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2019-485-Minutes for Meeting November 06,2019 Recorded 12/11/20190-� E S COG BOARD OF COMMISSIONERS 1300 NW Wall Street, Bend, Oregon (541 ) 388-6570 Recorded in Deschutes County CJ2019-485 Nancy Blankenship, County Clerk Comm! ssioners'Journal 12/11/2019 3:22:01 PM AE S 2019-485 FOR RECORDING STAMP ONLY 10:00 AM WEDNESDAY, November 6, 2019 BARNES & SAWYER ROOMS Present were Commissioners Phil Henderson, and Anthony DeBone. Commissioner Patti Adair was absent and excused. 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 http://deschutescountyor.iqm2.com/Citizens/Default.aspx CALL TO ORDER: Chair Henderson called the meeting to order at 10:00 am PLEDGE OF ALLEGIANCE: CITIZEN INPUT: Doug Hoschek and Tina Machuca presented concerns on Wildfire Evacuation in Sunriver. They had an evacuation consultant create an evacuation plan. Mr. Hoschek and Ms. Machuca request a further discussion and consideration of a practice evacuation. Ms. Machuca discussed a tree that is 15 feet away from their home but SROA will not allow them to cut down the tree. BOCC MEETING NOVEMBER 6, 2019 PAGE 1 OF 6 Presentation: The Board presented a 20 -year anniversary plaque to County Assessor Scot Langton. CONSENT AGENDA: Before the Board was Consideration of Approval of the Consent Agenda. DEBONE: Move approval of Consent Agenda HENDERSON: Second VOTE: DEBONE: Yes HENDERSON: Chair votes yes. Motion Carried ADAIR: Absent, excused Consent Benda Items: 1. Consideration of Board Signature of Documents No. 2019-783, 2019-784, and 2019-785, Quit Claim Deeds 2. Approval of Minutes of the October 7, 2019 BOCC Meeting 3. Approval of Minutes of the October 16, 2019 BOCC Meeting 4. Approval of Minutes of the October 23, 2019 BOCC Meeting ACTION ITEMS: 5. Wildfire Mitigation Advisory Committee Check In The project management team, including Community Development Department staff Nick Lelack, Zechariah Heck, Chris Gracia, and County Forester Ed Keith presented an update on the wildfire mitigation advisory committee's progress to update the wildfire hazard zone map, review R327 building code, and consider land use approaches. The work of this committee is posted on Deschutes County's website for public viewing. BOCC MEETING NOVEMBER 6, 2019 PAGE 2 OF 6 Commissioner Henderson requested copies of the maps the committee has drafted. Commissioner DeBone asked for clarity of the work being done. Mr. Keith reported that the governor's wildfire council is meeting on Friday to finalize their recommendations to present priority actions to the Governor. The next meeting of the wildfire mitigation advisory committee is Monday, November 18, 2019. 6. Nonprime Resource Lands/Hearing Preparation Zechariah Heck, Community Development Department, presented preparations for a public hearing on November 18, 2019. A copy of the slide presentation is attached to the record. Peter Gutowsky, Planner Manager reported on the six properties relative to the non -prime resource lands designation. The findings, draft ordinance, and proposed amendments will be presented to the Board prior to the public hearing. 7. Thornburgh Remand: Review Record Materials for an Appeal of Phase A-1 of the Thornburgh Destination Resort on Remand Jacob Ripper, Community Development Department, presented a brief summary. With the absence of Commissioner Adair today, this item will be placed on the Tuesday, November 12, 2019 meeting agenda. 8. 2019-20 Q2 Discretionary Grant Review - this item will be placed on a future agenda to allow for all three Commissioners to be present. OTHER ITEMS: Commissioner Henderson reported he has completed his evaluation for the BOCC MEETING (NOVEMBER 6, 2019 PAGE 3 OF 6 annual jail inspection and will present copies to the Commissioners before submitting the document. • Commissioner Henderson reported individual meetings that were held on Monday with Representative Zika and City of Redmond Mayor George Endicott regarding the Redmond affordable housing project. Continued discussions will be held at the joint meeting with the BOCC and City of Redmond on Tuesday, November 12, 2019. • Commissioner Henderson spoke on the status of the Terrebonne Refinement Plan and meetings with Oregon Department of Transportation. The Board has individually reached out to the community asking for further input. LUNCH RECESS: At the time of 11:54 a.m., the Board went into recess and reconvened the meeting at 1:00 p.m. 9. PUBLIC HEARING: Model Flood Amendments Nicole Mardell, Community Development Department, presented the hearing outline. Upon no conflict of interest by the Commissioners or challenges presented, Commissioner Henderson opened the public hearing. Ms. Mardell presented the staff report. Commissioner DeBone recommended clarifying wording on the flood plain. There being no public testimony, Commissioner Henderson closed the public hearing. DEBONE: Move approval of closing the oral and written record HENDERSON: Second VOTE: DEBONE: Yes HENDERSON: Chair votes yes. Motion Carried ADAIR: Absent, excused BOCC MEETING NOVEMBER 6, 2019 PAGE 4 OF 6 DEBONE: Move approval of first reading by title only of Ordinance No. 2019-016 HENDERSON: Second VOTE: DEBONE: Yes HENDERSON: Chair votes yes. Motion Carried ADAIR: Absent, excused Commissioner Henderson read Ordinance No. 2019-016 by title only into the record. OTHER ITEMS continued: • Commissioner Henderson requested additional information on the design proposal for Parole and Probation. County Administrator Anderson explained detailed information on the proposed public safety complex will be coming to the Board. • County Administrator Anderson reported on the next steps with the Fair and Expo expansion proposal. Individual meetings with Fair and Expo staff will be scheduled with the Commissioners. • County Administrator Anderson reported that Chief Financial Officer Greg Munn is working on a summary of capital improvement projects and financial options. COMMISSIONER UPDATES: • Commissioner Henderson attended the Redmond Economic Development board meeting this morning. BOCC MEETING NOVEMBER 6, 2019 PAGE 5 OF 6 Us � e . ka, Being no further items to come before the Board, the meeting was adjourned at 1:33 p.m, DATED this --ll Day of 2019 for the Deschutes County Board of Commissioners. ATT RECORDING SECRETARY PHILIP G. HENDERSON, CHAIR 03b" -�& L-A�v PATTI ADAC , VICE CHAS ANTHONY p COMMISSIONER BOCC MEETING NOVEMBER 6, 2019 PAGE 6 OF 6 01 E S COG t' o 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, NOVEMBER 6, 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/meetin�s. 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 Documents No. 2019-783, 2019-784, and 2019- 785, Quit Claim Deeds 2. Approval of Minutes of the October 7, 2019 BOCC Meeting Board of Commissioners BOCC Meeting Agenda Wednesday, November 6, 2019 Page 1 of 3 3. Approval of Minutes of the October 16, 2019 BOCC Meeting 4. Approval of Minutes of the October 23, 2019 BOCC Meeting ACTION ITEMS 5. 10:10 AM Wildfire Mitigation Advisory Committee Check In -Zechariah Heck, Associate Planner 6. 10:30 AM Nonprime Resource Lands / Hearing Preparation - Zechariah Heck, Associate Planner 7. 11:00 AM Thornburgh Remand: Review Record Materials for an Appeal of Phase A-1 of the Thornburgh Destination Resort on Remand. -Jacob Ripper, Senior Planner 8. 11:30 AM 2019-20 Q2 Discretionary Grant Review -Whitney Hale, Public Information Officer LUNCH RECESS 9. 1:00 PM PUBLIC HEARING: Model Flood Amendments - Nicole Mardell, Associate Planner COMMISSIONER'S UPDATES OTHER ITEMS These can be any items not included on the agenda that the Commissioners wish to discuss as part of the meeting, pursuant to ORS 192.640. 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. Board of Commissioners BOCC Meeting Agenda Wednesday, November 6, 2019 Page 2 of 3 ®®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 onaccommodations 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.) 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G h TJ 4'fi' mv a 70 U U, = � ro ro G rp u 7 Q Q > W a v d ro ri N "O mm w0 j V O '- v A v c o 0 v c n4 w A GO C y � o ° o Y lu r V �} m V w O aj N s z oo m .. m v Y G o G o N w >a C "� ttw s ° v n rn o Uro m u v G O A ro c G G ro t9) O 4 41 E N o i 0 O. j vt 3 o 0. Ln;G y G ro CL b OO m aA+ :(., ,rW� U-' y m ro nn p. Q ra to 6.�. G -0 M � G 4? Ob ted 4J rp l r,. L3 r'mMy r f atf 1 SN rn rj d` V ik 4-4 k hhi� Evacuation Plan There are currently 88 large fires active across the United States, according to the National al later 4991 Br_� Center. California has six, but farther north, there are 15 such fires in Oregon and and 11 in Alaska. Whenever there is the potential any disaster (e.g. fire, flood, hurricane, tornado or earthquake), the primary objective is to eliminate the loss of life. In order to meet this objective, three main things must happen. First, everyone must assume that a disaster is going to happen. Second, everything that can be done to -minimize the impact of the disaster should be done. Third, there needs to be a well thought out, well -practiced and properly staffed evacuation plan. In Sunriver, my observation is that the people in charge are not doing anything about any of these three objectives. The last forest fire in Sunriver took place in....... Based upon the actions, inactions, written communication and interpretation of certain documents, it appears that the leadership of Sunriver does not believe there will be a forest fire anytime soon in Sunriver. The leadership of Sunriver has not taken the necessary steps necessary to prevent forest fires (e. g. not eliminating the lodgepole or the bitterbrush; nor have they prepared an evacuation plan. The community of Idyllwild (Cranston fire) has prepared for minimizing the impact of fire and had a comprehensive plan in place. i t .//�� T E6G"IInc � xF /1 alI€��[ a// of _nig;... "aca ;N �` •, e 0180728_ _. _ ._._. _...._. U Every office building in America has an evacuation plan on. every floor. (See below) Iu most major office building in America practices a fire drill every quarter. Each floor- of every office building has a floor monitor that has the name of every individual on the floor. The monitor sweeps every office and makes sure that everyone has vacated their offices, before they take the stairs (not the elevator) downstairs and report to the property manager- of the building. At Sunriver, there is no evacuation plan in place. The people charge need to consider the following: ® There are approximately 4,000 residences in Sunriver. ® The majority of fires take place in the summer. Assuming that 75 percent of the residences occupied with three people, this results in 9,000 people. If 9,000 people occupied an office bull ding, they would be in a 72 -story office building, which would make it one of the largest office buildings in the West. It would be much easier to vacate 9,000 people from a 72 -story building than it would be to evacuate 9,000 people from Sunriver. To vacate 9,000 people from an office building would take between -3 )0 and 45 minutes. ® To vacate 9,000 people from Sunriver would take at least four hours. o Most office buildings have a simple floor plan like that shown below. Sunriver has 3,300 acres, 65 miles I I roundabouts and has two ways to exit. (Please see the Sunriver map, which is attached.) Evacuation Plan This by no means an exhaustive list. I f� ' -+' -1-1 - 4-1- Ia. g. P1"-1Qertv Owner's 1. k-oordInaLlon wiL11 L11U 1�,OPUIIOIU-1�, IJU-LLI%10 k'� kj Ltill X V �.X k f v1 Association) 2. Coordinate with all first responders 3. A written plan for the evacuation of all people 4. A team of people responsible for each aspect of the Evacuation Plan 5. Preparation of evacuation website 6. Establish emergency radio station 7. Preparation a map showing exit routes from each round -a -bout (Map should be laminated.) 8. Distribution of map to all residents, renters and vacationers. 9. Painting of arrows around the round -a -bouts on the pavement toward Highway 97. 10.1dentification of evacuation teams, which will be stationed at each round -a- bout and key location in Sunriver (number to be determined). I I.Purchase and storage of all equipment required: bullhorns, matching hats, shirts, yellow vest, flags and flash fights 12.Working with the Sunriver police to establish the protocol (e. g. how many ears should be allowed before moving to a different road) 13.1dentification of people and addresses that will need assistance to evacuate and set up the vans and people that will be responsible for this effort. I 14.1 plan for the removal of Lip to 29 airplanes from the Sunriver Airport. 15.Removal of golfers from three golf courses, clubhouse, pros pop and driv-1111(y range. 16.Remova.1 of bikers fi-om 25 miles of bike paths. 17.Rernoval of boaters, tubers and kayakers from the Deschutes River . t 8. Evacuation of the Mall and all restaurants. 19.1dentification of all the animals (e. g. horses, rescue pets) that will need to be evacuated and establish. a sub -plan for this effort, 20.Coordinate with all traffic control people as to how the exit to Highway 97 will be handled. 21. establish where people will go once they leave Sunriver. 22.Practice this plan at least twice per year. 23.Debrjefitig following each practice. 24.Make changes to evacuation plan. 25.lnfonu all participants of the changes. 26.Continue to monitor signs of fire danger, Officials hold wildfire preparedness town hall in Sunriver OFFICIALS HOLD WILDFIRE PREPAREDNESS TOWN HALL I SUNRIVER 10/30/2019 10/31/19, 6:31 AM By Wednesday afternoon, the Kincade, Getty and Easy Fires had burned nearly 80 -thousand acres across Northern and Southern California. The fires have prompted mass evacuations of more than 200 -thousand people, with much of Los Angeles and Ventura Counties under extreme red flag warnings. Two men arrested after edrhvle__by a��c� u��„`-ay shooting into house P®: Bend man arrested after burglary, assault https://centraloregondaily.com/officials-hold-wildfire-preparedness-town-hall-in-sunriver/ Page 1 of 4 :Officials hold wildfire preparedness town hall in Sunriver Our fire season might over, but the preparation never stops. State Rep. Jack Zika of Redmond hosted a wildfire and emergency preparedness town hall Wednesday morning in Sunriver to discuss what to do should we experience a similar catastrophe. Police and fire officials on hand reminded folks that fire season should always be top of mind. "Because of all of the things that are going on in California, that brings the topic to the concern of the people that live here in Sunriver because we are surrounded by forest and fire prevention and the possibility of having a fire here is a very real possibility for them," said Sunriver Police Chief Cory Darling. Sunriver resident Doug Hoschek and his wife have been actively attending meetings like this since witnessing first-hand how the Milli Fire impacted Sisters in 2017. "We realized it was really dangerous, all the trees, it's all flammable stuff," Hoschek said. Hoschek says he and his wife were the only Oregon residents to testify for the Oregon Forestland -Urban Interface Act, a bill that passed during the 2019 legislative session that provides property owners with incentives and tools to remove fuels to protect their homes from catastrophic wildfire. He adds that it's important for the community to be proactive rather than reactive to a future fire. "I think we have to bring it to the surface and act like there was a fire and that now we've survived the fire and what are we going to do to make sure that when the next one comes we're going to be better capable to deal with it," he said. Hoschek says he's also concerned about the amount of people who live and rent in Sunriver and has been pushing for officials to perform a practice evacuation to practice how to get out in the event of a wildfire. "We're just going to sit here in gridlock, truthfully. My next door neighbors iust moved here from Paradise," he said. "They talked about 10/31/19, 6:31 AM Halloween safety top of mind for parents and kids Crook County NJROTC hosts its annual military inspection Heart of Oregon Corps looking for AmeriCorps project help https://centraIoregondaily.com/officials-hold-wildfire-preparedness-town-hall-in-sunriver/ Page 2 of 4 Officials hold wildfire preparedness town hall in Sunriver them getting out safely and their other four children getting out safely and their friends who died. Their friends died on the road in their car because they couldn't get out. That's why I've been after them to do a practice evacuation." Officials did address the different avenues of evacuation during Wednesday's meeting as well as how they notify residents about emergencies in Sunriver. Hoschek says he understands wildfires in Central Oregon are a way of life, but urges everyone to be prepared. "We're on offense now, we haven't had a fire. We're gonna be on defense sooner rather than later." Share 10/31/19, 6:31 AM ADVERTISE" ORDER A COPY CAREERS CONTACT x_01 1T ES s S FAQ FRES RIE -LEASES fEEN S CALENDAR rvw\DAR CMMERCIL, 'R4JUC-I JN EE --0 �.0 P BLtC- FILE a OR _i _ PIUB_IC 11`1SPI�C-_1.I0N 1-1I_1wS https://centraloregondaily.com/officials-hold-wildfire-preparedness-town-hall-in-sunriver/ Page 3 of 4 Officials hold wildfire preparedness town hall in Sunriver Oc, CENTRAL OREGON DAILY 2019. ALL RIGHTS RESERVED, 10/31/19, 6:31 AM CENTRAL OREGON DAILY IS A SUBSIDIARY OF TELED I HONE AND DATA SYSTEMS, INc., RECOGNIZED AS A FORTUNE 1 OOO®R 2017 COMPANY, https://centraIoregondaily.com/officials-hold-wildfire-preparedness-town-halI-in-sunriver/ Page 4 of 4 "'r` newmedia1 wescompapers com, COMM fled wit , n challenger,Of frrt publia Chairwoman Pat is had collected mit its $29,000 and int an a W'600. , unnver evacu Commission Cl 7bny DeBone had $31,000 and spent Only Ed Barbea 71amalo pizza s% who lost to ileBon+ ry By Stet Hamay �IRk� Rf'S R� R y � ISS nearly a 3 -to -1 maj tion m- ren Bi, tette The Sunriver Service District board identifies at least five routes out of the community in the event of an raised and spent as yen ty typical forprimary emergency. However, several are either obstructed by locked gates or reliant on backroads managed by Barbeau raised $5,1 the U.S. Forest Service, a had spent about $3, tore rivers who have Election t ab WS Dspent tithe in--w-rExlt t®OSfS r tied Sunriver know how F Gated elft o USFS road `" _ ntal Pgqv if is to cra¢ filrnofl t Nates. :isataal 1JULUJIM BMW SM ars m ri ItRM With only two roads lead- roads during an evacuation going to come," Bae said. ni d to ing into and out of Sunriver, can be a dicey proposition, Sunriver, established in wJ Cana- community leaders havehad particularly in a community 1966 by developer John he leas%. to be creative when devel- with a lot of tourists. Gray, has developed a ar bund opiing an evacuation "plan, Doug Hoschek, a long progressive: approach to fir itOT Wilting roads managed by time Sunriver resident and wildfire preparedness in PQ rants the U.S. Forest Service in the a vocal critic of the com- recentyears, with a wildfire Po event of a a scenar- mun ty's apprpach to fare prot�tionlblan tl►at emplaa- ne. sa a ro euav» a« Ttri 9 , S m.aw av s sxannm®ntr a nia4 nc an nfi_ ei9®a ntaoannm r arvnirfcviaa has Creser'ea�m;�;e3 � J�t19T�#� a New Yo* reali To The Dallas To RIgg s NOTE MAP NOTTO SCALE Vjafm Springs (ridlan ReservaVon WhHMT Mutton Mauphf H(ghDd rct dgc� tdountafns , Resort&Cafino - 19 WA1141 SPtaNGSRNtN 97 • `!' Rn numOc�igae9utrmo W.'avcarefPw,V: mm No , io South, Shaniko rc7ramaeRtlbw annus -A ` 'ILL t. Hoodoo BkiAreo 4. Museumat Warm Springs ` 2KOA Machu%CuNu 5. RfchaMson's Roo Ranch eum of s 3. MC Baehela Springs 1 To -SII zSumn 'Lakev iarrng •S r sn: qulc'-`: i REDMOND <ter�em P1Io[Rmte State Park .[VIYVIYIGYI �. 1 -HolclothcGround • Recreation Pass at Sn®-Parks You'll need a permit to park at all Sno-Parks and at national forests, national parks, state parks or other public land recreation sites. See page 29 for details. Galway .=Damn �TO— Gr1` US.HWOSUte HVJForrOCc"nty ServkeAwd R Road (� EO1C wwmmn's �Rork Ranch w, CLOSURE Yaruades MADRAS ---- GRAVEL ROAD MAINHIGHWAY MI.Park HIGH DESERT PAVED•SECONDARYROAD MAIDR HIGHWAY Culver O 26 0 DesertArea ' ForestArea ( NOTE: MAPNOTTOSCALE ,.,. 97 .:, Seetbambeuor[nmmerce(eTScenk Byvayd,Mledtour inramwdon. �- �-,. HAYSPACKRES. • ' M.. .,. �. REDMOND <ter�em P1Io[Rmte State Park .[VIYVIYIGYI �. 1 -HolclothcGround • Recreation Pass at Sn®-Parks You'll need a permit to park at all Sno-Parks and at national forests, national parks, state parks or other public land recreation sites. See page 29 for details. The Healthy Forests Restoration Act requires that the applicable local government, the local fire department, and the state entity responsible for forest management agree to the Community Wildfire Protection Plan. The Sunriver Community Wildfire Protection Plan was originally completed and signed in March 2005 and a revision was completed in August 2010. As directed by this CWPP, fuels reduction activities have been completed on public and private lands. These events have changed the priorities outlined in the two previous documents. Art Hatch, Fire Chief Sunriver Fire Department Pat Hensley, Board President Sunriver Owners Association Date Date Alan Unger, Vice -Chair Date Deschutes County Board of Commissioners Anthony DeBone, Chair Date Deschutes County Board of Commissioners Tammy Baney, Commissioner Date Deschutes County Board of Commissioners Kristin Dodd, Unit Forester Oregon Department of Forestry iv Date Executive Community Wildfire Protection Plans (CWPPs) are documents that are designed by a local group of stakeholders who are invested in the wildland fire threat to their area. Thegroup of stakeholders typically consists of a representative from the fire department, the state, any governing bodies and especially property owners. Each of these representatives should bring their concerns regarding wildland fire to the discussion and propose solutions to their concerns. Although reducing the risk of high intensity wildland fire is the primary motivation behind this plan, managing the larger landscape to restore forest health and more resilient conditions and improving fire response by all fire agencies are also discussed and addressed in the action plan. Continued efforts have been made by county, state and federal land management agencies to reduce the threat of high intensity wildland fires through education and fuels reduction activities on public lands. In addition, private property owners have responded enthusiastically to the defensible space and preparation guidelines and recommendations to reduce hazardous fuels on their own properties by participating in programs such as Firewise and FireFree. All of these activities allow the Sunriver area to become a more Fire Adapted Community. Wildland fire is a natural and necessary component of ecosystems across the country. Central Oregon l is no exception. Historically, wildland fires have shaped the forests and wildlands W 111-1 by residents and visit ,rc Tl, , , ,. • --- waa�s v1JiLvtJ. 111GJG 1CL11uJ4C pOS 11Vwevel, are now significantly altered due to fire prevention efforts, modern suppression activities and a general lack of large scale fires, resulting in overgrown forests with dense fuels that burn more intensely than in the past. In addition, the recent increase in population has led to a swell in residential development into forested land in the wildland urban interface (WUI). The result of the fuel hazards and forest types in the Sunriver CWPP area is an overgrowth of trees, forest floor fuels and an abundance of dead or dying vegetation that contribute to a substantially elevated risk of wildland fires that are difficult to control. These overly dense conditions lead to fire behavior that produce flame lengths over eight feet with crowning and torching that can result in stand replacement severity fires. Due to the sustained investment and maintenance of ladder fuel reduction, some notable trends can be examined by comparing the risk assessments from each iteration of the Sunriver CWPP. There have been improvements in the Hazard, Protection Capabilities and Structural Vulnerability which is reflected in the overall risk assessment score. Sunriver and neighboring areas have has made substantial investments in community preparedness, building standards and fuel reduction, which are reducing the wildfire risk. SROA Natural Resources Department is responsible for the maintenance of common areas within Sunriver. The SROA Ladder Fuels Reduction Plan currently maintains a six-year cycle of treatment to reduce hazardous fuels and outlines specific treatments for specific vegetation. Generally, the standards for commons include: ® All bitterbrush and manzanita shall be removed within 15 feet of structures. In open areas an average of 30% coverage shall be maintained of all shrubs following removal of bitterbrush and manzanita to three feet beyond the drip line of tree branches. ® Live tree branches shall be removed to a minimum height of six feet and a maximum of eight feet from grade. For trees less than 20 feet tall, only the lower 1/3 of branches shall be removed. ® The canopy in Sunriver will be thimied to six to eight foot spacing for all size trees. ® All ponderosa pines shall be retained unless confirmed diseased, a hazard or in an overcrowded condition. Additional specifications for tree cutting and retention are available in the Sunriver Ladder Fuels Reduction Plan, which can be found at www.sunriverowners.org. Private lands outside Sunriver On private lands with structural improvements outside Sunriver proper, the goal is for each structure to meet the specific standards for classified lands as identified in the Oregon Forestland — Urban Interface Fire Protection Act of 1997, also known as Senate Bill 360. This statute outlines standards and requirements for defensible space on private property that receives fire protection from Oregon Department of Forestry. The Oregon Department of Forestry provides wildland fire protection in the Sunriver CWPP area and the Steering Committee supports the goals and standards of Senate Bill 360 on those lands not subject to the Sunriver Ladder Fuels Reduction plan. Five classifications are possible under the Act — Low, Moderate, High, Extreme and High Density Extreme. East of the Cascades however, only three are possible due to an automatic rating for weather. Sunriver and the surrounding lands in the CWPP planning area are classified as Extreme. The standards under Senate Bill 360 for private lands classified as Extreme are: ® Establish a primary fuel break of 50 feet around structures (100 feet for wood roofing); ® Create fuel breaks around driveways longer than 150 feet; ® Remove tree branches within 10 feet of chimneys; ® Remove any dead vegetation that overhangs a roof, :)s • Remove flammable materials from under decks and stairways; ® Move firewood 20 feet away from structures. A detailed description of the standards is available from the Oregon Department of Forestry in the handbook for the Oregon Forestland — Urban Interface Fire Protection Act of 1997. This information is also available at! .a _ �c .< �� / /fire, SD- (30 IES CO 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 November 6, 2019 DATE: October 31, 2019 FROM: Zechariah Heck, Community Development, 541-385-1704 TITLE OF AGENDA ITEM: Wildfire Mitigation Advisory Committee Check In BACKGROUND AND POLICY IMPLICATIONS: This agenda item is intended to update the Board on the Wildfire Mitigation Advisory's progress. FISCAL IMPLICATIONS: None. ATTENDANCE: Nick I_elack, ODD Director, Gd Vaith� (vruinty Erre--ter• rhrig rrnrin Accictant Building Official; Zechariah Heck, Associate Planner. �7 � ,A C rAu M U ry I TY I t,VtLO V SEI uE DATE: November 6, 2019 MEMORANDUM TO: Board of County Commissioners ("Board") FROM: Nick Lelack, CDD Director Ed Keith, County Forester Chris Gracia, Assistant Building Official Zechariah Heck, Associate Planner RE: Wildfire Mitigation and Advisory Committee (WMAC) Check In On July 1, 2019, the Board decided to move forward with establishing the WMAC to review and recommend if the Wildfire Hazard Zone should be updated and where/how it should apply. The WMAC has convened three (3) times and is scheduled to meet an addition six (6) times. This agenda item is intended to update the Board on the WMAC progress so far. More information can be found online at deschutes.org/wildfirecommittee. Overview of WMAC In January 2019, the Oregon Building Codes Division (BCD) adopted R327.4 Wildfire Hazard Mitigation amendments to the Oregon Residential Specialty Code. R327.4 is optional for local governments to choose to implement for fire hardening structures in areas mapped as wildfire hazard zones in compliance with the Oregon Department of Forestry's standards. Furthermore, one of Community Development Department's (CDD) 2019-20 Work Plan items is to: "Consider implementing wildfire mitigation recommendations from the University of Oregon's Community Service Center (CSC) code audit, coordinate with the County Forester, and consider adopting a new Wildfire Hazard Zone." In response to these two items, the Board decided to establish the WMAC to provide recommendations on updating the County's Wildfire Hazard Zone / Map and whether the County should implement new building code standards and land use regulations to mitigate wildfire hazards and improve wildfire safety. The Board appointed thirteen (13) community members to the WMAC. Unfortunately, one applicant could not attend all of the meetings so they declined their appointment. The WMAC is comprised of twelve (12) members listed in the table below. 117 NW Lafayette Avenue, Bend, Oregon 97703 ( P.O. Box 6005, Bend, OR 97708-6005 Qi (541) 388-6575 @ cdd@deschutes.org ® www.deschutes.org/cd Name Organization / Background Region Brent Landels Realtor - Re/Max Bend Brian Braddock Farmers Insurance (Retired) Bend Geoffrey Reynolds Home Owner Bend Jim Beeger Planning Commissioner Bend Jim Figurski Landscape Architect Bend Jodie (Joe) Foran Fuels Management - BLM (Retired) La Pine Karna Gustafson Central OR Builders Association Bend Ken Kehmna Redmond Fire and Rescue Redmond Martha Meeker Home Owner Sisters Matt Van Coutren Hayden Homes Redmond Roger Johnson Sisters -Camp Sherman Fire Dist. Sisters Tyler Neese Central OR Assoc. of Realtors Bend II. Summary of Prior Meetings AS stated shove the \A/AA Ar hnc rnnvonori throo /2\ timoc Tho infnrmntinn rnvoror4 MmA riicriiccinnc haves nes �L L U auvvc, uic vvivlr _ Ilu. wlIvc — ��"— %-.I -, -,. I. - ..-..I.w..,., ......... , been significant. The following summarizes major topics of each meeting. October 14 • Summary of the WMAC Charter • Public meeting and ethics laws • R327.4 • How wildfire hazard zone maps are created 2015 University of Oregon audit of natural hazard provisions in County code • Major decision points. October 21 • How Geographic Information Systems (GIS) applies ODF criteria to create Wildfire Hazard Zone maps at regional/landscape scales • Conceptual maps of various approaches (i.e., fire districts, schools districts, Community Wildfire Protection Plans) and the limitations of the maps November 4 • A summary of new maps created based on the feedback from committee members • Further discussion of R327.4 decision points • Roundtable discussion of implementation costs associated with R327.4 Vote on R327.4 to determine the WMAC general level of interest Staff will provide a more detailed summary to the Board, if interested, during the November 6 meeting. Page 2 of 3 III. Future Meetings / Next Steps The WMAC is scheduled to meet an additional six (6) times. The first priority is deciding one or two maps the committee can recommend to the Board as an updated Wildfire Hazard Zone. The committee will also discuss R327 decision points (e.g. minimum lot size, subdivisions or individual lots, etc.). Finally, the committee will consider a recommendation to the Board on land use standards that mitigate risk associated with wildfires. Date Topics of Discussion Orientation, Introductions, Purpose/Charter, Ground Rules, Overview of October 14 Draft Wildfire Hazard Maps/Zones, R327, Land Use Standards, Major Decision Points. Wildfire Hazard Maps/Zones: Review and discuss concepts; develop October 21 additional concepts? Review and discuss draft Wildfire Hazard Map/Zone Concepts; Identify November 4 and discuss: R327 Decision Points, Questions, and Informational Needs to make recommendations. Discuss and potentially recommend Wildfire Hazard Maps/Zones; November 18 Discuss R327 Decision Pts. Finalize Wildfire Hazard Map/Zone; Discuss and potentially recommend December 2 R327 Decision Pts. Finalize R327 recommendations; Identify and discuss Land Use December 16 Standards Decision Points, Information Needs. January 6 Review and discuss Land Use Standards. January 13 Finalize Land Use Standards recommendations. January 27 If necessary, finalize any outstanding recommendations. Page 3 of 3 ES C0G 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 November 6, 2019 DATE: October 31, 2019 FROM: Zechariah Heck, Community Development, 541-385-1704 TITLE OF AGENDA ITEM: Nonprime Resource Lands / Hearing Preparation BACKGROUND AND POLICY IMPLICATIONS: This agenda item is to prepare the Board for a public hearing on November 18, 2019 to consider amendments to the Deschutes County Comprehensive Plan. The proposal establishes eligibility criteria for six specific areas committed to residential uses currently designated Exclusive Farm Use or Forest Use to Nonprime Resource Lands, defined in Oregon Administrative Rules (OAR) 660-004-0005(3) as "Non Resource Lands. FISCAL IMPLICATIONS: None. ATTENDANCE: Zechariah Heck, Associate Planner; Nick Lelack, CDD Director; Peter Gutowsky, Planning Manager. MEMORANDUM TO: Board of County Commissioners ('Board") FROM: Zechariah Heck, Associate Planner DATE: October 31, 2019 COMMUNITY DIAVELOPML r SUBJECT: Nonprime Resource Lands / Hearing Preparation (File No. 247 -19 -000265 -PA) The Board will hold a public hearing on November 18, 2019 to consider amendments to the Deschutes County Comprehensive Plan. The proposal establishes eligibility criteria for six specific areas currently designated Exclusive Farm Use or Forest Use to Nonprime Resource (NPR) Lands, defined in Oregon Administrative Rules (OAR) 660-004-0005(3) as "Non Resource Lands."' I. BACKGROUND On October 28, 2019 the Board directed staff to: r .. �.......+.. +4... AIDD I �nrl� omenrimontc intn dein (')1 nrnnncalc- • Sepa ate l le N I% La IUs all lCl d I1cn Iw 11 - Drvv kms/ t.+, v'.+v.+ae J • Schedule amendments to correct mapping errors for the six (6) committed residential areas for a Board work session and public hearing; • Conduct a Planning Commission work session to discuss and identify potential amendments to the eligibility criteria for quasi-judicial applications; and • Conduct a work session with the Planning Commission in early 2020 to discuss potential changes to the eligibility criteria, and collectively determine next steps. II. DRAFT NONPRIME RESOURCE LANDS POLICIES Staff has decoupled the NPR Lands amendments with Comprehensive Plan policies so theyjust identify opportunities to re -designate six areas committed to residential uses that were platted or conveyed prior to State enabling planning legislation taking effect in Deschutes County (Attachments).2 A matrix that begins on page 3, lists the draft goal and policy amendments with staff comments. If the amendments are acknowledged, Deschutes County will propose a new NPR Lands designation and NPR -10 zone solely to the six areas committed to residential uses. This new zone will allow a single family dwelling or a manufactured home and their accessory uses outright. 1 The six residentially committed areas are: Haner Park, Section 36 (Township 22, Range 10), Skyline Subdivision and 1 st Addition, Squaw Creek Canyon Recreational Estates 1 st Addition and Meadow Crest Acres Subdivision. 2 Previously proposed eligibility criteria for applicant -initiated, quasi-judicial nonprime resource land applications have been removed from the amendments and findings. It is important to note that two draft policies honor Deschutes County's existing nonresource lands process that allows property owners to apply to rezone their properties from Exclusive Farm Use or Forest Use to a nonresource zone .3 To date, six quasi-judicial (nonresource lands) plan amendment, zone change applications from Agricultural to Rural Residential Exception Area and Exclusive Farm Use to Multiple Use Agricultural 10 have been acknowledged in Deschutes County.4 III. PUBLIC HEARING The Board will hold a public hearing on the proposed amendments on November 18. A draft ordinance with the amendments and findings will be provided as part of their hearing packet. The public record for File No. 247 -19 -000265 -PA will also be made available. Attachments: Comprehensive Plan Amendments 1. Section 1.3 - Land use Planning 2. Section 2.2 - Agricultural Lands 3. Section 2.3 - Forest Lands 4. Section 3.1 - Introduction 5. Section 3.2 - Rural Development 6. Section 3.3 - Rural Housing 7. Section 3.11 -Rural Lands 3 See Draft Policies 3.11.1 and 3.11.8. 4 See Ordinance 2007-025; 026, Ordinance 2011-014; 015, Ordinance 2013-009; 010, Ordinance 2017-007; 008, Ordinance 2018-011, and Ordinance 2019-006. Page 2 of 5 N C GJ M C E a u •O a 'a C R 0 a G. O L a H C m J d u L O 0 H GJ Q. 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Ln \ Ln \ _ \ . 0- 0 e m Vl/ / a - z = t _ . 0 _ 2 \ / _ 2 LU 2 \ 2 r CL ° / E / D \ / \ 0 U 0 [ [ % 0 ° e a & M C,- o LA _0 2/@ 2 u a® = / j \ 0\\ 3 0® 4 K / / C: \ 2 4- / \ / / \ �� W \ % ): / \ 0 3 \ \ ) 0 4 t L a E� E = 0 g _ M � 2 _ 0 G S /\ :3 2 2 = c o[ * o q J o 7 E 2 2/_/ a = c � 5 y o\ E # [ Ln � \ g / ( / c £ 7 ƒ= 5 t 2 ®/ e w Ll - t _\ s±% E o L, / e u a${ \ \ / / /Ln f / 0 \ \ c Ln t Ln 0- 0/ S 5= 2°# u //§ % < E u p o 5 M § a 3 ®/ E u n $ / \ ° _ / § % £ 0 / N § / % 5 / \ / E / \ / n o o / e= ° E m° \ o » o Z o\ m ) o ƒ \ 1 w c / $ / _ / e u ( c » J \ f U) 2 a 3 u/ j=/ u£; 8 2 :\"0 D o\ 0 c » M \ \ & ; ƒ / . ... . Ln \ Ln \ _ SeOU' O w 1.3 LAKA Int se T'I,Gi ww�wq Background This section establishes the overall framework for the development and implementation of plans and policies for land use within the County. Statewide planning guidelines require each county to establish a land use planning process based on current issues and factual information. The policies in this section assure that the County's land use policies are current, fact -based and responsive to change. The policies recognize the need for coordination between the cities and the County and provide full public access to Plan documents and the information upon which land use decisions are based. As noted throughout this Plan, there are two important things to remember. First, the Oregon land use system draws a bright line between rural and urban lands and promotes new growth and infrastructure in urban areas. Growth on rural lands is limited in order to protect farms, forests, open spaces and natural resources. Deschutes County is required to plan in compliance with the State planning system in order to promote orderly and efficient growth and protect the resources important to Oregonians. Second, land use is often controversial because ultimately it can intermix community values with private property rights and expectations. A property owner may choose to keep pigs, or start a day care center or build a windmill. For each of those uses there may be impacts on the neighbors in the form of odors, traffic or blocked views. Land use regulations attempt to achieve a balance between giving property owners the freedom to use their property however they choose while maintaining the livability of the neighborhood and wider community. This Plan recognizes those tensions that occur when creating land use policies. Land Use Statewide Planning Goal 2 Land Use Planning, requires a fact -based land use planning process and policy framework to guide land use decisions. It requires comprehensive planning that identifies issues and complies with Statewide Planning Goals. Goal 2 also addresses the process to allow exceptions to Statewide Goals (see also Section 5.10). In 1979 the County complied with the Statewide planning system by writing a Comprehensive Plan. From 1988-2003 the County underwent State mandated Periodic Review to ensure the Plan was still in compliance with changing State regulations. The 2008-2011 update was done outside of Periodic Review, which is no longer required for Oregon counties. Instead, the County recognized that to remain valid the Comprehensive Plan needed to be completely rewritten and updated. For historic reference, a copy of the Comprehensive Plan replaced by this Plan will remain available on the County website. This Plan is a policy document based on existing facts and community values. No specific land use designation changes are included in the 2008-2011 Plan update. Instead, this Plan revisits each Statewide Goal, its existing Goals and Policies, community values and new issues requiring policy direction. It lays out a blueprint for the future and defines what matters to County residents and businesses through updated Goals and Policies. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 13 CHAPTER 1 COMPREHENSIVE PLANNING SECTION 1.3 LAND USE EXHIBIT B TO ORDINANCE 2019-007 The Comprehensive Plan is implemented primarily through zoning and the zoning code must be regularly reviewed for compliance with the Plan. However, there are other tools for implementation, such as capital improvement plans, partnerships or incentive programs. To assure this Plan remains useful, an action plan identifying various ideas for implementing Comprehensive Plan policies will be created. The action plan will be annually updated and reviewed to identify and prioritize work plans for the coming year. Land Ownership and jurisdiction When considering land use in Deschutes County two important factors are the amount of public ownership and which lands are under County jurisdiction. Table 1.3.1 shows nearly 80% of land in the County is publically owned. The implications of the large tracts of public land range from the loss of tax revenue to having vast open lands available for recreation for both tourists and residents. Table 1.3.1 Public Land in Deschutes County 2010 Ownership Acres* Percent Total County Acres 1,913,482 100% Federal Government 1,466,067 76.6% State Government 53,051 2.8% County Government 10,434 0.6% Total Public Lands 1,529,552 79.9% not as cities or park districts Source: County Geographical Information System rivers or Table 1.3.2 shows jurisdictional responsibilities. Note that the federal government, primarily through the Bureau of Land Management and the U.S. Forest Service, owns over 76% of the land in the County. Federal lands are not required to conform to local regulations, such as zoning. They rely on their own resource plans. This means a majority of lands in the County are not under County jurisdiction. However, they remain in this Plan to encourage intergovernmental policy coordination. Table 1.3.2 — 2010 Land jurisdiction in Deschutes County 2010 jurisdiction Acres* Percent Total County Acres 1,913,482 100% Federal Government 1,466,067 76.6% Bend Urban Growth Boundary 17,534 0.9% La Pine Urban Growth Boundary 4,008 0.2% Redmond Urban Growth Boundary 10,733 0.6% Sisters Urban Growth Boundary 1,023 0.1% Total Cities 33,298 1.7% Total Other jurisdiction 1 1,499,365 178.4% * Acres of Darcels — does not includes roads, right-of-ways, lakes and rivers In addition to Federal lands, four cities have primary jurisdiction over less than 2% of lands in the County. This includes lands outside the incorporated city boundaries, but inside urban growth boundaries. The urban growth boundaries define a municipality's 20 -year land supply to accommodate future growth. These lands are managed by the cities through intergovernmental 14 DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 CHAPTER 1 COMPREHENSIVE PLANNING SECTION 1.3 LAND USE EXHIBIT B TO ORDINANCE 2019-007 agreements between the cities and the County. The bottom line is that the County has land use jurisdiction over approximately 22% of the land base. Comprehensive Plan Map Designations The Comprehensive Plan Map (Map) illustrates the County's goals and policies. The Map describes land use categories that provide for various types of development and conservation for the rural area during the 20-year planning period. Each Comprehensive Plan map designation provides the land use framework for establishing zoning districts. Zoning defines in detail what uses are allowed for each area. The Deschutes County Comprehensive Plan and Zoning Maps exist in official replica form as an electronic map layer within the County Geographic Information System. Other maps illustrating various Comprehensive Plan areas, such as rural commercial properties, are available to the public for informational purposes. The Comprehensive Plan map designations are defined below. Agriculture: To preserve and maintain agricultural lands for farm use. Airport Development: To allow development compatible with airport use while mitigating impacts on surrounding lands. Destination Resort Combining Zone: To show lands eligible for siting a destination resort. Forest: To conserve forest lands for multiple forest uses. Nonprime Resource Lands: To recognize lands defined as `nc�nresource €a!AS" DUrsua t to OAR 660 004 00503 that cannot quay for an exception pursuant to applicable planning law and fail to satisfy the definitions of agricultural VI IVr est lands contained in he C.Jlale ;Ae I iamninZ Goals Oregon Revised Statutes, and implementing administrative rules. Open Space and Conservation: To protect natural and scenic open spaces, including areas with fragile, unusual or unique qualities. Rural Residential Exception Areas: To provide opportunities for rural residential living outside urban growth boundaries and unincorporated communities, consistent with efficient planning of public services. Surface Mining. To protect surface mining resources from development impacts while protecting development from mining impacts. Resort Community: To define rural areas with existing resort development that are not classified as a destination resort, based on Oregon Administrative Rule 660-22 or its successor. Rural Community: To define rural areas with limited existing urban-style development, based on Oregon Administrative Rule 660-22 or its successor. Rural Service Center. To define rural areas with minimal commercial development as well as some residential uses, based on Oregon Administrative Rule 660-22 or its successor. Urban Unincorporated Community. To define rural areas with existing urban development, based on Oregon Administrative Rule 660-22 or its successor. Rural Commercial: To define existing areas of isolated rural commercial development that do not fit under Oregon Administrative Rule 660-22. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 15 CHAPTER I COMPREHENSIVE PLANNING SECTION 1.3 LAND USE EXHIBIT B TO ORDINANCE 2019-007 Rural Industrial. To define existing areas of isolated rural industrial development that do not fit under Oregon Administrative Rule 660-22. Urban Growth Boundaries: To define land that provides for urban development needs and identifies and separates urban and urbanizable land from rural land Bend Urban Area Reserve: To define lands outside of Bend's Urban Growth Boundary that were under the jurisdiction of the Bend Area General Plan. These areas were removed in September 2016 through the 2016 amendment to the Bend Urban Growth Boundary. These areas are now under the jurisdiction of the County's Comprehensive Plan. Redmond Urban Reserve Area: To define Redmond's additional 30 -year growth boundary for lands expected to be brought into the Urban Growth Boundary. Comprehensive Plan Map Designations and Associated Zoning Table 1.3.3 lists existing Comprehensive Plan designations and related Zoning districts. Some Plan designations apply County -wide and some only apply to designated areas of existing development. The Destination Resort designation is a combining zone that supplements the underlying zoning. Most of the area -specific designations fall under the State rules for Unincorporated Communities and are detailed in Chapter 4 of this Plan. The Rural Commercial and Rural Industrial areas are detailed in Chapter 3 under Rural Economy. Table 1.3.3 - Comprehensive Plan and Zoning Code Designations Comprehensive Plan Designation I Associated Deschutes County Zoning Code Development ion Resort C4 Title 18 - All EFU su Title 18 - AD, AS Title 18 - DR Title 18 - F-1, F-2 IVonprime resource Lanus I ILK' 1O- IVF f\ -1V Open Space and Conservation Title 18 - OS&C Rural Residential Exception Area Title 18 - RR -10 and MUA-10 SurfnrP Mining Title 18 - SM Resort Community Title 18 - All Black Butte Ranch and Inn of the Th Mountain/Widgi Creek subzones Rural Community Title 18 - All Tumalo and Terrebonne subzones Rural Service Center Title 18 - All RSC zones Urban Unincorporated Community Title 18 - All Sunriver subzones Rural Commercial Title 18 - Rural Commercial Rural Industrial Title 18 - Rural Industrial Bend Urban Growth Area Title 19 - UAR-10, SM, SR 2 '/2, RS, IL, FP, WTZ Redmond Urban Growth Area Title 20 - UH -10 Sisters Urban Growth Area Title 21 - UAR-10, OA, FP Redmond Urban Reserve Area Title 18 - RURA 16 DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 CHAPTER I COMPREHENSIVE PLANNING SECTION 1.3 LAND USE EXHIBIT B TO ORDINANCE 2019-007 Intergovernmental and Other Coordination Regional Coordination Deschutes County is responsible for coordinating all planning activities affecting land uses within the County. ■ Coordinating population forecasts ■ Coordinating with special districts, including irrigation districts, park districts, school districts, sewer districts, and water districts ■ Establishing Cooperation Agreements with special districts that provide an urban service in a UGB ■ Coordinating with the U.S. Forest Service and Bureau of Land Management ■ Joint Management Agreements with municipalities for managing urban growth areas (areas outside city limits, but inside a UGB) ■ Establishing Urban Reserve Areas The County recognizes the importance of working closely and cooperatively with the cities of Bend, La Pine, Redmond and Sisters, as well as special districts and state and federal agencies, to ensure a coordinated approach to future growth and conservation. Cooperative Agreements Cities are required to enter into a cooperative agreement with each special district that provides an urban service within a UGB. The appropriate city may also enter into a cooperative agreement with any other special district operating within a UGB. Urban Service Agreements Deschutes County has the responsibility for negotiating urban service agreements with representatives of all cities and special districts that provide, or declare an interest in providing, urban services inside an Urban Growth Boundary. Urban service means: • Sanitary sewers; ■ Water; ■ Fire protection; ■ Parks; ■ Open space; ■ Recreation; and ■ Streets, roads and mass transit. ■ Special Districts Special Districts Special districts are defined in ORS 198.010 and are recognized as government bodies. Special districts include the following. Table 1.3.4 - Special Districts re protection district Water supply district Irrigation district Cemetery maintenance district Drainage district Park and recreation district organized Water improvement district DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 17 CHAPTER I COMPREHENSIVE PLANNING SECTION 1.3 LAND USE EXHIBIT B TO ORDINANCE 2019-007 Mass transit district Water control district Metropolitan service district organized Vector control district Special road district 9-1-1 communications district Road assessment district Geothermal heating district Highway lighting district Transportation district Health district Library district Sanitary district Soil & water conservation district Sanitary authority, water authority or joint water and sanitary authority Other Coordination Besides intergovernmental coordination, Deschutes County generally supports coordination and partnerships with non -profits and other organizations that are working with residents to improve the quality of life in the County. There are groups working to address issues from affordable housing to clean rivers, from economic development to fire -free neighborhoods. Two examples of community projects that were completed from 2006-2010 are the Bend 2030 Plan and the Deschutes County Greenprint, both created after extensive public outreach. Note that the nature and extent of the County's role will vary based on County priorities at any given time and that coordination on a project does not ensure County support of every action undertaken on that project. Still, partnering is an efficient and effective method of addressing important issues. County -Owned property When considering land use it is important to consider County -owned lands, which are managed through Deschutes County Code Title 11. As of 2009 there were nearly 700 individual parcels owned by the County, totaling almost 8,000 acres. Management of these properties consists of defining appropriate uses for different parcels, cleaning up illegal dumpsites, fire hazard reduction and public auction. Many of these properties were acquired through foreclosure for non-payment of property taxes. It is anticipated that the County will continue to acquire lands through foreclosure. Starting in 1994 the County began to designate certain sensitive properties along rivers, creeks or streams or with wildlife, wetlands or other values, as park lands. The intent was not to develop these lands for park use but rather to preserve lands with valuable resources. The park designation means that the lands would be retained in public ownership unless there was a public hearing and the Board of County Commissioners determined that selling was in the best interest of the public. ORS 275.330 governs the disposal of these lands, stating that if they are sold the proceeds must be dedicated to park or recreation purposes. As of 2009, there were approximately 70 properties designated as park lands under the following Orders. Order # 94-138 98-127 96-071 2004-001 97-147 2004-037 97-151 2006-019 18 DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER I COMPREHENSIVE PLANNING SECTION 1.3 LAND USE EXHIBIT B TO ORDINANCE 2019-007 �Sect�ov:..3 L-avol Ltse T>Lavv�vg POL�a�eS Goals and Policies Goal I Maintain an open and public land use process in which decisions are based on the objective evaluation of facts. Policy 1.3.1 Protect the limited amount of privately -owned land in Deschutes County through consideration of private property rights and economic impacts to property owners and the community when creating and revising land use policies and regulations. a. Evaluate tools such as transfer of development rights programs that can be used to protect private property. Policy 1.3.2 Consider sustainability and cumulative impacts when creating and revising land use policies and regulations. Policy 1.3.3 Involve the public when amending County Code. Policy 1.3.4 Maintain public records which support the Comprehensive Plan and other land use decisions. Policy 1.3.5 Review the Comprehensive Plan every five years and update as needed, in order to ensure it responds to current conditions, issues and opportunities, as well as amended State Statute, Oregon Administrative Rules and case law. Policy 1.3.6 Maintain and enhance web -based property -specific information. Policy 1.3.7 The Deschutes County Comprehensive Plan Map will be retained in official replica form as an electronic map layer within the County Geographic Information System and is adopted as part of this Plan. Policy 1.3.8 Implement, as appropriate, recommendations in the Final Report from the Oregon Task Force on Land Use Planning dated January 2009. Policy 1.3.9 A list of actions to implement this Comprehensive Plan shall be created, maintained and reviewed yearly by the Community Development Department and the Board of County Commissioners. Goal 2 Promote regional cooperation and partnerships on planning issues. Policy 1.3.10 Regularly review intergovernmental and urban management agreements, and update as needed. Policy 1.3.1 1 Participate in and, where appropriate, coordinate regional planning efforts. a. Provide affected agencies, including irrigation districts, an opportunity to comment and coordinate on land use policies or actions that would impact their jurisdictions. Policy 1.3.12 Support non-profit or public acquisition of lands determined through an extensive public process to have significant value to the community. Policy 1.3.13 Support implementation of the Bend 2030 Plan and incorporate, as appropriate, elements from the Bend 2030 Plan into this Plan. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 19 CHAPTER I COMPREHENSIVE PLANNING SECTION 1.3 LAND USE EXHIBIT B TO ORDINANCE 2019-007 Goal 3 Manage County owned lands efficiently, effectively, flexibly and in a manner that balances the needs of County residents. Policy 1.3.14 Where feasible, maintain and manage County owned properties as follows. a. Manage designated park lands to preserve the values defined in the park designation; b. Permit public access to County owned lands designated as parks unless posted otherwise; c. Encourage properties located along rivers, streams or creeks or containing significant wildlife, scenic or open space values to be designated as park land. 20 DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER I COMPREHENSIVE PLANNING SECTION 1.3 LAND USE EXHIBIT B TO ORDINANCE 2019-007 �S�ct�Dw 2.2 �4�Y�cu.ltu,Yt�l, l�wols Background Protecting farm lands and the economic benefits of agriculture is one of the primary goals of the Oregon land use system. Statewide Planning Goal 3 establishes farmland identification and protection standards which must be met by local governments. The Goal requires farm lands to be preserved for farm uses, consistent with existing and future needs for agricultural products, forest and open space. Additional criteria for Goal 3 can be found in Oregon Revised Statute (ORS) 215 and in Oregon Administrative Rule (OAR) 660-33. These criteria spell out in considerable detail which lands shall be designated as farm lands and what uses are permissible. The main concept is that local governments must inventory and protect farm lands though the use of Exclusive Farm Use (EFU) zones that provide primarily for the continuation of commercial -scale agriculture, including farm operations, marketing outlets and the agricultural support system. To provide a science based method of identifying farm lands, Statewide Goal 3 defines agricultural lands primarily through soil classifications. However, other lands can, and often must, be classified for farming based on the criterion `suitable for farm use' or being near agricultural lands. Excerpt from Statewide Planning Goal 3 "Agricultural Land in eastern Oregon is land of predominantly Class 1, 11, 111, IV, V and VI soils as identified in the Soil Capability Classification System of the United States Soil Conservation Service, and other lands which are suitable for farm use taking into consideration soil fertility, suitability for grazing climatic conditions, existing and future availability of water for farm irrigation purposes, existing land -use patterns, technological and energy inputs required, or accepted farming practices. Lands in other classes which are necessary to permit farm practices to be undertaken on adjacent or nearby lands, shall be included as agricultural land in any event. More detailed soil data to define agricultural land may be used by local governments if such data permits achievement of this goal. Agricultural land does not include land within acknowledged urban growth boundaries or land within acknowledged exceptions to Goals 3 or 4." Besides Statewide Goal 3, farming is protected in Oregon by "right -to -farm" law (ORS 30.930- 047). This law protects commercial farms from nuisance suits brought about by generally accepted farming practices, such as noise, dust or odors. County Agricultural Designations Farm land designations in Deschutes County have been and continue to be highly controversial. In designating farm lands in the late 1970s, the County was hampered by the limited availability of soil maps. Where soil maps existed those were consulted, but the County also included irrigated lands and lands receiving farm deferrals for the previous five years. Ultimately, seven DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.2 AGRICULTURAL LANDS EXHIBIT C TO ORDINANCE 2019-007 separate agricultural areas were identified, each specifying minimum lot sizes. In general, non- urban, non -forest, undeveloped and uncommitted lands were determined to be farm lands. Despite designating many agricultural areas by default, the 1979 Resource Element noted that based on agricultural determinants of soils, water, climate and economics, profitable farming in the County remained difficult. The findings for protecting non-profitable agricultural land noted the aesthetic value of farm land, the costs and hazards of allowing local development and the economic importance of rural open space. In 1992 a commercial farm study was completed as part of the State required periodic review process. The study concluded that irrigation is the controlling variable for defining farm lands in Deschutes County. Soil classifications improve when water is available. Seven new agricultural subzones were identified based on the factual data provided in the 1992 study and minimum acreages were defined based on the typical number of irrigated acres used by commercial farms in that particular subzone (with the exception of the Horse Ridge subzone). Like the 1979 Resource Element, the 1992 farm study noted the challenges of local commercial farming. The high elevation (2700-3500 feet), short growing season (88-100 days), low rainfall and distance to major markets hamper profitability. The 1992 study resulted in minimum lot sizes that are smaller than the State requirement of 80 acres for farm land and 160 acres for range land. These minimum lot sizes are unique in Oregon and were acknowledged as in compliance with Goal 3 by the Oregon Land Conservation and Development Commission. In general, County farm designations are effectively protecting farm lands while allowing limited land divisions. Deschutes County Agricultural Sub -Zones As noted above, the County maintains a unique set of farm sub -zones based on the average number of irrigated acres for each type of farm land as determined in the 1992 farm study. Irrigated land divisions in each sub -zone must result in parcels that retain the acreages shown in Table 2.2.1. Table 2.2.1 - Exclusive Farm Use Subzones Subzone Name Minimum Acres Prole Lower Bridge 130 Irrigated field crops, hay and pasture Sisters/Cloverdale 63 Irrigated alfalfa, hay and pasture, wooded grazing and some field crops Terrebonne 35 Irrigated hay and pasture Tumalo/Redmond/Bend 23 Irrigated pasture and some hay Alfalfa 36 Irrigated hay and pasture La Pine 37 Riparian meadows, grazing and meadow hay Horse Ridge East 320 Rangeland grazing .,mirre• Deschutes County 1992 Farm Study Irrigation Districts As shown in the 1992 farm study, irrigation and irrigation districts are instrumental factors for Deschutes County agriculture. Irrigation districts in Oregon are organized as Special Districts under ORS Chapter 545. The districts are created for the purpose of delivering water to their DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.2 AGRICULTURAL LANDS EXHIBIT C TO ORDINANCE 2019-007 patrons. As such they are effectively non-profit water user associations. In addition to irrigation, these districts also supply a number of other uses, including municipal, industrial, and pond maintenance. However, by and large the districts exist for the purposes of delivering irrigation. Seven districts, which withdraw their water supply from the Deschutes River Basin, have formed an intergovernmental unit called a "board of control" under ORS 190.125. This organizational structure allows the districts to work together as a unit in implementing water conservation, projects, providing educational resources, utilizing equipment and for other joint purposes. A key goal for the Deschutes Basin Board of Control is to preserve agricultural uses in those areas where irrigation improves soils to class VI or better. The six irrigation districts listed below serve residents or have facilities within Deschutes County and are members of the Deschutes Basin Board of Control. Arnold Irrigation District The present Arnold Irrigation District was first organized as the Arnold Irrigation Company on December 27, 1904 and became official on January 9, 1905. As of 2010 the district manages approximately 65 miles of canals, ditches and pipes in an area of approximately 18,560 acres. Central Oregon Irrigation District The Central Oregon Irrigation District (COID) was established in 1918. The District provides water for approximately 45,000 acres within an 180,000 acre area in Central Oregon. More than 700 miles of canals provide agricultural and industrial water to irrigate Terrebonne, Redmond, Bend, Alfalfa and Powell Butte areas. In addition, COID provides water to the City of Redmond and numerous subdivisions. In Bend, many parks and schools receive water through the COID system. COID is also the managing partner in the operation of the 55,000 acre foot Crane Prairie Reservoir, located on the east side of the Central Cascades. North Unit Irrigation District The North Unit Irrigation District (NUID) was organized in 1916. As part of the Reclamation Act of 1902, Congress approved the Deschutes Project and in 1927 began construction of the project under the direction of the U.S. Bureau of Reclamation. The project was completed in 1949 allowing NUID to serve nearly 50,000 acres. Today NUID is the second largest irrigation district in Oregon, serving approximately 59,000 acres in Jefferson County. NUID maintains facilities in Deschutes County, including Wickiup Dam, Bend Headworks and the North Unit Irrigation Canal. NUID has a long-standing relationship with the U.S. Bureau of Reclamation as a result of the Deschutes Project. Swalley Irrigation District The Swalley Irrigation District was organized as the Deschutes Reclamation and Irrigation Company (DRIC) in 1899. In 1994 the shareholders of the DRIC voted to incorporate as an irrigation district and took the name of Swalley Irrigation District. The District has 28 miles of canals and laterals providing water to 667 customers. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.2 AGRICULTURAL LANDS EXHIBIT C TO ORDINANCE 2019-007 Three Sisters Irrigation District The Three Sisters Irrigation District (formerly Squaw Creek Irrigation District) was founded in 1917 from the Squaw Creek Irrigation Company and the Cloverdale Irrigation Company. They were founded in 1891 and 1903 respectively, making Three Sisters Irrigation District one of the oldest such districts in Oregon. The District serves approximately 175 water users over approximately 7,568 acres. Tumalo Irrigation District Originally known as the Tumalo Project, Tumalo Irrigation District started in 1904. In 1922 the Project reorganized as an irrigation district under Oregon state laws. The District serves approximately 60 square miles, irrigating approximately 8,093 acres, and has over 80 miles of canals, laterals and ditches serving 635 landowners. Deschutes County Agriculture 2007 - 2009 The following statistics provide a snapshot of farming in Deschutes County. Source: County GIS data ■ Approximately 36% of the County or more than 700,000 acres are designated as Agriculture on the Comprehensive Plan map. Of that acreage, 69% is public, primarily Federal ownership leaving approximately 224,000 acres privately held. ■ 160,078 acres of privately owned farm lands in the County receive special tax assessment for farm use. ■ Of the acres receiving farm tax assessments, 44,221 are irrigated. ■ In 2008 there were 3,725 agricultural parcels less than five acres. ... University .- w Il --- L...-- r......a.. Source: Oregon State niversity Extension Oregon Agricultural mrrn �ouun v►NctwuIN UCJ(.IIULQJ %. VUI16r Agricultural Commodity Sales for 2009 (preliminary estimate) ■ $19,792,000 in agricultural sales, a drop from the 2008 preliminary estimate of $25,991,000. This follows slight upturns in sales between 2006-2008. ■ 62% of agriculture sales are in crops and 38% in livestock. The primary crops are hay and alfalfa hay while the primary livestock is cattle. The biggest downturns for 2009 are non - alfalfa hay and cattle. Source: United States Department of Agriculture, National Agricultural Statistics Service 2007 Census of Agriculture ■ There are 1,405 farms in Deschutes County residing on 129,369 acres ■ Average farm size 92 acres ■ Approximately 24% of farms are under 10 acres and 78% are under 50 acres ■ Total net cash farm income is negative ■ 59% of farmers list their primary occupation as `Other' rather than farming The above data highlights the fact that farming in Deschutes County is generally not commercially profitable. For a majority of farmers, farming is not a sustaining economic activity, but rather a lifestyle choice. Living on a farm and farming as a secondary economic activity acknowledge a shift from commercial farming towards the benefits of a rural lifestyle. DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.2 AGRICULTURAL LANDS EXHIBIT C TO ORDINANCE 2019-007 Farm Trends 2010 Whatever the challenges, agriculture is part of Deschutes County's culture and rural lifestyle. During the public input process, various ideas were discussed on how to preserve agricultural lands, open spaces and rural character of the County, while enabling landowners to make a living. The following ideas identify current trends that could be promoted by the County in conjunction with the local extension service and other agencies and organizations. It is important to emphasize that new uses must conform to State regulations. Alternative energy: Development of small alternative energy projects would promote local energy self-sufficiency, using Central Oregon's sun, wind, thermal, hydropower and biomass resources. Larger agricultural parcels could be used as commercial wind or solar farms to provide renewable energy as well as income to landowners. Alternative uses: There is interest in allowing non-farm uses on farm lands to take advantage of agrarian lifestyles and Central Oregon's setting. Ideas being discussed include agri-tourism or hosting weddings. Nonetheless, new non-farm uses must be evaluated to ensure they are compatible with ORS and OARS as well as existing land uses and zoning. Local markets: Products from small farms are often sold to local markets. Additionally local consumption saves on transportation and energy, allowing better tracking of food sources thereby increasing food safety and improving freshness and quality. Buying local is a current trend that could benefit the County's many small farmers. Community Supported Agriculture is one popular method, where farmers obtain paid subscriptions from customers, who then receive fresh produce every week for the season. Farmers markets and farm stands are another aspect of the local food movement. Conservation easements: Many states are using programs to put permanent conservation easements on farm lands. As an example of a program that is not yet available in Oregon is the Purchase of Agricultural Conservation Easements (PACE). Funded by the federal government and a combination of other sources, PACE purchases development rights from farmers. Niche markets: Small quantities or specialized products can be raised to meet particular markets, like organic products or peppermint oil. Value-added products: Processing crops can increase profitability. An example would be making jam or jelly out of locally grown berries. Farm Councils: Farm councils are being initiated around the country to promote local sustainable food. The Central Oregon Food Policy Council (COFPC) formed in 2010 to lead the effort to a sustainable and just food system. The COFPC is made up of 12-15 volunteers including representatives from agricultural production, public health, government and others interested in the local food system. Identified strategies include supporting access to local healthy food, advocating for public policies that increase sustainable food production and connecting stakeholders in the food systems field. Big Look In 2005 a task force was appointed by the Oregon Governor, Speaker of the House and Senate President to review the current land use system. The Oregon Task Force on Land Use Planning was a 10 -member group representing various perspectives, charged with conducting a DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.2 AGRICULTURAL LANDS EXHIBIT C TO ORDINANCE 2019-007 comprehensive review of the Oregon Statewide Planning Program. Called the Big Look Task Force, this group was asked to make recommendations for any needed changes to land -use policy to the 2009 Legislature. After three years of extensive input from experts and citizens throughout the State, the task force developed its findings and recommendations. One of the primary conclusions reached was that Oregon needs a more flexible land use system that responds to regional variations. Two of the primary recommendations from the Task Force addressed agricultural and forest lands, recommending: ■ Counties be allowed to develop regional criteria for designating farm and forest lands, if they also protect important natural areas and assure that development is sustainable. ■ Counties be allowed to propose specialized rules to decide what lands are designated as farm or forest land. 2009 Legislature / House Bill 2229 House Bill (HB) 2229 began as the vehicle for legislative recommendations for the Big Look Task Force. However, by the time the Legislature adjourned, very little of the Task Force's recommendations remained. HB 2229 does authorize counties to reevaluate resource lands and amend their comprehensive plan designations for such lands consistent with definitions of "agricultural land" and "forest land." For example, the County could add irrigated lands to the regional definition of farm lands to acknowledge the results of the 1992 farm study. Anything that does not qualify as farmland or forestland may be rezoned for non -resource use, subject to conditions that development in the non -resource zones be rural in character, not significantly conflict with surrounding farm and forest practices, and not have adverse affects on Suck r4.inec oe %Aio*nr nnolity wildlife hnhitat and fire tnfaty (7lNinty rP7Anin4 nrtivitipS I tjq he pursuant to a work plan approved by the Oregon Department of Land Conservation and Development. This effectively means the work will be done similar to periodic review with the Land Conservation and Development Commission expressly given exclusive jurisdiction to review a county decision. Future of Deschutes County Farm Designations and Uses Statewide Planning Goal 3 requires counties to preserve and maintain agricultural lands. However, in discussions on the future of agriculture in Deschutes County, there are still differences of opinion over which lands should be designated farm lands and what uses should be allowed. Farm lands contribute to the County in a number of ways. Agriculture is part of the ongoing local economy. Wide-open farm lands offer a secondary benefit by providing scenic open spaces that help attract tourist dollars. Farm lands also contribute to the rural character that is often mentioned as important to residents. Finally, it should be noted that agricultural lands are preserved through State policy and land use law because it is difficult to predict what agricultural opportunities might arise, and once fragmented the opportunity to farm may be lost. On the other hand, there seems to be widespread agreement that much of the local farm land is marginal, particularly without irrigation. The climate, especially the short growing season, makes commercial farming challenging. Statewide Planning Goal 3 does not really account for the conditions in Deschutes County, resulting in agricultural zoning being applied to land with no history of farming and limited potential for profitable farming. The small size of agricultural DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 9 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.2 AGRICULTURAL LANDS EXHIBIT C TO ORDINANCE 2019-007 parcels adds to the challenges. It has been argued that preserving farm lands benefits the wider public at the expense of agricultural landowners. There is considerable pressure to convert agricultural land to residential or other uses. The debate is complicated because there are impacts to the farming community from converting agricultural lands to other uses. It can be challenging for a farmer who has residential neighbors because farming activities can have noise, odor or dust impacts. The right -to -farm law discussed earlier offers some protection to farmers, but as residential uses grow there is pressure to convert, leading to a greater loss of agricultural lands. The goals and policies in this Section are intended to provide the basis for evaluating the future of agriculture in the County over the next twenty years. They are intended to provide, within State guidelines, flexibility to the farming community. County farm lands will be preserved by ensuring a variety of alternative paths to profitability. 10 DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.2 AGRICULTURAL LANDS EXHIBIT C TO ORDINANCE 2019-007 5ect'ovv 2.2 A0ncu.ltu.Yal, l_.awols >oULcLes Goals and Policies Goal I Preserve and maintain agricultural lands and the agricultural industry. Policy 2.2.1 Retain agricultural lands through Exclusive Farm Use zoning. Policy 2.2.2 Exclusive Farm Use sub -zones shall remain as described in the 1992 Farm Study and shown in the table below, unless adequate legal findings for amending the sub -zones are adopted or an individual parcel is rezoned as allowed by Policy 2.2.3. Exclusive Farm Use Subzones Subzone Name Minimum Acres Profile Lower Bridge 130 Irrigated field crops, hay and pasture Sisters/Cloverdale 63 Irrigated alfalfa, hay and pasture, wooded grazing and some field crops Terrebonne 35 Irrigated hay and pasture Tumalo/Redmond/Bend 23 Irrigated pasture and some hay Alfalfa 36 Irrigated hay and pasture La Pine 37 Riparian meadows, grazing and meadow hay Horse Ridge East 320 Rangeland grazing Policy 2.2.3 Allow comprehensive plan and zoning map amendments, including these ha qualifying Nonprime Resource Lands defined as "s�gnresouree lands" DUI-suano OAR 660-004-005(31 as non reseuree land, for individual EFU parcels as allowed by State Statute, Oregon Administrative Rules and this Comprehensive Plan. Policy 2.2.4 Develop comprehensive policy criteria and code to provide clarity on when and how EFU parcels can be converted to other designations. Policy 2.2.5 Uses allowed in Exclusive Farm Use zones shall comply with State Statute and Oregon Administrative Rule. Policy 2.2.6 Regularly review farm regulations to ensure compliance with changes to State Statute, Oregon Administrative Rules and case law. Policy 2.2.7 Encourage water projects that benefit agriculture. Policy 2.2.8 Support a variety of methods to preserve agricultural lands, such as: a. Support the use of grant funds and other resources to assist local farmers; b. Work cooperatively with irrigation districts, public agencies and representatives and land owners; c. Encourage conservation easements, or purchase or transfer of development rights programs; d. Control noxious weeds; e. Encourage a food council or `buy local' program. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.2 AGRICULTURAL LANDS EXHIBIT C TO ORDINANCE 2019-007 Goal 2 Promote a diverse, sustainable, revenue -generating agricultural sector. Policy 2.2.9 Encourage farming by promoting the raising and selling of crops, livestock and/or poultry. Policy 2.2. 10 Support stakeholders in studying and promoting economically viable agricultural opportunities and practices. Policy 2.2.1 1 Encourage small farming enterprises, including, but not limited to, niche markets, organic farming, farm stands or value added products. Policy 2.2.12 Review County Code and revise as needed to permit alternative and supplemental farm activities that are compatible with farming, such as agri- tourism or commercial renewable energy projects. When a preferred alternative or supplemental use identified through a public process is not permitted by State regulations work with the State to review and revise their regulations. Goal 3 Ensure Exclusive Farm Use policies, classifications and codes are consistent with local and emerging agricultural conditions and markets. Policy 2.2.13 Identify and retain accurately designated agricultural lands. Policy 2.2,14 Explore new methods of identifying and classifying agricultural lands. a. Apply for grants to review and, if needed, update farmland designations. b. Study County agricultural designations considering elements such as water availability, farm viability and economics, climatic conditions, land use patterns, accepted farm practices, and impacts on public services. c. Lobby for changes to State Statute regarding agricultural definitions specific to Deschutes County that would allow some reclassification of agricultural lands. Policy 2.2. 15 Address land use challenges in the Horse Ridge subzone, specifically: a. The large number of platted lots not meeting the minimum acreage; b. The need for non-farm dwellings and location requirements for farm dwellings; c. Concerns over the impact on private property from off-road vehicles, facilities, and trails located on adjacent public lands. Policy 2.2.16 Work with the State to review and revise accessory farm dwelling requirements to address the needs of local farmers. Policy 2.2.17 Encourage coordination between fish/wildlife management organizations and agricultural interests. 12 DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.2 AGRICULTURAL LANDS EXHIBIT C TO ORDINANCE 2019-007 5eot'W' K, 2.3 Forest La vwts Background Protecting forests and their economic benefits are primary goals of the Oregon land use system. Statewide Planning Goal 4 establishes forest identification and protection standards which must be met by local governments. The Goal requires forests to be protected primarily for the growing and harvesting of trees, with environmental and recreational uses also being considered. Additional criteria for Statewide Goal 4 can be found in Oregon Revised Statue (ORS) 215 and Oregon Administrative Rule (OAR) 660-006. The key concept is local governments must inventory forest lands and protect them through local regulations. County Forestry Designations In 1979 in order to meet the Statewide Goal 4 inventory requirement for forest lands, the County worked with the Oregon Department of Forestry to review timber productivity based on soils information. A resulting timber productivity map was created and three categories of forest lands were identified based on forest uses identified in Statewide Goal 4. In the 1990s, the Land Conservation and Development Commission initiated the Forest Rule, OAR 660-006, defining allowed uses, siting conditions and minimum lot sizes in forest zones. In 1992, as part of State mandated Periodic Review, Deschutes County revised its forest designations, reducing forest designations and associated regulations to two (F -I and F-2). County Forests 2007 - 2009 The following statistics provide a snapshot of forests in Deschutes County. Source: County GIS data ■ Approximately 52% of the County or over I million acres are designated as forest on the Comprehensive Plan map. Of that acreage, 92% is public, primarily federal, leaving approximately 78,000 acres privately held. ■ There are 475 forest special assessment accounts. ■ The largest privately owned forest land is the 33,000 acre Skyline Forest, formerly Bull Springs Tree Farm. Source: OSU Extension Service Silviculture and Fire Education Specialist ■ Total public and private timber harvest in the County in 2007 was 22.5 million board feet, in 2008, 36.1 million board feet and in 2009, 14.7 million board feet. Source: Deschutes County Forester ■ Since 2002 approximately 130,000 acres of public and private forest lands have burned in Deschutes County at a firefighting expense of approximately $60 million. Forest Trends 2010 As timber harvesting decreases, other uses for forest lands are emerging. State regulations permit five general types of uses, including forest operations; environmental, agricultural or recreational uses; two types of dwellings and locally dependent uses. Permitted uses are defined DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 13 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.3 FOREST LANDS EXHIBIT C TO ORDINANCE 2019-007 and clarified in OAR 660-006. The following uses are becoming more prominent and likely to gain importance over the next 20 years. Secondary forest products (forest operations): There is an increasing use of secondary forest products, such as hog fuel (chipped wood) or wood slash, which can be used for everything from animal bedding to presto logs to biomass fuel. There is some concern that those uses will lead to increased logging and degradation of forests. However, there is considerable agreement that the high build up of debris in local forests increases the risk of forest fires. The use of secondary forest products can contribute to the health of the forest as well as the local economy. Recreation (environmental, agricultural and recreation uses): The proximity of federal forests for hiking, mountain biking, skiing, hunting, fishing, wildlife viewing and other outdoor recreation draws tourists and residents alike. (see Section 2.6 for data on the economic impacts of wildlife tourism.) Alternative energy (locationally dependent): Commercial alternative energy projects are often locationally dependent. Forestry -related biomass plants and associated infrastructure are being considered in Central Oregon. Future of Forest Uses Most of the forest land in Deschutes County is owned and managed by the Federal government under Federal regulations. Forest practices on State or private forest lands are regulated by the Oregon Department of Forestry. The primary role of the County is to limit the impacts of development on private property in forest zones. Although most forest lands are not owned or managed by Deschutes County, forests contribute immeasurably to livability. Timber management and recreational tourism provide economic benefits and employment. Forests provide an impressive diversity of recreational opportunities. Forests also play a large role in maintaining clean air and water and they provide scenic beauty and habitat for a wide variety of plants and animals. It is important for the County to work cooperatively with forest landowners, including public agencies, non-profit organizations and private land owners. Residential Development The primary concern over changing forest uses is that as timber becomes less profitable, the pressure to develop forest lands for residential uses increases. State regulations limit the development of housing in forest zones, recognizing that fragmenting forests decreases productivity. The biggest challenge posed by residential fragmentation of forests is the danger posed by wildfire in heavily wooded areas. Fire danger has increased as dry conditions and disease have impacted the health of forest lands. Years of fire suppression and limited logging have contributed to a build up of wildland fuel that can spread fires quickly. In these conditions, residential uses in forests create conditions dangerous to homeowners and firefighters. Section 3.4, Natural Hazards, has more information on wildfire prevention. The second challenge posed by forest fragmentation is the threat to fish and wildlife. This is addressed in the Water and Wildlife sections of this Chapter. 14 DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.3 FOREST LANDS EXHIBIT C TO ORDINANCE 2019-007 Skyline Forest HB 2228 As noted above, the goal of the Deschutes Land Trust is to purchase and manage as much of the Skyline Forest as possible for sustainable logging, wildlife, recreation and scenery. HB 2228, adopted by the 2009 Legislature, allows the owners of this land the right to build a clustered community of up to 282 dwelling units and associated services on 1,200 acres. An additional 1,800 acres must be in a conservation easement as a buffer to maintain wildlife habitat and minimize wildfire danger. In exchange for waiving State and local land use regulations to allow this development, the remaining 30,000 acres of the Skyline Forest and additional property in Deschutes and Klamath counties must be sold to a land trust and protected with a conservation easement. There are additional requirements attached to the Statue that provide more detail on items such as road access, master planning and permitted uses. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 ( 5 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.3 FOREST LANDS EXHIBIT C TO ORDINANCE 2019-007 5ect'Ow 2.3 Forest l._.avi,Dls POUues Goals and Policies Goal I Protect and maintain forest lands for multiple uses, including forest products, watershed protection, conservation, recreation and wildlife habitat protection. Policy 2.3.1 Retain forest lands through Forest I and Forest 2 zoning. Policy 2.3.2 To conserve and maintain unimpacted forest lands, retain Forest I zoning for those lands with the following characteristics: a. Consist predominantly of ownerships not developed by residences or non - forest uses; b. Consist predominantly of contiguous ownerships of 160 acres or larger; c. Consist predominantly of ownerships contiguous to other lands utilized for commercial forest or commercial farm uses; d. Are accessed by roads intended primarily for forest management; and e. Are primarily under forest management. Policy 2.3.3 To conserve and maintain impacted forest lands, retain Forest 2 zoning for those lands with the following characteristics: a. Consist predominantly of ownerships developed for residential or non -forest uses; b. Consist predominantly of ownerships less than 160 acres; r'onsist of ownerships Qenerolly rnnriannnc rn rrnrrc rnnrnininc IPcc than I AO C. �.viw�J� v� v�iiro� un�lru s�.w. uJ .......b acres and residences, or adjacent to acknowledged exception areas; and d. Provide a level of public facilities and services, including roads, intended primarily for direct services to rural residences. Policy 2.3.4 Notwithstanding any other quasi-judicial plan or zone change criteria, lands designated as Forest under this Plan and zoned Forest 2 may upon application be redesignated and rezoned from Forest 2 to Exclusive Farm Use if such lands: a. Do not qualify under State Statute for forestland tax deferral, b. Are not necessary to permit forest operations or practices on adjoining lands and do not constitute forested lands that maintain soil, air, water and fish and wildlife resources, c. Have soils on the property that fall within the definition of agricultural lands as set forth in Goal 3, d. Are a tract of land 40 acres or less in size, e. Do not qualify under State Statute and the terms of the Forest 2 zone for a dwelling, and; f. Were purchased by the property owner after January I, 1985 but before November 4, 1993. Such changes may be made regardless of the size of the resulting EFU zoning district. Such changes shall be processed in the same manner as other quasi- judicial plan or zoning map changes. 16 DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.3 FOREST LANDS EXHIBIT C TO ORDINANCE 2019-007 Policy 2.3.5 Uses allowed in Forest zones shall comply with State Statute and Oregon Administrative Rule. Policy 2.3.6 Coordinate and cooperate with the U.S. Forest Service, the Bureau of Land Management and other public agencies to promote sustainable forest uses, including recreation, on public forest land, including: a. Using the Deschutes National Forest Land and Resource Management Plan, or its successor, as the basis for mutual coordination and cooperation with the U.S. Forest Service; b. Using the Prineville Bureau of Land Management Upper Deschutes Resource Management Plan, or its successor, as the basis for mutual coordination and cooperation with the Bureau of Land Management. Policy 2.3.7 Notify affected agencies when approving development that could impact Federal or State forest lands. Policy 2.3.8 Support the maintenance of the Skyline Forest as a Community Forest. Policy 2.3.9 Support economic development opportunities that promote forest health. Policy 2.3.10 Provide input on public forest plans that impact Deschutes County. Policy 2.3.1 1 Apply for grants to review forest lands based on ORS 215.788-215.794 (2009 HB 2229). Policy 2.3.12 Coordinate with stakeholders to support forest management projects that: a. Contribute to public safety by treating wildland hazardous fuels particularly in the designated Wildlland Urban Interface as identified in the Community Wildfire Protection Pians described in Section 3.5 of this Pian; b. Retain fish and wildlife habitat. Policy 2 3 13 Allow comprehensive plan and zoning map amendments, including qualifyinz Nonprime Resource Lands defined "as nonresource lan&" uurrs.u_un_t to OAR 660-004-0050 for Forest Use zoned parcels as allowed by State Statute, Oregon Administrative Rules and this Comprehensive Plan. Goal 2 Adequately address impacts to public safety and wildlife when allowing development on forest lands. Policy 2.3.1-34 Review County Code and revise as needed to ensure development in forest zones mitigates impacts, particularly impacts on fish and wildlife habitat and public fire safety. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 17 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.3 FOREST LANDS EXHIBIT C TO ORDINANCE 2019-007 s eou' o vk &:1 ! wtr091 u.Gt�O w Background People move to rural communities in Deschutes County for many different reasons, but the high quality of life was mentioned repeatedly in community meetings. Residents noted that rural living provides peace and quiet, room to breathe and a connection with the land, the natural world and a caring community. Retaining what people love about rural living while allowing growth can be challenging. This chapter looks at the functional and quality of life aspects of rural living and complements Chapter 2, Resource Management that discusses resource lands. This chapter is divided into eight sections. Seven Statewide Planning Goals apply to this chapter, along with associated Oregon Administrative Rules (OARS) that provide more specific guidance on implementing the Goals. The first four sections are Rural Development, Rural Housing, Rural Economy and Natural Hazards. State regulations for housing can be found in Statewide Planning Goal 10, Housing and OAR 660-008. Economic growth is considered in Statewide Goal 9, Economy of the State and OAR 660-009. Both Goal 10 and Goal 9 are intended to apply primarily inside Urban Growth Boundaries. Statewide Goal 2, Land Use and Goal 14, Urbanization, and OARS 660-004 and 660-014 address specific aspects of urban development on rural lands. Statewide Goal 7, Areas Subject to Natural Disasters and Hazards provides guidance on how to effectively protect development from natural hazards. The next two sections are Public Facilities and Services and Transportation. These areas are addressed in Statewide Goal 11, Public Facilities and Services and Statewide Goal 12, Transportation and associated OAR 660-011 and 660-012. The next two sections of this chapter are Rural Recreation and Destination Resorts. Statewide Planning Goal 8, Recreational Needs and Oregon Revised Statue 197.435-467 regulate these chapters. The final section discusses plans or policies to address site specific rural development issues. Purpose The purpose of the Rural Growth Management chapter is to coordinate with other chapters of this Plan to maintain the quality of life enjoyed by rural residents. This chapter is organized as follows: ■ Rural Development (Section 3.2) ■ Rural Housing (Section 3.3) ■ Rural Economy (Section 3.4) ■ Natural Hazards (Section 3.5) ■ Public Facilities and Services (Section 3.6) ■ Transportation System Plan (Section 3.7) ■ Rural Recreation (Section 3.8) ■ Destination Resorts (Section 3.9) ■ Area specific Plans and Policies (Section 3.10) ■ Nonprime Resource Lands (Section 3.11 DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 3 RURAL GROWTH MANAGEMENT SECTION 3.1 INTRODUCTION EXHIBIT D TO ORDINANCE 2019-007 seot'ow 3.2 RAtrat Devetopmevvt Background Oregon's land use system primarily directs growth into urban growth boundaries, to preserve rural lands for farming and forestry. Recent growth in the unincorporated areas of the County consists predominantly of residential development on lots existing prior to the adoption in the 1970s of the statewide planning program and Deschutes County's Comprehensive Plan. New commercial, industrial or residential uses on rural lands are regulated by Statewide Planning Goals for farms, forests, urbanization and public facilities. State law restricts most rural commercial and industrial uses, so no significant growth in those areas is anticipated. Yet many people choose to live in rural areas. To understand demand, in 1979 the County noted that there were over 17,000 platted, but undeveloped lots and concluded that there was ample room for growth. In 2004 the County adopted Deschutes County Coordinated Population Forecast 2000-2025 (see Section 4.2). As part of the population forecast, the County used Geographic Information Systems (GIS) to analyze the potential for new development based on existing and potential dwellings. That analysis showed the County could serve anticipated rural population with existing lots. However, it was noted that the number of growth -dependent variables over potential new development made the analysis inexact. Growth Potential As of 2010, the strong population growth of the last decade in Deschutes County was thought to have leveled off due to the economic recession. Besides natter growth patterns, changes to State regulations opened up additional opportunities for new rural development. The following list identifies general categories for creating new residential lots, all of which are subject to specific State regulations. ■ New lots can be created in destination resorts ■ Some farm lands can be subdivided to permit one or two 'non-farm' parcels ■ New lots can be created based on the property rights legislation known as Measure 37 and Measure 49 ■ New lots can be created through the addition of sewer systems ■ New lots can be created in Unincorporated Communities (see Chapter 4) ■ 2009 legislation permits a new analysis of agricultural designated lands ■ Existing large forest or rural residential lots can be subdivided ■ Exceptions can be granted from the Statewide Planning Goals ■ Some farm lands with poor soils that are adjacent to rural residential uses can be rezoned as rural residential ■ Some farm lands with poor soils can be rezoned into a new agricultural category with a smaller acreage requirement ■ Some farm and forest lands meeting the "n_onr escrurce._.land"definition Dursua_nt_to OAR 660-004-005(3) can be re -designated and rezoned to Nonprime Resource Lands for low density rural development DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 3 RURAL GROWTH MANAGEMENT SECTION 3.2 RURAL DEVELOPMENT EXHIBIT D TO ORDINANCE 2019-007 It is difficult to estimate how many additional lots could be created through these categories. Most of these possibilities are extremely site-specific requiring an analysis of each property. In community meetings for the 2008-2011 Plan update, the primary concerns raised over new growth were the impacts of destination resorts and non-farm dwellings. The wildcard in rural housing development is destination resorts (see Section 3.9). These developments are permitted on rural lands without taking a goal exception and are intended to attract tourists. State Statute on resorts allows them to have two houses for every overnight lodging unit, so the potential exists to add a considerable amount of new housing to rural Deschutes County. The challenge is that it is hard to analyze impacts from resort housing because it is not clear whether the housing is being used for full-time residences or second homes. Additionally, some of the second homes may become full-time residences when property owners retire. Non-farm refers to allowing one or two new parcels of up to five acres to split off of farm parcels as long as the remaining farm parcel retains the required acreage. This provides flexibility by allowing the creation of new rural housing while retaining the basic agricultural character of the area. Property rights Measure 37 could potentially have added a sizeable number of new lots, but as modified by Measure 49 the number is down considerably and at this point nearly impossible to track. Increased growth potential could follow the addition of sewer systems in south Deschutes County or in existing unincorporated communities, which could lead to smaller lot sizes. New lots can also be created in Unincorporated Communities, but only Tumalo and Terrebonne L_... L... «....«:..I «. AA L,cr�nri I nuimber Of new Intc I-Ipwever recidan" in Yhnum nave t110 potential ial w auu a aum-11 as • , communities have expressed an interest in keeping their rural character (see Sections 4.5 and 4.6). Another opportunity for rural growth is found in Section 2.2 of this Plan, within a policy to initiate a study evaluating existing agricultural lands to determine which lands are unsuitable for farming and could be available for residential development. Other potential categories for new residential lots are not anticipated to add substantial new development. 4 DESCHUTES COUNTY COMPREHENSIVE PLAN — 2010 CHAPTER I COMPREHENSIVE PLANNING SECTION I.I INTRODUCTION EXHIBIT D TO ORDINANCE 2019-007 �seGt%pw 3.3 RjxraL �toks�K o Background Housing is a basic need that provides not just shelter, but connection to a wider community. A variety of housing types and price points ensures options for people at different life stages and needs. Oregon's statewide planning program directs cities to retain an adequate amount of land to accommodate residential growth. Generally counties are directed to protect farms, forests and other rural resources like wildlife while limiting new rural development. This section of the Plan looks specifically at housing on existing and potential new parcels and how the County can support a diverse and affordable housing supply. Housing inside urban growth boundaries is addressed in Statewide Planning Goal 10, Housing and OAR 660-008. Statewide Goal 2, Land Use and Goal 14, Urbanization both have sections that address rural housing, supplemented by OAR 660-004 and 660-014. These rules refine how new rural residential lots can be created. The Deschutes County housing policies provide the framework for residential development. The policies further delineate the role of the County in facilitating the availability of an affordable and quality housing stock within both urban and rural communities. Rural Residential Exception Areas In Deschutes County most rural lands are designated for farms, forests or other resources and protected as described in the Resource Management chapter of this Plan. The majority of the land not recognized as resource lands or Unincorporated Community is designated Rural Residential Exception Area. The County had to follow a process under Statewide Goal 2 to explain why these lands did not warrant farm or forest zoning. The major determinant was that many of these lands were platted for residential use before Statewide Planning was adopted. In 1979 the County assessed that there were over 17,000 undeveloped Rural Residential Exception Area parcels, enough to meet anticipated demand for new rural housing. As of 2010 any new Rural Residential Exception Areas need to be justified through initiating a non - resource plan amendment and zone change by demonstrating the property does not meet the definition of agricultural or forest land, or taking exceptions to farm, forest, public facilities and services and urbanization regulations, and follow guidelines set out in the OAR. Nonprime Resource Lands In 2019 the County amended its comprehensive plan to establish eligibility criteria in Section 3 1 1 for redesignating certain Exclusive Farm Use or Forest Use zoned properties to Nonprime Resource Lands defined in OAR 660-004-0005(3) as "nonresource lands." NoriE;r�� Resource €__cc Lai -ids 1-iave_an cxc< e e €r (} !< Y, c is e_i€v yea lac € i n _�.�ed fr> c c>F t < € c i =[, <k € i F.,F(e € 5. end for, try :fir s 'rhe criteria t , � �tabli (__`i_ c-�nr)i i€��c Resot € cel_ Lands focuses «€__six specific areas that committed to residential uses, .which were platted or conveyed prior to State mandated planning legislation taking effect in Deschutes County. These six areas are DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 3 RURAL GROWTH MANAGEMENT SECTION 3.3 RURAL HOUSING EXHIBIT D TO ORDINANCE 2019-007 subject to strict resource zoning requirements dictated by State law that it mact the siting of new dwellings remodels additions and accessory structures. Outslri� of these si><_ar e s..._de li5m ted as_(�� fIDI`irn Resource Lands, and so 1=� as consistent --- with .state lavw,_i € c }erty cw"thr('e 4_th[ gar,?{Y_� r�uas_i J€ dicial i�<<:>c.c 4_rr�_� r< r�i€�€ __ tr_ �E�PE_Y_to €_e zc>�� their, _property-fi Farm _Use _r r._Forest Uc to <s_itc->€rl rs<auE cc zone. Rural Residential Exception Areas 2009 Source: County GIS data ■ 71,000 acres of Rural Residential Exception Area (including right-of-way) ■ 64,000 acres of Rural Residential Exception Area (excluding right-of-way) ■ 24,750 Rural Residential Exception Area lots ■ 18,100 Rural Residential Exception Area lots that are developed Future of Rural Housing in Deschutes County In looking at rural housing growth, it is important to find the balance between protecting rural values and protecting property rights. In community meetings some people expressed concern over the level of new development that has been allowed while others highlighted the restrictions on their property that do not permit it. Too much development can lead to the destruction of the qualities that bring people to Deschutes County, while too many restrictions keep out people who would choose a rural lifestyle. Housing Legality, Public Health and Safety One issue meriting attention is the need to be sure housing is legally developed. A house built without proper land use permits may not meet required setbacks or other regulations, causing legal disputes between neighbors. A house bunt without proper building permits could be constructed shoddily, causing safety issues. Land use and building permit requirements therefore are intended to safeguard the rights of property owners and neighbors. Historically, there have been problems in the County with substandard housing. Over the years substandard housing has become less of an issue. However, there are still areas where development has occurred without land use or building permits, leading to numerous code complaints. An area of south County, known as Section 36, has been identified as one place that the County could work closely with local residents to address health and safety issues. Another health and safety issue that came up in public meetings is the need to regulate large animals on residential lots. The idea is to control odors and flies that can accumulate and impact neighbors. Research on how large animals are regulated in other counties would provide some direction on this issue. Housing Diversity A challenge for the County given rural housing restrictions is how to support a diversity of housing to meet the needs of the community, while retaining the rural character important to residents. Deschutes County requires a 10 acre minimum lot size for new rural residential lots in order to protect the rural quality of life and its resources. Yet, the 10 acre minimum raises the cost of rural housing and may limit the rural lifestyle to households at the upper end of the income spectrum. Additionally much of the new rural housing being built is located in high-end destination resorts. This slant towards high priced rural housing is mitigated somewhat by the DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 CHAPTER 3 RURAL GROWTH MANAGEMENT SECTION 3.3 RURAL HOUSING EXHIBIT D TO ORDINANCE 2019-007 thousands of small lots that were platted before land use laws were enacted. These smaller lots provide an opportunity for less expensive housing. One way the County can address the need for housing options is to promote the idea of housing alternatives such as co -housing or accessory dwelling units. Currently these alternatives are not permitted by State regulations that protect rural lands. Co -housing involves creating a community through clustered housing. Accessory dwelling units, sometimes known as granny flats, are small units accessory to the main housing. Regulated correctly, housing alternatives could provide flexibility in rural housing. The first step in permitting housing variety is to initiate a discussion with the State on how and where these types of housing would be appropriate. Another way to support a diversity of housing is to work closely with agencies and jurisdictions that promote it. The public corporation responsible for promoting affordable housing initiatives in Deschutes, Jefferson and Crook Counties is the Central Oregon Regional Housing Authority, also known as Housing Works. Organized under the Oregon Housing Authority Law (ORS 456), this agency provides affordable housing services to low income households. They also engage in public/private partnerships to provide and manage affordable housing. Cities are also involved in providing a diversity of housing. Promoting a variety of housing choices and mix of price points can be achieved through cooperating with Housing Works and local cities, the donation of County property, or other means. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 3 RURAL GROWTH MANAGEMENT SECTION 3.3 RURAL HOUSING EXHIBIT D TO ORDINANCE 2019-007 s e ct'L'o v%, 3.3 Rwa t t to u.s wvo Po.uues Goals and Policies Goal I Maintain the rural character and safety of housing in unincorporated Deschutes County. Policy 3.3.1 The minimum parcel size for new rural residential parcels in Rural Residential Exception Areas shall be 10 acres. Policy 3.3.2 Land divisions are prohibited in the Nonprime Resource Lands -10 zone. Policy 3.3.3 Incorporate annual farm and forest housing reports into a wider system for tracking the cumulative impacts of rural housing development. Policy 3.3.4 Address housing health and safety issues raised by the public, such as: a. The number of large animals that should be permitted on rural residential parcels; or b. The properties south of La Pine, in Township 22S, Range IOE, Section 36, many of which are not in compliance with planning and building codes. Policy 3.3.45 Encourage new subdivisions to incorporate alternative development patterns, such as cluster development, that mitigate community and environmental impacts. Policy 3.3.56 Maintain the rural character of the County while ensuring a diversity of housing opportunities, including initiating discussions to amend State Statute and/or nregnn Administrative Rules to permit accessory dwelling units in Exclusive Farm Use, Forest and Rural Residential zones. Goal 2 Support agencies and non -profits that provide affordable housing. Policy 3.3.67 Support Central Oregon Regional Housing Authority and other stakeholders to meet the housing needs of all Deschutes County residents. a. Assist as needed in coordinating and implementing housing assistance programs. b. Support efforts to provide affordable and workforce housing in urban growth boundaries and unincorporated communities. Policy 3.3.78 Utilize block grants and other funding to assist in providing and maintaining low and moderate income housing. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 3 RURAL GROWTH MANAGEMENT SECTION 3.3 RURAL HOUSING EXHIBIT D TO ORDINANCE 2019-007 .11 Background Nonprime Resource Lands are areas with an exceedingly low capacity to be managed for commercial agriculture and forestry activities. Nonprime Resource Lands do not meet the definitions of either agricultural land or forest lands found in Statewide Planning Goals 3 and 4, State Statutes, or the accompanying Oregon Administrative Rules due to the presence of poor soil conditions a lack of irrigation climate conditions> h(gorric_al,_use, and other relevant factors. Based on these circumstances Nonprime Resource Lands do not warrant resource zoning under state and local programs to protect agricultural and forest lands and should be made available for other uses They differ from Rural Residential Exception Areas and other rural areas not planned and zoned for farm and forest activities. Nonprime Resource Lands are characterized by large tracts typically without an existing settlement pattern and supporting residential infrastructure. In sixlocations they also contain platted subdivisions or conveyed parcels crff4 dj?,rior_to State mandated planning legislation taking effect in Deschutes COUnt ly rr t SIX (cS `;Cii€iCC CEtC.7 CC1Gl2i_uses a� I \ 1<% been (C.;€}€"Cel - 31 _ tar riie _E3 US0d f0F f0r`CSt ODC r 1%.iO S_ Over the past decade Deschutes County participated in numerous state legislative processes, at times coordinated lay the Oregon Department of Land Conservation and Development DLCD atteLnptintca legislatively update agricultural and forest land designations. Unfortunately, these efforts were unsuccessful. Nonetheless, existing Comprehensive Plan PoliC,y_ . _ directs ti a the_ c rr continue consideri�gpvons for "non -resource lands" as defined in CSAR 660-0 04-0005jal - < so known__.ss i\tor) pri rile la ., .).n c c Lands. In April 2019 Deschutes County initiated its own process to establish eligibility criteria for rezoninv. Exclusive Farm Use or Forest Use properties to Nonprime Resource Lands Six specific areas within Deschutes_ OUntyare a-1 e_ad_y_ committed to residential uses because "they were platted or conveyed prior to State mandated planning legislation taking effect in Deschutes County. These sixareas are alrp"d ,.subject to strict resource zoning requirements dictated by State law that inpat the siting of new dwellings remodels, additions and accessory structures Upon acknowledgment of the Nonprime Resource Lands policies, Deschutes County will adopt a Nonprime Resource Lands -10 zone that will apply solely to the six aforementioned areas committed to residential uses In addition Deschutes County is honoring its existing non --resource lands process with a policy that allows property owners to apply t rezone.their Drop"rties from Exclusive Farm Use or Forest Use to a nonresource zone. DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 CHAPTER 3 RURAL GROWTH MANAGEMENT SECTION 3.11 NONPRIME RESOURCE LANDS EXHIBIT D TO ORDINANCE 2019-007 s Ctwy1. 3.11 ND"I% me Rtsou.ro "vx ols PDI.�G� S Goal and Policies Goal 1 Allow the designation of Nonprime Resource Lands in Deschutes County Nonprime Resource Lands — General Policy Policv 3.1 1.1 Property owners can continue to aDDly through a quasi-judicial process for a rezone from Exclusive Farm Use or Forest Use to a nonresource zone consistent with state law. Goal 2 Resolve resource zoning restrictions applied to subdivisionslap tted prior to Statewide Manning legislation taking effect in Deschutes County, Haner Park, and Section 36 in Township 22S. Range I OE Nonprime Resource Lands — Committed Residential Use Policies Policy 3 1 12 A Nonprime Resource Lands -10 zone provides procedures and standards for rural residential living environments and development that balance the public's interest in the management of community growth with the protection of individual property rights. Policy 3.11.3 A I F ily dwelling or o manuL-cturerl home nnri Chair arra--nry u -a- -hail be permitted outright. Policv 3.1 1.4 The Nonprime Resource Lands -10 zone is available only for the followin properties committed to residential: a. Meadow Crest Acres Subdivision b. Skyline Subdivision c. Skyline Subdivision, I s` Addition d Squaw Creek Canyon Recreational Estates I" Addition e. Haner Park f Section 36 Township 22S, Range I OE Policv 3.1 1.5 The DroDerties identified in Policy 3.1 1.4 are not eligible for a land division. Policy 3 1 16 Lots in Meadow Crest Acres Subdivision and Squaw Creek Canyon Recreational Estates IS`Addition with 51 % or more Class I -VI soils or intermingled with Class I -VI soils remain eligible upon demonstration that the property is unsuitable for farm use based on its land use history and whether a reasonable farmer would put the land to agricultural use. Policy 3 1 17 Lots in Haner Park Section 36 Skyline Subdivision, Skyline Subdivision Is' Addition and Squaw Creek Canyon Recreational Estates FAddition committed to residential uses that entirely_ possess a potential productivity of 20 or more DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 RURAL GROWTH MANAGEMENT SECTION 3.11 NONPRIME RESOURCE LANDS EXHIBIT D TO ORDINANCE 2019-007 cubic feet per acre per year, at culmination of mean annual increment, for one or more tree species native to Deschutes County remain eligible upon demonstration that the property is unsuitable for forestry use based on its land use history and whether a reasonable forester or farmer would put the land to forestry or agricultural use. Policy 3 1 18 Until a Nonprime Resource Lands -10 zone is adopted, property owners can continue to apply through a quasijudicial process for a rezone from Exclusive Farm Use or Forest Use to a nonresource zone consistent with state law. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 3 CHAPTER 3 RURAL GROWTH MANAGEMENT SECTION 3.11 NONPRIME RESOURCE LANDS EXHIBIT D TO ORDINANCE 2019-007 11/6/2019 3� f��vS L S Known as "Non -Resource" Lands under OAR 660- 004-005(3), Exceedingly low capacity to be managed for commercial agriculture and/or forestry activities. Do not meet State agricultural land or forestlands definitions. ,,A Er. 1970 farm land designations limited by available soil maps. ® Non -urban, undeveloped and uncommitted lands zoned EFU or Forest Use. Proposal I Proposal 2 4� 11/6/2019 FA 11/�/�O1O �^/~/�.�� Section 1.3 - Land Use Planning Section Z.2 - Agricultural lands Section 2.3 - Forest Lands Section 31 -Introduction ^ NPR Lands Section 32 - Rural Development Section 33 - Rural Housing Section 3J1 - New Nonprime Resource Lands 2Amended Policies 10New Policies ~ Agricultural Lands ^ Forest Lands ~ Rural Housing` Rural Housing 2New Goals ^ NPR Lands ~ NPR Lands Policy 2.2.3 Allow comprehensive plan and zoning map amendments, including qualifying Nonprime Resource Lands defined as^nunresouuelands" pursuant rnOAR 660-004-0O5(3) for EFU parcels asallowed byState Statute. Oregon Administrative Rules and this Comprehensive }1/6/20lq Policy 2.3.13 Allow comprehensive plan and zoning map amendments, including qualifying Nonprime Resource Lands defined "as nonresouoelands" pursuant toOAR 06U'0040O5(3)for Forest Use zoned parcels asallowed byState Statute, Oregon Administrative Ru|es, and this Comprehensive Plan. PoUic��1 The minimum parcel size for new rural residential parcels inRural Residential Exception Areas shall be 10 acres. Policy 3.3.2 Land divisions are prohibited inthe Nonprime Resource Lands-10zone, e� Goal Allow the designation ofNonprime Resource Lands inDeschutes County PnUiry 1.11.1 Property owners can continue toapply through a quasi-judicial process for a rezone from Exclusive Farm Use orForest Use toa nonre»ouoezgne, consistent with state law. Resolve resource zoning restrictions applied to subdivisions platted prior to Statewide planning legislation taking effect in Deschutes County, Haner Park, and Section 36 in Township 22S, Range 10E Policy 3.11.2 A Nonprime Resource Lands -10 zone provides procedures and standards for rural residential living environments and development that balance the public's interest in the management of community growth with the protection of individual property rights. Policy 3.11.3 A single family dwelling or a manufactured home and their accessory uses shall be permitted outright. 11/6/2019 61 Policy 3.11.4 The Nonprime Resource Lands -10 zone is available only for the following properties... a. Meadow Crest Acres Subdivision b. Skyline Subdivision C. Skyline Subdivision, 1stAddition d. Squaw Creek Canyon Recreational Estates 1 st Addition e. Naner Park f. Section 36, Township 22S, Range 10E: Policy 3.11.5 The properties in Policy 3.11.4 are not eligible for a land division. Lots in Meadow Crest Acres Subdivision and Squaw Creek Canyon Recreational Estates 1 st Addition with 510/ or more Class W! soils or ntermingled'.Jlth Class 'fi" -VI coils remain elibihle upon demonstration that the property is unsuitable for farm use based on its land use history and whether a reasonable farmer would ni it the and to aaria ilti iral i isa 11/6/2019 6 M Lots in Haner Park, Section 36, Skyline Subdivision, Skyline Subdivision 1 st Addition, and Squaw Creek Canyon Recreational Estates 1 st Addition committed to residential uses that entirely possess a potential productivity of 20 or more cubic feet per acre per year, at culmination of mean annual increment, for one or more tree species native to Deschutes County remain eligible upon demonstration that the property is unsuitable for forestry use based on its land use history and whether a reasonable forester or farmer would put the Ips to forestry or agricultural use. S p' Policy 3,11,8 Until a Nonprime Resource Lands -10 zone is adopted, property owners can continue to apply through a quasi-judicial process for a rezone from Exclusive Farm Use or Forest Use to a nonresource zone consistent with state law. �11 Not suitable for farm/forest uses. No impact to neighboring farm/forest uses. No impact to wildlife habitat. • Only applies to 6 residentially committed are 11/6/2019 7 11/6/2019 November 18, 2019 �vT E s C 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 November 6, 2019 DATE: October 31, 2019 FROM: Jacob Ripper, Community Development, 541-385-1759 TITLE OF AGENDA ITEM: Thornburgh Remand: Work session to review record materials for an appeal of Phase A-1 of the Thornburgh Destination Resort on remand. BACKGROUND AND POLICY IMPLICATIONS: On August 2, 2019 the applicant, Central Land and Cattle Company, initiated a Land Use Board of Appeals (LUBA) remand, file no. 247-19-000611 -A. On October 15 the County mailed a Hearings Officer's Decision, where the Hearings Officer found he did not have jurisdiction to issue a decision based on the merits of the remand. The Hearings Officer's decision was timely appealed �. _i .._�.... -ins n by the applicant. On October 30 the Board of County Commissioners (Board) signed Order 043, which was mailed the following day, indicating the Board would accept review of the appeal. The review will be based on the record, meaning only materials in the record and written arguments from the parties will be considered. No new oral testimony or new factual information will be considered. The purpose of this work session will be to review the existing record as it relates to the two main topics of this appeal review: 1))urisdiction to hear the remand, and; 2) LUBA's remand instructions concerning TP Condition 17. FISCAL IMPLICATIONS: None ATTENDANCE: Jacob Ripper, Senior Planner S j N N ry .A 'tea X ` _� P., : �t * k � IV -.1 ii 1 3 rl t �EVE? L ;, N MEMORANDUM DATE: October 31, 2019 TO: Board of County Commissioners FROM: Jacob Ripper, AICP, Senior Planner RE: Work session to review record materials for an appeal of Phase A-1 of the Thornburgh Destination Resort on remand. The purpose of this work session will be to review the existing record as it relates to the two main topics of this appeal review: 1) Jurisdiction to hear the remand, and; 2) LUBA's remand instructions concerning Tentative Plan ('TP") Condition 17. L PROCEDURAL HISTORY On August 2, 2019 the applicant, Central Land and Cattle Company, initiated a Land Use Board of Appeals (LUBA) remand, file no. 247-19-000611-A. On October 15 the County mailed a Hearings Officer's Decision, where the Hearings Officer found he did not have jurisdiction to issue a decision based on the merits of the remand. The Hearings Officer's decision was timely appealed by the applicant. On October 30 the Board of County Commissioners (Board) signed Order 2019-043, which was mailed the following day, indicating the Board would accept review of the appeal. The review will be based on the record, meaning only materials in the record and written arguments from the parties will be considered. No new oral testimony or new factual information will be considered. 11. LUBA REMAND The Hearings Officer approved the Phase A-1 Tentative Plan proposal in 2018. Nunzie Gould appealed that decision to the Board. Due to time constraints and disagreements between parties regarding the statutory 150 -day clock, the Board declined review of the appeal. The County's decision was appealed to LUBA, and LUBA remanded (LUBA No. 2018-140) on a singular issue - the 17th condition of approval (TP Condition 17): 17. Site design approval, Prior to issuance of building permits for the single family dwellings, obtain site design approval for at least 50 OLU's, which approval shall demonstrate that: a) the OLU's qualify as such and b) the Big [Falls] Ranch and COID 117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005 kl (541) 388-6575 n cdd@deschutes.org @ www.deschutes.org/cd water referenced in the Mitigation Plan and FMP decision have been secured, [or] demonstrate that the proposed alternate source is acceptable to ODFW and provides the same quantity and quality mitigation so as to not constitute a substantial modification orjustify a modification to the FMP. LUBA summarized the reason for the remand: We conclude that TP Condition 17 violates the right to a public hearing on whether the no net loss/degradation standard will be satisfied by mitigation from water sources not specified in the mitigation plan. Accordingly, the county may not rely on TP Condition 17 to conclude that, as conditioned, the tentative plan approval will comply with the mitigation plan and thus satisfy the no net loss/degradation standard. On remand, the county must consider whether, without TP Condition 17, the tentative plan for Phase A-1 satisfies the no net loss/degradation standard and whether a change in the source of mitigation water constitutes a substantial change to the FMP approval, requiring a new application, modification of the application, or other further review consistent with FMP and DCC destination resort regulations. The appellant's other assignments of error were denied. III. JURISDICTION Ms. Gould appealed LUBA's remand decision to the Court of Appeals. The Court of Appeals did not _l i____.._.. [her att.,..ney, Ie#1'ey Ki-immnn nnnaronfly mnilPrl the anneal accept Ms. Gouid's appeal because ..C. a«�� y, �� y ,.uNNu.....�., ...u..�.,, ..... late. Thornburgh then initiated the remand proceedings, which they have 180 days to do after the final appellate decision. A remand hearing was noticed and held. Mr. Kleinman argued the County did not have jurisdiction to hear the remand, as he had appealed the Court of Appeals decision to the Supreme Court. He argues that the appellate courts retain exclusive jurisdiction until such time as an appellate judgment is issued. The Hearings Officer issued a determination, which is included in the record, stating he believes he does not have jurisdiction to issue a decision based on the merits of the case. IV. APPEAL TIMELINE The applicant filed an appeal of the Hearings Officer's Decision on October 25. Due to the compressed timeline for remand proceedings (120 days instead of 150 days), a final decision must be issued by the County no later than November 30. As discussed at the Board's October 30 meeting, the timeline for the appeal proceedings will be as follows: Wed. Nov. 6: 15t work session meeting to discuss what materials are in the record that relate to the jurisdictional and TP Condition 17, where to find them in the record, and ask staff questions about the record. Tues. Nov 12: 2nd work session meeting to discuss the written arguments submitted by parties no later than Nov. 10. 247-19-000611 -A Thornburgh Phase A-1 LUBA Remand Appeal Page 2 of 6 Mon. Nov. 18: Meeting to review the appeal on the record, deliberate the appeal topics, and provide guidance and findings so that staff can draft a final decision. Mon. Nov. 25: Meeting to consider signature of the final decision. V. APPEAL TOPICS The following is a list of documents that relate to or discuss one of the two main topics of the appeal. The numbers correspond to the materials in the binders prepared for the Board. The materials referenced below and the following discussions are not to be considered comprehensive. They are intended to assist the Board in locating and reviewing documents within the record and provide brief summaries of some, but not all, arguments and viewpoints. Jurisdiction 24). 2019-08-27 Hearing Exhibit A -Appellant Submittal 27). 2019-08-27 Hearings Officer Hearing -Video o Beginning at 17:00 o Beginning at 1:23:00 55). 2019-09-10 Open Record Period 1 J Kleinman Comments 1 • 56). 2019-09-10 Open Record Period 1 L Fancher Comments o Declaration of Jeffrey L. Kleinman in Support of Petitioners rcuuvi i for Reconsideration of July 18, 2019 Order of Dismissal, p. 166 o ORS 19.260 (Filing by mail or delivery), p. 173 o State v. Chapman, Court of Appeals of Oregon, p. 174 • 87). 2019-09-24 Open Record Period 3 L Fancher Comments 93). 2019-10-15 Hearings Officer Decision 100). 2019-10-25 Notice of Appeal Discussion of Applicant's position: Perhaps the most concise arguments are. in the notice of appeal (item 100) and the applicant's attorney's (Liz Fancher) final legal argument following the hearing (item 87). Ms. Fancher argues that the appellate courts never acquired jurisdiction after LUBA's decision was issued because of the late -filed appeal to the Court of Appeals. She argues that the current status of the appeal is that it has been dismissed and that the untimely filing of an appeal does not create jurisdiction, so the applicant needed to initiate the remand before the 180 -day limit expired to avoid termination of the Phase A-1 application. Ms. Fancher further argues that even if the Supreme Court hears Ms. Gould's appeal, that it will only address the timing of filing an appeal with the Court of Appeals, and that the merits of the case still need to be addressed in the remand proceedings. Discussion of opponent's position: Ms. Gould's attorney raised a jurisdictional argument towards the beginning of the public hearing, arguing the County did not have jurisdiction to issue a decision because Ms. Gould had appealed 247-19-000611 -A Thornburgh Phase A-1 LUBA Remand Appeal Page 3 of 6 the Court of Appeals dismissal of her appeal to the Supreme Court. Mr. Kleinman argued that jurisdiction lies with the appellate courts until a final appellate judgement is issued. That argument is further explained and discussed in the hearing video, the hearing exhibit A submittal (item 24), and Mr. Kleinman's open record period 1 submittal (item 55). Mr. Kleinman argues that the County is not precluded from hearing the LUBA remand, but is precluded from issuing a final decision as long as Ms. Gould's appeal remains in front of the appellate courts. After a request for an extension of time by Ms. Gould/Mr. Kleinman, the Supreme Court granted an extension of time to file the petition for review until October 11, 2019. Discussion of Hearings Officer's position: The Hearings Officer informed the County that during his review he concluded that he did not have jurisdiction to issue a decision based on the merits of the remand (item 91). As described in the decision (item 93), the County communicated to the Hearings Officer that the County's preference was for the Hearings Officer to rule on the merits of the remand or issue an advisory opinion on the merits. The Hearings Officer declined as he found such action would not be prudent or permissible and considered the County's statement to be outside of the record. The Hearings Officer discussed several cases, ORS, and ORAP citations in his decision and found no conclusive guidance. However, in the course of the Hearings Officer's review and research, he was compelled that he did not have jurisdiction to make a determination on the merits of the LUBA remand. TP Condition 17 As TP Condition 17 is the basis for the remand and has to do with the mitigation water source, the A s . i AA -r roinro to wifiar Tho rarnrri rnntains numerous majority of the record maLei lass auu! c.» � 1 I�u« u� . • ...� . -- . _ __..__...._ _ arguments and topics that do not relate to or directly address the remand topic and instructions. It would be unproductive to list every instance where water was discussed by every party to the proceedings, so instead, staff has listed some materials as suggestions for the Board to start the review with. • 7). 2019-08-09 Burden of Proof o 4). 2019-08-09 Burden of Proof - Exhibit C (Memorandum of Agreement for right to purchase Big Falls Ranch water rights) o 3). 2019-08-09 Burden of Proof - Exhibit D (Letter from water rights attorney) 11). 2019-08-20 Staff Report 21) 2019-08-27 Hearing Exhibit D - Applicant Submittal • 22). 2019-08-27 Hearing Exhibit C - Water Analysis 24). 2019-08-27 Hearing Exhibit A - Appellant Submittal • 27). 2019-08-27 Hearings Officer Hearing -Video o Much of the video addresses water concerns 29).2019-08-27 ODFW Comments 32). 2019-09-09 Open Record Period 1 M Harrington Updated ODFW Comments 41). 2019-09-10 Open Record Period 1 Central Land & Cattle Comments (and exhibits) • 45). 2019-09-10 Open Record Period 1 COLW Comments (and exhibits) • 55). 2019-09-10 Open Record Period 1 J Kleinman Comments 1 (and exhibits) • 67). 2019-09-10 Open Record Period 1 N Gould Comments 247-19-000611 -A Thornburgh Phase A-1 LUBA Remand Appeal Page 4 of 6 71).2019-09-17 Open Record Period 2 COLW Comments • 72). 2019-09-17 Open Record Period 2J Kleinman comments 2 • 73). 2019-09-17 Open Record Period 2J Kleinman comments 1 77). 2019-09-17 Open Record Period 2 K DaLashmutt Comments (and exhibits) • 82). 2019-09-17 Open Record Period 2 N Gould testimony • 86). 2019-09-24 Open Record Period 3 Central Land and Cattle Comments 87). 2019-09-24 Open Record Period 3 L Fancher Comments' • 88). 2019-09-24 Open Record Period 3 Tonkon Torp testimony2 • 89). 2019-10-01 Kleinman Record Objection • 90). 2019-10-08 L Fancher responses to open record objections • 92). 2019-10-09 J Neuman (Tonkon Torp) responses to open record objections 100). 2019-10-25 Notice of Appeal Staff Comments: Staff notes that there were several photos, videos, and arguments presented about the presence and removal of, blockage to, and water flowing through the two dams in Deep Canyon where the Deep Canyon Creek is located. Deep Canyon Creek is the source of quality (cooler temperature) mitigation water for the resort (and quantity mitigation water as well for Phase A-1), as approved in the Final Master Plan (FMP) and associated Fish and Wildlife Mitigation Plan (FWMP). The applicant proposes to purchase the Deep Canyon Creek water rights from Big Falls Ranch, which is adjacent to Deep Canyon. Removal of the dams is critical and required steps in the mitigation process to allow free flow of cool creek water to the river, and are required at different times in development of the resort. Oregon Water Resources Department (OWRD) will review water rights transfers. Discussion of Applicant's position: The applicant is not proposing to change the source of mitigation water. It is proposing to use the Big Falls Ranch's water rights for the required mitigation. In previous FMP proceedings, the Big Falls Ranch water source was the water determined to be needed and adequate to mitigate for water quality (thermal) impacts, while COID water was supplemental mitigation for quantity impacts. The applicant submitted record materials indicating the Big Fall Ranch water was more than enough to satisfy both quality and quantity mitigation as required by the FWMP for this phase of the resort. The applicant argues that mitigation is required when water is pumped to serve the resort development, not prior to approval of the tentative plan. Furthermore, the applicant argues it has demonstrated both that acquiring the water is feasible and that it has secured the right to purchase the water rights. Discussion of Opponent's position: Mr. Kleinman argues that because the Memorandum of Agreement does not disclose what the actual unrecorded Agreement contains, what the water rights are, or what contingencies there may It should be noted that Mr. Kleinman suhmitted record objections to this submittal (item 89). Ms. Fancher responded to those objects (item 90). If the Board determines new evidence was submitted as part of final legal argument, then the Board may wish to exclude that evidence from consideration. z It should be noted that Mr. Kleinman submitted record objections to this submittal (item 89). Ms. Neuman of Tonkon Torp responded to those objects (item 92). If the Board determines new evidence was submitted as part of final legal argument, then the Board may wish to exclude that evidence from consideration. 247-19-000611-A Thornburgh Phase A-1 LUBA Remand Appeal Page 5 of 6 be, then the applicant has not demonstrated that the Big Falls Ranch water rights are feasible to acquire. He further argues that the Memorandum does not prove that the applicant has secured the water rights necessary for mitigation. A letter from Robert Long Jr., RG, CWRE, of CwM H2O LLC, was submitted by Mr. Kleinman that analyzes the Big Falls Ranch water rights and advises that the transferred water rights would have to be transferred back to the creek point of diversion before they could be transferred instream for mitigation use by the applicant. Ms. Gould writes that domestic well deepening and a dropping aquifer are concerns that will still be present even if Thornburgh meets the requirements of the FMP and FWMP by fully mitigating for well water usage and meeting the no net loss/degradation standard. Ms. Gould submitted testimony, photos, and video showing the dams on Deep Canyon Creek. She also raised concerns about the County's ability to implement the conditions of approval, especially having to do with mitigation reporting. VI. NEXT STEPS As discussed above, the Board will conduct two work session meetings and receive written arguments from parties over the next two weeks. Next, the Board will conduct the appeal review and deliberate, providing direction to staff for a final decision. A final decision will be presented to the Board for signature on Nov. 25. Attachments: The following attachments are materials that have been entered into the record for the appeal proceedings after the October 23, 2019 Staff Memorandum. Only those items that have not been �I__ n _ _._� A .. L .+ ++ I—ntc oro gttnr'hori to this m mmn ThPCP hrl\/P peen presented IO lne t5oar u as age lua t. ocr eL au.ad n 1 — I — ..-, � - - - -- included in the Board's binders and are presented in reverse chronological order. 1) 2019-10-30 Board Order 2019-043 to hear appeal on record 2) 2019-10-30 proposed calendar from staff 3) 2019-10-25 Notice of Appeal 4) 2019-10-25 Notice of Appeal - Exhibit A 5) 2019-10-25 Notice of Appeal - Exhibit B 6) 2019-10-25 Notice of Appeal - Exhibit C 247-19-000611 -A Thornburgh Phase A-1 LUBA Remand Appeal Page 6 of 6 ti^ 1t BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Accepting Review of Hearings Officer's Decision in Application No. 247-19-000611 -A. ORDER NO. 2019-043 WHEREAS, the Oregon Land Use Board of Appeals ("LUBA") issued a final opinion and order in LUBA No. 2018-140 remanding the County's approval of a Thornburgh Destination Resort tentative plan and site plan; and WHEREAS, on October 15, 2019, a Deschutes County Hearings Officer issued a decision on Application No. 247-19-000611-A, a LUBA remand for Application Nos. 247 -18 -000386 -TP, 247 -18- 000454 -SP, and 247 -18 -000592 -MA; and WHEREAS, Section 22.32.035 of the Deschutes County Code ("DCC") allows the 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 this application 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 247-19-000799-A (appeal of 247-19- 000611-A) pursuant to Title 22 of the Deschutes County Code and other applicable provisions of the County land use ordinances. Section 2. Staff shall cause notice of this action to be given to all persons or parties entitled to notice pursuant to DCC 22.24.030, DCC 22.24.080(A), and DCC 22.32.030. Section 3. The appeal shall be heard on the record pursuant to DCC 22.32.027 and DCC 22.32.030. Section 4. Pursuant to DCC 22.32.030(E)(1), written arguments based upon the record may be submitted by parties to the decision. Parties are encouraged to submit proposed draft findings with their written arguments. . Section 5. All written arguments and proposed draft findings must be received by the County no later than 11:59 p.m. on Sunday, November 10, 2019. Section 6. No oral evidence, argument, or comment other than staff comments in conjunction with this review shall be taken. The Board shall not consider any new factual information ORDER NO. 2019-043 PAGE 1 OF 2 pursuant to DCC 22.32.030(E), except that the Board reserves the right to take judicial notice of any action or order taken by the Oregon Supreme Court considering this matter. Section 7. 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). DATED this -30 day of 06�� 2019. ATTEST: G�tU-, Recording Secretary BOARD OF COUNTY COMMISSIONERS PHILIP G HENDERSON, Chair Ell PATTI ADAIR, Vice Chair zi�al� ANTHONY DeBONE, Commissioner ORDER NO. 2019-043 PAGE 2 OF 2 Q u tJf L m V N T-4 E 0 L u ..LCL 4P -J Y tl. cv a7 cQ o N -@o c s CD m 04 a 0 U') m "It tip co �+ fid, 06 U 3O CO 08 O L O i om om � o d c -2 U F o U uj ) N N Q may. y� co V d N U N U g U U006 U 0 ca m m m H W 0 C d O O L � c6 � T QO W MM� r W LL Q u tJf L m V N T-4 E 0 L u ..LCL 4P -J Y tl. aa0079?- J Co _4011-5— r� ' COMMUNITY DEVELOPMENT APPEAL APPLICATION BOARD OF COUNTY COMMISSIONERS o0 FEE:• EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision. 3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board, stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of Title 22. 4. If color exhibits are submitted, black and white copies with captions or shading delineating the color areas shall also be provided. It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues. Appellants Name (print): Central Land and Cattle Company, LLC Phone: (541 ) 350-8479 Mailing Address: 2447 NW Canyon City/State/Zip: Redmond, OR 97756 Land Use Application Being Appealed: 247-19-000611-A (remand LUBA No. 2018-140) Property Description: Township 15 Range 12 Section 00 Tax Lots7700,7800, 7801,7900 Appellants Signature: _�!� '-Q' � Z�)aZ_a - � Date: October 25, 2019 BY SIGNING THIS APPLICATION AND PAYING THE APPEAL FEE, THE APPELLANT UNDERSTANDS AND AGREES THAT DESCHUTES COUNTY IS COLLECTING A DEPOSIT FOR COSTS RELATED TO, PREPARING FOR, AND CONDUCTING A PUBLIC HEARING. THE APPELLANT WILL BE RESPONSIBLE FOR THE ACTUAL COSTS OF THE HEARING PROCESS. THE AMOUNT OF ANY REFUND OR ADDITIONAL PAYMENT WILL DEPEND UPON THE ACTUAL COSTS INCURRED BY THE COUNTY IN REVIEWING THE APPEAL. Except as provided in section 22.32.024, appellant shall provide a complete transcript of any hearing appealed, from recordings provided by the Planning Division upon request (there is a $5.00 fee for each recording copy). Appellant shall submit the transcript to the planning division no later than the close of the day five (5) days prior to the date set for the de novo hearing or, for on -the -record appeals, the date set for receipt of written records. 1 1 7 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005 t; (541) 388-6575 @ cdd@deschutes.org 0 www,deschutes.org/cd NOTICE OF APPEAL See attached Notice of Appeal. (This page may be photocopied if additional space is needed.) NOTICE OF APPEAL BY CENTRAL LAND AND CATTLE COMPANY, LLC Decision Appealed and Background The decision appealed is a decision issued by Deschutes County Hearings Officer Dan R. Olsen entitled "Hearings Officer Decision." The decision is dated October 14, 2019 and was mailed on October 15, 2019. The decision was issued after the appellant, Central Land and Cattle Company, LLC ("CLCC") filed a request in August 2019 that the County proceed to affirm its approval of a tentative plan and site plan for development of the Thornburgh Destination Resort after a remand on remanded a single narrow issue by the Oregon Land Use Board of Appeals ("LUBA"). LUBA found a single error in the drafting of one of the hearings officer's conditions of approval of the land use applications. In the appealed decision, Hearings Officer Olsen found that he lacked jurisdiction to consider the application on remand because Ms. Gould's attorney made a failed attempt to file a petition for review of LUBA's decision with the Oregon Court of Appeals. The Oregon Court of Appeals dismissed the appeal after two reviews of the matter because the petition was not received by the Court until after the filing deadline and, therefore, the Court of Appeals did not acquire jurisdiction to review LUBA's decision. A timely filed appealed is required by law to vest jurisdiction in the Court of Appeals per ORS 197.830(3). Reasons for Board to Hear CLCC's Appeal The issue on remand from LUBA i s narrow. LUBA simply asks the County to assure that the source of mitigation water is one approved by the FMP's fish mitigation plan that will continue to meet the "no net loss/degradation" approval criterion of the County's resort code when the mitigation water rights are required to be used as mitigation (prior to the resort's use of groundwater). CLCC has secured the right to purchase mitigation water rights from Big Falls Ranch. These water rights are specifically identified by the IMP as the best quality water rights because they provide mitigation of water temperature impacts as well as water quantity impacts. The no net loss/degradation standard is a County code requirement so the Board's interpretation and application of the standard will be entitled to deference by LUBA. Currently, Ms. Gould has petitioned for review by the Oregon Supreme Court. If the court does not accept review of the petition, the issue of whether the Board will have jurisdiction to decide CLCC's appeal will be resolved and the Board will clearly have jurisdiction to issue a decision. Ms. Gould is using her attorney's error in failing to file her petition for review of LUBA's decision as a sword to harm or destroy CLCC's resort project by delaying approval of the County -approved tentative plan and site plan that are permitted by the County -approved Final Master Plan for the Thornburgh Destination Resort. This follows a long line of appeals by Ms. Gould spanning 13 years — all with the purpose of making it infeasible for CLCC to proceed with development of the Resort. Page 1 — Notice of Appeal (CLCC) Gould believes that building a destination resort is wrong. One of her attorneys has advised CLCC that Ms. Gould "believes there is no right way to do the wrong thing (build the resort)." Ms. Gould's opposition is not about insuring that Thornburgh complies with resort code requirements, it is about killing the project by delaying it and burdening it with legal expenses to defend appeals. A decision to decline review would support Gould's delay tactics. It will require an unnecessary set of appeals to LUBA, the Court of Appeals and the Oregon Supreme Court. Such appeals would not resolve the merits of the remand. They would only address the issue of whether the County had jurisdiction now — when it made the current decision; not whether the County has jurisdiction in the fixture when the issue may be resolved by action of the Oregon Supreme Court. If CLCC is forced to appeal the Olsen decision to LUBA now, a review on the merits will likely not occur until after these lengthy appeals are completed. CLCC, therefore, asks the Board to accept review and to issue a decision that addresses the merits of the remand. CLCC is willing to wait until the Oregon Supreme Court decides whether to hear Gould's challenge to the dismissal of her appeal which if rejected will significantly narrow the issues on appeal. Ms. Gould's legal position is that the Board will have jurisdiction to issue a decision if her appeal is not heard by the Supreme Court. Only the Board of Commissioners can resolve the merits of this case. Additionally, only the Board may resolve the jurisdictional issue by waiting for action by the Oregon Supreme Court. If CLCC is forced to appeal to LUBA, it will not be able to correct the alleged jurisdictional defect by having the County wait to issue a decision until the Gould appeal is settled. This is clearly the most efficient manner in which to proceed in a case that has been delayed by Ms. Gould*s filing of unending appeals of land use decisions, water permits and water transfers, Lana Use Compatibility Statements (LUCS) and the BLM's grant of a road right-of-way over federal lands to provide secondary access to the resort.' 1 The following is a list of the land use appeals (only) filed by Ms. Gould in Oregon appellate courts. It does not include the appeals she filed with Deschutes County. It does not include her challenges to decisions of the Bureau of Land Management or Oregon Water Resources and does not include her recent challenge of the issuance of a Land Use Compatibility Statement for the transfer of the point of appropriation of water rights not associated with the Thornburgh mitigation plan by Big Falls Ranch based on the spurious claim that this transfer required the County to make a land use decision regarding the Resort FMP/fish mitigation plan: Gould v. Deschutes County, 51 Or LUBA 493 (2006)(appeal of decision of Board of Commissioners to initiate review of hearings officer's decision) Gould v. Deschutes County, 54 Or LUBA 205 (2006)(appeal CMP approval) Gould v. Deschutes County, 216 Or App 150 (2007)(appeal of CMP) Gould v. Deschutes County, 57 Or LUBA 403 (2008)(appeal of CMP) Gould v. Deschutes County, 227 Or App 601 (2009)(appeal of CMP) Gould v. Deschutes County, 59 Or LUBA 435 (2009)(appeal of IMP) Gould v. Deschutes County, 347 Or 258 (2009)(petition for review of CMP to Supreme Court) Gould v. Deschutes County, 233 Or App 623 (2010)(appeal of FMP) Gould v. Deschutes County, 67 Or LUBA 1 (2013)(appeal of declaratory ruling re vesting of CMP) Page 2 — Notice of Appeal (CLCC) CLCC pursued review of its land use approval on the remand because State law says that the appellate court system does not acquire jurisdiction if an appeal is improperly filed and State law also requires CLCC initiate a remand within 180 days of when LUBA's decision is final. ORS 215.435(2)(a). The consequence of failing to initiate a remand is to render the County's approval of CLCC's land use applications void. It is unclear whether this 180 -day period is, unlike the 120 -day clock, stayed by Gould's appeal to the Oregon Supreme Court. ORS 215.435. It is nearly certain, however, that if CLCC had chosen to wait to initiate a review on remand until after the running of 180 -day period, Gould would have argued the tentative plan and site plan approval issued by the County in 2018 was no longer valid. This would mean that CLCC would be forced to start all over again with the review of its tentative plan and site plan applications at considerable expense in terms of time and money. This would impose a significant hardship on CLCC. Thus, CLCC is in a possible "lose -lose" situation if the Board of Commissioners does not agree to hear this matter and place the case on hold, as requested below, until the Oregon Supreme Court acts on Gould's petition for review. Jurisdiction of Board of Commissioners It is uncontested that Deschutes County has jurisdiction to hear an appeal of the hearing officer's decision and to consider the merits of the issue on remand. The only point of disagreement between opponents and the applicant is whether the County has jurisdiction to issue a decision before Gould's appeal of an order of dismissal is completed. We have attached two pages of « rl-.4 t ra ul b h if _f M. f n,µlul that state that this is a post -lieu— ing arrpirm r1W 1llGU Vy lvu. 11Leiiuma: on veaaaai va correct legal position (Exhibit A). Gould v. Deschutes County, 256 Or App 520 (2013)(declaratory ruling) Gould v. Deschutes County, Or LUBA _ (LUBA No. 2014-080, 1/30/2015)(appeal Board approval of declaratory ruling re CMP) Gould v. Deschutes County, 272 Or App 666 (2015)(declaratory ruling) Central Land and Cattle Co, LLC v. Deschutes County, 74 Or LUBA 326 (2016)(Gould cross - appealed) Central Land and Cattle Co, LLC v. Deschutes County, 283 Or App 286 (2016)(petition for review of IMP filed by Gould; cross appeal by CLCC) Central Land and Cattle Co, LLC v. Deschutes County, 361 Or 311, 393 P3d 1165 (2017)(FMP appeal to Supreme Court) Gould v. Deschutes County, Or LUBA (LUBA No. 2018-008, 8/21/18)(FMP) Gould v. Deschutes County, Or LUBA — (LUBA No. 2018-140, 6/21/19)(appeal of tentative plan/site plan approval) Gould v. Deschutes County, Court of Appeals No. A171603 (appeal of dismissal of petition for review). Gould v. Deschutes County, Supreme Court No. N008578 (appealed dismissal by Court of Appeals). Page 3 – Notice of Appeal (CLCC) 120 Day Rule The issue regarding jurisdiction will be effectively settled in about 45 to 75 days if the Oregon Supreme Court declines to hear Gould's petition for review of the Court of Appeals' dismissal of her LUBA appeal due to a lack of jurisdiction. CLCC agrees to toll the 120 -day decision clock of ORS 215.435 that applies to the County's review of cases on remand by LUBA or appellate courts to allow the Board to hear this appeal after the Supreme Court has acted on the pending petition. Specifically, CLCC agrees to: 1. Toll the 120 -day clock until the date the Oregon Supreme Court decides whether to hear Gould's petition for review. 2. Toll the 120 -day clock for an additional period of time to give the Board 120 days from the date the Supreme Court decides whether to hear Gould's appeal to decide the CLCC appeal. 3. Agree to work with County staff to further extend the 120 -day review clock, if needed, to enable staff and the Board to make and draft a well -considered decision. Deschutes County's staff reached out to Ms. Gould's attorney, Jeff Kleinman, to confirm the statements he made at the land use hearing before Hearings Officer Olsen. Mr. Kleinman advised the hearings officer that Ms. Gould would not object to tolling the 120 -day clock and would "state for the record" that Gould would waive "any argument then that a final resolution further out would require the applicant to start over." See, August 27, 2019, Video of Land Use Hearing posted on County's website beginning at 25:00 minutes into the hearing, incorporated by reference herein. In response to staff's query, Mr. Kleinman declined to honor this waiver and told the County Gould will object to tolling the 120 -day clock. Prior to speaking with Mr. Kleinman, County staff told CLCC that it would recommend that the Board hear a CLCC appeal, if filed. After Mr. Kleinman took this position, County staff changed its position and decided to recommend the Board not hear CLCC's appeal. We are disappointed because erred in relying on staff's position in deciding to decline the hearings officer offer to place his decision on hold. We now must ask the Board to accept review and place the review on hold to achieve the same result we could have achieved by action of the County's hearings officer. We ask the Board to hear this appeal because Mr. Kleinman's potential objection if raised would be both frivolous (entirely lacking in legal merit) and inconsistent with his argument that the Board currently lacks jurisdiction to approve the land use application. As a result, Mr. Kleinman's potential objection should not dissuade the Board of Commissioners from hearing the CLCC appeal. Mr. Kleinman's legal position is wrong because state law makes it crystal clear that the Board has a legal right to make a decision on remand after the expiration of the 120 -day period. In any case, where a writ of mandamus is filed by the applicant after 120 days has elapsed, the only remedy provided by law is for the Circuit Court to direct the Board to make a land use decision after the 120 days has elapsed. ORS 215.437. Additionally, the law provides no remedies whatsoever for opponents for a violation of the 120 -day period. ORS 215.435 and 215.437. Page 4 — Notice of Appeal (CLCC) An objection by Gould to an extension of the 120 -day clock is inconsistent with Gould's legal position that her appeal has not been resolved by appellate court judicial review and that the County, therefore, does not have jurisdiction to act. According to ORS 215.435 (1) the 120 -day period "shall not begin to run until final resolution of the judicial review." If, as Gould claims, the court has jurisdiction, it has not reached a final resolution of the judicial review of her appeal. Standing The applicant is Central Land and Cattle Company, LLC ("CLCC"). It is the owner of land approved for development as the Thornburgh Resort. It is the applicant that sought approval of the 2018 tentative plan and site plan that was remanded to Deschutes County by the Oregon Land Use Board of Appeals in June of 2019 in LUBA No. 2018-140 on the single -issue that one of the conditions of approval drafted by the County's hearings officer failed to provide for public participation in a post -approval review process. It is the party that initiated the review of LUBA's remand by Deschutes County in early August of 2019. Statement of Specific Reasons for Appeal 1. Jurisdiction did not vest in the Oregon Court of Appeals to review Gould's petition for review of LUBA's decision because Gould's attorney failed to file the petition for review within the period required by law. ORS 197.850(3). His attempt to file the petition by certified mail on the last day of the appeal period failed because his staff mailed the petition by first-class mail. As a result, the day the petition was received by the Court Administrator, after the appeal deadline had expired, is the date of filing with the Court of AnnPn1c QR C I!1 26n (1) Chapman v State, of oreQon, 298 Or App 603 (2019). rr.�. \_/. r o 2. The County has authority to address the narrow remand issue presented by LUBA's decision. The Hearings Officer should have addressed and resolved the issue on the merits so that it and the jurisdictional issue could be reviewed together. The hearings officer erred in failing to recognize the fact that ORS 197.830(3), the law that says the timely filing of a petition of review is jurisdictional, has the same legal effect as ORS 19.255 that says that jurisdiction of an appeal vests when the notice of appeal vests." This is the gist of the Oregon Supreme Court's decision in Southwest Forest Industries v. Anders, 299 Or 205, 701 P2d 42 (1985)(a failure to file an petition for review of an administrative decision within the statutory time limits is the key to jurisdiction in the Oregon Supreme Court). In SW Forest Industries the Supreme Court rejected the argument that ORS Chapter 19 and that the mailing rules of ORS 19.028 (now ORS 19.260) do not apply to appeals from administrative tribunals such as LUBA. Based on his erroneous finding regarding the effect of failing to comply with ORS 19.028's filing rules, the hearings officer erroneously concluded that the finding of the Oregon Supreme Court in Pohrman v. Klamath Fall Comm., 272 Or 390, 397, 538 P2d 70 (1975) that "when a notice of appeal is timely served and filed, the appellate court has jurisdiction***" did not support CLCC's position that jurisdiction did not vest in the Oregon Court of Appeals because a timely appeal was not filed. Page 5 — Notice of Appeal (CLCC) 4. Pohrman and ORS 197.830(3) make it clear that because Gould failed to file her appeal as required by law, the appellate court system did not acquire jurisdiction of the appeal. It is now reviewing Gould's challenge to the dismissal but the court system is not reviewing Gould's appeal on its merits. The cases relied on by the hearings officer to find that the appellate courts acquire jurisdiction are not based on a case where an appellant failed to file a timely appeal. To find otherwise would allow any participant in a land use matter to delay County review by filing an appeal long after appeal deadlines had expired until the matter had been dismissed by the Court of Appeals, the dismissal had been dismissed after reconsideration (a process that takes approximately one month's time) and a petition for review is filed and considered by the Supreme Court (an almost two month delay by Gould to file the petition followed by a delay of two to three months or longer for the court to determine whether to hear an appeal). Ms. Gould's attorney mailed her petition for review to the Court Administrator on the last day of the appeal period. The date the petition is received by the Court is, by law, the date it is filed unless she complied with ORS 19.260 and sent the petition to the court by a means of delivery that complies with ORS 19.260 or unless she filed the petition electronically. In this case, Ms. Gould did neither and the appellate courts never acquired jurisdiction over the appeal. Given this fact, Deschutes County is not deprived of jurisdiction to act on LUBA's remand because the appellate courts did not acquire jurisdiction in the first place. Pohrman at 397; State v. Harding, 347 Or 368, 223 P3d 1029 (2009)(neither the Supreme Court nor the Court of Appeals has jurisdiction over an appeal if an appellant files his appeal by first-class mail and it is not received by the court until after expiration of the appeal period); McCall v. Kulongoski, 339 Or 1986, 118 P3 256 (2005)(the timely filing and service of a notice of appeal gives an appellate court jurisdiction over the issue on appeal, to the exclusion of the lower court.. State ex rel Juvenile Dep't of Multnomah County v. M. U (In re J.H.), 229 Or App 35, 210 P 3 d 254 (2009)(jurisdiction vests when a notice of appeal is timely filed and not otherwise); Southwest Forest Industries v. Anders, 299 Or 205, 701 P2d 42 (1985); McQuary v. Bel Air Convalescent Home, Inc., 296 Or 653, 678 P2d 1222 (1984)(timely filing is jurisdictional). The Oregon Supreme Court, if it hears Gould's appeal, will only consider procedural arguments regarding Gould's appeal of LUBA's decision. They will not address the merits of LUBA's decision. Given this fact, it is logical to conclude that the merits of LUBA's decision may be addressed on remand. 6. The fact that Ms. Gould has appealed a dismissal of her appeal to the Oregon Court of Appeals because was it filed with the court after the filing deadline does not deprive Deschutes County of the authority to consider the single issue remanded to the County by LUBA. The single remand issue was decided in favor of Gould by LUBA. It is not subject to challenge on appeal as CLCC has not appealed. It, therefore, is appropriate to address and resolve this issue now. Even if Gould succeeds on her petition for review and is able to appeal other issues, those can be decided independent of the issue remanded by LUBA. Page 6 — Notice of Appeal (CLCQ 7. The Hearings Officer should have determined that Gould failed to vest jurisdiction in the appellate court system in line with the two appellate decisions that have dismissed the Gould appeal. Ms. Gould was required to file her petition for review of LUBA's decision no later than July 12, 2019. On that day, the very last day of the appeal period, her lawyer Mr. Kleinman decided to file the petition for review by mail rather than by the Court's preferred method of service which is by electronically filing (e -filing) the petition for review with the Court Administrator. ORS 19.260(1) requires that petitions for review be mailed certified or registered mail or by a superior class of service. Mr. Kleinman understood this fact and certified on the petition for review that he had mailed it to the court by certified mail. Mr. Kleinman, however, failed to assure that the petition was sent to the court by certified mail. The petition was mistakenly mailed by first-class mail and, therefore, was dismissed by the Appellate Commissioner of the Court of Appeals when it was received after the expiration of the appeal period. Ms. Gould filed a Motion for Reconsideration of the Oregon of Dismissal on July 31, 2019 that was denied by the Chief Judge of the Court of Appeals on August 5, 2019. Ms. Gould next delayed resolution of this matter by obtaining approval of a request to extend the 30 -day appeal deadline for seeking review by the Oregon Supreme Court by 28 days and by filing a petition for review by the Supreme Court on October 8, 2019. A revised petition was filed October 18, 2019. 8. Ms. Gould's arguments on jurisdiction lack merit for the reasons provided in CLCC's r.,1 11 2010 v +•+ f Recons; AA t;� of the d.sm.ssal of the 1 USPUrlse LV lJV UlU J J Uly JI, V 17 1 eLXLXt 11 1Vr 1�iuvl bavu Gould appeal, Exhibit B, and in CLCC's Response to Gould's Petition for Review by the Oregon Supreme Court, Exhibit C. These documents are incorporated by reference herein. Type of Review Requested CLCC asks the Board to hear its appeal on the record regarding the issue on remand from LUBA and to hear the jurisdictional issue de novo. The reason for requesting a de novo review regarding the jurisdictional issue is to allow CLCC to provide the Board with new information about the status of Gould's petition for review by the Supreme Court that will occur after the end of the appeal period of the Olsen decision. This information will be essential in making a determination of the appealed issue. We are recommending that LUBA's narrow issue on remand be considered by the Board on the record. We make this recommendation on the record because, during the review of the remand by the hearings officer, the opponents raised about 40 issues that are outside the scope of review on remand, including issues that were resolved by the Board back in 2007. If de novo review is allowed, we expect that Ms. Gould and the other opponents will seek to create confusion and slow down review with another round of complaints about the resort that are outside of the scope of remand. The record is well-developed and establishes that CLCC is entitled to approval of its tentative plan and site plan application and that it will fulfill the obligations imposed by the FMP. Page 7 — Notice of Appeal (CLCC) If the Board accepts review and decides to hear all issues de novo, the applicant asks that the Board excuse the applicant from the requirement to file a transcript of the hearing before the hearings officer. Page 8 — Notice of Appeal (CLCQ TO: FROM: JEFFREY L. KLEINMAN ATTORNEY AT LAW THE AMBASSADOR 1207 S.W. SIXTH AVENUE PORTLAND, OREGON 97204 TELEPHONE (503) 248-0808 FAX (503) 228-4529 EMAIL KleinmanJL@aol.coin September 10, 2019 POST -HEARING MEMORANDUM Deschutes County Land Use Hearings Officer Jeffrey L. Kleinman SEP 10 2010 Descion Collllty Cly File No. 247-19-000611-A, Thornburgh Destination Resort Subdivision This memorandum is submitted on behalf of Annunziata Gould at the close of the initial 14 -day open record period herein. We reiterate the contents of Ms. Gould's August 27 hearing memorandum, and incorporate that memorandum by reference here. A. DESCHUTES COUNTY AND ITS HEARINGS OFFICER LACK JURISDICTION OVER THIS MATTER. We reiterate that the county and its land use hearings officer lack jurisdiction to issue a decision in this matter and lack the authority to act on the applicant's requests. This will remain the case so long as Ms. Gould's appeal remains pending before the appellate courts. This case cannot be in two places at the same time. Ms. Gould participates in this proceeding without waiving her argument as to jurisdiction, or waiving any applicable time limits. At the same time, we wish to clarify and correct the argument regarding jurisdiction we have previously set out. The county is not in fact foreclosed from EXHIBIT A conducting hearings on the issue(s) on which LUBA issued its remand. However, the county and its hearings officer lack jurisdiction to adopt a decision herein so long as Ms. Gould's appeal remains before the Court of Appeals or the Supreme Court of Oregon. Foland v. Jackson County, 70 Or LUBA 247, 252-54 (2014), citing Standard Insurance Co. v. Washington County, 17 Or LUBA 647, 660, rev'd on other grounds, 97 Or App 687, 776 P2d 1315 (1989). LUBA will reverse a decision issued before the final resolution of such appeal(s). Id. The appellate courts retain exclusive jurisdiction until such time as an appellate judgment issues. Rhodes v. City of Talent, 50 Or LUBA 415, 422 (2005). With respect to the continued pendency of Ms. Gould's appeal, a copy of her motion for extension of time within which to file the petition for review in the Supreme Court of Oregon, filed on September 9, 2019, is attached as Exhibit A. B. RESPONSE TO MATTERS Ra SET OUT IN CLCC'S HEARING MEMORANDUM. The hearing memoranda submitted by the parties overlap in many ways, so that much of the argument set out by the applicant does not require further response here. However, we will respond briefly to some of the points raised by the applicant. (1) The applicant did not cross-appeal and contest Condition 17(b). The condition says what it says. The applicant misconstrues the BOCC's earlier decision, an excerpt of which it presented as Exhibit D. (CLCC Memo 2) Nothing in the BOCC's discussion relates to the county's mitigation requirements, the no net loss/degradation standard of DCC 18.13.070(D). The BOCC's discussion does not address fish habitat at all. Page 2 - POST -HEARING MEMORANDUM OF ANNUNZIATA GOULD EXHIBIT A IN THE COURT OF APPEALS. OF THE STATE OF OREGON ANNUZIATA GOULD, Petitioner, V. DESCHUTES COUNTY and ) CENTRAL LAND AND CATTLE ) COMPANY, LLC, ) Respondents. Land Use Board of Appeals No. 2018-140 Court of Appeals No. A171603 Respondent Central Land and Cattle Company, LLC's Response to Petitioner's Petition for Reconsideration of July 18, 2019, Order of Dismissal and Respondent Central Land and Cattle Company, LLC's Motion to Strike Petitioner's Opening Brief and Excerpt of Record EXPEDITED PROCEEDING UNDER ORS 197.850 AND ORS 197.855 Liz Fancher, OSB No. 812202 Wendy M. Margolis, OSB 945675 lizglizfancher.com wmargoliskcosgravelaw.com 644 NW Broadway Street Cosgrave Vergeer Kester LLP Bend, OR 97703 900 SW Fifth Avenue, 24th Floor Tel: 541-385-3067 Portland, OR 97204 Tel: 503-323-9000 For Respondent Central Land and Cattle Co., LLC David Adam Smith, OSB No. 170317 adam. smithkdeschutes. org Deschutes County Legal Counsel 1300 NW Wall Street, Suite 205 Bend, OR 97703 Tel: 541-388-6593 For Respondent Deschutes County Jeffrey L. Kleinman, OSB 743726 KleinmanJLkaol.com 1207 SW Sixth Avenue Portland, OR 97204 Tel: 503-248-0808 For Petitioner Annunziata Gould Relevant Facts Petitioner Gould mailed a Petition for Judicial Review seeking review of the final opinion and order of the Land Use Board of Appeals ("LUBA") in LUBA No. 2018-140 on July 12, 2019. The Petition for Judicial Review was mailed to the Appellate Court Administrator by first-class mail. Petitioner did not file the Certificate of Filing required by ORAP 4.15(4) with the Petition for Judicial Review.' The Petition for Judicial Review was received by the Court Administrator on July 15, 2019; three days after the July 12, 2019 filing deadline established by ORS 197.850(3). On July 18, 2019, the Court's appellate commissioner determined that the Petition for Judicial Review was filed on July 15, 2019 and, therefore, entered an Order of Dismissal. Pctitioncr filed a "Petition for Reconsideration of the Order of July 18, 2019, Order of Dismissal" on July 31, 2019. On the same day, Petitioner filed a "Certificate of Mailing Under ORS 19.26(1)(b)" and a "Corrected Certificate of Service and Filing of Petition for Judicial Review. ,2 Petitioner Gould filed an ' Petitioner filed only a Certificate of Service, as disclosed by its heading. The footer of the document erroneously refers to the certificate as a "Certificate of Service and Filing." 2The "Corrected Certificate of Service and Filing of the Petition for Judicial Review" states that Mr. Kleinman filed the petition for judicial review by first- class mail on July 12, 2019 but his Declaration states that Colleen Ezeobi mailed the petition for judicial review to the Court. 3 Opening Brief and Excerpt of Record with the Appellate Court Administrator on August 2, 2019. Summary Response Respondent Central Land and Cattle Company, LLC ("CLCC") requests that the Court affirm its Order of Dismissal of Petitioner Gould's Petition for Judicial Review consistent with its recent decision of State of Oregon v. Chapman, 298 Or App 603 (2019) and ORS 19.260(1), ORS 19.270(1) and (2)(b) and ORS 197.850 (3). Response to Petition for Reconsideration Filing by First -Class Mail Gould mailed her Petition for Judicial Review by first-class mail to the Court of Appeals on July 12, 2019. Under the majority opinion in Chapman, first-class mail is a class of service calculated to achieve delivery within three business days. It is not a class of service calculated to achieve service within three calendar days — the time period prescribed by ORS 19.260(1) for filing appeals by mail. Id. at 611. As a result, the date of filing of the Petition for Judicial Review is the date received by the Court. The Petition was received on July 15, 2019 after expiration of the filing deadline. The Order of Dismissal, therefore, should be affirmed. ORS 19.270(1) and (2)(b); ORS 197.850 (3). .19 The Court's dismissal of Gould's appeal is also supported by the reasoning of the concurring and dissenting opinions in Chapman.3 In the view of the concurrence and dissent, the date of mailing is the date of filing if the appeal is mailed by first-class mail on a day when three business days is synonymous with three calendar days. Otherwise, the date of filing is the date the appeal is received by the Court. Id. at 618. As Gould filed her appeal on a Friday, the three business day delivery calculated for first- class delivery by the US Postal Service was not synonymous with three calendar days. Instead, it was a period of five calendar days (Wednesday, July 17, 2019). Gould argues in her Petition for Reconsideration that first-class mail is a class of delivery calculated to achieve delivery "to Salem" within three calendar days because the receipt for payment obtained from the US Postal Service by her attorney's paralegal estimated a delivery date of July 15, 2019. Pet. Recon. 7. This argument lacks merit, however, because the Chapman majority makes it clear that the date of mailing a petition for judicial review by first-class mail is never the date of filing. Id. at 604. Gould's argument is also inconsistent with the reasoning of the concurring opinion and dissent in Chapman that states that "the carrier's defined delivery period for the class of delivery used" determines whether the date of mailing is the date of filing. Id., at 618, fn 1. The defined 3 The dissent states it agrees with the concurring opinion's interpretation of the filing by mail requirements of ORS 19.260(1). Id. at 622. EXHIBIT B 5. delivery period for first-class mail is three business days; in this case five business days. Id. at 617, 622. As Gould's petition was not filed until it was received by the Court on July 15, 2019 it was not timely filed by the July 12, 2019 filing deadline. As a result, the Court did not acquire jurisdiction over Gould's petition. ORS 19.270(1) and (2)(b); ORS 197.850 (3). The Court should deny the Petition for Reconsideration. Response to Gould's Proof of Filing Argument Gould argues that she did not have "a reasonable opportunity to prepare and file the certificate of mailing required by ORS 19.260(1)(b)" before the appeal was dismissed. Gould claims that her attorney was waiting for a signed receipt for mailing by certified mail before filing a certificate of mailing. ORS 19.2600)(b) requires certification and filing after petition for judicial review is mailed. ORCP 9.C(1) requires filing "within a reasonable time after service." waited until July 31, 2019 to file the proof of mailing required by ORS 19.260(1)(b). Contrary to the assumption made in Petitioner's argument, ORS 19.260(1)(b) does not require proof of receipt for certified mail; it requires proof of mailing. Proof of mailing is the receipt provided when items are mailed. ORAP 1.35(1)(b)(iii)(A). Mr. Kleinman's office obtained a receipt and certificates of mailing from the US Postal Service on July 12, 2019. See, Gol Exhibit 2 of the Kleinman Declaration of the Petition for Reconsideration. The receipt and certificates could have been filed as soon as the proof of mailing and certificates of mailing were obtained from the US Postal Service on July 12,201 9.4 Motion to Strike Petitioner's Opening Brief and Excerpt of Record CLCC moves the Court to strike Petitioner's Opening Brief and Excerpt of Record because the Petition for Judicial Review has been dismissed and the Court lacks jurisdiction to decide the case on its merits unless and until the case is reinstated. ORS 19.270(1) and (2)(b); ORS 197.850 (3). CLCC also asks the Court to find that the briefing deadlines prescribed by ORAP 4.66 are either not in effect or are tolled by the filing of the Petition for Reconsideration. Petitioner filed her Opening Brief and Excerpt of Record on August 2, 2019 despite the fact the Court had issued an Order of Dismissal of her petition for judicial review on July 18, 2019. Although Petitioner filed a Petition for Reconsideration of the Order to Dismiss, Petitioner has cited no law that stands for the proposition that the briefing deadlines of ORAP 4.66 run after an appeal has been dismissed. Petitioner also has not cited any legal authority for the proposition that the filing of a Petition for Reconsideration of Order of 4 Petitioner Gould's failure to file a certificate of filing until July 31, 2019 Judicial Review is not addressed by Petitioner and is not excused by Petitioner's attorney's choice to wait to obtain a receipt for certified mail before filing proof of service. The certificate of filing required by ORAP 4.15(4) was required to be filed with the Petition for Judicial Review on July 12, 201.9. EXHIBIT B 7 Dismissal grants the Court jurisdiction to review a Petition for Judicial Review on the merits while a Petition for Reconsideration is pending decision by the Court. The Court's rules do not directly address this situation but the obvious effect of an Order of Dismissal is to terminate the case and to relieve parties of their responsibility to act within the briefing deadlines set by ORAP 4.66. The Opening Brief and Excerpt of Record filed by Gould should also be stricken as the Court has no jurisdiction to consider it because Gould failed to timely file her Petition for Review. ORS 19.270(1) and (2)(a); ORS 197.850 (3)(filing petition within 21 days of mailing of LUBA's order is jurisdictional and may not be waived or extended). CLCC respectfully requests the Court to address this issue as promptly as possible because CLCC must determine whether to prepare and file a reply brief on or before August 23, 2019, the deadline that would have applied if Petitioner had timely filed her Petition for Judicial Review. DATED: August 5, 2019 Respectfully submitted, s/Liz Fancher Liz Fancher, OSB 812202 Attorney for Respondent CLCC CERTIFICATE OF FILING AND SERVICE I certify that I filed the foregoing Response to Petitioner's Petition for Reconsideration of July 18, 2019, Order of Dismissal and Respondent Central Land and Cattle Company, LLC's Motion to Strike Petitioner's Opening Brief and Excerpt of Record by causing it to be electronically filed with the Appellate Court Administrator on August 5, 2019, through the appellate eFiling system. I further certify that service of a copy of the foregoing document will be accomplished on the following participants in this case, who are registered users of the appellate courts' eFiling system, by the appellate courts' eFiling system at the participant's email address as recorded this date in the appellate eFiling system on the following parties: David Adam Smith adam. smith(cr�,deschutes. org for Respondent Deschutes County Jeffrey L. Kleinman KleinmanJLkaol.com for Petitioner Annunziata Gould I certify that I have this date served each participant in this case who is not being served by the appellate courts' eFiling system by ordinary first class mail at the following address: Wendy M. Margolis Cosgrave Vergeer Kester LLP 900 SW Fifth Avenue, 24th Floor Portland, OR 97204 for Petitioner Annunziata Gould /s/ Liz Fancher Liz Fancher, OSB #812202 lizklizfancher.com for Respondent Central Land and Cattle Company, LLC IN THE SUPREME COURT OF THE STATE OF OREGON ANNUZIATA GOULD, Petitioner, Petitioner on Review, y DESCHUTES COUNTY and CENTRAL LAND & CATTLE CO., LLC, Respondents, Respondents on Review. Land Use Board of Appeals 2018140 A171603 S067074 RESPONSE TO PETITION FOR REVIEW by Respondent Central Land and Cattle Company, LLC Petition for Review of the August 9, 2019 Order of Court of Appeals Chief Judge James C. Eagan Denying Reconsideration of the Appellate Commissioner's Order Dismissing Judicial Review of a Final Opinion and Order by the Oregon Land Use Board of Appeals Liz Fancher, OSB No. 812202 lizglizfancher.com 644 NW Broadway Street Bend, OR 97703 Tel: 541-385-3067 For Respondent on Review Central Land and Cattle Co., LLC David Adam Smith, OSB No. 170317 adam. smithgdeschutes. org Deschutes County Legal Counsel 1300 NW Wall Street, Suite 205 Bend, OR 97703 Tel: 541-388-6593 For Respondent on Review Deschutes County Wendy M. Margolis, OSB 945675 wmargolis&cosgravelaw.com Cosgrave Vergeer Kester LLP 900 SW Fifth Avenue, 241h Floor Portland, OR 97204 Tel: 503-323-9000 Jeffrey L. Kleinman, OSB 743726 KleinmanJL(a,aol. com 1207 SW Sixth Avenue Portland, OR 97204 Tel: 503-248-0808 For Petitioner on Review EXHIBIT C TABLE OF CONTENTS i. Page Summaryof Argument......................................................................................... l Legislative Background and Intent.......................................................................3 Petitioner's Conduct.............................................................................................4 Dismissal Proper Under All Opinions in Chapman.............................................5 Gould's Interpretation of Statute is Fundamentally Flawed.................................6 Reasons to Decline Review..................................................................................6 APPENDICES Chapter 80, Oregon Laws 2015................................................................... App -1 Testimony before Senate Committee on Judiciary, April 30, 2015 ............ App -2 TABLE OF AUTHORITIES Cases Central Land and Cattle Co, LLC v. Deschutes County, 74 Or LUBA 326 (2016) ............................................................................2 Central Land and Cattle Co, LLC v. Deschutes County, 283 Or App 286 (2016)..............................................................................2 Central Land and Cattle Co, LLC v. Deschutes Couny), 361 Or 311, 393 Pad 1165 (2017)..............................................................2 Gould v. Deschutes County, 54 Or LUBA 205 (2006) .........................................2 Gould v. Deschutes County, 216 Or App 150 (2007) ...........................................2 Gould v. Deschutes County, 51 Or LUBA 493 2006 Gould v. Deschutes County, 54 Or LUBA 205 (2006) .........................................2 Gould v. Deschutes County, 216 Or App 150 (2007) ...........................................2 Gould v. Deschutes County, 57 Or LUBA 403 (2008) .........................................2 MIMMU-41" 11. Page Gould v. Deschutes County, 59 Or LUBA 435 (2009) .........................................2 Gould v. Deschutes County, 347 Or 258 (2009) ...................................................2 .................................................................5, 6 Gould v. Deschutes County, 233 Or App 623 (2010) ...........................................2 ORS 19.260(1)(a)(B) Gould v. Deschutes County, 67 Or LUBA 1 (2013) .............................................2 6 Gould v. Deschutes County, 256 Or App 520 (2013) ...........................................2 ORS 19.260(2)(a)(A) Gould v. Deschutes County, LUBA No. 2014-080 (1/30/2015) ..........................2 Gould v. Deschutes County, 74 Or LUBA 326 (2016) .........................................2 Gould v. Deschutes County, 283 Or App 286 (2016) ...........................................2 Gould v. Deschutes County, 361 Or 311, 393 Pad 1165 (2017) ..........................2 Gould v. Deschutes County, LUBA No. 2018-008 (8/21/18) ..............................2 Gould v. Deschutes County, LUBA No. 2018-140 (6/21/19) ..............................2 State v. Chapman, 298 Or App 603 (2019) .................................................. 1,4-7 Statutes ORS19.260.................................................................................................. 3, 4, 5 ORS19.260(1)..................................................................................................... 1 ORS19.260 1 a .................................................................5, 6 ORS19.260(1)(a)(A) ........................................................................................1; 3 ORS 19.260(1)(a)(B) ....................................................................................1, 3, 4 ORS19.260(1)(b).............................................................................................3, 6 ORS19.260(2)......................................................................................................5 ORS 19.260(2)(a)(A) ....................................................................................1, 3, 4 ORS19.260(2)(a)(B) ............................................................................................3 ORS19.260(2)(b).................................................................................................3 ORS19.260(4)......................................................................................................3 ORS197.850.........................................................................................................1 ORS197.850(3)(a)................................................................................................4 02401M. I Page ORS197.850.........................................................................................................1 ORS215.427.........................................................................................................1 Oregon Laws Chapter 80, 2015 Oregon Laws............................................................................ 3 Administrative Rules ORAD9.07(1)........................................................................................................6 ORAP9.07(2).......................................................................................................6 ORAP9.07(9).......................................................................................................7 ORAP9.07(11).....................................................................................................7 ORAP9.07(13)....................................................................................................7 OR AP 9.07(14) ................... _. .........7 ORAP9.07(16).....................................................................................................7 EXHIBIT C Summary of Argument The Oregon Court of Appeals applied ORS 19.260(1) correctly twice. ORS 19.260(2)(a)(A) plainly states that the date of mailing by first-class mail is the date of service on parties. ORS 19.260(1)(a)(A), however, does not include first-class mail in its otherwise identical list; making it clear that the date of mailing by first-class mail is not the date of filing with the Court of Appeals. ORS 19.260(1)(a)(B) is not, contrary to Gould's assertion, a trap for unwary appellate practitioners. Its meaning was clear to Petitioner's attorney. He certified that Gould's petition for review was filed with the Appellate Court Administrator by certified mail and he directed his staff to mail the petition by certified mail. The issue presented by Gould's petition is not the legal issue presented by State of Oregon v. Chapman, 298 Or App 603 (2019)("Chapman"). While the Chapman court was divided on the issue presented to it, all opinions in Chapman (majority, concurring and dissent) support dismissal of the Gould appeal. Oregon law provides for the expedited review of land use applications by local government, ORS 215.427, and the Oregon Court of Appeals. ORS 197.850, ORS 197.855. Supreme Court review will significantly delay review of LUBA's order on the merits to address a procedural issue only. Delay will impose a significant hardship on Respondent Central Land and Cattle Co., LLC, 2 ("CLCC"), a developer whose development project has already been delayed for almost 13 years by numerous appeals filed by petitioner Gould in state and federal forums.I 'The following are the land use appeals (only) filed by Ms. Gould: Gould v. Deschutes County, 51 Or LUBA 493 (2006)(appeal of decision of Board of Commissioners to initiate review of hearings officer's decision) Gould v. Deschutes County, 54 Or LUBA 205 (2006)(appeal CMP approval) Gould v. Deschutes County, 216 Or App 150 (2007)(appeal of CMP) Gould v. Deschutes County, 57 Or LUBA 403 (2008)(appeal of CMP) Gould v. Deschutes County, 227 Or App 601 (2009)(appeal of CMP) Gould v. Deschutes County, 59 Or LUBA 435 (2009)(appeal of FMP) Gould v. Deschutes County, 347 Or 258 (2009)(petition for review of CMP) r. nv lT.'AxnN V > CnZtesCU-irty, GJJ Or App UG�J (2AV 11 V)IQJYGQl of i 1Vlrus Gould v. Deschutes County, 67 Or LUBA 1 (2013)(appeal of declaratory ruling re vesting of CMP) Gould v. Deschutes County, 256 Or App 520 (2013)(declaratory ruling) Gould v. Deschutes County, Or LUBA (L UBA No. 2014-080, 1/30/2015)(appeal Board approval of declaratory ruling re CMP) Gould v. Deschutes County, 272 Or App 666 (2015)(declaratory ruling) Central Land and Cattle Co, LLC v. Deschutes County, 74 Or LUBA 326 (2016)(Gould cross -appealed) Central Land and Cattle Co, LLC v. Deschutes County, 283 Or App 286 (2016)(petition for review of FMP filed by Gould; cross appeal by CLCC) Central Land and Cattle Co, LLC v. Deschutes County, 361 Or 311, 393 P3d 1165 (2017)(FMP) Gould v. Deschutes County, Or LUBA (LUBA No. 2018-008, 8/21/18)(FMP) Gould appealed October 2018 hearings officer's approval of tentative plan/site plan to Board of County Commissioners, November 9, 2018. Gould v. Deschutes County, Or LUBA (LUBA No. 2018-140, 6/21/19)(appeal to tentative plan/site plan) Gould v. Deschutes County, Court of Appeals No. Al 71603. Gould v. Deschutes County, Supreme Court No. N008578. EXHIBIT C K Legislative Background and Intent In 2015, the Oregon Legislature amended ORS 19.260 to treat the date of dispatch "by a class of delivery calculated to achieve delivery within three calendar days" as the date of filing and service of an appeal or petition for review with the Oregon Court of Appeals or Oregon Supreme Court. ORS 19.260(1)(a)(B) and (b), (2)(a)(B) and (2)(b), and (4). It also amended ORS 19.260(1)(a)(A) that requires filing "by registered or certified mail" but did not amend it match ORS 19.260(2)(a)(A) which allows service by "[f]irst class, registered or certified mail." This makes it clear that the legislature did not intend to allow filing by first-class mail to serve as the date of filing appeals and petitions for review. If that were its intent, it would have included first-class mail in the list provided by ORS 19.260(1)(a)(A). A copy of Chapter 80, 2015 Oregon Laws containing the full text of ORS 19.260 and the 2015 amendments is Appendix 1 of this response (App -1). At the same time, the legislature amended ORS 19.260(2)(a)(B) to allow service of appeals and petitions on parties "by a class of delivery calculated to achieve delivery within three calendar days" but retained first-class mail as an approved means of service in ORS 19.260(2)(a)(A). This confirms the Legislature's understanding that first-class mail is not a class of delivery calculated to achieve delivery within three calendar days. If it were, the listing EXHIBIT C 0 of service by first-class mail in ORS 19.260(2)(a)(A) would be superfluous and would have been removed. Ms. Gould's claim that the interpretation of ORS 19.260(1)(a)(B) provided by the Chapman decision is inconsistent with "the legislature's understanding of what that language meant" is clearly erroneous. Pet Rev 2. The legislative history shows only that the Oregon Legislature intended to amend ORS 19.260 to "allow appellate practitioners to file and serve notice of appeal or initiating document by third -party commercial carriers." Testimony before the Senate Committee on Judiciary by Jordan R. Silk, representing OSB Appellate Practice Section, p. 2, Appendix 2 (App -2). The legislative history contains no evidence to support Petitioner's claim that the legislature intended to enlarge filing by mail to provide that first-class mail would achieve relation back to the date of mailing. 298 Or App at 610. Petitioner's Conduct Petitioner's attorney mailed the petition for review by the Court of Appeals to the Appellate Court Administrator on the last day of the appeal period allowed by ORS 197.850(3)(a). Petitioner's attorney chose to file the petition by certified mail rather than by e -filing. He certified, in his certificate of mailing, that he had mailed the petition by certified mail. He, thereafter, directed his staff to mail the petition certified mail. All of these facts show that Petitioner's attorney understood that a petition for review sent by first-class F0010FAIM 5 mail does not vest jurisdiction in the court until received by the Appellate Court Administrator. ORS 19.260(1)(a). Petitioner's attorney did not review the postal receipts returned to his office by his staff to verify that the petition had been mailed certified mail as he had certified. See ACMS (A171603), July 31, 2019, Petition for Reconsideration at 13-14. Dismissal Proper Under All Opinions in Chapman The Appellate Commissioner of the Court of Appeals properly dismissed Gould's petition because it was mailed first-class mail and was received by the Administrator after the filing deadline. Chief Judge Egan denied reconsideration of the Commissioner's order of dismissal. This action was supported by opinions in Chapman, including the concurring and dissenting opinions. The majority opinion found that when enacted, today's ORS 19.260 "meant that ordinary first-class mail, with filing relating back to mailing was not an option" and that the 2015 Legislature "did not amend subsection (1) itself so as to authorize filing as mailing by first-class mail" as it had done with the rule for service on parties in ORS 19.260(2). 298 Or App at 608, 609. Dismissal of Gould's petition was also supported by the reasoning of the concurring and dissenting opinions in Chapman. All opinions found that first- class mail is a class of mail calculated to achieve delivery within three business days and that Ms. Chapman's petition sent by first-class mail was timely filed because it was mailed on a day when three business days is synonymous with EXHIBIT C 2 three calendar days. Ms. Gould filed her petition on a Friday, a day when three business days is not synonymous with three calendar days and it is clear that the relation -back rule of ORS 19.260(1)(b) does not apply. Gould's Interpretation of Statute is Fundamentally Flawed Ms. Gould's attorney argues that the issue of whether first-class mail is a class of mail calculated to achieve delivery within three days is a question to be answered by the post office receipt provided each time a petition is mailed. This position is clearly wrong. The issue presented by the statute is whether the class of delivery is calculated to achieve delivery in three calendar days; not whether a specific piece of mail will arrive or be estimated to arrive in three days on a postal receipt. ORS 19.260(1)(a)(date of actual receipt not relevant if sent by correct class of delivery). Reasons to Decline Review Gould does not present a significant issue of law and does not raise the same issue regarding the date of mailing presented by Chapman. ORAP 9.07(1). 2. The issue presented by Chapman, not the issue presented by Gould, is the only issue that has arisen more than once (it has arisen twice). ORAP 9.07(2). 7 3. The Court of Appeals' decision in Gould does not appear to be wrong. ORAD 9.07(14). It is consistent with all three opinions written by the Chapman court, including the dissent. 4. There is no inconsistency among Court of Appeals' cases. ORAP 9.07(9). 5. The Court of Appeals did not publish a written opinion that addresses the specific facts of the Gould appeal. ORAP 9.07(11). 6. The Court of Appeals did not decide Gould en banc. ORAP 9.07(13). 7. No amicus curiae have appeared. ORAP 9.07(16). 8. Ms. Gould will benefit and CLCC will be harmed by a delay caused solely by the negligence of Petitioner's attorney in filing the petition for review. If Petitioner's attorney had filed the petition by certified mail, as certified to the court by her attorney, or by e -filing, the expedited timelines for review by the Court of Appeals would have begun running on July 12, 2019. The appeal on the merits would likely have been resolved by the Court of Appeals by the end of 2019. DATED this 21 st day of October, 2019. Respectfully submitted, Liz Fancher, OSB 812202 Attorney for Respondent CLCC EXHIBIT C `e• OREGON LAWS 2015 Chap. 80 CHAPTER 80 AN ACT Hs 2336 Relating to notices of appeal; creating new pro- visions; amending ORS 19.260; and declaring an emergency. Be It Enacted by the People of the State of Or- egon: SECTION 1. ORS 19.260 is amended to read: 19.260. (1)(a) Filing a notice of appeal in the Court of Appeals or the Supreme Court may be ac- complished by mail or delivery. Regardless of the date of actual receipt by the court to which the appeal is taken, the date of filing [such notice shall be] the notice is the date of mailing[, provided it] or dispatch for delivery, if the notice is: (A) Mailed by registered or certified mail and the party filing the notice has proof from the [post office] United States Postal Service of [such] the mailing date[.]; or (B) Mailed or dispatched via the United States Postal Service or a commercial delivery service by a class of delivery calculated to achieve delivery within three calendar days, and the party filing the notice has proof from the United States Postal Service or the commercial delivery service of the mailing or dispatch date. (b) Proof of the date of mailing [shall] or dis- patch under this subsection must be certified by the party filing the notice and filed thereafter with the court to which the appeal is taken. Any record of mailing or dispatch from the United States Postal Service or the commercial delivery ser- vice showing the date that the party initiated mailing or dispatch is sufficient proof of the date of mailing or dispatch. If the notice is re- ceived by the court on or before the date by which [such] the notice is required to be filed, the party filing the notice is not required to file proof of mailing or dispatch. (2)(a) Service of notice of appeal on a party, transcript coordinator or the trial court administra- tor, or service of a petition for judicial review on a party or administrative agency may be accomplished by: (A) First class, registered or certified mail[.]; or (B) Mail or dispatch for delivery via the United States Postal Service or a commercial delivery service by a class of delivery calculated to achieve delivery within three calendar days. (b) The date of serving [such notice shall be] the notice under this subsection is the date of mailing or dispatch. [Proof of mailing shall be certified by the party filing the notice and filed thereafter with the court to which the appeal is taken.] The party filing the notice must certify the date and method of service. (3) Notwithstanding subsections (1) and (2) of this section, if the party filing a notice of appeal is involuntarily confined in a state or local govern- mental facility, the date of filing of a notice of ap- peal in the Court of Appeals or the Supreme Court, and the date of service under subsection (2) of this section, is the date on which the party delivers the original notice of appeal, and the appropriate num- ber of copies of the notice for service under subsec- tion (2) of this section, to the person or place designated by the facility for handling outgoing mail. (4) Except as otherwise provided by law, the provisions of this section are applicable to petitions for judicial review, cross petitions for judicial review and petitions under the original jurisdiction of the Supreme Court or Court of Appeals. SECTION 2. The amendments to ORS i9.2nv by section 1 of this 2015 Act apply only to no- tices of appeal filed on or after the effective date of this 2015 Act. SECTION 3. This 2015 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is de- clared to exist, and this 2015 Act takes effect on its passage. Approved by the Governor May 18, 2015 Filed in the office of Secretary of State May 20, 2015 Effective date May 18, 2015 EXHIBIT C App -2, Page 1 • • State Testimony before the Senate Committee on Judiciary In support of HB 2336 A On behalf of the OSB Appellate Practice Section April 30, 2015 Chair Prozanski and members of the committee: My name is Jordan R. Silk, and I am an attorney with Schwabe, Williamson & Wyatt in Portland. I am here as a representative of the Appellate Practice section of the Oregon State Bar in support of HB 2336 A. Appellate Practice Section The Appellate Practice section of the Oregon State Bar was originally formed in 1993, and today is made of up of over 350 attorneys who practice appellate litigation in Oregon. Our members represent clients from eastern Oregon to Hood River, to the Portland metro area and out to the coast. The Appellate Practice section's executive committee is comprised of 16 members who represent private clients, public agencies, public corporations, and the Oregon Judicial Department (OJD). The Appellate Practice section worked in conjunction with the Oregon Judicial Department to draft the -2 amendments that were adopted by the House Judiciary Committee and incorporated into the A - Engrossed version of the bill. The Problem The timely filing and service of a notice of appeal is critical because, under Oregon law, a party loses the right to appeal if the notice of appeal is not filed and served within 30 days after entry of judgment. Although federal law provides federal courts with discretion to forgive untimely notices of appeal in some circumstances, the Oregon Court of Appeals and the Oregon Supreme Court lack statutory jurisdiction over untimely appeals, and they lack discretion to excuse untimely filing or service of notices of appeal, no matter the reason. This bill is aimed at reducing possible confusion associated with filing and serving notices of appeal. Currently, parties may rely on the date of mailing for timely filing and service, but only if mailing is done in a certain way. Specifically, under ORS 19.260, parties may not rely on the date of mailing if they file or serve notices of appeal via third -party commercial carriers, even though the Oregon Rules of Appellate Procedure expressly permit the use of third -party commercial carriers to file and serve other appellate documents. See ORAP 1.35(1)(d), (2)(b). As currently written, ORS 19.260(1) provides that a notice of appeal in the Court of Appeals and the Oregon Supreme Court may be filed only through the United State Postal Service, either registered or 16037 SM Upper Boones Ferry Road, PO Box 231935, Tigard, Oregon 9728,1-1935 EXHIBIT �+ (503) 620-0222 toll-free in Oregon (800) 452-8260 ;ax (503) 684-1366 �rv�ilokIBIT C App -2, Page 2 certified mail, to rely on the date of mailing as the filing date. Similarly, under ORS 19.260(2), a notice of appeal may be served only through the United State Postal Service, either registered or certified mail, or first-class mail, for the service date to be the date of mailing. As a result, parties have forever lost the right to appeal simply because they used a third -party commercial for filing and service. This distinction on the type of mailing only exists for initiating documents for an appeal. Currently, many appellate practitioners utilize third -party commercial carriers to mail and deliver documents in the ordinary course of business for pending appeals. For practitioners who do not handle appeals on a frequent basis, this is a trap for the unwary with very serious consequences. The Solution HB 2336 A will amend ORS 19.260 to allow appellate practitioners to file and serve a notice of appeal or initiating document by third -party commercial carriers, just as practitioners are allowed to do with other documents while an appeal is pending. Under ORAP 16.05, "initiating document" is defined as "any document that initiates a case, including but not limited to a notice of appeal; a petition for review; a petition for judicial review; a petition for a writ of mandamus, habeas corpus or quo warranto; and a recommendation for discipline from the Oregon State Bar or the Commi—i— nn hiriirial ritn PCC nnri nisahilitv." ,JLPassing HB 2336 A will simplify and clarify the process for filing and serving initiating documents with the Oregon Court of Appeals and the Oregon Supreme Court. HB 2336 A will remove a potential pitfall that would result in the complete loss of appellate rights based on a technical defect. Further, by mandating a consistent filing process regardless of what document is filed, HB 2336 A will allow for increased efficiencies for lawyers and the courts. On behalf of the Appellate Practice Section of the Oregon State Bar, I thank the committee for its consideration and urge the passage of HB 2336 A. I am happy to answer any questions. EXHIBIT C CERTIFICATE OF COMPLIANCE WITH BRIEF LENGTH AND TYPE SIZE REQUIREMENTS, AND CERTIFICATES OF FILING AND SERVICE I certify that this brief complies with the word -count limitation of ORAP 9.05(3)(a), which word count is 1645 words. I certify that the size of the type in this brief is not smaller than 14 point for both the text of the brief and the footnotes. I certify that I filed the foregoing Response to Petition for Review by causing it to be electronically filed with the Appellate Court Administrator on October 21, 2019 through the appellate eFiling system. I further certify that on the same date, I served the attached Response to Petition for Review by causing two copies thereof to be mailed by United States Postal Service certified mail addressed as follows: Wendy M. Margolis David Adam Smith Cosgrave Vergeer Kester LLP Deschutes County Legal Counsel 900 SW Fifth Avenue, 24th Floor 1300 NW Wall Street, Suite 205 Portland, OR 97204 Bend, OR 97703 Jeffrey L. Kleinman 1207 SW Sixth Avenue Portland, OR 97204 I further certify that service of a copy of the foregoing document will be accomplished on the following participants in this case, who are registered users of the appellate courts' eFiling system, by the appellate courts' eFiling system at the participant's email address as recorded this date in the appellate eFiling system on the following parties: David Adam Smith, for Respondent Deschutes County Jeffrey L. Kleinman, for Petitioner Wendy M. Margolis for Petitioner Dated this 21 st day of October, 2019. Liz Fancher, OSB #812202 EXHIBIT C w 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 November 6, 2019 DATE: October 28, 2019 FROM: Whitney Hale, Administrative Services, 541-330-4640 TITLE OF AGENDA ITEM: 2019-20 Q2 Discretionary Grant Review RECOMMENDATION & ACTION REQUESTED: Review applications and determine awards for discretionary grant applications submitted for the second quarter of 2019-20. BACKGROUND AND POLICY IMPLICATIONS: Each quarter, the Board of Commissioners reviews applications submitted to the Deschutes County Discretionary Grant Program and makes awards accordingly. On October 28, 2019, the Board will consider requests made for activities to take place beginning on or about "the second quarter of 2019-20. FISCAL IMPLICATIONS: If there are no fiscal implications, indicate "none". 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