often a delay between the submittal of a document
to the record, and when it is scanned and uploaded to Accela Citizen Access (ACA) and
Deschutes County Property Information (DIAL). For this reason, the official record is the file
that resides in the Com m unity Development office. The electronic record in ACA and DIAL is
not a substitute for the official record.
• To ensure your submission is entered into the correct land use record, please specify the
land use file number(s).
• For the open record period after a public hearing, electronic submittals are valid if
received by the CoUnty�s Server by the deadline established for the land use action.
• IF YOU WISH TO BE NOTIFIED OF ANY DECISION RELATED TO THIS APPLICATION, YOU MUST
PROVIDE A MAILING ADDRESS,
NOTICE TO MORTGAGEE, LIENHOLDER, VENDOR OR SELLER: ORS CHAPTER 215 REQUIRES THAT
IF YOU RECEIVE THIS NOTICE, IT MUST PROMPTLY BE FORWARDED TO THE PURCHASER.
This Notice was mailed pursuantto Deschutes County Code Chapters 22.20 and 22.24.
247 -19 -000405 -CU, 406 -TP. 407 -SMA Page 3 of 3
REVIEWED
M V ' —
LEGAL COUNSEL
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Accepting Review of Hearings Officer's
Decision in File Nos. 247-19-000741-A, 757-A ORDER NO. 2019-042
(247 -19 -000405 -CU, 406 -TP, 407 -SMA).
WHEREAS, Lower Bridge Road, LLC and Calfa Holdings, LLC appealed the Deschutes
County Hearings Officer's Decision on Application No. 247-19-000741-A, 757-A (247 -19 -000405 -CU,
406 -TP, 407 -SMA); and
WHEREAS, Section 22.32.027 of the Deschutes County Code allows the Deschutes County
Board of County Commissioners ("Board") discretion on whether to hear appeals of Hearings Officer's
decisions; and
WHEREAS, the Board has given due consideration as to whether to review these applications
on appeal; now therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON,
HEREBY ORDERS as follows:
Section 1. That it will hear on appeal application 247-19-000741-A, 757-A pursuant to Title
22 of the Deschutes County Code and other applicable provisions of the County land use ordinances.
Section 2. The appeal shall be heard de novo.
Section 3. Staff shall set a hearing date and cause notice to be given to all persons or
parties entitled to notice pursuant to DCC 22.24.030 and DCC 22.32.030.
Section 4. The Board, as the appeal hearings body, waives the requirement that the appellant
provide a complete transcript for the appeal hearing pursuant to DCC 22.32.024(D).
NI
ORDER NO. 2019-042, D04�0 141 12019 PAGE 1 OF 2
Section 5. To the extent its costs are less than the duplicate appeal fees received when
multiple appeals are filed, the Planning Division may refund a portion of the appeal fees to the
appellants in an equitable manner, pursuant to DCC 22.32.025(8).
DATED this _ day of 4 Dir , 2019.
ATTEST:
C� /K-
Recordi g Secretary
ORDER NO. 2019-042, MD LZ,-, / �- , 2019
BOARD OF COUNTY COMMISSIONERS
� L4) -)� Wy-
PHILIP G. DERSON, Chair
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P TTI ADAIR, Vice Chair
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ANTHONY DeBONE, Commissioner
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