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2019-482-Minutes for Meeting November 18,2019 Recorded 12/11/2019
• BOARD OF t sw COMMISSIONERS *R 1300 NW Wall Street, Bend, Oregon (541) 388-6570 Recorded in Deschutes County CJ2019-482 Nancy Blankenship, County Clerk 12/11/2019 3:21:18 PM Commissioners' Journal iiiliiiIlle mimummuuiiiii FOR RECORDING STAMP ONLY 10:00 AM MONDAY® November 1 e 2019 BARNES & SAWYER ROOMS Present were Commissioners Patti Adair, and Anthony DeBone. Commissioner Phil Henderson was absent, 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.igm2.com/Citizens/Default.aspx CALL TO ORDER: Vice Chair Adair called the meeting to order at 10:00 am PLEDGE OF ALLEGIANCE: CITIZEN INPUT: None offered CONSENT AGENDA: Before the Board was Consideration of Approval of the Consent Agenda. Commissioner DeBone read a few minor edits into the record regarding Item 3. Move approval of Consent Agenda with revisions to Item 3 Second BOCC MEETING NOVEMBER 18, 2019 PAGE 1 OF 5 VOTE: DEBONE: Yes ADAIR: Vice Chair votes yes. Motion Carried HENDERSON: Absent, excused Consent Agenda Items: 1. Consideration of Board Signature of Document No. 2019-768, an Easement from Deschutes County to Light Speed Networks 2. Consideration of Board Signature on Letter reappointing Megan Tucker to the Two Rivers Special Road District 3. Approval of Minutes of the October 30, 2019 BOCC Meeting ACTION ITEMS: 4. Consideration of Chair Signature of Document No. 2019-739, a Notice of Intent to Award Contract for the La Pine Sand Shed Project to Pacific Construction and Development. County Engineer Cody Smith presented the information regarding the project and reported the anticipated contract completion date is June 30, 2020. DEBONE: Move approval of Document No. 2019-739 ADAIR: Second VOTE: DEBONE: Yes ADAIR: Vice Chair votes yes. Motion Carried HENDERSON: Absent, excused 5. PUBLIC HEARING: Nonprime Resource Lands Amendments Community Development Department Planner Zechariah Heck outlined the public hearing procedures. Hearing no conflicts or challenges based on BOCC MEETING NOVEMBER 18, 2019 PAGE 2 OF 5 biases or conflict, Commissioner Adair opened the public hearing. Mr. Heck presented the staff report. Commissioner Adair called for public testimony. Carol MacBeth staff attorney for Central Oregon LanclWatch presented testimony and a letter dated November 18, 2019 regarding amendments to comprehensive plan to change the development allowed on certain lands zoned agricultural or forest. Ms. MacBeth expressed opinion that proposed amendments will not fit within the statewide planning goals. The oral and written record will remain open and the hearing is continued to Wednesday, January 15, 2020. 6. DELIBERATIONS: Following a Review on the Record for an Appeal of Phase A-1 of the Thornburgh Destination Resort Community Development Department Planner Jacob Ripper presented the matter for the start of deliberations. Due to Commissioner Henderson's absence, the Board elected to delay deliberations until Monday, November 25 with the option to hold an additional meeting on the morning of Tuesday, November 26. 7. Discussion of Terrebonne Wastewater Feasibility Scope and RFP Road Department Director Chris Doty presented the history of the Terrebonne wastewater feasibility study. The date of existing study is 1999. Mr. Doty reviewed the phases of the Request for Proposals for a new study. The approximate cost for the project is $80,000 to $100,000 and Mr. Doty noted there is a $20,000 grant available through Business Oregon and funds through a technical assistance grant. County Administrator Anderson BOCC MEETING NOVEMBER 18, 2019 PAGE 3 OF 5 reported funds for the project could also come from the General Fund. Commissioner DeBone asked to emphasize that we want the contractor to work with an advisory committee on this project. Peter Gutowsky, Planning Manager explained Terrebonne has a chapter in Deschutes County Comprehensive Plan and is noted in the work plan. Environmental Health Supervisor Todd Cleveland spoke on the repairs done within the commercial zone. Mr. Doty will issue the RFP and review options to close the funding gap. 8. Preparation for Public Hearing: Outdoor Mass Gathering Permit to Hold the 2020 4 Peaks Music Festival at 21085 Knott Road Community Development Department Planner Kyle Collins presented materials for consideration for the Outdoor Mass Gathering Public Hearing that is scheduled for Monday, November 25. This is the third year for the festival to be held at this location. The estimated attendance is 3,000 people. The dates for set up, take down, and the festival is dune 13 - 22. The applicant is again requesting a waiver for the requirement of an on-site ambulance as they intend to have on-site staff for first aid. Mr. Gutowsky noted that recent legislation allows the County the option of amending its code and processing outdoor mass gatherings as land use decisions. The Board previously elected not to exercise that option. COMMISSIONER UPDATES: Commissioner DeBone reported on the Eastern Oregon Counties Association meeting this evening followed by the Association of Oregon Counties annual conference this week. He also noted Tuesday evening the meeting of the candidates for the AOC Executive Director is scheduled. BOCC MEETING NOVEMBER 18, 2019 PAGE 4 OF 5 OTHER ITEMS: • County Administrator Anderson reported on the Budget Committee membership for one seat that is expiring at the end of the year. • County Administrator Anderson reported on the plans for a winter weather shelter for the homeless. Being no further items to come before the Board, the meeting was adjourned at 11:24 a.m. DATED this___ Day of _ 2019 for the Deschutes County Board of Commissioners. n ATTEST: : If'ECORDING SECRETARY PHILIP s HENDERSON, CHAIR *TTIAIR® �VICEC&HAIR---' COMMISSIONERANTHONY DEBONE, BOCC MEETING NOVEMBER 18, 2019 PAGE 5 OF 5 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, MONDAY, NOVEMBER 18, 2019 Barnes Sawyer Rooms - Deschutes Services Center - 1300 NW Wall Street - Bend This meeting is open to the public, usually streamed live online and video recorded. To watch it online, visit www.deschutes.org/meetings. Pursuant to ORS 192.640, this agenda includes a list of the main topics that are anticipated to be considered or discussed. This notice does not limit the Board's ability to address other topics. Meetings are subject to cancellation without notice. Item start times are estimated and subject to change without notice. CALL TO ORDER PLEDGE OF ALLEGIANCE CITIZEN INPUT CONSENT AGENDA 1. Consideration of Board Signature of Document 2019-768, an Easement from Deschutes County to Light Speed Networks. - Deborah Cook, Administrative Assistant 2. Consideration of Board Signature on Letter reappointing Megan Tucker to the Two Rivers Special Road District 3. Approval of Minutes of the October 30, 2019 BOCC Meeting ACTION ITEMS Board of Commissioners BOCC Meeting Agenda Monday, November 18, 2019 Page 1 of 3 4. 10:10 AM Consideration of Chair Signature of Document No. 2019-739, a Notice of Intent to Award Contract for the La Pine Sand Shed Project to Pacific Construction and Development - Cody Smith, County Engineer 5. 10:20 AM PUBLIC HEARING: Nonprime Resource Lands Amendments - Zechariah Heck, Associate Planner 6. 11:00 AM DELIBERATIONS: Following a Review on the Record for an Appeal of Phase A-1 of the Thornburgh Destination Resort. -Jacob Ripper, Senior Planner LUNCH RECESS 7. 1:00 PM Discussion of Terrebonne Wastewater Feasibility Scope and RFP - Chris Doty, Road Department Director 8. 1:15 PM Preparation for Public Hearing: Outdoor Mass Gathering Permit to Hold the 2020 4 Peaks Music Festival at 21085 Knott Road. - Kyle Collins, Assistant Planner COMMISSIONER'S UPDATES EXECUTIVE SESSION At any time during the meeting, an executive session could be called to address issues relating to ORS 192.660(2)(e), real property negotiations, ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor negotiations; ORS 192.660(2)(b), personnel issues, or other executive session categories. Executive sessions are closed to the public, however, with few exceptions and under specific guidelines, are open to the media. 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 Board of Commissioners BOCC Meeting Agenda Monday, November 18, 2019 Page 2 of 3 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. kip Deschutes County encourages persons with disabilities to participate in all programs and activities. This event/location is accessible to people with disabilities. If you need accommodations to make participation possible, please call (541) 617-4747. FUTURE MEETINGS: Additional meeting dates available at www.deschutes.org/meetingcalendar (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572.) Board of Commissioners BOCC Meeting Agenda Monday, November 18, 2019 Page 3 of 3 E S COG o 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 Monday Meeting of November 18, 2019 DATE: FROM: Zechariah Heck, Community Development, 541-385-1704 TITLE OF AGENDA ITEM: PUBLIC HEARING: Nonprime Resource Lands Amendments BACKGROUND AND POLICY IMPLICATIONS: The Board will hold a public hearing on November 18, 2019 to consider the Nonprime Resource Lands amendments. The legislative proposal amends the Deschutes County Comprehensive Plan to establish 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." FISCAL IMPLICATIONS: None. ATTENDANCE: Zechariah Heck, Associate Planner; Peter Gutowsky, Planning Manager; Nick Lelack, CDD Director. COWYWNITY DEVELOPMENT MEMORANDUM TO: Board of County Commissioners ('Board") FROM: Zechariah Heck, Associate Planner DATE: November 13, 2019 SUBJECT: November 18 Public Hearing - Nonprime Resource Lands Amendments The purpose of this memorandum is to present the record of File No. 247 -19 -000265 -PA to the Board for an upcoming public hearing on November 18, 2019. The legislative proposal amends the Deschutes County Comprehensive Plan to establish 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."' 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 state law due to the presence of poor soil conditions, a lack of irrigation, climate conditions and other relevant factors, including but not limited to past use. Based on these circumstances, Nonprime Resource Lands do not warrant an agricultural and forest lands designation and should be made available for other uses since they differ from Rural Residential Exception Areas and other rural areas not planned and zoned for farm and forest activities. I. BACKGROUND Over the past decade, Deschutes County has supported and participated in numerous state legislative processes and coordinated with the Oregon Department of Land Conservation and Development (DLCD) to study and legislatively update agricultural and forest land designations. Unfortunately, these efforts have not resulted in a clear path forward to undertake such land use changes. In March 2019, Deschutes County initiated its own process to establish criteria for designating Exclusive Farm Use or Forest Use zoned properties to Nonprime Resource Lands defined in state law as "Non Resource Lands." Criteria also identified opportunities to re -designate six specific areas committed to residential uses that were platted or conveyed prior to State enabling planning legislation taking effect in Deschutes County. These areas are subject to strict resource zoning requirements dictated by State law that affect the siting of new dwellings, remodels, additions and accessory structures. If adopted, the intention would be for Deschutes County to adopt two zones: a Nonprime Resource Lands -10 zone 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. 117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005 `Q5 (541) 388-6575 @ cdd@deschutes .org @ www.deschutes.org/cd that applies solely to the six areas committed to residential uses, and a Nonprime Resources Land -20 zone for all other eligible lands. The Planning Commission began the legislative process by holding open houses throughout the county in April 2019. Two public hearings and several deliberations followed the open houses. On July 9, 2019 the Planning Commission recommended by a 5-1 vote (five in favor, one opposed) to support the Comprehensive Plan amendments to establish criteria that would enable the County to establish a NPR -10 zone and subsequently rezone the aforementioned six residentially committed areas. In August 2019, the Board tabled the proposed amendments in order to request the Land Conservation and Development Commission (LCDC) to initiate rulemaking at the state level pertaining to Non - Resource Lands. LCDC chose not to prioritize rulemaking during the 2019-2021 biennium. Subsequently, the Board gave staff direction to bifurcate the two components of the NPR Lands proposal and pursue the amendments that focus exclusively on the six areas committed to residential uses. 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.2 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. 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.' 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 at approximately 10:00 AM in the Barnes and Sawyer rooms of the Deschutes Services Center, 1300 NW Wall St., Bend. At the direction of the Board, staff can help manage a time limit during the public hearing. The hearing will be de novo, which allows for new information to be submitted and reviewed by the Board. At the end of the public hearing, the Board will determine the schedule for the open record period as well as deliberations. 2 Previously proposed eligibility criteria for applicant -initiated, quasi-judicial nonprime resource land applications have been removed from the amendments and findings. 3 See Draft Policies 3.11.1 and 3.11.8. 4 See Ordinance 2007-025 and 026; Ordinance 2011-014 and 015; Ordinance 2013-009 and 010; Ordinance 2017-007 and 008; Ordinance 2018-011; and Ordinance 2019-006. IV. EXHIBITS Application Materials 1. Ordinance 2019-007 2. Findings for File No. 247 -19 -000295 -PA 3. Comprehensive Plan Amendments a. Section 1.3 - Land use Planning b. Section 2.2 - Agricultural Lands C. Section 2.3 - Forest Lands d. Section 3.1 - Introduction e. Section 3.2 - Rural Development f. Section 3.3 - Rural Housing g. Section 3.11 - Rural Lands h. Section 5.12 - Legislative History i. Section 23.01 - Comprehensive Plan Amendment Catalogue Record as of November 13, 2019 4. Cascade View Ranch comment re: more zoning options/flexibility, 8/7/2019 5. Cascade View Ranch comment re: rezoning small EFU parcels, 8/5/2019 6. J. Elrod comment re: opposition to amendments, 8/2/2019 7. S. Spencer comment re: opposition to amendments, 7/17/19 8. S. Shirley Comment re: opposition to amendments, 7/15/19 9. Planning Commission deliberations meeting minutes, 7/11/19 10. Planning Commission meeting agenda and memo (with attachments) for deliberations, 7/9/19 a. Staff response to June 13 testimony, 6/26/19 b. D. Springer comment re: adding more areas to the NPR amendments, 6/25/19 C. D. Springer comment via web re: difficulties of EFU zone designation, 6/25/19 d. 1,000 Friends of Oregon comment re: opposition to amendments, 6/24/19 e. R. Vora comment re: opposition to amendments, 6/21/19 f. Email exchange re: Goal 5 between Staff and DLCD, 6/20/19 11. Planning Commission deliberation meeting minutes, 7/9/19 12. D. Springer Comment re: zoning flexibility, 7/2/19 13. Planning Commission Memo from staff re: reasons for amendments, 6/26/19 14. R. Vora comment re: opposition to proposed amendments, 6/21/19 15. V.N. Hudson comment re: consideration of wildlife in amendments, 6/13/19 16. Informational maps from staff for Planning Commission consideration, 6/13/19 17. Planning Commission public hearing agenda and memo with attachments (public comments), 6/13/19 a. DLCD letter, 5/15/19 b. Testimony received between May 23 and June 6 i. M. Lyons comment, 5/24/19 ii. J. Godard comment, 5/29/19 iii. D. Harris comment, 5/30/19 iv. D. &J. Jacobs comment, 5/30/19 V. D. &J. Jacobs comment, 6/3/19 vi. H. Corter comment, 6/4/19 vii. J. Fischer comment, 6/4/19 viii. DLCD Q. Vaughan) comment, 6/4/19 C. John Anderson (former staff) conversation notes d. Kevin Harrison (former staff) memo e. Year 2000 Comprehensive Plan findings f. Agricultural Lands in Deschutes County Powerpoint presentation g. Historical records shared by former Planning Commissioner Jim Powell h. Potential NPR Lands Map i. ODFW wildlife habitat/ range map J. Deschutes County Goal 5 Inventory map 18. Planning Commission public hearing sign -in sheet, 6/13/19 19. Planning Commission meeting minutes, 6/13/19 20. J. Newbold submitted photos during public hearing, 6/13/19 21. J. Jacobs comment re: zoning flexibility, 6/13/19 22. B. and S. Hirschberg comment re: zoning flexibility submitted at public hearing, 6/13/19 23. E. Eagle comment re: opposition to amendments, 6/13/19 24. D. Jacobs comment re: addressing erroneous zoning designations, 6/13/19 25. COLW comment re: opposition to amendments, 6/13/19 26. Hirschberg comment re: zoning flexibility, 6/12/19 27. T. Bishop comment re: opposition to amendments, 5/23/19 28. S. Browning comment re: opposition to amendments, 5/23/19 29. COLW comment re: opposition to amendments, 5/23/19 30. Planning Commission public hearing sign -in sheet, 5/23/19 31. Planning Commission public hearing meeting packet, with public comments, 5/23/19 a. DLCD Letter, 5/15/19 b. Staff exchange with DLCD re: comments on amendments, 5/15/19 C. Public comments from Vora, Tess, Jaros submitted during Sisters Open House, 4/25/19 d. Comprehensive Plan proposed amendments and policies e. Draft findings 32. Planning Commission public hearing meeting minutes, 5/23/19 33. P. Lipscomb / OLWA comment re: opposition to amendments, 5/23/19 34. N. Gould submittal accompanied by oral testimony, 5/23/19 35. N. Colton comment re: opposition to amendments, 5/23/19 36. ODFW comment re: wildlife habitat, 5/23/19 37. DLCD comment re: Oregon Revised Statutes, 5/23/19 38. C. Humphreys comment re: rural lifestyle - opposition to amendments, 5/23/19 39. N. Merrick comment re: opposition to amendments, 5/22/19 40. K. Hetzler comment re: opposition to amendments, 5/22/19 41. S. Strauss comment re: opposition to amendments, 5/21/19 42. N. Goldberg Jaffe comment re: opposition to amendments, 5/21/19 43. M.A. Kruse comment re: opposition to amendments, 5/21/19 44. M. McKay comment re: opposition to amendments, 5/21/19 45. G. Ryter comment re: opposition to amendments, 5/21/19 46. B. Warriner comment re: opposition to amendments, 5/21/19 47. Sisters Open House sign in sheet, 4/25/19 48. Planning Commission Sisters Open House meeting minutes, 4/25/19 49. Planning Commission Sisters Open House meeting packet (memo, tour information, draft CDD work plan, draft NPRL amendments), 4/25/19 50. Staffs Powerpoint presentation during Sisters Open House, 4/25/19 51. Planning Commission Bend Open House meeting minutes, 4/18/19 52. Planning Commission Bend Open House meeting packet (memo, tour information, draft CDD work plan, draft NPRL amendments), 4/18/19 53. Staffs Powerpoint presentation during Bend Open House, 4/18/19 54. Bend Open House sign in sheet, 4/18/19 55. Staffs Powerpoint presentation during La Pine Open House, 4/11/19 56. Planning Commission La Pine Open House meeting packet (memo, tour information, draft CDD work plan, draft NPRL amendments), 4/11/19 57. Planning Commission La Pine Open House meeting minutes, 4/11/19 58. NPRL PC Open House FAQs (hand-out available at tables), 4/11/19 59. Map of Squaw Creek Recreation Estates, 4/11/19 60. Map of Skyline Subdivision and 1ST Addition, 4/11/19 61. Map of Meadow Crest Acres, 4/11/19 62. Map of Section 36, 4/11/19 63. Map of Haner Park, 4/11/19 64. M. Kogler comment, 4/11/19 65. La Pine Open House sign in sheet, 4/11/19 66. County Zoning Map, 4/11/19 67. Press release and postcards mailed to property owners in six committed residential areas, 4/8/19 68. The Bulletin public notice, 3/23/19 69. Open House invitation to residents of the six residentially committed areas, 3/21/19 70. DLCD PAPA Notice confirmation, 3/20/19 REUI ED LEGAL COUNSEL For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Deschutes County Code Title 23, the Deschutes County Comprehensive Plan, to Establish Eligibility Criteria for Certain Designating Exclusive Farm Use or Forest Use * ORDINANCE NO. 2019-007 Zoned Properties to Nonprime Resource Lands Defined in OAR 660-004-0005(3) as "Non Resource Lands." WHEREAS, the Deschutes County Community Development Department (CDD) initiated amendments (Planning Division File No. 247 -19 -000265 -PA) to the Deschutes County Comprehensive Plan, Chapter 1, Comprehensive Plan, Chapter 2, Resource Management, and Chapter 3, Rural Growth Management to establish eligibility criteria for designating Exclusive Farm Use or Forest Use zoned properties to Nonprime Resource Lands consistent with Oregon Administrative Rule 660-004-0005(3); and WHEREAS, the Deschutes County Planning Commission reviewed the proposed changes on May 23 and June 13, 2019 and forwarded to the Deschutes County Board of County Commissioners ("Board"), a recommendation of approval; and WHEREAS, the Board considered this matter after a duly noticed public hearing on November 18, 2019, and concluded that the public will benefit from the proposed changes to the Deschutes County Comprehensive Plan, Chapter 3, and Deschutes County Code ("DCC") Title 23; NOW, THEREFORE, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. AMENDMENT. DCC Title 23.01.010, Introduction, is amended to read as described in Exhibit "A", attached hereto and by this reference incorporated herein, with new language underlined and language to be deleted in stfikethf,,ug . Section 2. AMENDMENT. Deschutes County Comprehensive Plan Chapter 1, Comprehensive Planning, is amended to read as described in Exhibit `B", attached hereto and by this reference incorporated herein, with new language underlined and language to be deleted in str4kethfough. Section 3. AMENDMENT. Deschutes County Comprehensive Plan Chapter 2, Resource Management, is amended to read as described in Exhibit "C", attached hereto and by this reference incorporated herein, with new language underlined and language to be deleted in str-ikethfoug . PAGE 1 OF 2 - ORDINANCE NO. 2019-007 Section 4. AMENDMENT. Deschutes County Comprehensive Plan Chapter 3, Rural Growth Management, is amended to read as described in Exhibit "D", attached hereto and by this reference incorporated herein, with new language underlined and language to be deleted in str4kettwough. Section 5. AMENDMENT. Deschutes County Comprehensive Plan Chapter 5.12, Supplementary Section — Legislative History, is amended to read as described in Exhibit "E", attached hereto and by this reference incorporated herein, with new language underlined and language to be deleted in strike' r-eugh. Section 6. FINDINGS. The Board adopts as its findings Exhibit "F", attached and incorporated by reference herein. Dated this of 12019 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ATTEST: Recording Secretary Date of 1 st Reading: Date of 2nd Reading PHILIP G. HENDERSON, Chair PATTI ADAIR, Vice Chair ANTHONY DEBONE day of , 2019. day of , 2019. Record of Adoption Vote: Commissioner Yes No Abstained Excused Philip G. Henderson Patti Adair Anthony DeBone Effective date: day of , 2019. PAGE 2 OF 2 - ORDINANCE NO. 2019-007 Chapter 23.01 COMPREHENSIVE PLAN Chapter 23.01 COMPREHENSIVE PLAN 23.01.010. Introduction. A. The Deschutes County Comprehensive Plan, adopted by the Board in Ordinance 2011-003 and found on the Deschutes County Community Development Department website, is incorporated by reference herein. B. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2011-027, are incorporated by reference herein. C. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2012-005, are incorporated by reference herein. D. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2012-012, are incorporated by reference herein. E. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2012-016, are incorporated by reference herein. F. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2013-002, are incorporated by reference herein. G. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2013-009, are incorporated by reference herein. H. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2013-012, are incorporated by reference herein. I. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2013-007, are incorporated by reference herein. J. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2014-005, are incorporated by reference herein. K. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2014-006, are incorporated by reference herein. L. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2014-012, are incorporated by reference herein. M. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2014-021, are incorporated by reference herein. N. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2014-027, are incorporated by reference herein. O. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2015-021, are incorporated by reference herein. P. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2015-029, are incorporated by reference herein. Q. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2015-018, are incorporated by reference herein. R. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2015-010, are incorporated by reference herein. S. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2016-001, are incorporated by reference herein. T. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2016-022, are incorporated by reference herein. U. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2016-005, are incorporated by reference herein. PAGE 1 OF 2 — EXHIBIT A TO ORDINANCE NO. 2019-007 V. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2016-027, are incorporated by reference herein. W. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2016-029, are incorporated by reference herein. X. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2017-007, are incorporated by reference herein. Y. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2018-002, are incorporated by reference herein. Z. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2018-006, are incorporated by reference herein. AA. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2018-011, are incorporated by reference herein. BB. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2018-005, are incorporated by reference herein. CC. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2018-008, are incorporated by reference herein. DD. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2019-002, are incorporated by reference herein. EE. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2019-001, are incorporated by reference herein. FF. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2019-003, are incorporated by reference herein. GG. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2019-004, are incorporated by reference herein. HH The Deschutes County Comprehensive Plan amendments adopted by the Board in Ordinance 2019-006 are incorporated by reference herein. II The Deschutes County Comprehensive Plan amendments adopted by the Board in Ordinance 2019-007 are incorporated by reference herein. (Ord. 2019-007 § 1, 2019, Ord. 2019-006 § 1, 2019, Ord. 2019-004 § 1, 2019; Ord. 2019-003 § 1, 2019; Ord. 2019-001 §1, 2019; Ord. 2019-002 §1, 2019; Ord. 2018-008 §1, 2018; Ord. 2018-005 §2,2018; Ord. 2018-011 §1, 2018; Ord. 2018-006 §1, 2018; Ord. 2018-002 §1, 2018; Ord. 2017-007 §1, 2017; Ord. 2016-029 §1, 2016; Ord. 2016-027 §1, 2016; Ord. 2016-005 §1, 2016; Ord. 2016-022 §1, 2016; Ord. 2016-001 §1, 2016; Ord. 2015-010 §1, 2015; Ord. 2015-018 § 1, 2015; Ord. 2015-029 § 1, 2015; Ord. 2015-021 § 1, 2015; Ord. 2014-027 § 1, 2014; Ord. 2014-021 §1, 2014; Ord. 2014-12 §1, 2014; Ord. 2014-006 §2, 2014; Ord. 2014-005 §2, 2014; Ord. 2013-012 §2, 2013; Ord. 2013-009 §2, 2013; Ord. 2013-007 §1, 2013; Ord. 2013-002 §1, 2013; Ord. 2013-001 §1, 2013; Ord. 2012-016 §1, 2012; Ord. 2012-013 § 1, 2012; Ord. 2012-005 § 1, 2012; Ord. 2011-027 § 1 through 12, 2011; Ord. 2011- 017 repealed; Ord.2011-003 §3, 2011) Click here to be directed to the Comprehensive Plan (http://www.deschutes.org/compplan) PAGE 2 OF 2 - EXHIBIT A TO ORDINANCE NO. 2019-007 Sect'ovl,1.3 La vx,ol LkSe Pia vuVA,�'vu!2 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 S.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 I 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% * Acres of parcels — does not include roads, right-of-ways, lakes, rivers or other publicly -owned parcels such as cities or park districts Source: County Geographical Information System 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 1,499,365 1 78.4% * Acres of parcels — does not includes roads, right-of-ways, lakes and rivers Source: County Geographical Information System 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 I 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 "nonresource lands" pursuant to OAR 660-004-005(3) that cannot qualify for an exception pursuant to applicable planning law and fail to satisfy the definitions of agricultural or forest lands contained in the Statewide Planning 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 Agriculture Title 18 - All EFU subzones Airport Development Title 18 - AD, AS Destination Resort Combining Zone Title 18 - DR Forest Title 18 - F-1, F-2 Open Space and Conservation I itle 18 - VJ?ScC. Rural Residential Exception Area Title 18 - RR -10 and MUA-10 Surface Mining Title 18 - SM Area 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'/Z, 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 Utility district Kural tire 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 secti3Ovl 1.3 Laved Ltse PLawwwwe POUOc es Goals and Policies Goal 1 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 sect%ovI, 2.2 X42 r% cu.Ltu.ra L La vuols 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 I, II, /it, 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 4 DESCHUTES COUNTY COMPREHENSIVE PLAN - 2U'I'I 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 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 Srnirc-- 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. Source: Oregon State University Extension Oregon Agricultural Information Network, Deschutes County 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 b` 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 such things as water quality, wildlife habitat, and fire safety. County rezoning activities must be 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 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 sect%ovl, 2.2 X40r%oRLtuNL Lavi,ols PoUUes 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 that qualifying Nonprime Resource Lands defined q,s_°`_n_onr_esouree,.l,a ds°'DUr-suant: t OAR 660-004-005(31 as nen Fele rrze land, for baa-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 <Sect% ova. 2.3 Forest Lo vols 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 1 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 There is a unique opportunity to preserve a large privately held working forest. Skyline Forest consists of approximately 33,000 acres of privately held forest lands at the base of the Three Sisters Mountains. Historically, this property has been logged, but still holds important recreational, scenic and wildlife habitat value. The non-profit Deschutes Land Trust has been working to purchase Skyline Forest from the owners, who represent a large financial company. In 2005 the Board of County Commissioners approved creating a Community Forest Authority, a quasi -municipal corporation that has the authority to issue tax-exempt bonds to pay for purchasing the forest. The bonds will be repaid with revenue from logging. The logging revenue is not anticipated to cover all the bond costs, but combined with other grants and contributions can ensure the bonds are repaid. H8 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 15 CHAPTER 2 RESOURCE MANAGEMENT SECTION 2.3 FOREST LANDS EXHIBIT C TO ORDINANCE 2019-007 sect% ovV 2.3 Forest La vols I>oU'c�'es 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; c. Consist of ownerships generally contiguous to tracts containing less than 160 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 Plans described in Section 3.5 of this Plan; b. Retain fish and wildlife habitat. Policy 2 3 13 Allow comprehensive plan and zoning map amendments including qualifying Nonprime Resource Lands defined `"as nonresource ant to OAR 660-004-005(3) 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 sect%Ovx, 3.j- (vutrodRatWK, 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. I I 2 DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 3 RURAL GROWTH MANAGEMENT SECTION 3.1 INTRODUCTION EXHIBIT D TO ORDINANCE 2019-007 sect%ow 3.2 R xrpL DeveLopmevut 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 flatter growth patterns, changes to State regulations opened up additional opportunities for new rural development. The following list identifies general categories for creating new residential lots, all of which are subject to specific State regulations. ■ 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 "r�©nresourcce land" definition pursuant 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 have the potential to add a substantial number of new lots. However, residents in those 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. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2010 CHAPTER I COMPREHENSIVE PLANNING SECTION I.I INTRODUCTION EXHIBIT D TO ORDINANCE 2019-007 sect�ow �.3 R.�c.Yal, H-ou.s�wg 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 "Eon -resource lands." Nonprime Resource Lands have an exceedingly low capacity to be managed for commercial agriculture and forestry activities The criteria to establish Nonprime Resource Lands focuses on six specific areas that are committed to residential uses which were platted or conveyed prior to State mandated panning legislation taking effect in Deschutes County. These s x.,areas are DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 3 RURAL GROWTH MANAGEMENT SECTION 3.3 RURAL HOUSING EXHIBIT D TO ORDINANCE 2019-007 subiect to strict resource zoning requirements dictated by State law that ii-nDact the siting of new dwellings, remodels, additions and accesso!:y structures. Outside of these six areas designated as Nonprime Resource Lan—ds q_q�L_�P_j as_�jgf sistent with state law. DrODerty owners through a quasijudicial process jj� continue to apply to rezone thei ODerty from Exclusive Farm Use or Forest Use to a nonresource zone. Rural Residential Exception Areas 2009 Source: County GIS data * 7|.Q0Oacres ofRural Residential ExceptionArea (including * 84.00Qacres ofRural Residential Exception Araa(exc|udingright- * 24.750 Rural Residential Exception Area lots m |8.|00 Rural Residential Exception Area lots that are developed Future of Rural Housing in Deschutes County |nlooking otrural housing growth, itioimportant tofind 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 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 orother regulations, causing legal disputes between neighbors. A house built 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. HiuzoricaUy, 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 ofsouth County, known auSection 36'has been identified asone 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 |c¢u. 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 -and destination resorts. This slant towards high priced rural housing is mitigated somewhat by the DEnonuTeoCOUNTY COMPREHENSIVE PLAN –2U11 CHAPTER 3RURAL GROWTH MANAGEMENT SECTION I]RURAL HOUSING 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�ct�ow 3.3 R,u.rr�l, t-tou.s�wa� �ol.�c�es 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 3.3.34 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 3.3.356 Maintain the rural character of the County while ensuring a diversity of housing opportunities, including initiating discussions to amend State Statute and/or Oregon Administrative Rules to permit accessory dwelling units in Exclusive Farm Use, Forest and Rural Residential zones. 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 S Background NO 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.istol-ical €rse, 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 six specific locations they also contain platted subdivisions or conveyed parcels created Driorto State mandated planning legislation taking effect in Deschutes County. These six. areas are committed to residential uses and have not been commercially farmed or used for forest operations. Over the past decade Deschutes County participated in numerous state legislative processes attinies_coordinated day the Oregon Department of Land Conservation and Development DLCD .,_atratirt:c legislatively update agricultural and forest land designations. Unfortunately, these efforts were € nsuccessful Noll —the�._existing Comprehensive Plan F Qigy 2.2.3directs that _t1ie utity. cr-rntriilie_considerirr - opjtons,. Q "non -resource i_ands" as defined_ir71 `f M C gE f Q! () — also known as Nonprime Resource Lands. In April 2019 Deschutes County initiated its own process to establish eligibility criteria for rmezonin Exclusive Farm Use or Forest Use properties to Nonprime Resource Lands. Six specific areas within .Deschutes County are already committed to residential uses beC Use they were platted or conveyed prior to State mandated planning legislation taking effect in Deschutes CounV. These six areas are already subject to strict resource zoning requirements dictated by State law that it l Da_ca 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 afor-enlentioned areas committed to residential uses. In addition Deschutes County is honoring its existing non -resource lands process with a policy that allOWS Droperty owners to apply' rezone their_ tDroperties 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 Sect%ov� 3.�.� Nowar�w�e rzesou.rce La vols T>O c% es Goal and Policies Goal 1 Allow the designation of Nonprime Resource Lands in Deschutes Coun Nonprime Resource Lands — General Policy Policy 3 1 I 1 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. Goal 2 Resolve resource zoning restrictions applied to subdivisionslap tted prior to Statewide planning 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 1 13 A single family dwelling or a manufactured home and their accessory uses shall be permitted outright. Policy 3 1 14 The Nonprime Resource Lands -10 zone is available only for the following properties committed to residential: a. Meadow Crest Acres Subdivision b. Skyline Subdivision c. Skyline Subdivision, I st Addition d Squaw Creek Canyon Recreational Estates I' Addition e. Haner Park f. Section 36, Township 22S, Range I OE Policy 3 1 15 The properties identified in Policy 3.1 1.4 are not eligible for a land division. Policy 3 1 1 6 Lots in Meadow Crest Acres Subdivision and Squaw Creek Canyon Recreational Estates I'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 I'Addition 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 quasi-judicial process for a rezone from Exclusive Farm Use or Forest Use to a nonresource zone consistent with state law. DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 3 RURAL GROWTH MANAGEMENT SECTION 3.11 NONPRIME RESOURCE LANDS EXHIBIT D TO ORDINANCE 2019-007 Sect%ow 5.12 l�e�isl,At%ve 1-i%stor� Background This section contains the legislative history of this Comprehensive Plan. Table S.I 1.1 Comprehensive Plan Ordinance History Ordinance Date Adopted/ Chapter/Section Amendment Effective All, except Transportation, Tumalo and Terrebonne 2011-003 8-10-1 1/ 1 1-9-1 1 Community Plans, Comprehensive Plan update Deschutes Junction, Destination Resorts and ordinances adopted in 2011 2.5, 2.6, 3.4, 3.10, 3.5, Housekeeping amendments to 2011-027 10-31-1 1 / 1 1-9-1 1 4.6, 5.3, 5.8, 5.1 1, 23.40A, 23.40B, ensure a smooth transition to 23.40.065, 23.01.010 the updated Plan 23.60, 23.64 (repealed), Updated Transportation 2012-005 8-20-12/11-19-12 3.7 (revised), Appendix C System Plan (added) La Pine Urban Growth 2012-012 8-20-12/8-20-12 4.1, 4.2 Boundary Housekeeping amendments to 2012-016 12-3-12/3-4-13 3.9 Destination Resort Chapter Central Oregon Regional 2013-002 1-7-13/1-7-13 4.2 Large -lot Employment Land Need Analysis Comprehensive Plan Map Amendment, changing designation of certain 2013-009 2-6-13/5-8-13 1.3 property from Agriculture to Rural Residential Exception Area Comprehensive Plan Map 2013-012 5-8-13/8-6-13 23.01.010 Amendment, including certain property within City of Bend Urban Growth Boundary Newberry Country: A Plan 2013-007 5-29-13/8-27-13 3.10, 3.1 1 for Southern Deschutes County DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.11 GOAL 5 ADOPTED ORDINANCES EXHIBIT E TO ORDINANCE 2019-007 DESCHUTES COUNTY COMPREHENSIVE PLAN -2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5. 1 2LEGISLATIVE HISTORY EXHIBIT E TO ORDINANCE 2019-007 Comprehensive Plan Map 2013-016 10-21-13/10-21-13 23.01.010 Amendment, including certain property within City of Sisters Urban Growth Boundary Comprehensive Plan Map 2014-005 2-26-14/2-26-14 23.01.010 Amendment, including certain property within City of Bend Urban Growth Boundary 2014-012 4-2-14/7-1-14 3.10, 3.1 1 Housekeeping amendments to Title 23. Comprehensive Plan Map Amendment, changing designation of certain 2014-021 8-27-14/11-25-14 23.01.010, 5.10 property from Sunriver Urban Unincorporated Community Forest to Sunriver Urban Unincorporated Community Utility Comprehensive Plan Map Amendment, changing 2014-027 12-15-14/3-31-15 23.01.010, 5.10 designation of certain property from Agriculture to Rural Industrial Comprehensive Plan Map Amendment, changing 2015-021 11-9-15/2-22-16 23.01.010 designation of certain property from Agriculture to Surface Mining. Comprehensive Plan Map Amendment, changing 2015-029 11-23-15/11-30-15 23.01.010 designation of certain property from Tumalo Residential 5 -Acre Minimum to Tumalo Industrial 2015-018 12-9-15/3-27-16 23.01.010, 2.2, 4.3 Housekeeping Amendments to Title 23. Comprehensive Plan Text and 2015-010 12-2-15/12-2-15 2.6 Map Amendment recognizing Greater Sage -Grouse Habitat Inventories DESCHUTES COUNTY COMPREHENSIVE PLAN -2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5. 1 2LEGISLATIVE HISTORY EXHIBIT E TO ORDINANCE 2019-007 DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.1 I GOAL 5 ADOPTED ORDINANCES EXHIBIT E TO ORDINANCE 2019-007 Comprehensive Plan Map Amendment, changing 2016-001 12-21-15/04-5-16 23.01.010; 5.10 designation of certain property from, Agriculture to Rural Industrial (exception area) Comprehensive Plan Amendment to add an exception to Statewide 2016-007 2-10-16/5-10-16 23.01.010; 5.10 Planning Goal I I to allow sewers in unincorporated lands in Southern Deschutes County Comprehensive Plan Amendment recognizing non - 2016 -005 11-28-16/2-16-17 23.01.010, 2.2, 3.3 resource lands process allowed under State law to change EFU zoning Comprehensive plan 2016-022 9-28-16/11-14-16 23.01.010, 1.3, 4.2 Amendment, including certain property within City of Bend Urban Growth Boundary Comprehensive Plan Map Amendment, changing 2016-029 12-14-16/12/28/16 23.01.010 designation of certain property from, Agriculture to Rural Industrial Comprehensive Plan Map Amendment, changing 2017-007 10-30-17/10-30-17 23.01.010 designation of certain property from Agriculture to Rural Residential Exception Area Comprehensive Plan 2018-002 1-3-18; 1-25-18 23.01, 2.6 Amendment permitting churches in the Wildlife Area Combining Zone Housekeeping Amendments correcting tax lot numbers in Non -Significant Mining Mineral 2018-006 7-23-18/7-23-18 23.01.010, 5.8, 5.9 and Aggregate Inventory; modifying Goal 5 Inventory of Cultural and Historic Resources DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.1 I GOAL 5 ADOPTED ORDINANCES EXHIBIT E TO ORDINANCE 2019-007 DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5. 1 2LEGISLATIVE HISTORY EXHIBIT E TO ORDINANCE 2019-007 Comprehensive Plan Map Amendment, changing 2018-011 9-12-18/12-11-18 23.01.010 designation of certain property from Agriculture to Rural Residential Exception Area Comprehensive Plan Map Amendment, removing Flood 23.01.010, 2.5, Tumalo Plain Comprehensive Plan 2018-005 9-19-18/10-10-18 Community Plan, Designation; Comprehensive Newberry Country Plan Plan Amendment adding Flood Plain Combining Zone purpose statement. Comprehensive Plan Amendment allowing for the 2018-008 9-26-18/10-26-18 23.01.010, 3.4 potential of new properties to be designated as Rural Commercial or Rural Industrial Comprehensive Plan Map Amendment changing designation of certain property from Surface Mining 2019-002 1-2-19/4-2-19 23.01.010, 5.8 to Rural Residential Exception Area; Modifying Goal 5 Mineral and Aggregate Inventory; Modifying Non - Significant Mining Mineral and Aggregate Inventory Comprehensive Plan and Text 2019-001 1-16-19/4-16-19 1.3, 3.3, 4.2, 5.10, 23.01 Amendment to add a new zone to Title 19: Westside Transect Zone. Comprehensive Plan Map Amendment changing designation of certain 2019-003 02-12-19/03-12-19 23.01.010, 4.2 property from Agriculture to Redmond Urban Growth Area for the Large Lot Industrial Program DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5. 1 2LEGISLATIVE HISTORY EXHIBIT E TO ORDINANCE 2019-007 DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION S. I I GOAL 5 ADOPTED ORDINANCES EXHIBIT E TO ORDINANCE 2019-007 Comprehensive Plan Map Amendment changing designation of certain property from Agriculture to Redmond Urban Growth 2019-004 02-12-19/03-12-19 23.01.010, 4.2 Area for the expansion of the Deschutes County Fairgrounds and relocation of Oregon Military Department National Guard Armory. Comprehensive Plan Map Amendment to adjust the Bend Urban Growth Boundary to accommodate the refinement of the Skyline Ranch Road alignment and the 2019-011 05-01-19/05- 16-19 23.01.010, 4.2 refinement of the West Area Master Plan Area I boundary. The ordinance also amends the Comprehensive Plan designation of Urban Area Reserve for those lands leaving the UGB. Comprehensive Plan Map Amendment, changing 2019-006 03-13-19/06-11-19 23.01.010, designation of certain property from Agriculture to Rural Residential Exception Area Comprehensive Plan 23.01.010, 1.2, 2.2, 2.3, amendment establishing 2019-007 TBD/TBD certain eligibility criteria for 3.1, 3.2, 3.3, 3.11 Nonprime Resource Lands DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION S. I I GOAL 5 ADOPTED ORDINANCES EXHIBIT E TO ORDINANCE 2019-007 FINDINGS I. BACKGROUND Nonprime Resource (NPR) Lands, which are also known under State law, OAR 660-004- 005(3) as "Non -Resource" Lands, are areas with an exceedingly low capacity to be managed for commercial agriculture and/or forestry activities. NPR Lands do not meet the definitions of either agricultural land or forest lands found in Statewide Planning Goals 3 and 4 and accompanying Oregon Revised Statutes and Oregon Administrative Rules due to the presence of poor soil conditions, a lack of irrigation, climate conditions and other relevant factors, including but not limited to past use. Based on these circumstances, NPR Lands do not warrant agricultural and forest use zoning and should be made available for other land uses. They differ from Rural Residential Exception Areas and other rural areas not planned and zoned for farm and forest activities. NPR Lands are most often characterized by large tracts without an existing settlement pattern and supporting residential infrastructure. As described below, they also contain platted subdivisions or conveyed parcels that preexisted State enabling planning legislation taking effect in Deschutes County. Deschutes County 1970s When farm lands were designated in the late 1970s, Deschutes County was hampered by the limited availability of soil maps. Where soil maps from the Natural Resource Conservation Service (NRCS) existed those were consulted, but the County also included irrigated lands and lands receiving farm deferrals for the previous five years and site visits. In general, non -urban, non -forest, undeveloped and uncommitted lands were determined to be farm and forest lands. This designation by default resulted in some areas being zoned agricultural or forest use based on best available information. Deschutes County 2000s Since the mid -2000s, County hearings officers and the Board of County Commissioners have determined that land use planning, implemented through Deschutes County Comprehensive Plan policies and zoning, enables rural property owners with Exclusive Farm Use (EFU) zoning to demonstrate in a quasi-judicial process that a subject property does not constitute "agricultural lands" as defined in Goal 3 and Oregon Administrative Rule (OAR) 660-033-0020(1). The Comprehensive Plan currently provides a general directive to consider "Non -Resource" lands proposals.' To date, Deschutes County has approved six quasi-judicial plan amendment, zone change applications from Agricultural to Rural Residential Exception Area and EFU to Multiple Use Agricultural 10. The adopting ordinances are listed below. Policy 2.2.3- Allow comprehensive plan and zoning map amendments, including for those that qualify as non -resource land, for individual EFU parcels as allowed by State Statute, Oregon Administrative Rules and this Comprehensive Plan. Exhibit F to Ordinance 2019-007 Page 1 of 22 • Ordinance 2007-025; 026 • Ordinance 2011-014; 015 • Ordinance 2013-009; 010 • Ordinance 2017-007; 008 • Ordinance 2018-011 • Ordinance 2019-006 According to the Department of Land Conservation and Development (DLCD), from 2008 to 2018, there have been 24 zone changes to non -resource designations in Oregon. As noted above, more than 25% have occurred in Deschutes County.2 DLCD Coordination Over the past decade, Deschutes County has supported and participated in numerous state legislative processes and coordinated with DLCD to study and legislatively update agricultural and forest land designations. Unfortunately, these efforts have not resulted in a clear path forward to undertake such a land use change. 2019 Comprehensive Plan Amendments On October 28, 2019, the Board of County Commissioners (Board) decided to decouple the Comprehensive Plan amendments to focus exclusively on policies addressing six specific areas committed to residential development that are currently zoned Exclusive Farm Use and/or Forest Use. For context, in March 2019, Deschutes County initiated a legislative amendment addressing two components of NPR Lands: • Comprehensive Plan policies 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; and • Comprehensive Plan policies establish eligibility criteria for re -designating Exclusive Farm Use (EFU) or Forest Use zoned properties to NPR Lands through a quasi-judicial process. The Planning Commission held public hearings on May 23 and June 13. On July 9 and 11, they deliberated and made the following recommendations: Recommended by 5-1 vote (five in favor, one opposed) to support the Comprehensive Plan amendments to establish criteria that would enable the County in a subsequent phase to establish a NPR -10 zone and rezone six residentially committed areas. • Recommended by a 5-2 vote (five in favor, two opposed) to check-in with the Board to gain approval to further review and likely expand the Comprehensive Plan 2 https://www...oregon.gov/lcd/Commission/Documents/2019-05 Item 6 Attch A Report.pdf. Page 7. The six quasi- judicial plan amendment, zone change applications in Deschutes County have been acknowledged. A seventh, Ordinance No. 2019-002 was affirmed by LUBA on August 21, 2019. LUBA 2019-011. It was subsequently appealed to the Court of Appeals. Exhibit F to Ordinance 2019-007 Page 2 of 22 eligibility criteria pertaining to rezoning other farm and forest lands to a NPR -20 zone, and establishing a process to review and expand those criteria Regarding the draft policies addressing general eligibility criteria, the Board and the Planning Commission will hold a joint work session in 2020 prior to the Planning Commission completing its deliberations or re -opening the public hearing process. Table 1 summarizes the six areas committed to residential uses. Table 1 — Committed Residential Areas Area Lawful Establishment Profile 59 lots. 23 are vacant Haner Park, Township 22S, Conveyed by deed Average Lot Size: 1.19 Range 9E 3 No lots are tax deferred Section 36, Township 22S, Conveyed by deed or 54 lots. 44 are vacant Average Lot Size: 11.65 Range 10E 4 other instrument 3 parcels are tax deferred Meadow Crest Acres 33 lots. 14 are vacant Subdivision 5 Platted in 1980 Average Lot Size: 1.07 None are tax deferred Skyline Subdivision and 1St Skyline Subdivision 49 lots. 11 are vacant platted in 1960; 1St Average Lot Size: 0.73 Addition addition platted in 1964 None are tax deferred Squaw Creek Canyon 42 lots. 18 are vacant Recreational Estates 1St Platted in 1982 Average Lot Size: 2.5 Addition 6 None are tax deferred These six areas are subject to strict resource zoning requirements dictated by State law that affect the siting of new dwellings, remodels, additions and accessory structures. Upon acknowledgment of the NPR Lands policies, Deschutes County will propose a NPR - 10 zone that will be adopted in Title 18, County Zoning and apply legislatively solely to the six areas committed to residential uses. 3 Haner Park was originally owned by the Benevolent and Protective Order of Elks. Joseph Haner acquired 80 acres split by the Upper Deschutes in the 1940s and donated it to the Elks Lodge. Cabins were subsequently established. While the land was owned by the Elks Lodge, cabins could be owned by members of the Lodge. Ultimately, the Elks could not afford the property and sold it to a corporation, Haner Park LLC, formed by cabin owners. After receiving lot of record decisions, lots were conveyed through deeds. As a condition of approval of the lot of record decisions, the subject property was resurveyed in 2006. 4 Section 36 was a "school section," meaning it was patented to the State of Oregon on statehood, February 14, 1859. On the Clerk's direct/indirect deed index, it shows that by 1908 all of the section had been conveyed, piecemeal, by the State to private parties. 5 Meadow Crest Acres Subdivision received preliminary plat approval in 1978. Zoning at the time of the preliminary plat was Rural Recreation (RR -1). 6 Squaw Creek Canyon Recreational Estates 1st Addition received preliminary plat approval in 1976. Zoning at the time of the preliminary plat was Exclusive Agriculture (A-1). Exhibit F to Ordinance 2019-007 Page 3 of 22 11. PROPOSED PLAN AMENDMENT The proposed amendments to Deschutes County's Comprehensive Plan are described in Ordinance 2019-007, Exhibits A, B, C, D, and E. Added language is underlined and deleted shown as strikethmug". Table 2 provides an overview of Exhibits B, C, and D. Table 2 — Comprehensive Plan Amendments Comprehensive Plan Overview Section 1.3 Land Use Adds Nonprime Resource Lands to list of comprehensive plan map Planning (Exhibit B) designations and Nonprime Resource Lands -10 zone to list of zoning codes Section 2.2 Amends Policy 2.2.3, allowing comprehensive plan and zoning map Agricultural Lands amendments for those that qualify as Nonprime Resource Lands defined in (Exhibit C) OAR 660-004-005(3) Section 2.3 Forest Adds Policy 2.3.13, allowing comprehensive plan and zoning map Lands (Exhibit C) amendments for those that qualify as Nonprime Resource Lands defined in OAR 660-004-005(3) Section 3.1 Adds Section 3.11 Nonprime Resource Lands to the list of sections Introduction (Exhibit D) associated with Chapter 3 - Rural Growth Management Section 3.2 Rural Adds a bullet to a paragraph discussing Deschutes County growth Development potential, recognizing that some farm and forest lands meeting the (Exhibit D) definition of OAR 660-004-005(3) can be redesignated and rezoned to Nonprime Resource Lands for low density rural development Adds a paragraph describing Nonprime Resource Lands Amends Policy 3.3.1, clarifying that new rural residential parcels in Rural Section 3.3 Rural Residential Exception Areas are 10 acres Housing (Exhibit D) Adds Policy 3.3.2 which clarifies that land divisions are prohibited in the Nonprime Resource Lands -10 zone Creates a new section, Section 3.11 for Nonprime Resource Lands. Adds two goals and eight policies 1. Allows for the designation of Nonprime Resource Lands in the county 2. Resolves resource zoning restrictions applied to four subdivisions, Haner Park, and Section 36 that preexisted State enabling planning legislation taking effect in Deschutes County o General Policy -4: Property owners can continue to apply through a quasi-judicial New Section 3.11 process for a rezone from Exclusive Farm Use or Forest Use to a Nonprime Resource nonresource zone consistent with state law Lands (Exhibit D) o Committed Residential Use Policies NPR -10 zone relates to four subdivisions, Haner Park and Section 36 k. Single family dwelling or manufactured home and accessory uses allowed outright 4, NPR -10 zone is available only for four subdivisions, Haner Park and Section 36 committed to residential uses because they are platted, parcelized, or partially developed and committed to residential uses Exhibit F to Ordinance 2019-007 Page 4 of 22 Comprehensive Plan Overview Land divisions are prohibited Lists additional eligibility criteria for these specific areas Until NPR -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 III. REVIEW CRITERIA Ordinance 2019-007 formally recognizes a NPR Lands Comprehensive Plan designation for six committed residential areas. The amendments include new text, goals and policies as noted above in Table 2. Deschutes County lacks specific criteria in Deschutes County Code (DCC) Titles 18, 22, or 23 for reviewing a legislative plan amendment. Nonetheless, since Deschutes County is initiating one, the County bears the responsibility for justifying that the amendments are consistent with the Statewide Planning Goals, Oregon Revised Statutes, Oregon Administrative Rules and its existing Comprehensive Plan. IV. FINDINGS A. CHAPTER 22.12, LEGISLATIVE PROCEDURES Section 22.12.010. Hearing Required FINDING: The Planning Commission held a public hearing on May 23 and June 13. The Board will hold a hearing on November 18. This criterion is met. 2. Section 22.12.020 Notice Notice A. Published Notice 1. Notice of a legislative change shall be published in a newspaper of general circulation in the county at least 10 days prior to each public hearing. 2. The notice shall state the time and place of the hearing and contain a statement describing the general subject matter of the ordinance under consideration. FINDING: This criterion is met as notice was published in the Bend Bulletin newspaper for both the Planning Commission and Board of County Commissioner hearings. Exhibit F to Ordinance 2019-007 Page 5 of 22 B. Posted Notice. Notice shall be posted at the discretion of the Planning Director and where necessary to comply with ORS 203.045. FINDING: This criterion is met as notice was posted in the bulletin board in the lobby of the Deschutes County Community Development Department, 117 NW Lafayette, Bend as well as on the Planning Division website. C. Individual notice. Individual notice to property owners, as defined in DCC 22.08.010(A), shall be provided at the discretion of the Planning Director, except as required by ORS 215.503. FINDING: Courtesy notices for the Planning Commission public hearings were sent to property owners in Haner Park, Section 36, Skyliner Subdivision, Skyliner 1St Addition, Squaw Creek Canyon Recreational Estates 1St Addition and Meadow Crest Acres Subdivision. This criterion is met. D. Media notice. Copies of the notice of hearing shall be transmitted to other newspapers published in Deschutes County. FINDING: Notice was provided to the County public information official for wider media distribution. This criterion is met. 3. Section 22.12.030 Initiation of Legislative Changes. A legislative change may be initiated by application of individuals upon payment of required fees as well as by the Board of County Commissioners. FINDING: The application was initiated by the Deschutes County Planning Division at the direction of the Board. This criterion is met. 4. Section 22.12.040. Hearings Body A. The following shall serve as hearings or review body for legislative changes in this order.- 1. rder.1. The Planning Commission. 2. The Board of County Commissioners. FINDING: This criterion is met as the Planning Commission held public hearings on May 23 and June 13, 2019 followed by deliberations. The Board of County Commissioners will hold a hearing on November 18, 2019. Exhibit F to Ordinance 2019-007 Page 6 of 22 B. Any legislative change initiated by the Board of County Commissioners shall be reviewed by the Planning Commission prior to action being taken by the Board of Commissioners. FINDING: This criterion is met as the Planning Commission public hearing preceded the Board public hearing. The Planning Commission voted 5-1 (five in favor, one opposed) to support the proposed Comprehensive Plan amendments. This criterion is met. 5. Section 22.12.050 Final Decision All legislative changes shall be adopted by ordinance FINDING: Land use application file no. 247 -19 -000265 -PA is implemented by Ordinance No. 2019-007. This criterion is met. B. STATEWIDE PLANNING GOALS The parameters for evaluating these specific amendments are based on an adequate factual base and supportive evidence demonstrating consistency with Statewide Planning Goals. The following findings demonstrate that Ordinance 2019-007 complies with applicable statewide planning goals and state law. • Goal 1, Citizen Involvement is met through this adoption process because these amendments received public hearings before the Planning Commission and the Board of County Commissioners. Goal 2, Land Use Planning is met because ORS 197.610 allows local governments to initiate post acknowledgment plan amendments (PAPAs). A Department of Land Conservation and Development (DLCD) 35 -day notice was initiated on March 20, 2019. This FINDINGS document provides the adequate factual basis and documented analysis for this plan update. Additionally, Oregon Administrative Rules (OAR) Division 4 interprets the requirements of Goal 2 (Land Use Planning) and ORS 197.732 regarding exceptions. The definition for Non -Resource lands is described in OAR 660-004-0005(3): o "Land not subject to any of the statewide goals listed in OAR 660-004-0010(1)(a) through (g) except subsections (c) and (d).' If a subject property does not qualify as "agricultural or forest land," then no exception to Statewide Planning Goal 3, Agricultural Land or Goal 4, Forest Land is required because the subject property is not agricultural or forest land.$ Lastly, Sommer v. 7 OAR 660-004-0010(1)(a) through (g) includes Goal 3 Agricultural Lands and Goal 4 Forest Lands. 8 OAR 660-004-0010: (1) The exceptions process is not applicable to Statewide Goal 1 "Citizen Involvement' and Goal 2 "Land Use Planning." The exceptions process is generally applicable to all or part of those statewide goals that prescribe or restrict Exhibit F to Ordinance 2019-007 Page 7 of 22 Josephine County, 49 Or LUBA 134 (2005) states that, "Lands that are planned and zoned for resource use under Goals 3 and 4 may be redesignated for a nonresource use by applying an acknowledged comprehensive plan policy that establishes standards for such designations. Where such a specific policy and local standards have been acknowledged, they apply in place of more general statewide planning goals standards that would otherwise apply to such a redesignation." Deschutes County is now proposing specific policies and local standards to replace its current policy.9 • Goal 3, Agricultural Lands is not applicable because NPR Lands defined in OAR 660-004-005(3) are not subject to Goal 3, Agricultural Land. A "NPR Lands" designation honors Non -Resource Lands quasi-judicial plan amendment and zone changes dating back to 2007. The Comprehensive Plan amendments include eligibility criteria for certain NPR Lands that establishes standards for such designations consistent with Sommer v. Josephine County, 49 Or LUBA 134 (2005). The Comprehensive Plan amendments recognize opportunities to designate NPR Lands for two subdivisions, Meadow Crest Acres and Squaw Creek Canyon Recreation Estates 1St Addition, both platted prior to State enabling planning legislation taking effect in Deschutes County. According to the Natural Resource Conservation Service, Meadow Crest Acres Subdivision and Squaw Creek Canyon Recreation Estates 1St Addition contain Class VI soils. Deschutes County does not dispute those classifications. OAR 660-033-0030(2) states, When a jurisdiction determines the predominant soil capability classification of a lot or parcel it need only look to the land within the lot or parcel being inventoried. However, whether land is "suitable for farm use" requires an inquiry into factors beyond the mere identification of scientific soil classifications. The factors are listed in the definition of agricultural land set forth at OAR 660-033-0020(1)(a)(B) [emphasis added]. OAR 660-033-0020(1)(a)(B) 1)(a) "Agricultural Land" as defined in Goal 3 includes: certain uses of resource land, restrict urban uses on rural land, or limit the provision of certain public facilities and services. These statewide goals include but are not limited to: (a) Goal 3 "Agricultural Lands"; however, an exception to Goal 3 "Agricultural Lands" is not required for any of the farm or nonfarm uses allowed in an exclusive farm use (EFLI) zone under ORS chapter 215 and OAR chapter 660, division 33, "Agricultural Lands", except as provided under OAR 660-004-0022 regarding a use authorized by a statewide planning goal that cannot comply with the approval standards for that type of use; (b) Goal 4 "Forest Lands"; however, an exception to Goal 4 "Forest Lands" is not required for any of the forest or nonforest uses allowed in a forest or mixed farm/forest zone under OAR chapter 660, division 6, "Forest Lands"; http://arcweb.sos.state.or.us/pages/ruIes/oars 600/oar 660/660 004.html 9 See note 1. Exhibit F to Ordinance 2019-007 Page 8 of 22 (A) Lands classified by the U.S. Natural Resources Conservation Service (NRCS) as predominantly Class I-IV soils in Western Oregon and I -VI soils in Eastern Oregon; (8) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a), taking into consideration soil fertility, suitability for grazing, climatic conditions; existing and future availability of water for farm irrigation purposes; existing land use patterns; technological and energy inputs required, and accepted farming practices, Deschutes County interprets OAR 660-033-0030(2) to recognize that whether land is suitable for farm uses, irrespective of its soil capability classification, requires an inquiry to external factors of nearby land in other soils classes consistent with OAR 660-033-0020(1)(a)(B). Factors include: soil fertility, suitability for grazing, climatic conditions, existing and future availability of water for farm irrigation, existing land use patterns, technological and energy inputs required, and accepted farming practices. Meadow Crest Acres Subdivision consists of 33 residential lots, with lots averaging 1.07 acres. Lots are individually owned and 58 percent are developed with a residence. No lots are tax deferred and there is no evidence of the subject property being used for farming. It has no access to irrigation. Zoning west of the property is Rural Residential 10, a residential exception area. Directly to the north, south and east is land zoned EFU. It is impractical to incorporate these individual lots into nearby EFU parcels given their size, residential lotting patterns, residential development (dwellings, roads, infrastructure, utilities, accessory structures), and multiple ownerships. Figure 1 depicts the subdivision in a red outline. Based on these factors, the subject property is not suitable for farm use and therefore does not constitute agricultural land. Figure 1 — Meadow Crest Acres Subdivision Legend h4ea dr v, Crest ,Acres F I' - + l god I'la; EIULA-Laa'ineSk.t7cne riS&C:-0,)c-n'npa:e&C-on.=-.er:atien I t - I uresr UJ *.. 1 40 RR I U - R11 ral He%Aen-lal Exhibit F to Ordinance 2019-007 Page 9 of 22 Squaw Creek Canyon Recreation Estates 1St Addition consists of 42 residential lots, with lots averaging 2.5 acres. The northeast section, consisting of 34 lots is zoned EFU. The other eight located on the west side are zoned Forest Use 2. Lots are individually owned and 57 percent are developed with a residence. No lots in the subdivision receive tax deferment for farm use and there is no evidence the subject property has ever been farmed. It has no access to irrigation. Zoning directly west of the property is Rural Residential 10, a residential exception area. Directly to the north, south and east is zoned EFU. It is impractical to incorporate these individual lots into nearby EFU parcels given their size, residential lotting patterns, residential development (dwellings, roads, infrastructure, utilities, accessory structures), and multiple ownerships. Figure 2 depicts the subdivision in a green outline. Based on these factors, the subject property is not suitable for farm use and therefore does not constitute agricultural land. Figure 2 — Squaw Creek Canyon Recreation Estates 1st Addition Legend Squaw Creek Canyon Rec Estates 1st Addition FP - Flood Plain EFUSC- Sisters/CloverdaleSulzone MUA10- Multiple Use Agricultural F1 - Forest Use 1? RR10 - Rural Residential F2 -Forest Use 2 SM -Surface Mining77 am 777 \\\i= < \ R i er i Goal 4, Forest Lands is not applicable because NPR Lands defined in OAR 660-004- 005(3) are not subject to Goal 4, Forest Land. The Comprehensive Plan amendments recognize opportunities to designate NPR Lands for four subdivisions: Haner Park, Skyline Subdivision, 1St Addition, Squaw Creek Canyon Recreation Estates 1st Addition and Section 36. All of which were platted or conveyed prior to State enabling planning legislation taking effect in Deschutes County. Exhibit F to Ordinance 2019-007 Page 10 of 22 According to the Deschutes National Forest Soil Resource Inventory, Haner Park, Skyline Subdivision, 1St Addition, Squaw Creek Canyon Recreation Estates 1St Addition and Section 36 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. Deschutes County does not dispute those classifications. Forest land, as defined in Goal 4, can be either lands which are suitable for commercial forest operations or "other forested lands that maintain soil, air, water and fish and wildlife resources." (Cattoche et. al. v. Lane County, LUBA 209-109). Haner Park consists of 59 residential lots, zoned Forest Use 2, with lots averaging 1.19 acres. Lots are individually owned and 61 percent are developed with a dwelling. A majority of the zoning surrounding the area is zoned Forest Use 1. Those lands are owned by the Deschutes National Forest. To the west, there is a privately owned parcel zoned Forest Use 2. No tax lots receive tax deferment for forest use. The subject property is not predominantly forested and there is no evidence the property has been subject to a commercially forest operation. Furthermore, based on the small acreage, residential lotting patterns, residential development (dwellings, roads, infrastructure, utilities, accessory structures), and multiple ownerships, these properties do not maintain soil, air, water, and fish and wildlife habitat that would be typically associated with large undeveloped forested tracts. Figure 3 depicts the area in a red outline. Based on these factors, the subject property is not forest land nor does it constitute other forest land pursuant to Goal 4. Figure 3 — Haner Park VS 4260 600 -- Exhibit F to Ordinance 2019-007 Page 11 of 22 Skyline Subdivision and 1St Addition consists of 49 residential lots, with lots averaging 0.73 acres. Lots are individually owned and 78 percent are developed with a dwelling. A majority of the zoning surrounding the area is zoned Forest Use 1. Those lands are owned by the Deschutes National Forest. To the northeast, there are privately owned parcels zoned Forest Use 2. No tax lots in either subdivision receive tax deferment for forest uses. The subject property is not predominantly forested and there is no evidence the property has been subiect to a commercially forest operation. Furthermore, based on the small acreage, residential lotting patterns, residential development (dwellings, roads, infrastructure, utilities, accessory structures), and multiple ownerships, these properties do not maintain soil, air, water, and fish and wildlife habitat that would be typically associated with large undeveloped forested tracts. Figure 4 depicts the two subdivisions in a red outline. Based on these factors, the subject property is not forest land nor does it constitute other forest land pursuant to Goal 4. Figure 4 — Skyline Subdivision and 11t Addition FS 46(37 S00 f" r o. ' Legend -'% Skyline Subdivision and 1st Addition F2 - Forest Use 2 F1 - Forest Use 1 FP - Flood Plain Squaw Creek Canyon Recreation Estates 1St Addition consists of 42 residential lots, with lots averaging 2.5 acres. The west side, consisting of eight lots is zoned Forest Use 2. The northeast section, consisting of 34 lots is zoned EFU. Lots are individually owned and, as stated above, 57 percent are developed with a dwelling. Zoning west, east, and south of the property is Rural Residential 10, a residential exception area. Directly to the north is zoned Forest Use 2. Not one tax lot in the subdivision receives tax deferment for forest use. The subject property is not predominantly forested. There is no evidence of commercial forest operations. Furthermore, based on the small acreage, residential lotting patterns, residential development (dwellings, roads, infrastructure, utilities, accessory structures), and Exhibit F to Ordinance 2019-007 Page 12 of 22 multiple ownerships, these properties do not maintain soil, air, water, and fish and wildlife habitat that would be typically associated with large undeveloped forested tracts. Figure 5 depicts the subdivision in a green outline. Based on these factors, the subject property is not forest land nor does it constitute other forest land pursuant to Goal 4. Figure 5 — Squaw Creek Canyon Recreation Estates 1st Addition Legend Squaw Creek Canyon Rec Estates 1s EFUSC - Sisters/Cloverdale Subzone F7 - Forest Use t F2 - Forest Use 2 Exhibit F to Ordinance 2019-007 Page 13 of 22 Section 36 consists of 54 residential lots, zoned Forest Use 2, with lots averaging 11.65 acres. Lots are individually owned and 19 percent are developed with a residence. The zoning surrounding the area is zoned Forest Use 1. Those lands are owned by the Deschutes National Forest. The subject property is not predominantly forested and there is no evidence of commercial forest operations. Furthermore, based on the small acreage, residential lotting patterns, residential development (dwellings, roads, infrastructure, utilities, accessory structures), and multiple ownerships, these properties do not maintain soil, air, water, and fish and wildlife habitat that would be typically associated with large undeveloped forested tracts. Figure 6 depicts the area in a red outline. Based on these factors, the subject property is not forest land nor does it constitute other forest land pursuant to Goal 4. Figure 6 — Section 36 Legend -mon h I r I C,reSC LJ FA 2: LI LJLA - La 1 f� Subm�,C2 11' - [ 1O."d 1Iiain 16C - Rwal e :. C nrP Is111 a - Rural Rsldsntaf 1' 1 - a orest w>e l Sh9 - I urface ? nr�g • Goal 5, Natural Resources, Scenic and Historic Areas, and Open Spaces is met. Local governments are required to apply Goal 5 to a PAPA when the amendment allows a new use and the new use "could be" a conflicting use with a particular Goal 5 resource site on an acknowledged resource list. The definition for NPR Lands (Non - Resource) in OAR 660-004-0005(3) recognizes the obligation to address Goal 5 as well: Exhibit F to Ordinance 2019-007 Page 14 of 22 o "Land not subject to any of the statewide goals listed in OAR 660-004-0010(1)(a) through (g) except subsections (c) and (d). Nothing in these definitions is meant to imply that other goals, particularly Goal 5, do not apply to nonresource land." OAR 660-23-0030 — Inventory Goal 5 Resources Stemming from periodic review, Deschutes County has adopted inventories for a variety of Goal 5 natural resources. Three committed residential areas contain acknowledged Goal 5 habitat for winter deer range or deer migration corridors: o Squaw Creek Canyon Recreational Estates 1st Addition (Winter Deer Range) o Meadow Crest Acres Subdivision (Deer Migration Corridor) o Section 36 (Deer Migration Corridor) OAR 660-023-0040(2): Identify conflicting uses. Local governments shall identify conflicting uses that exist, or could occur, with regard to significant Goal 5 resource sites. To identify these uses, local governments shall examine land uses allowed outright or conditionally within the zones applied to the resource site and in its impact area. Local governments are not required to consider allowed uses that would be unlikely to occur in the impact area because existing permanent uses occupy the site. Deschutes County is not proposing a new conflicting use. Residential uses and their accessory structures are allowed today, albeit under a conditional use permit for a non-farm dwelling or template dwelling. They must also comply with Wildlife Area Combining Zone siting and fencing standards.10 If the comprehensive plan policies summarized above are adopted and Deschutes County subsequently adopts and applies a Nonprime Resource Lands -10 zone to these properties, residential uses will be permitted outright. Nonetheless, property owners will still be required to meet the Wildlife Area Combining Zone siting and fencing standards.11 It is important to underscore that land divisions are not allowed in these areas today due to resource zoning restrictions and small minimum parcels sizes. Since no new lots will be possible due to proposed Policy 3.11.5 prohibiting land divisions, there is no conflicting use. Policy 3.11.5 The properties identified in Policy 3.11.4 are not eligible for a land division. Goal 6, Air, Water and Land Resources Quality and Goal 7, Natural Hazards are not applicable because the County is adopting goals and policies to formally recognize certain "NPR Lands," which are also known under State law, OAR 660-004-005(3) as "Non -Resource" Lands. No development or land use changes are being proposed that impact air, water and land resource qualities or natural hazards. The Comprehensive plan amendments recognize opportunities to designate four subdivisions, Haner Park and Section 36 in EFU and Forest Use zones platted prior to State enabling planning 10 DCC 18.88.060 and 18.88.070. 11 ibid. Exhibit F to Ordinance 2019-007 Page 15 of 22 legislation taking effect. In a subsequent phase, Deschutes County will initiate legislative amendments to establish a NPR -10 zone into Title 18, County Zoning and apply it to the six committed residential areas. Uses identified in that zone will be subject to code provisions that are designed to protect air, water and land resources quality and natural hazards. • Goal 8, Recreational Needs is not applicable. No development or land use changes are being proposed that impact lands designated with recreational resources. In a subsequent phase, Deschutes County will initiate legislative amendments to establish a NPR -10 zone into Title 18, County Zoning and apply it to the six committed residential areas. The NPR -10 zone will strictly address rural residential development. Goal 9, Economic Development is applicable because the County is adopting goals and policies to formally recognize "NPR Lands," which are also known under State law, OAR 660-004-005(3) as "Non -Resource" Lands. The Comprehensive plan amendments recognize opportunities to designate four subdivisions, Haner Park and Section 36 in EFU and Forest Use zones platted prior to State enabling planning legislation taking effect. These areas are subject to strict resource zoning requirements dictated by State law that affect the siting of new dwellings, remodels, additions and accessory structures. The establishment of a NPR Lands -10 zone, which will be initiated legislatively after the acknowledgment of these Comprehensive Plan amendments, can incorporate rural residential zoning standards to permit these uses outright at a tremendous savings for property owners. Residential development in these six residential areas will continue to occur albeit without onerous land use regulations. As proposed, Section 3.11, Goal 2, and Policies 3.11.2, 3.11.3, 3.11.4, and 3.11.5 provide the legal policy framework: Goal 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. Policy 3.11.4 The Nonprime Resource Lands -10 zone is available only for the following properties committed to residential uses because they are platted, parcelized, or partially developed: a. Meadow Crest Acres Subdivision b. Skyliner Subdivision Exhibit F to Ordinance 2019-007 Page 16 of 22 c. Skyliner Subdivision 1St Addition d. Squaw Creek Canyon Recreational Estates 1st Addition e. Haner Park f. Section 36, Township 22S, Range 10E Policy 3.11.5 The properties identified in Policy 3.11.4 are not eligible for a land division. Once a NPR Lands designation is applied, the six committed residential areas will no longer be subject to strict resource zoning requirements. Development in these areas can occur without onerous resource land use regulations. • Goal 10, Housing is not applicable because, unlike municipalities, unincorporated areas are not obligated to fulfill certain housing requirements. Goal 11, Public Facilities is not applicable because the County is adopting goals and policies to formally recognize "NPR Lands," which are also known under State law, OAR 660-004-005(3) as "Non -Resource" Lands. No development or land use changes are being proposed that impact public facilities. In a subsequent phase, Deschutes County will initiate legislative amendments to establish a NPR -10 zone into Title 18, County Zoning and apply it to the six committed residential areas. Rural uses allowed in this proposed zone will rely on domestic wells and onsite wastewater treatment systems. • Goal 12, Transportation is met because no development or land use changes are being proposed that impact local or state transportation facilities. The six committed residential areas are already platted and/or conveyed. New residential development will be required to pay a transportation system development charge prior to issuance of a building permit. Goal 13, Energy Conservation is not applicable because the County is adopting goals and policies to formally recognize "NPR Lands," which are also known under State law, OAR 660-004-005(3) as "Non -Resource" Lands. No development or land use changes are being proposed that warrant energy conservation. In a subsequent phase, Deschutes County will initiate legislative amendments to establish a NPR -10 zone into Title 18, County Zoning and apply it to the six committed residential areas. Any use allowed in this zone will be subject to Deschutes County's Solar Height Restrictions, DCC 18.116.170. and the Uniform Building Code. • Goal 14, Urbanization is not applicable because no expansion of an urban area is proposed with these amendments. • Goals 15 through 19 are not applicable to any amendments to the County's comprehensive plan because the county has none of those types of lands. Exhibit F to Ordinance 2019-007 Page 17 of 22 C. OAR 660-004, INTERPRETATION OF GOAL 2 EXCEPTIONS PROCESS FINDING: Oregon Administrative Rules (OAR) Division 4 interprets the requirements of Goal 2 (Land Use Planning) and ORS 197.732 regarding exceptions. The definition for Non - Resource lands is described in OAR 660-004-0005(3): o "Land not subject to any of the statewide goals listed in OAR 660-004-0010(1)(a) through (g) except subsections (c) and (d).12 If a subject property does not qualify as "agricultural or forest land," then no exception to Statewide Planning Goal 3, Agricultural Land or Goal 4, Forest Land is required because the subject property is not agricultural or forest land. D. OAR 660-006, FOREST LAND OAR 660-006-0005(7)(a) and (b) provide the definition of "forest land": 7. "Forest lands" as defined in Goal 4 are those lands acknowledged as forest lands, or, in the case of a plan amendment, forest lands shall include: a. Lands that are suitable for commercial forest uses, including adjacent or nearby lands which are necessary to permit forest operations or practices; and b. Other forested lands that maintain soil, air, water and fish and wildlife resources. In Deschutes County land that grows 20 or more cubic feet of basal area per year is considered forestland. FINDING: OAR 660-006-0005 Draft Policy 3.11.7 states, Lots in Haner Park, Section 36, Skyline Subdivision, Skyline Subdivision 1St Addition, and Squaw Creek Canyon Recreational Estates 1St 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 land to forestry or agricultural use. 12 OAR 660-004-0010(1)(a) through (g) includes Goal 3 Agricultural Lands and Goal 4 Forest Lands. Exhibit F to Ordinance 2019-007 Page 18 of 22 Given the fact that Haner Park, Section 36, Skyline Subdivision, Skyline Subdivision 1st Addition, and Squaw Creek Canyon Recreational Estates 1st Addition are already parcelized and owned by multiple parties, it is impractical to expect that a "reasonable" forester or farmer would put the land to forestry or agricultural use. Lots average 11.65 acres in Section 36, 1.19 acres in Haner Park, 0.73 acres in Skyliner subdivision and 1St addition, and 2.5 in Squaw Creek Canyon Recreational Estates 1 St Addition. For the same reason, none of the properties can be used in conjunction with adjoining or nearby agricultural or forestry operations because they are committed to residential uses. E. OAR 660-033, AGRICULTURAL LAND OAR 660-033-0020(1)(a) provides the definition of "agricultural land" which includes the following three categories: A) Lands classified by the U.S. Natural Resources Conservation Service (NRCS) as predominantly Class I-IV soils in Western Oregon and I -VI soils in Eastern Oregon; B) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a), taking into consideration soil fertility; suitability for grazing; climatic conditions; existing and future availability of water for farm irrigation purposes; existing land use patterns; technological and energy inputs required; and accepted farming practices; and C) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands. OAR 660-033-002(1)(a)(B) states: Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a), taking into consideration soil fertility; suitability for grazing; climatic conditions; existing and future availability of water for farm irrigation purposes; existing land use patterns; technological and energy inputs required; and accepted farming practices; and OAR 660-033-002(1)(a)(C) states: Land that is necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands. FINDING: OAR 660-033-0020(1)(a)(A), (B), (C) Draft Policy 3.11.6 states, Lots in Meadow Crest Acres Subdivision and Squaw Creek Canyon Recreational Estates 1st 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. Exhibit F to Ordinance 2019-007 Page 19 of 22 Wetherell v. Douglas County, _Or LUBA_, LUBA No. 2010-052 allows a local government to consider whether a "reasonable" farmer would be motivated to put the land to agricultural use. Given the fact that Meadow Crest Acres Subdivision and Squaw Creek Canyon Recreational Estates 1st Addition are platted subdivisions owned by multiple parties with lots averaging between 1.07 and 2.5 acres, it is impractical to expect that a "reasonable" farmer would put the land to agricultural use. For the same reason, none of the properties can be used in conjunction with adjoining or nearby agricultural or grazing operations because they are all committed residential uses. F. CONSISTENCY WITH DESCHUTES COUNTY COMPREHENSIVE PLAN Deschutes County updated its Comprehensive Plan on August 10, 2011. Chapter 2, Resource Management Section 2.2, Agricultural Lands Goal 1 Preserve and maintain agricultural lands and the agricultural industry Policy 2.2.1 Retain agricultural lands through Exclusive Farm Use zoning. FINDING: Deschutes County's Comprehensive Plan amendments are consistent with Policy 2.2.1. New goals and policies establish eligibility criteria for designating certain Exclusive Farm Use or Forest Use zoned properties to Nonprime Resource Lands defined in OAR 660-004-0005(3) as "Non Resource Lands." Criteria identify opportunities to redesignate six specific areas committed to residential uses that were platted or conveyed prior to State enabling planning legislation taking effect in Deschutes County. Upon acknowledgment, Deschutes County will initiate legislative amendments to establish a NPR -10 zone into Title 18, County Zoning and apply it to the six committed residential areas. Policy 2.2.3 Allow comprehensive plan and zoning map amendments, including those that qualify as non -resource land, for individual EFU parcels as allowed by State Statute, Oregon Administrative Rules and this Comprehensive Plan. FINDING: Deschutes County's Comprehensive Plan amendments are consistent with Policy 2.2.3. New goals and policies establish eligibility criteria for designating certain Exclusive Farm Use or Forest Use zoned properties to Nonprime Resource Lands defined in OAR 660-004-0005(3) as "Non Resource Lands." Criteria identify opportunities to redesignate six specific areas committed to residential uses that were platted or conveyed prior to State enabling planning legislation taking effect in Deschutes County. Upon acknowledgment of the NPR Lands policies, Deschutes County will adopt a NPR -10 zone that will apply solely to the six areas committed to residential uses. 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. Exhibit F to Ordinance 2019-007 Page 20 of 22 FINDING: Deschutes County's Comprehensive Plan amendments are consistent with Policy 2.2.4. New goals and policies establish eligibility criteria for designating certain Exclusive Farm Use or Forest Use zoned properties to Nonprime Resource Lands defined in OAR 660-004-0005(3) as "Non Resource Lands." Criteria identify opportunities to redesignate six specific areas committed to residential uses that were platted or conveyed prior to State enabling planning legislation taking effect in Deschutes County. Upon acknowledgment of the NPR Lands policies, Deschutes County will adopt a NPR -10 zone that will apply solely to the six areas committed to residential uses. Goal 3 Ensure Exclusive Farm Use policies, classifications and codes are consistent with local and emerging agricultural conditions and markets. Policy 2.2.13 Identify and retain accurately designated agricultural lands. FINDING: Deschutes County's Comprehensive Plan amendments are consistent with Policy 2.2.1. New goals and policies establish eligibility criteria for designating certain Exclusive Farm Use or Forest Use zoned properties to Nonprime Resource Lands defined in OAR 660-004-0005(3) as "Non Resource Lands." Criteria identify opportunities to redesignate six specific areas committed to residential uses that were platted or conveyed prior to State enabling planning legislation taking effect in Deschutes County. Upon acknowledgment, Deschutes County will initiate legislative amendments to establish a NPR -10 zone into Title 18, County Zoning and apply it to the six committed residential areas. 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. FINDING: Over the past decade, Deschutes County has supported and participated in numerous state legislative processes and coordinated with DLCD to study and legislatively update agricultural and forest land designations. Unfortunately, these efforts did not result in a clear path forward to undertake such a land use change. The Comprehensive Plan provides a general directive to consider "Non -Resource" lands proposals (Policy 2.2.3). To date, six applicant -initiated requests to amend Exclusive Farm Use zoning have been acknowledged in Deschutes County. Deschutes County's Comprehensive Plan amendments are consistent with Policy 2.2.1. New goals and policies establish eligibility criteria for designating certain Exclusive Farm Exhibit F to Ordinance 2019-007 Page 21 of 22 Use or Forest Use zoned properties to Nonprime Resource Lands defined in OAR 660- 004-0005(3) as "Non Resource Lands." Criteria identify opportunities to redesignate six specific areas committed to residential uses that were platted or conveyed prior to State enabling planning legislation taking effect in Deschutes County. These areas are subject to strict resource zoning requirements dictated by State law that affect 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 areas committed to residential uses. Chapter 3, Rural Growth Management Section 3.3 Rural Housing Goal 1 Maintain the rural character and safety of housing in unincorporated Deschutes County. Policy 3.3.5 Maintain the rural character of the County while ensuring a diversity of housing opportunities, including initiating discussions to amend State Statute and/or Oregon Administrative Rules to permit accessory dwelling units in Exclusive Farm Use, Forest and Rural Residential zones. FINDING: Deschutes County is proposing Policy 3.11.3 that will provide the policy framework for the NPR -10 zone to outright permit a single family dwelling or a manufactured home on an eligible property. Exhibit F to Ordinance 2019-007 Page 22 of 22 11/18/2019 The decision of the Board of County Commissioner on this application will be based upon the record, staff report, and testimony and evidence presented at this hearing. Hearing will be conducted in the following order O�U1C< co What are Nonprime Resource Lards? 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. 11/18/2019 ® 1970 farm land designations limited by available soil maps. Non -urban, undeveloped and uncommitted lands zoned EFU or Forest Use. b 7 Proposal i__ rroposal2 Support: Opposed: Zoning flexibility Undermining land use Reduced costs system Wildlife impacts Rural lifestyle Access 11/18/2019 3 Comprehensive Plan Amendments Section 1.3 - Land Use Planning Section 2.2 -Agricu|tura| lands Section 23 - Forest Lands Section 3.1 -|ntroduction Section 3.2 -Rural Development Section 3.3 - Rural Housing Section 3 11 - New Nonprime Resource Lands 4K Com,�trehensive Plan Amendments 2Amended Policies ~ Agricultural Lands ~ Rural Housing 2New Goals ~ NPR Lands 1UNew Policies ^ Forest Lands ~ Rural Housing ^ NPR Lands �cultural Lands Policy PoUcy 2.2.3 Allow comprehensive plan and zoning map amendments, including qualifying Nonprime Resource Lands defined as^nonesounelands" pursuant toOAR 660'004-005(3) for EFU parcels asallowed byState Statute, Oregon Administrative Rules and this Comprehensive Plan. �@�. }1/1R/2D1Q ` 11 Policy 2.3.13 Allow comprehensive plan and zoning map amendments, including qualifying Nonprime Resource Lands defined "as nonresourcelands" pursuant toOAR 060'O04-005(3)for Forest Use zoned parcels asallowed byState Statute, Oregon Administrative Rules, and this Comprehensive Plan. Policy 3.3.1 The minimum parcel size for new rural residential parcels in Rural Residential Exception Areas shaU b 10 acres. Policy 3.3.2 Land divisions are prohibited inthe Nonprime Resource Lands -10 zone. Nonprime Resource Lands Goal Allow the designation ofNonprime Resource Lands in Deschutes County Policy 3.11.1 Property owners can continue tuapply through a quasi�udida|process for arezone from Exclusive Farm Use orForest Use toanonresource zone consistent with state law. }}/18/2O}Q � � 11/18/701Q � Resolve resource zoning restrictions |i dto subdivisions platted prior to Statewide planning legislation taking effect in Deschutes County, Haner Park, and Section 36 in Township 22S, Range 10E Po|iry3A 1.2 ANonprime Resource Lands-10zone provides procedures and standards for rural residential living environments and development that balance the public's interest inthe management ofcommunity growth with the protection of individual property rights, PmKicy 111.3 A single family dwelling or a manufactured home and their -accessory uses shall be Policy 3.11.4 The Nonprime Resource Lands -10 zone is available only for the following properties... a. Meadow Crest Ames Subdivision b. Skyline Subdivision C. Skyline Subdivision, 1 st Addition d. Squaw Creek Canyon Recreational Estates 1 st Addition e. Haner 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, Policy 3.11.6 Lots in Meadow Crest Acres Subdivision and Squaw Creek Canyon Recreational Estates 1 st 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. 11/18/2019 7 11/18/2019 Lots in Haner Park, Section 36, Skyline Subdivision, Skyline Subdivision 1 st Addition, and Squaw Creek Canyon Recreational Estates 1st 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 Iarl:.a t� forestry or agricultural use. Policy 3.1 1,8 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. Not suitable for farm/forest uses. No impact to neighboring farm/forest uses. No impact to wildlife habitat. Only applies to 6 residentially committed areas Financial Impact CUP for non-farm dwelling = $3,603 Consultant typically matches permit fee Soil scientist = $4,000 - $10,000 ® Hearings Officer = $5,500 Skylines SubdiVlsion and Skylines 1 ` Addition $173,670 Valuation I 5306,840 Median Assessed ■ Medlan Improved . Medlan Vacant Squaw Cieek Canyon Recreational Estates $2K065 valuation £150,000 Median ASS 1-1 B V-1,an Improved 0 Median Vacant 11/18/2019 M Valuation of Properties Hanef Park 11/18/2019 10 www.deschutes.org/npr Zechariah Heck, Associate Planner 541-385-1704 Zechariah.heck@deschutes.org j 11/18/2019 11 November 18, 2019 SENT VIA EMAIL Deschutes County Board of Commissioners Deschutes Services Building 1300 NW Wall Street, 2nd Floor Bend, OR 97703 Re: Comments in support of Denial of the Proposed Comprehensive Plan Amendments that Seek to Allow the Removal of Lands from State -Mandated Resource Protection To the Deschutes County Board of Commissioners: Please accept these comments to be included in the record for the Deschutes County Board of Commissioners' public hearing on November 18, 2019 regarding proposed Ordinance No. 2019- 007. This letter also incorporates and applies all arguments to the current proposal that were presented by 1000 Friends of Oregon and Central Oregon Landwatch ("COLW") in testimony provided on May 23, 2019, June 13, 2019, and June 24, 2019. 1000 Friends of Oregon urges the Deschutes County Board of Commissioners ("board") to deny the proposed plan amendments because they misappropriate goal exception criteria for lands that do not qualify for a goal exception, and misconstrue and misapply state law governing farm and forest land protection. The proposed amendments lack coordination with affected jurisdictions, and lack an adequate factual base relating to required showings under Statewide Planning Goals 2, 3, 4, 7, 10, 11, and 12. In addition, the purpose offered for the amendments contradicts previous determinations of the County. This ill-conceived strategy to circumvent state land use laws to allow for conversion of protected resource land into expensive rural housing is not well- founded in law, and violates numerous statutes, statewide planning goals, and administrative rules that are intended to preserve our state's natural resources for generations to come. 1000 Friends of Oregon is a nonprofit membership organization that has worked with Oregonians for more than 40 years to support livable urban and rural communities; protect family farms and forests; and conserve natural areas. Our work includes resource land protection through the sound application of Statewide Planning Goals 2, 3, 4, 7, 10, 11 and 12. For the following reasons, the County should deny the proposed plan amendments. 133 SW 2nd Avenue, Suite 201 • Portland, OR 97204 • (503) 497-1000 • www.friends.org A. The county misconstrues applicable law when it asserts that a local "Nonresource land" designation can allow for conversion of resource land into outright permitted housing, but that allowance is only permitted via a goal exception. The county's initial premise is legally and fatally flawed. In the first page of proposed findings, the county asserts: "Nonprime Resource (NPR) Lands, which are also known under State law, OAR 660- 004-005(3) as "Non -Resource" Lands, are areas with an exceedingly low capacity to be managed for commercial agriculture and/or forestry activities." County's Exhibit F to Ordinance 2019-007 ("Exhibit F") at 1. Such a statement is facially inconsistent with state law governing the goal exception process. OAR Chapter 660, Division 4 is titled "Interpretation of Goal 2 Exceptions," and the above -referenced administrative rule expressly provides that the definition "Nonresource Land" is for purposes of Division 4, i.e. goal exceptions. Contrary to law, the County misconstrues this legal term and unreasonably extends the law to something other than the goal exception process, when claiming that it can be used to achieve residential development on lands through a process that is not justified under ORS 197.732. The proposed amendments acknowledge that the proffered local definition of "Nonprime Resource Lands" attempts to incorporate the legal term "nonresource lands" provided at OAR 660-004-0005(3), notwithstanding the fact that land subject to this new definition "cannot qualify for an exception pursuant to applicable planning law[.]" County's Exhibit 1'3 to Ordinance 2019-007 at 15. DLCD commented that the low-density residential development that the county is seeking to achieve should occur through a goal exception rather than the nonprime resource land designation. DLCD May 15, 2019 Communication at 2. The county's approach ignores this legal pathway. The error in terminology continues, as the findings refer to the six areas ("subject properties") i as "committed residential areas." Exhibit F at 3. This is not correct terminology, as "committed" lands are understood to refer to the irrevocably committed goal exception process, an approach the county is avoiding here. See ORS 197.732(2)(b) and OAR 660-004-0028. The county cannot use principles derived from the goal exception process as justification for its flawed unexceptional proposal that attempts to achieve what only a goal exception can do. i The plan amendments seek to allow for redesignation of 237 lots located in areas referred to as Haner Park, Section 36, Meadow Crest Acres, Skyline and Skyline First Addition, and Squaw Creek Canyon. Notably, Meadow Crest Acres and Squaw Creek Canyon were platted after the adoption of Oregon's modern land use planning program. 2 of 8 B. The proposed amendments fail to apply state requirements governing agricultural land in violation of Statewide Planning Goal 3. The proposed amendments fail to apply the definition of agricultural land, provided at OAR 660- 033-0020(1), to the proposed NPR -10 zone. Without a showing that the redesignations envisioned by the proposed amendments for the subject properties will comply with the definition of agricultural land, the proposed amendments are inconsistent with Goal 3. OAR 660-033-0020(1) provides, in relevant part, that: "(a) 'Agricultural Land' as defined in Goal 3 includes: "(A) Lands classified by the U.S. Natural Resources Conservation Service (NRCS) as predominantly Class I - IV soils in Western Oregon and I -VI soils in Eastern Oregon; "(B) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a), taking into consideration soil fertility; suitability for grazing; climatic conditions; existing and future availability of water for farm irrigation purposes; existing land use patterns; technology and energy inputs required; and accepted farming practices; and "(C) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands. "(b) Land in capability classes other than I-IV/I-IV that is adjacent to or intermingled with lands in capability classes I-IV/I-VI within a farm unit, shall be inventoried as agricultural lands even though this land may not be cropped or grazed[.]" In order to adopt comprehensive plan amendments that allow for the removal of any property from agricultural land protection, any local program must demonstrate how compliance with the above administrative rule will occur. Each subsection provided under OAR 660-33-0020(1)(a) and (b) provides an independent basis that must be analyzed prior to determining that any property does not constitute agricultural land. The county appears to concede that land subject to redesignation under the proposed amendments includes land that constitutes 51 % or more Class I -VI soils or intermingled with Class I -VI soils, hence qualifying as agricultural land under OAR 660-033-0020(1)(a)(A). Exhibit F at 19. This facially violates the independent determination of agricultural land at OAR 660-033-0020(1)(a)(A). The county misconstrues the applicable law and misinterprets Wetherell v. Douglas County, Or LUBA_, (LUBA No. 2010-052) (September 23, 2010), slip op 4. That case applied the "reasonable farmer" inquiry to OAR 660- 033-0020(1)(a)(B) for lands "in other soil classes," and not to OAR 660-033-0020(1)(a)(A). In fact, LUBA held in that case that for other soil classes, a local government may consider in addition to the seven factors listed in the rule whether a reasonable farmer would be motivated to 3 of 8 put the land to agricultural use, including grazing, for the primary purpose of obtaining a profit in money. Id. citing Wetherell v. Douglas County (Great American Properties), 342 Or 666, 160 P3d 614 (2007). There is no reasonable argument that the reasonable farmer inquiry can be used to take land out of resource protection, where land qualifies for resource protection under OAR 660-033-0020(1)(a)(A). The county errs in this regard, as well as in its approach of using the reasonable farmer inquiry as the sole consideration for whether land constitutes agricultural land. The county's proposal improperly allows for conversion of land that qualifies as agricultural land because the subject properties contain land suitable for farm use as defined in ORS 215.203(2)(a). Land is suitable for farm use based on soil fertility; suitability for grazing; climatic conditions; existing and future availability of water for farm irrigation purposes; existing land use patterns; technological and energy inputs required; and accepted farming practices. Suitabiiity of lands for grazing must be addressed. Dept of Land Conservation & Dev. v. Douglas Cnty., _ Or LUBA —(LUBA Nos. 2018-039, et al.), (August 2, 2019) slip op 37. In fact, each of these factors must be considered. Wetherell v. Douglas County, 52 Or LUBA 677, 680 (2006). Noticeably absent from the required suitability factors under OAR 660-033-0020(1)(a)(B) are "historical use," "acreage size," "lotting patterns," and "ownership," although these appear to be the attributes the county depends on when attempting to prove that the subject properties do not constitute agricultural land. This approach is inconsistent with OAR 660-033-0020(1)(a)(B). In addition, the findings and the amendments themselves do not sufficiently address, based on an adequate factual base, whether any of the subject properties are necessary to permit farm practices on adjacent or nearby agricultural lands, nor does the county adequately explain whether the subject properties constitute lands that are adjacent to or intermingled with other agricultural lands. C. The Proposed Amendments fail to apply state requirements governing forestland, and therefore violate Statewide Planning Goal 4. The proposed amendments fail to apply the definition and procedures for identifying forest land, found at OAR 660-006-0005 and -0010 to the NPR -10 zone and are inconsistent with Goal 4. OAR 660-006-0005(7) defines forest land as lands acknowledged as forest land, lands that are suitable for commercial forest uses, including adjacent or nearby lands which are necessary to permit forest operations or practices; and other forested lands that maintain soil, air, water and fish and wildlife resources. The proposed amendments demonstrate an intention to redesignate lands in the proposed NPR -10 zone that clearly meet these definitions of forest lands in violation of Statewide Planning Goal 4. The county appears to concede that subject properties allowed to be redesignated NRP-10 include protected forest land when it states: "According to the Deschutes National Forest Soil Resource Inventory, Harter Park, 4 of 8 Skyline Subdivision, 1 st Addition, Squaw Creek Canyon Recreation Estates 1 st Addition and Section 36 possess a potential productivity of 20 or more cubic feet Ver acre per year, at culmination of mean annual increment, for one or more tree species native to Deschutes County." (Underline and italics added.) Exhibit F at 11. See also Exhibit F at 18 ("In Deschutes County land that grows 20 or more cubic feet of basal area per year is considered forestland.") LUBA has already held that the county may not simply exclude from forest land those lands with a productivity threshold below 80 cubic acre feet per year. Wetherell v. Douglas County, 50 Or LUBA 167, 199 (2005), rem'd on other grounds, 204 Or App 732, 132 P3d 41 (2006), rev'd and rem'd on other grounds, 342 Or 666, 160 P3d 614 (2007). It is only when land with wood productivity of less than 20 cubic feet per acre per year that land is considered unsuitable for commercial forest use unless other factors compensate for the relatively low productivity. Anderson v. Coos County, 62 Or LUBA 38 (2010). Land that has potential productivity of 20 cubic feet per acre per year or more constitutes commercial forest land, and is protected under Goal 4, and cannot be taken out of resource protection. The proposed findings ignore the productivity of the lands, and inject new factors of parcelization and ownership that are irrelevant to the definition at OAR 660-006-0005(7) and the identification process at OAR 660-006-0010(2), when evaluating what constitutes forestland: "Given the fact that Haner Park, Section 36, Skyline Subdivision, Skyline Subdivision 1st Addition, and Squaw Creek Canyon Recreational Estates 1st Addition are already parcelized and owned by multiple parties, it is impractical to expect that a "reasonable" forester or farmer would put the land to forestry or agricultural use." Exhibit F at 18. The county errs in its determination that parcelization and ownership status determine whether land is forestland under Goal 4. See OAR 660-006-0010(2). In order to determine whether the subject properties have attributes sufficient to constitute commercial forestland, National Resource Conservation Service data must be used, and if that data is not available or is inaccurate, the following must be considered, in priority order: "1. Oregon Department of Revenue Western Oregon site class maps; "2. USDA Forest Service plant association guides; "3. Other information determined by the State Forester to be of comparable quality; and "4. If the above data is unavailable, the alternative method set out in the Oregon Department of Forestry's Technical Bulletin may be used. 5 of 8 Dept of Land Conservation & Dev. v. Douglas Cnty., Slip op 26-27. Without using the above priority methodology concerning commercial forestland capability, the proposed amendments violate Goal 4. The county improperly considers lot size and ownership as a basis to conclude that lands sought to be redesignated do not maintain soil, air, water, and fish and wildlife habitat. This error is highlighted in the context of Harter Park, where the land involved abuts a river. It is implausible to determine that undeveloped land that abuts a river does not provide ecosystem services for that river body's water quality. In addition, just because a property does not provide the type of ecosystem services that are typically associated with large undeveloped forested tracts, that does not mean that a given parcel does not constitute Other forestlands under Goal 4. Moreover, Goal 5 protections provide further evidence that the subject properties include land that indeed maintains wildlife habitat, and therefore constitutes other forest lands. The County's own proposed findings acknowledge that at least three of the subject areas contain acknowledged Goal 5 habitat for winter deer range or deer migration corridors (Squaw Creek Canyon, Meadow Crest, and Section 36). Exhibit F at 15. Without ensuring compliance now with Goal 3 and Goal 4 for the many redesignations of agricultural and forest land that would ensue upon adoption, the proposed amendments fail to meet the standard at ORS 197.175(2)(a) that all post -acknowledgement plan amendments comply with the goals. D. The proposed amendments lack an adequate factual base and illegally flip the evidentiary showing required to take land out of resource protection. The county errs in its conclusion that the findings document provides the adequate factual base and documented analysis for this plan update as required by Statewide Planning Goal 2. Exhibit F at 7. The findings demonstrate that the county is depending on conclusory statements of fact without evidence to back up those statements. Such an approach is inconsistent with Statewide Planning Goal 2's requirement that plans be supported by an adequate factual base. There simply is not an adequate factual base demonstrating that none of the properties can be used for agricultural or forestry options, or constitute agricultural or forest lands under the multiple definitions provided under the administrative rules described above. There is no adequate factual base to determine that none of the properties can be used in conjunction with adjoining or nearby agricultural or forestry operations because they are "committed to residential uses." This failure is illustrated by Haner Park, where it is surrounded by forest use land, including the Deschutes National Forest land. To the extent land use history is relevant to any of the aforementioned inquiries, the proposal lacks an adequate factual base to demonstrate sufficient evidence regarding historical use that support a finding that the subject properties do not constitute agricultural or forest land. There is no evidence to demonstrate that the subject properties do not provide ecosystem services sufficient to qualify them as other forest lands. 6 of 8 Even more problematic is that the proposed findings flip the evidentiary burden that is provided under state law when considering whether a given resource -zoned parcel is not subject to resource land protection. The fact that the county determines that there is "no evidence of the subject property being used for farming" or for forestry use does not demonstrate that a property is not resource land. OAR 660-033-0020(1)(a)(B) does not ask whether a given property has been farmed, but rather whether it is suitable for farming. To the extent historical use is a relevant factor in determining suitability, the absence of evidence does not constitute evidence in and of itself. Columbia Riverkeeper v. Columbia Cnty., 297 Or App 628, 647, 443 P3d 1184 (2019) (an absence of evidence in the context of meeting a legal standard cannot be a basis on which to logically infer compliance with a standard). The county's proposed findings regarding each subject property's resource status lack an adequate factual base because they depend on the absence of, rather than existence of, evidence to support the findings' conclusions that no land within the subject properties constitutes agricultural or forest land. As COLW pointed out in prior testimony, the county already reviewed in 2015 whether any mapping areas occurred, and concluded that rural platted or subdivided lands within resource designations were not mistakenly designated agricultural or forest land. Any other determination now, without persuasive substantial evidence, would constitute arbitrary and capricious decision making, and be inconsistent with Statewide Planning Goal 2's requirement that comprehensive plans be based on an adequate factual base. Based on the analysis provided above, the proposed findings lack an adequate factual base for the assertion that "NPR Lands do not warrant agricultural and forest use zoning and should be made available for other land uses." Exhibit F at 1. The findings also demonstrate a lack of coordination and a lack of an adequate factual base relating to compliance with Statewide Planning Goals 2, 7, 10, 11, and 12. The findings do not address whether the county has adequately coordinated with affected jurisdictions. The findings do not demonstrate that the allowance of residential development outside of urban growth boundaries would impact municipalities' ability to meet Goal 10 obligations regarding needed housing. The findings fail to address whether there will be sufficient transportation infrastructure and fire district support to provide hazard response services to what will likely be over two hundred outright permitted residential dwellings. The findings fail to address whether the soils and water table for the subject properties are of sufficient quality and depth to accommodate septic needs of the residential development that would be allowed under NRP-10 zoning. The findings fail to address whether domestic wells will provide sufficient water for uses allowed under the NRP-10 zoning, and whether additional residential water use will impact ability to irrigate resource lands. E. The County would be well served to abandon this ill-conceived proposal that is not based in law. The county cannot avoid application of Statewide Planning Goals 3 and 4 by simply stating that they do not apply. In order to amend the comprehensive plan in a manner that allows residential development outright on rural lands, the county must either take a goal exception, or incorporate the robust standards provided under statute, planning goals, administrative rule, and binding case law that adequately address the numerous independent definitions that apply when considering the removal of land from resource protection. If the county has an evidentiary basis to demonstrate that mapping errors actually exist and need to be corrected, or wants to update designations of farmlands and forestlands for land use planning, we encourage the county to utilize the existing statutory framework to achieve such actions provided at ORS 215.788. Based on prior work of the county, no adequate factual base exists to demonstrate that mapping errors occurred. The proposed amendments are inconsistent with core principles of Oregon land use laws, and would erode the much -treasured rural character of Deschutes County. For these reasons, we strongly urge the county to deny the proposed amendments. We request that the county leave the record open for at least seven (7) additional days, and allow for at least an additional seven (7) days to provide response testimony and evidence. Thank you for the opportunity to comment on this important issue. Thank you, Scott Hilgenberg Rural Lands Legislative Attorney 1000 Friends of Oregon Cc: Rory Isbell Carol Macbeth 8 of A November 18, 2019 Deschutes County Board of Commissioners 1300 NW Wall Street Bend, OR 97701 via hand delivery re: File No. 247 -19 -000265 -PA 2843 NW Lob Dr., Ste, 200 1 Bend, OR 97703 Phone: (541) 647-2930 www.colw.org Amendments to comprehensive plan to change the development allowed on certainn agricultural and forest lands Dear Chair Henderson and Commissioners, On behalf of Central Oregon LandWatch, thank you for the opportunity to offer additional comments on the proposed amendments. Please find attached our May 23, 2019 letter on the same topic. Please also find attached DLCD's January 8, 2015 letter to the County. We incorporate both letters here by reference. LandWatch respectfully urges you to reject the proposed amendments, which contravene the statewide planning goals. The statewide planning goals are mandatory and binding on Deschutes County. ORS 197.015(8). The current comprehensive plan has been acknowledged by LCDC to be in compliance with the statewide planning goals. Before the plan can be amended, the County must demonstrate that the amendments, too, will be in compliance with the statewide planning goals. ORS 197.175(2)(a): "ORS 197.175(2) Pursuant to ORS chapters 195, 196 and 197, each city and county in this state shall: (a) Prepare, adopt, amend and revise comprehensive plans in compliance with goals approved by the commission;". The land use goals are designed to be applied during a local government's preparation or amendment of a comprehensive plan. 1000 Friends v. Wasco County Protecfirn�� Cenbcll Oregon's Natured Environrneni' And Vdotking For Susiconable Con-in;uniiieS W Court, 299 Or 344, 359, 703 P. 2d 207 (1985). The findings do not demonstrate that the amendments comply with Goal 3 or Goal 4, which both apply directly to the proposed amendment. ORS 197.175(2)(a). The statewide planning goals that apply to the adoption or amendment of a comprehensive plan are applicable "because of the use or the nature of the land to be included." 1000 Friends v. Wasco County Count, 299 Or 344, 366, 703 P. 2d 207 (1985) (the full range of affected public interests must be considered in the process of comprehensive planning for land use decisions, taking into account the nature and use of land and the policies of the goal); 1000 Friends v. LCDC, 292 Or 735, 750, 642 P.2d 1158 (1982) (en banc). The six areas under consideration are resource lands. See Exhibit F: Meadow Crest Acres (F1); Squaw Creek Canyon Recreational Estates (F2, EFU); Haner Park (F2); Skyline Subdivision (F2); Skyline Subdivision 1st Addition (F2); Section 36 (F2). The nature and use of the six areas is that they are forest lands preserved and maintained by the County for forest use, or agricultural lands preserved and maintained by the County for exclusive farm use. Because of the nature and use of the six areas, any amendment to the County's comprehensive plan must demonstrate that the amendment complies with Goals 3 and 4. 1000 Friends v. Wasco County Court, 299 Or at 366. The amendment engages in circular reasoning by inventing a category of land called "nonprime resource land," declaring this category is not subject to Goals 3 or 4, and then declaring that the County need not demonstrate compliance with Goals 3 or 4 because the lands in the category are not subject to Goals 3 or 4. Exhibit F. The problem with this approach is that the six areas of land put forward in the proposal are forest lands and agricultural lands, preserved and maintained by the County in accordance with state law for forest use and exclusive farm use. They are not "nonprime resource lands:" there is no such thing as nonprime resource lands. The set of nonprime resource lands is an empty set. It is the nature and use of the lands under consideration, not the attributes of an imaginary category of lands, that determines whether statewide planning goals are applicable. Protecting Centra! Oregon's Natural EnvironmieW And Wor'ring (or Sustainable Communities The County is proposing to permit new uses on certain of the County's forest and agricultural lands, including allowing single family dwellings and accessory uses outright. Exhibit F, e.g. Table 2. The exclusive means of establishing a policy that does not comply with some or all of the statewide planning goals is through the adoption of an exception to those goals. An exception to Goal 3 is required in order to avoid Goal 3's restrictions on the use of agricultural land, while an exception to Goal 4 is required to avoid that goal's restrictions on the use of forest land. OAR 660-004-0010. As the Supreme Court has explained: "In order to allow land use which any goal would prohibit, a local government must take an 'exception' to that goal.... An 'exception' is essentially a variance, a comprehensive plan provision which allows a local government to waive compliance with a goal for specific properties or situations." 1000 Friends of Oregon v. LCDC, 301 Or 447, 457, 724 P. 2d 268 (1986) (en bane). The sole means for taking an exception is through ORS 197.732 and Goal 2: "A local government which decides to take an exception must use the procedures and the substantive standards that are provided in ORS 197.732, as interpreted by LCDC's amended Goal 2 and administrative rules in OAR chapter 660." Id. at 459. The proposal errs by referring to the six areas as "committed to residential uses." Exhibit F, Tables 1 & 2. The County has not shown that the lands satisfy the criteria for commitment to that use. The proposal erroneously states that the County is merely "adopting goals and policies to formally recognize 'NPR' lands." Exhibit F. The County is not merely adopting goals and policies to "recognize" lands in its proposed new category: the proposal also declares that lands the County affirmatively identified and maintains as forest lands and agricultural lands are not forest lands or agricultural lands. There is no proof that the County's resource lands were incorrectly mapped at acknowledgement. If the County wants to pen -nit new uses on these six areas of resource lands, the County must demonstrate that the properties qualify for exceptions to the resource goals. If the Pro tecting Ceniral Oiegan's Narurai Environrnenj A„ -,-j VV,,--)Wng For Susiainable Comrnuniiies 2 County wants to redesignate its resource lands, the sole method for doing so is under ORS 215.788 et seq.. Thank you for your attention to these views. Please consider this a formal request for written notification of any decision in this matter. Sincerely, IF, Erol Macbeth Staff Attorney Central Oregon LandWatch Proiecting Central Oregon's Naiural Environn-,ceni And Working For Sustainable Communities May 23, 2019 Deschutes County Planning Commission Attn: Zechariah Heck, Associate Planner 117 NW Lafayette Avenue Bend, OR 97708 Re: Nonprime Resource Lands Amendments Dear Chair Crawford and Commissioners, www.colw.org Central Oregon LandWatch ("LandWatch") respectfully submits these comments in opposition to the proposed "Nonprime Resource Lands Amendments" (the "amendments"). The amendments are not needed and are not legal for many reasons, which we outline below. 1. No demonstrated need for the amendments exists. The proposed amendments seek to facilitate additional residential development on land designated Agriculture and Forest throughout the County. No need exists for these amendments because Deschutes County is not struggling to accommodate rural residential growth. The most recent Oregon Farm & Forest Report, which is published every two years by the Oregon Department of Land Conservation and Development, shows that Deschutes County approved more dwellings on farmland than all but one other county during 2016 and 2017. Exhibit 5, page 7. Between 1994 and 2017, Deschutes County again ranks second in the state for dwelling approvals on farmland, and approved more nonfarm dwellings (830) than any other county. The County's 830 nonfarm dwelling approvals is 59% more than the County with the next closest number of approvals (488 in Douglas County). Four decades ago, the County correctly identified its resource lands. With its lands categorized as they are, Deschutes County is consistently ranked as one of the fastest growing counties in the U.S. Deschutes County is currently the fourth fastest-growing county in the U.S. according to the U.S. Census Bureau. Deschutes County's phenomenal growth rate is attributable in part to the high quality of life associated with the County's protection of its rural farm, forest, and 2 ranch lands, all of which provide critical wildlife habitat. Protection of its resource lands and wildlife habitat sets Deschutes County apart and attracts new residents from all over the country. In the 1970s, Yamhill County argued that the soils of the Dundee Hills were too shallow and rocky for agriculture and tried to rezone them for housing. Because Yamhill County preserved its resource lands and did not cover them with sprawl, when David Lett had the idea to grow Pinot Noir in the Dundee Hills, Yamhill County had the land available to become one of the premier grape growing regions in the world comparable only to Bordeaux and Burgundy, and the center of Oregon's $800 million dollar wine industry. Protection of rural resource lands in perpetuity is necessary to preserve such economic opportunities. As explained below in "3. The 2014/2015 project established that Deschutes County's lands are correctly designated," the county's resource lands are correctly identified and designated in the comprehensive plan. When the County considered the designation of its resource only a few years ago, the County, with significant public input, determined not to pursue rezoning of its resource lands. 2. No statutory or administrative authority exists for a "Nonprime Resource Lands" plan designation. The proposed amendments seek to create a new plan designation called "Nonprime Resource Lands." The proposed amendments define the designation in reference to a definition in the Oregon Administrative Rules (OAR): "To recognize lands defined in OAR 660-004-005(3) that cannot qualify for an exception pursuant to applicable planning law and fail to satisfy the definitions of agricultural or forest lands contained in the Statewide Planning Goals, Oregon Revised Statutes and implementing administrative rules." (Exhibit B — PC Meeting Packet May 23, Packet Pg. 28) The referenced OAR, in turn, defines "Nonresource Land" as "land not subject to any of the statewide goals listed in OAR 660-004-0010(1)(a) through (g) except subsections (c) and (d). Nothing in these definitions is meant to imply that other goals, particularly Goal 5, do not apply to nonresource land." (OAR 660-004-0005(3)) The "statewide goals" that nonresource land is "not subject to" referenced in this rule are Goal 3, Goal 4, and the coastal Goals 16-18. The division (Division 4) of Chapter 660 of the OARS to which this definition applies is titled "Interpretation of Goal 2 Exception Process." The definitions provided in the beginning of 3 Division 4 at OAR 660-004-0005, which includes the definition of "Nonresource Land" quoted above, are prefaced by this qualifier: "For the purpose of this division, the definitions in ORS 197.015 and the Statewide Planning Goals shall apply. In addition, the following definitions shall apply[.]" Rather than authorize a distinct plan designation, the definition of "Nonresource Land" simply distinguishes resource land, which is subject to Goal 3 and Goal 4, from other plan designations for land that is not subject to Goal 3 and Goal 4 for the limited purposes of interpreting OAR Division 4's rules related to goal exceptions. Because goal exceptions to Goals 3 and 4 are not required when land is not subject to Goals 3 and 4, OAR Chapter 660 Division 004 simply adopts the phrase "Nonresource Land" to make the distinction. Examples of land not subject to Goals 3 and 4 is land inside an urban growth boundary, or land in a rural residential exception area that contains development that predates Oregon land use law. These lands are labeled "Nonresource Lands" for purposes of interpreting the OARs relating to the Goal 2 Exception Process. The next section in Division 4 is entitled "Application of the Goal 2 Exception Process to Certain Goals." OAR 660-004-0010. This rule explains how the Goal 2 exception process applies to Goals 3 and 4: "(1) The exceptions process is not applicable to Statewide Goal 1 `Citizen Involvement' and Goal 2 `Land Use Planning.' The exceptions process is generally applicable to all or part of those statewide goals that prescribe or restrict certain uses of resource land, restrict urban uses on rural land, or limit the provision of certain public facilities and services. These statewide goals include but are not limited to: (a) Goal 3 `Agricultural Lands'; however, an exception to Goal 3 `Agricultural Lands' is not required for any of the farm or nonfarm uses allowed in an exclusive farm use (EFU) zone under ORS chapter 215 and OAR chapter 660, division 33, `Agricultural Lands', except as provided under OAR 660-004-0022 regarding a use authorized by a statewide planning goal that cannot comply with the approval standards for that type of use; (b) Goal 4 `Forest Lands'; however, an exception to Goal 4 `Forest Lands' is not required for any of the forest or nonforest uses allowed in a forest or mixed farm/forest zone under OAR chapter 660, division 6, `Forest Lands'[.]" (OAR 660- 004 -0010(1)(a) -(b)) In order to allow uses on lands acknowledged to be subject to Goals 3 and 4 via the exceptions process outlined in Division 4, exceptions to those goals must be taken. The OARS, whether in Division 4 or elsewhere, provide no process for redesignating resource lands to "nonresource" lands as a means of avoiding the exceptions process. The definition of "nonresource" lands in OAR 21 Division 4 simply differentiates between lands subject to one or more of Goals 3, 4, 16, 17, and 18 and lands not subject to any one of those goals. Again, an example of this type of land in Deschutes County. is land designated Rural Residential Exception Area. Land with this plan designation is not subject to Goals 3 or 4 because exceptions to those goals have been taken.' The "nonresource" definition does not authorize a plan designation, but simply allows distinction between resource land and land where exceptions to the resource goals have been taken. 3. The 2014/2015 project established that Deschutes County's lands are correctly designated. Not long ago, in 2014/2015, the County considered a very. similar project to amend the comprehensive plan to create a new nonresource plan designation. The County sought input from residents throughout the County and compiled what was heard in a report called "Agricultural Lands Program Community Involvement Report." Exhibit 1. The 2014/2.015 project also sought to redesignate lots in several rural subdivisions. At the Planning Commission's request, the County researched the history of the County's Agriculture and Forest plan designations to see if any lands in the County, including in the several rural subdivisions, are mistakenly designated. To do this, the County consulted with Jon Andersen, who was a Senior Planner, and later became the Community Development Department Director, when the County developed its first comprehensive plan. The County's conversation with Jon Andersen resulted in a summary memo, which paraphrases Jon Andersen's response to a question about how six rural subdivisions received EFU or Forest plan designations: "Too many years have passed for me to remember specific subdivisions, however, in general, pre -platted subdivisions, lacking development, utilities, or infrastructure were deemed to be vacant and therefore suitable for agriculture uses, based on direction from the State. The County was also required to protect the land for wildlife and open space values, as well as to direct development into areas that could be more efficiently served, thereby reducing required taxation." Exhibit 2 (John Andersen Phone Conversation / Notes January 15, 2015). That vacant rural subdivisions were purposely, and not mistakenly, designated EFU or Forest is confirmed by extensive discussion between County staff and the Planning Commission during the ' In limited instances, lands have been designated to Rural Residential Exception Area by demonstrating that the land does not meet the definition of Goal 3 or 4 rather than taking an exception to those goals. See "5. Existing Rural Residential Exception Area process" below. Planning Commission meeting of February 26, 2015. Exhibit 3 (June 26, 2015 Deschutes County Planning Commission meeting transcript). The County also received a letter from DLCD commenting on its proposed 2014/2015 amendments. That letter concluded that considering a handful of subdivisions in isolation for redesignation would not comply with state law: "... [C] ounties are not authorized to (1) set up a framework in the comprehensive plan and then require individual applications for re -designation of land or (2) pick and choose small areas to review. While we do not find that the county must review all land in the county, we would be most inclined to approve a work program that includes some major region defined by geographic characteristics rather than by property or subdivision boundaries. Additionally, the county may not pre -determine specific areas for review, as subsection 5(3) requires the county to provide an opportunity for all farm and forest land to be considered. If the county receives a request to review an area that is not included in the original proposal, the county must review it. As explained above, we believe that this area must be a geographic area of the county and not individual properties or subdivisions." (Exhibit 4 (January 8, 2015 DLCD letter.)) The letter from DLCD also explains how the County did not make the required demonstration that areas of the County are incorrectly zoned: "[The] department has been unable to determine the nature and scope of the mapping error the county intends to address. It is not apparent why the areas the county has shared with the department were incorrectly zoned at acknowledgment[.]" (Exhibit 4 (January 8, 2015 DLCD letter.)) Because the County found no errors in its designation of EFU and Forest lands in 2014/2015, no nonresource plan amendments were pursued. The same facts and law are present today in 2019, and the same decision should be reached. 4. The proposed amendments require a demonstration of compliance with Goal 3 and Goal 4. The draft findings for the proposed amendments state Goal 3 and Goal 4 are not applicable: "Goal 3, Agricultural Lands and Goal 4, Forest Lands are not applicable because NPR Lands defined in OAR 660-004-005(3) are not subject to Goal 3, Agricultural Land and Goal 4, Forest Land." (Exhibit F to Ordinance 2019-007; PC meeting packet page 70) Actually, all of the Goals, and especially Goal 3 and Goal 4, are applicable to these amendments. All post -acknowledgement plan amendments must demonstrate compliance with all of M the statewide land use planning goals. ORS 197.175(2)(a) ("Pursuant to ORS chapters 195, 196 and 197, each city and county in this state shall [... ] [p]repare, adopt, amend and revise comprehensive plans in compliance with goals approved by the commission[.]") Goal 3's definition of agricultural lands, at OAR 660-033-0020(1), includes many factors that contribute to whether land is agricultural land: "(1)(a) "Agricultural Land" as defined in Goal 3 includes: (A) Lands classified by the U.S. Natural Resources Conservation Service (NRCS) as predominantly Class I-IV soils in Western Oregon and I -VI soils in Eastern Oregon; (B) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a), taking into consideration soil fertility; suitability for grazing; climatic conditions; existing and future availability of water for farm irrigation purposes; existing land use patterns; technological and energy inputs required; and accepted farming practices; and (C) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands. (b) Land in capability classes other than I-IV/I-VI that is adjacent to or intermingled with lands in capability classes I-IV/I-VI within a farm unit, shall be inventoried as agricultural lands even though this land may not be cropped or grazed[.]" (OAR 660-033-0020(l)) Similarly, Goal 4's definition of forest lands also includes several factors: "[L]ands which are suitable for commercial forest uses including adjacent or nearby lands which are necessary to permit forest operations or practices and other forested lands that maintain soil, air, water and fish and wildlife resources. (Goal 4) For amendments to a County's forest lands, OAR 660-006-0010 imposes a specific process for identifying forest lands: "(2) Where a plan amendment is proposed: (a) Lands suitable for commercial forest uses shall be identified using a mapping of average annual wood production capability by cubic foot per acre (cf/ac) as reported by the USDA Natural Resources Conservation Service. Where NRCS data are not available or are shown to be inaccurate, other site productivity data may be used to identify forest land, in the following order of priority: (A) Oregon Department of Revenue western Oregon site class maps; (B) USDA Forest Service plant association guides; or (C) Other information determined by the State Forester to be of comparable quality. (b) Where data of comparable quality under paragraphs (2)(a)(A) through (C) are not available or are shown to be inaccurate, an alternative method for determining productivity may be used as described in the Oregon Department of Forestry's Technical Bulletin entitled "Land Use Planning Notes, Number 3 April 1998, Updated for Clarity April 2010." (c) Counties shall identify forest lands that maintain soil air, water and fish and wildlife resources." (OAR 660-005-0010(2)) N The stated purpose of the amendments is to provide a process to redesignate lands currently subject to Goal 3 and Goal 4. The amendments would significantly alter the County's comprehensive plan policies regarding lands protected by Goal 3 and Goal 4 — likely moreso than any other project Deschutes County has undertaken in recent decades. Accordingly, the County must demonstrate compliance with Goal 3 and Goal 4 for both the proposed NPR -10 and NPR -20 plan designations using the above -quoted definitions and regulations relating to identification of agricultural land and forest land. The only way to show compliance with Goal 3 and Goal 4 for the proposed NPR -20 plan designation is to identify which properties would be eligible for the NPR -20 plan designation. Currently, the proposed amendments fail to identify which lands would be eligible. As such, it is impossible for the County to demonstrate compliance with Goals 3 and 4 (and other goals). The only way for the County to make the required showing of compliance with the goals is to produce a map showing which properties it believes are eligible for the proposed NPR -20 zone, and to demonstrate compliance with Goal 3 and Goal 4 for each of those properties. 5. The County already has a process to redesignate property to Rural Residential Exception Area. As recognized in the proposed amendments, the County already has a process for redesignating lands from Agriculture or Forest to another plan designation. May 16, 2019 Staff Memo, page 2; PC meeting packet page 5 (stating that since 2007, six properties in Deschutes County have been redesignated to Rural Residential Exception Area). As this process already exists, and the County historically has not struggled to accommodate rural residential growth at a rate higher than almost all other Oregon counties, the County has no need for an additional process to facilitate rural residential growth. If the County is concerned about the cost to landowners in redesignating their property under the current process, then LandWatch suggests the County lower its application fees. This solution would be monumentally less complicated than the current proposed amendments. 6. The County should wait for an outcome to the similar effort by Douglas County. Beginning in 2017, Douglas County has pursued a project to redesignate many of its farmlands and forest lands, and adopted a final decision in late 2018. The decision adopts a new nonresource comprehensive plan designation that allows for a 20 -acre minimum parcel size. It also adopts a map that shows which lands in the county are eligible for the new plan designation. As part of its decision, Douglas County mapped and analyzed all parcels in the county and, using criteria chosen by the county, produced a map showing which lands the county believes should be removed from Goal 3 and Goal 4 protections and redesignated to the new plan designation. Differing from Deschutes County's proposed amendments, Douglas County at least identified and mapped the farmlands and forest lands it proposes to be eligible for redesignation. Even so, Douglas County's decision has been appealed to LUBA by four petitioners: Friends of Douglas County, 1000 Friends of Oregon, the Oregon Department of Land Conservation and Development, and the Oregon Department of Fish and Wildlife. Those appeals are currently pending. At a minimum, Deschutes County should wait until the legal issues involved in the Douglas County case are resolved before pursuing the proposed amendments. Not doing so is an unwise use of staff time, Planning Commission time, and the public's time and resources. 7. The proposed amendments must adhere to the process specified in ORS 215.788 et. seq. Only one means of redesignating resource lands exists in state law, and it is found at ORS 215.788 through ORS 215.794. In 2009, the Oregon legislature adopted HB 2229, which was the outcome of the "Big Look," a process to create more opportunities for regional flexibility in the administration of the statewide land use system. The legislation created ORS 215.788, a statute which is titled "Reacknowledgement process": "(1) For the purposes of correcting mapping errors made in the acknowledgment process and updating the designation of farmlands and forestlands for land use planning, a county may conduct a legislative review of lands in the county to determine whether the lands planned and zoned for farm use, forest use or mixed farm and forest use are consistent with the definitions of "agricultural lands" or "forest lands" in goals relating to agricultural lands or forestlands. (2) A county may undertake the reacknowledgment process authorized by this section only if the Department of Land Conservation and Development approves a work plan, from the county, describing the expected scope of reacknowledgment. The department may condition approval of a work plan for reacknowledgment under this section to reflect the resources needed to complete the review required by ORS 197.659 and 215.794. The work plan of the county and the approval of the department are not final orders for purposes of review. (3) A county that undertakes the reacknowledgment process authorized by this section shall provide an opportunity for all lands planned for farm use, forest use or mixed I farm and forest use and all lands subject to an exception under ORS 197.732 to a goal relating to agricultural lands or forestlands to be included in the review. (4) A county must plan and zone land reviewed under this section: (a) For farm use if the land meets the definition of "agricultural land" in a goal relating to agricultural lands; (b) For forest use if the land meets the definition of "forest land" used for comprehensive plan amendments in the goal relating to forestlands; (c) For mixed farm and forest use if the land meets both definitions; (d) For nonresource use, consistent with ORS 215.794, if the land does not meet either definition; or (e) For a use other than farm use or forest use as provided in a goal relating to land use planning process and policy framework and subject to an exception to the appropriate goals under ORS 197.732 (2). (5) A county may consider the current land use pattern on adjacent and nearby lands in determining whether land meets the appropriate definition." (ORS 215.788) (emphasis added) The very first words of this statute clarify that an update to a county's designation of farm and forest lands may only be pursued for the purpose of correcting mapping errors. The statute's subsection (1) specifies that the definitions of agricultural lands and forest lands in the goals are the sole authority for review of any mapping errors. Further, subsection (3) requires that a county consider all farm, forest, and exception lands in the county, and not any subset of lands in isolation. 8. Goal 5. The proposed amendments, at Policy 3.11.3(c), require that a property must demonstrate that "[i]t does not contain Goal 5 natural resources" in order to be eligible for the proposed Nonprime Resource Lands plan designation. The County's many programs to achieve Goal 5 for its many significant Goal 5 resources, however, are not limited to specific Goal 5 natural resource sites. For example, the County's inventoried riparian corridors and wetlands are significant Goal 5 resources. The county's program to achieve Goal 5 for these resources includes the 80 -acre minimum lot size of the County's Agriculture and Forest plan designations. The proposed amendments would allow for a 20 -acre minimum lot size on lands currently designated Agriculture or Forest. As such, the proposed amendments create a new conflicting use for which a full application of Goal 5 is required. OAR 660-023-0040. The County must make a full showing of compliance 10 with Goal 5, including a programmatic analysis of the economic, social, environmental, and energy (ESEE) consequences of a decision to allow a new conflicting use. Further, a more direct contravention of Goal 5 is found in proposed comprehensive plan Policy 3.11.15: "Notwithstanding Policy 3.11.3.c, lands committed to residential uses with significant Goal 5 natural resources are eligible for a Nonprime Resource Lands -10 zone subject to an ESEE analysis." This policy would allow new conflicting uses on properties containing significant Goal 5 resources. Site-specific ESEE analyses for these properties are not adequate, as the proposed amendments seek to redesignate several dozen properties to the proposed NPR -10 zone. A programmatic application of Goal 5 that accounts for all of the new conflicting uses that the amendments would create with inventoried significant Goal 5 resources is required. 9. Goals 11 and 12. The proposed amendments would allow a significant increase in residential development in the rural County. This increase in development would require significant expansion of public facilities, including water, sewer, police, fire, and school facilities and service. Goal 11 requires the County to "plan and develop a timely, orderly and efficient arrangement of public facilities and services to serve as a framework for urban and rural development." The proposed findings for Goal 11 incorrectly state that "[n]o development or land use changes are being proposed that impact public facilities." Exhibit F to Ordinance 2019-007, page 10. The proposed post -acknowledgment plan amendment, and not any potential future legislative or quasi-judicial amendments, must demonstrate compliance with Goal 11. ORS 197.125(2)(a). The proposed amendments would bring similar impacts to County transportation facilities. Both the proposed NPR -10 and NPR -20 would cause additional traffic on County roads. Goal 12 and its implementing rules at OAR 660-012-0060 require the County to impose certain measures if a plan amendment will significantly affect the County's transportation facilities. Again, the proposed post -acknowledgment plan amendment, and not any potential future legislative or quasi-judicial amendments, must demonstrate compliance with Goal 12. ORS 197.125(2)(a). 11 For all of these reasons, LandWatch urges to Planning Commission to recommend denial of the proposed amendments. Thank you for your consideration of these comments. Sincerely, �-� Rory Isbell Staff Attorney Central Oregon LandWatch www.001w.org Attachments: Exhibit l: Deschutes County Agricultural Lands Program Community Involvement Results, June 18, 2014 Exhibit 2: John Andersen Phone Conversation / Notes, January 15, 2015 Exhibit 3: Excerpted transcript or Deschutes County Planning Commission meeting, February 26, 2015 Exhibit 4: Letter from DLCD, January 8, 2015 Exhibit 5: 2016 — 2017 Oregon Farm & Forest Report, January 25, 2019 k-on Ure, F12 - :IIO John A. Kitzhaber, M.D., Governor January 8, 2015 Department of Land Conservation and Development 635 Capitol Street NE, Suite 1.50 Salem, Oregon 97301-2540 Phone: (503) 373-0050 Fax: (503) 378-5518 Deschutes County Planning Commission c/o Nick Lelack, Community Development Director 117 NW Lafayette Avenue Bend, Oregon 97701 RE: HB 2229 question regarding scope of review www.oregon.gov/LCD SENT VIA E-MAIL Deschutes County planning staff has requested the opinion of the Department of Land Conservation and Development (the department) on whether HB 2229 requires all, or most, farm- or forest -zoned lands in a county to be considered in a "reacknowledgment" process, or whether smaller, non-contiguous tracts could be considered as the first phase of a multi -phase reacknowledgment process. County staff described several non-contiguous problem areas. The county stated that its goal was "for partially platted subdivisions zoned for EFU or Forest to be legislatively rezoned to MUA- 10." Department staff consulted with county staff on these areas, and studied maps of five of the areas and past county attempts to find solutions. The total acreage of these areas equals about 840 acres. Analysis HB 2229 is memorialized at Chapter 873 Oregon Laws 2009. The relating clause "Relating to recommendations of the Oregon Task Force on Land Use Planning..." gives an indication that certain themes in the bill originated with "The Big Look." A theme that wound through the Big Look was that land use laws should treat different regions of the state fairly, recognizing the geographical, ecological and cultural aspects of each region. Section 2(B) of HB 2229, for example, directs that the Land Conservation and Development Commission to "consider the variation in conditions and needs in different regions of the state and encourage regional approaches to resolve land use problems." For this discussion, section 5 of HB 2229 is applicable. A portion of section 5 is provided below. SECTION 5. (1) For the purposes of correcting mapping errors made in the acknowledgment process and updating the designation of farmlands and forestlands for land use planning, a county may conduct a legislative review of lands in the county to determine whether the lands planned and zoned for farm use, forest use or mixed farm and forest use are consistent with the definitions of "agricultural lands" or "forest lands" in goals relating to agricultural lands or forestlands. Deschutes County Planning Commission Page 2 of 3 January 8, 2015 (2) A county may undertake the reacknowledgment process authorized by this section only if the Department of Land Conservation and Development approves a work plan, from the county, describing the expected scope of reacknowledgment. The department may condition approval of a work plan for reacknowledgment under this section to reflect the resources needed to complete the review required by sections 7 and 13 of this 2009 Act. The work plan of the county and the approval of the department are not final orders for purposes of 11MU IMA (3) A county that undertakes the reacknowledgment process authorized by this section shall provide an opportunity for all lands planned for farm use, forest use or mixed farm and forest use and all lands subject to an exception under ORS 197.732 to a goal relating to agricultural lands or forestlands to be included in the review. This states that the county may undertake a "reacknowledgement" process by conducting a legislative review for the purpose of correcting mapping errors made during its original acknowledgment. Determining whether a proposal is a "legislative review" requires consideration of three questions: 1. Is the process bound to result in a decision? 2. Is the decision bound to apply preexisting criteria to concrete facts? 3. Is the action directed at a closely circumscribed factual situation or a relatively small number of persons? This is not a "bright line" test. The more definitively these questions are answered in the negative, the more likely the process is legislative. In this case, the answer to question 1 is clearly no. Regarding question 2, the project would be subject to existing criteria in (at least) Goals 3 and 4 and HB 2229; it is typical for goals and statutes to apply to local legislative decisions, however, so this is not determinative but it does lend additional weight to question 3. Regarding question 3, the department is uncomfortable determining that the county is proposing a legislative review when it includes only 840 acres in five areas. We don't know the number of "persons" it would be directed at, but the number can't be very large. Section 5 states the review is of "lands in the county" and that the county must provide an opportunity for all lands in a resource zone to be provided an opportunity for consideration. While the phrase "lands in the county" is not entirely clear, the department's understanding of the legislative intent is that the reference to "lands in the county," when combined with the "legislative review" language, is that counties are not authorized to (1) set up a framework in the comprehensive plan and then require individual applications for re -designation of land or (2) pick and choose small areas to review. While we do not find that the county must review all land in the county, we would be most inclined to approve a work program that includes some major region defined by geographic characteristics rather than by property or subdivision boundaries. Additionally, the county may not pre -determine specific areas for review, as subsection 5(3) requires the county to provide an opportunity for all farm and forest land to be considered. If the Deschutes County Planning Commission January 8, 2015 Page 3 of 3 county receives a request to review an area that is not included in the original proposal, the county must review it. As explained above, we believe that this area must be a geographic area of the county and not individual properties or subdivisions. Regarding phasing of review, the department would entertain a work program that lays out the project in pieces, but those pieces should each address a substantial part of the county and address all the other requirements of HB 2229. Additional Consideration Considering other aspects of HB 2229 not related to your question, the department has been unable to determine the nature and scope of the mapping error the county intends to address. It is not apparent why the areas the county has shared with the department were incorrectly zoned at acknowledgment, and this is a fundamental aspect of the bill. If the county chooses to move forward with a work program, the county will need to demonstrate that the HB 2229 process is an appropriate vehicle for addressing the county's needs. Summary The department does not read HB 2229 to require the county review all farm and forest lands in the county under the provisions of section 5 of the law. On the other hand, we do not find that it permits the county to look only at small areas defined by existing subdivisions, but instead requires a review of a substantial part of the county. We look forward to working with Deschutes County as it considers whether to submit a work program for a project to correct mapping errors in its rural zones under HB 2229. We hope this adequately answers your question, but we are available for further consultation if it does not. Sincerely, ,c C +ter Rob Hallyburton Community Services Division Manager cc: Scott Edelman, Regional Representative Jon Jinings, Community Services Specialist Michael Morrissey, Rural Policy Analyst �01ES Co o x� 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 Monday Meeting of November 18, 2019 DATE: November 14, 2019 FROM: Jacob Ripper, Community Development, 541-385-1759 TITLE OF AGENDA ITEM: DELIBERATIONS: Following a Review on the Record for an Appeal of Phase A-1 of the Thornburgh Destination Resort. BACKGROUND AND POLICY IMPLICATIONS: Deliberations following a review on the record for an appeal of Phase A-1 of the Thornburgh Destination Resort on remand. The purpose of the Monday, November 18 meeting will be to deliberate an appeal of a Hearings Officer's Decision and to provide guidance and findings so that staff can draft a final decision. FISCAL IMPLICATIONS: None. ATTENDANCE: Jacob Ripper, Senior Planner ,,, � � . e -A . MEMORANDUM DATE: November 14, 2019 TO: Board of County Commissioners FROM: Jacob Ripper, AICP, Senior Planner RE: Deliberations following a review on the record for an appeal of Phase A-1 of the Thornburgh Destination Resort on remand. The purpose of the Monday, November 18 meeting will be to deliberate an appeal of a Hearings Officer's Decision and to provide guidance and findings so that staff can draft a final decision. There are two main topics of this appeal: 1) Jurisdiction to hear the remand, and; 2) LUBA's remand instructions concerning Tentative Plan ('TP") Condition 17. A deliberation matrix is included in this memo as Table 1 to assist the Board in making a decision. 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 is 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. II. JURISDICTION Ms. Gould appealed LUBA's remand decision to the Court of Appeals. The Court of Appeals did not accept Ms. Gould's appeal because her attorney apparently mailed the appeal with the incorrect class of service, causing the Court to dismiss the appeal. 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. The opponent's attorney, Mr. Kleinman, argued the County did not have 117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005 Q1 (541) 388-6575 @ cdd@deschutes.org @ www.deschutes.org/cd 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 applicant's attorney, Ms. Fancher, has argued that the appellate courts never acquired jurisdiction after LUBA's remand decision and the filing of an untimely appeal does not create jurisdiction or deprive the County of proceeding. The Hearings Officer issued a determination, which is included in the record, stating he believed he did not have jurisdiction to issue a decision based on the merits of the case. The Board is asked to provide findings that the County either: • Has jurisdiction to make a decision based on the remand issue and will do so; • Does not have jurisdiction to make a decision based on the remand issue and will not reach that issue; or • May not have jurisdiction to make a decision, but will issue a decision based on the remand issue in case that an appellate court later resolves the jurisdictional topic. 111. LUBA REMAND The. Hearings Officer approved the Phase A-1 Tentative Plan proposal in 2018. Nunzie Gould appealed that decision to the Board. 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 water referenced in the Mitigation Plan and FMP decision have been secured, [or] demonstrate thatthe 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. The Hearings Officer imposed this condition, as it relates to water mitigation because: ... the applicant demonstrated at the FMP stage that mitigation was feasible and identified specific sources. Opponents now have raised sufficient evidence to call into question whether obtaining water from those sources remains feasible. On the other hand, demonstrating that the applicant has rights from Big [Falls] Ranch and COID should be straight -forward. The Big [Falls] Ranch rights appear to be the more important given the emphasis put on them by ODFW. COID water appears to relate more to quantity, although ODFW stressed that providing mitigation water during the irrigation season is important. I find that failure to obtain the ODFW and COID water referenced in the Mitigation Plan and FMP decision may constitute a substantial modification to the FMP approval. LUBA summarized the reason for the remand: 247-19-000799-A Thornburgh Phase A-1 LUBA Remand Appeal Page 2 of 5 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 [1 ] whether, without TP Condition 17, the tentative plan for Phase A-1 satisfies the no net loss/degradation standard and [2] 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. To summarize the first part of LUBA's remand instruction (1 above), the County cannot rely on TP Condition 17. Assuming Condition 17 is removed, the Board is asked to make the following decision: • The TP will comply with the no net loss/degradation standard; or • The TP will not comply with the no net loss/degradation standard. Another way to consider this question, as staff understand it, is: Is there sufficient evidence in the record to demonstrate the applicant can secure the required Big Falls Ranch mitigation water for this phase? The applicant's final arguments that directly address this remand issue, in a very condensed manner, are: o The water source is the same as approved in the (Fish and Wildlife Mitigation Plan) FWMP, which is the Deep Canyon Creek water rights owned by Big Falls Ranch. o The FWMP complies with no net loss/degradation standard, as reviewed in the FMP. o TP Condition 17 isn't required because compliance with the FWMP is required by the FMP, therefore, the resort will meet the no net loss/degradation standard. o Removing TP Condition 17 eliminates the perceived ability for the applicant to change water sources without further public review/modification. o There is evidence in the record showing it is feasible for the resort the purchase and acquire the water rights. The opponents' final arguments that directly address this remand issue, in a very condensed manner, are: o The recorded memorandum of agreement for the resort to purchase the water rights references an agreement that is not included in the record. The details of that agreement are crucial to know if the resort can acquire those rights. o Trust deeds for BFR show encumbrances of the water rights. Debt will need to be paid before rights can be purchased. o The second source of mitigation water (COID) has not been secured. o Removing TP Condition 17 does not satisfy the required proof needed to meet the no net loss/degradation standard. o A letter from Robert Long, CWRE, demonstrates the applicant has not met the burden to prove acquisition of the water rights. 247-19-000799-A Thornburgh Phase A-1 LUBA Remand Appeal Page 3 of 5 The second part of LUBA's remand instruction (2 above) concerns changing the mitigation water source. The County is instructed to consider whether a change in the source of mitigation water would be such a substantial change to the FMP approval that it would require a modification to the approved FMP or a new application. The applicant has stated they are not changing the water source from what was approved by the FMP and FWMP and that without TP Condition 17, it would eliminate the possibility for them to change the mitigation water source. Staff notes that a change in the mitigation water source would likely be a modification of approval subject to the provisions of DCC 22.36.0401. If the Board finds that the water source has not been changed, this aspect of the remand may not be critical to the outcome of this decision. However, to fully address LUBA's remand instructions and avoid a potential subsequent remand on TP Condition 17, the Board may consider making one of the following determinations. A change in the source of mitigation water (a source that has not been approved by the FMP and FWMP): • Would constitute a substantial change to the FMP approval, requiring a modification of the approved FMP or a new application. • Would not constitute a substantial change to the FMP approval, and would not require a modification of the approved FMP or a new application. IV. RECORD OBJECTIONS It should be noted that Mr. Kleinman submitted record objections (BOCC item 89) to some of the items submitted by the applicant's final legal arguments following the public hearing, especially within Ms. Fancher's and Ms. Neuman's submittals (BOCC items 87 and 88)2. He argued that those submittals contained new information. Both Ms. Fancher and Ms. Neuman responded to Mr. Kleinman's objections (BOCC items 90 and 92). These objections and responses are reiterated in the final written arguments submitted as part of the appeal proceedings by the opponent (BOCC items 107 and 108) and by the applicant (BOCC item 110). ' 22.36.040. Modification of Approval. A. An applicant may apply to modify an approval at any time after a period of six months has elapsed from the time a land use action approval has become final. B. Unless otherwise specified in a particular zoning ordinance provision, the grounds for filing a modification shall be that a change of circumstances since the issuance of the approval makes it desirable to make changes to the proposal, as approved. A modification shall not be filed as a substitute for an appeal or to apply for a substantially new proposal or one that would have significant additional impacts on surrounding properties. C. An application to modify an approval shall be directed to one or more discrete aspects of the approval, the modification of which would not amount to approval of a substantially new proposal or one that would have significant additional impacts on surrounding properties. Any proposed modification, as defined in DCC 22.36.040, shall be reviewed only under the criteria applicable to that particular aspect of the proposal. Proposals that would modify an approval in a scope greater than allowable as a modification shall be treated as an application for a new proposal. D. An application for a modification shall be handled as a land use action. 2 Other items objected to include BOCC items 84, 85, and 86. 247-19-000799-A Thornburgh Phase A-1 LUBA Remand Appeal Page 4 of 5 If the Board determines new evidence was submitted as part of final legal argument, then the Board may wish to exclude that specific evidence from consideration. If the Board issues a decision on the LUBA remand issue, it should include a statement about the contested record items and if they were excluded from consideration. Both parties have provided proposed draft findings regarding this issue (BOCC items 108 and 110). The opponent's draft findings suggest not considering any of the alleged new information. The applicant's draft findings concede that some new information was submitted and should not be considered by the Board, and that some of the arguments were not new information and had already appeared in the record. The applicant, in an abundance of caution, has also provided findings relating to information that may be considered new information and recommends the Board not consider that specific information. V. APPEAL TIMELINE & NEXT STEPS 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. 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. VI. ATTACHMENTS The following attachments are materials that have been part of the appeal proceedings after the October 31, 2019 Staff Memorandum. Only those items that have not been presented to the Board as agenda packet attachments are attached to this memo. These have been included in the Board's binders and are presented in reverse chronological order. Attachments: BOCC Binder Item A. 2019-11-11 Written Argument Staff Notes 111 B. 2019-11-10 L Fancher (For Applicant) Comments 110 C. 2019-11-10 K DeLashmutt (For Applicant) Comments 109 D. 2019-11-10 J Kleinman (for A Gould) Comments - findings 108 E. 2019-11-10 J Kleinman (for A Gould) Comments - memo 107 F. 2019-11-10 C Macbeth (COLW) Comments 106 G. 2019-11-04J Freund (Environmental Health) Comments 104 (2019-11-06 Staff Memo RE Work Session (105) was previously presented to the Board) 247-19-000799-A Thornburgh Phase A-1 LUBA Remand Appeal Page 5 of 5 T— cu O ha a a C al O N O E O C a N V C O m 'O O o u !0 j c r• O '° E m E u V; a c O c c o. va g 3 ° o m E m w a g c o v y w a E v Y c in 7 aJ v aJ C aJ o ^ Y D_ 3 o — G c :3 Uu ,c-- 0 c� o c m .c u t,p m o R u° u c a c Y '3 - E 2 Y o Y a fl Ci ar u LA m T E ai C u� '> c O vi O v y d v C C j NN w v _ g L a F a "- m a ar •- r o p o u u= y° Q D] n N N o O ° i GJ E 3 C 7 •— N u m w L ° E o = t � 3 v n w v m 3 v m Cc: o o c a s a v o m _c C IA N Eye 4+ iJ ..X C O m ° m a) aJ m ai 3 N LT a c N fl O. m Q N a n. 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UJ0' 'O C . V , c0 p- d OV C o O yJ N N O C m vi N u o C '— v O E c � U p Q cu 2 W CO N O E r6 v Cc:Q CL OV v 0) H O O O F- J m • I- • s O p 60 d o tjo C L i Q O Q - 6J 61 N 3 +L.+ � c 0 v O O E C o u v ; ao n t_ . a a .O @ N O Q Nbo m0 3 " w aj J O i C C `+- Z+ :3 UO 66J N � � n Y y,0 6J C O' N L C C L CC 3 n Yro M V 11/11/19 -Final Written Argument Notes Fancher (memo and draft findings): • The FWMP complies with no net loss/degradation standard, as reviewed in the FMP. • Removing TP Cond 17 eliminates the perceived ability for Applicant to change water source without further public review/modification. • Cond 17 isn't required because compliance with the FWMP is required by the FMP, therefore, the resort will meet the no net loss/degradation standard. • Hearings Officer conditioned because he believed it may be necessary to purchase mitigation water from other sources not in the FWMP. • This uncertainty came from the opponent's arguments that the BFR water was no longer available to Applicant due to the transfer from surface point of diversion to ground point of appropriation (still "surface" water rights and available for purchase) • Courts never acquired jurisdiction because of late filing/incorrect mail service for the appeal, so the County was never deprived of the ability to conduct remand proceedings. • Additional findings provided to address arguments outside the scope of the remand and record objections, included to avoid another remand. DeLashmutt (memo and table of opponent arguments with applicant responses) • Perspectives from the applicant, history of applications and appeals. • Benefit to water temps as Deep Canyon Creek is no longer being diverted from for irrigation. • Table of 45 arguments. Applicant's comments and responses. Kleinman (memo and draft findings) • County does not have jurisdiction until a final appellate judgement is issued. • The question of if the appeal to the Court of Appeals was or was not timely filed has not been answered by the Supreme Court. • The SC may want to hear this case, as it is a matter of first impression. • New evidence/record objections from open record period following hearing. • Procedural objection due to limited amount of time for Board review, inability for parties to respond to materials and object if new evidence is introduced. • COID water hasn't been proven to be available. • The memorandum of contract/agreement is not specific enough to demonstrate compliance. There are too many questions/unknowns about what is in the actual contract to purchase BFR water. Previous agreement was revoked, same can happen with this one. • BFR has recorded trust deeds for NW Farm Credit Services in the amount of about $2.5M with restrictions on selling water rights, payment of debt plus interest would likely need to be made to release water. Macbeth (memo) • County doesn't have jurisdiction, agrees with Kleinman. • Process is too fast for thorough review. Should let the hearings officer decision stand and be appealed to LUBA. Applicant's argument that Cond 17 isn't needed undercuts the public process and does not satisfy the required proof to meet the no net loss/degradation standard. Memo of agreement is inadequate because the details in the agreement were not provided. Object to findings being "required" by the Board, because cannot see the arguments being raised by the Applicant on which the findings would be based. Env. Health (just confirms previous comments, not related to remand) Jacob Ripper From: Liz Fancher <liz@lizfancher.com> Sent: Sunday, November 10, 2019 10:24 PM To: Jacob Ripper Cc: Adam Smith; Kameron DeLashmutt Subject: Argument for Thornburgh Phase A-1 Remand, 247-19-000611 -A Attachments: All Documents Filed CLCC 2019-11-10.pdf Follow Up Flag: Follow up Flag Status: Flagged [EXTERNAL EMAIL] Jacob: I've attached a single .pdf document that includes all of the documents I filed on behalf of CLCC earlier today (for ease of reference). There is no need, however, to include these documents in the record twice. I'll likely be filing these documents at CDD on Tuesday if it is closed for Veteran's Day. Liz 'Fancher Liz Fancher, Attorney 644 NW Broadway Street Bend, OR 97703 541-385-3067 (telephone) CONFIDENTIALITY NOTICE: The information contained in this electronic mail transmission is confidential. This information is intended for the exclusive use of the addressee(s). If you are not the intended recipient, please notify the sender immediately by return email and you are hereby notified that any use, disclosure, dissemination, distribution (other than to the addressee(s)), copying or taking of any action because of this information is strictly prohibited. LIZ FANCHEIR, A7-7-O1ZNEY November 10, 2019 BOARD OF COMMISSIONERS DESCHUTES COUNTY C/O JACOB RIPPER DESCHUTES COUNTY PLANNING 117 NW LAFAYETTE AVENUE BEND, OR 97703 Re: File 247-19-000611-A, Thornburgh Phase A-1 Remand I am, on behalf of Central Land and Cattle Company, LLC ("CLCC"), enclosing argument in support of its request that the Board approve its application for tentative plan review for Phase A- 1 of the Thornburgh Destination Resort and site plan approval for utility facilities. The argument is provided in the form of a draft decision that addresses the issue remanded to Deschutes County by LUBA. In short, we believe that the no net loss/degradation standard of DCC 18.113.070(D) is met if Condition 17 of the 2018 decision is removed. Removal of the condition eliminates the problem that led LUBA to remand the decision to the County — the ability (perceived) for CLCC to change the source of irrigation water rights it will be purchasing to mitigate for the impacts of its use of groundwater for resort uses without public review. Without the condition, CLCC will be required to obtain irrigation water rights from sources described in the FWMP, the fish habitat mitigation plan for the resort. CLCC has shown it is feasible for it to purchase water rights that meet and exceed the water quantity and quality (water temperature) promises of the FWMP. It has a contract to purchase water rights with Big Falls Ranch and it has already, with the cooperation of BFR, provided far more water quality mitigation than required for Phase A-1 by ending pumping of BFR water rights from Deep Canyon Creek, the source of water quality mitigation. The FWMP has been found by LUBA in the review of the FMP to comply with the no net loss/degradation standard. By following the plan, CLCC will be in compliance with that standard. LUBA determined, in its 2019 decision, that where the tentative plan requires no change to the mitigation program of the FWMP, there is no need to impose conditions of approval in the tentative plan decision to assure compliance with the FWMP. Doc 8, pp. 37-38. The FWMP is already binding on CLCC. As CLCC is not seeking and does not require a change to the FWMP, Condition 17 may be removed and the decision approving the tentative plan and site plan affirmed. Sincerely, Liz Fancher Attorney for CLCC 644 NW BROADWAY STREET BEND, OREGON • 97703 PHONE: 541-385-3067 FAX: 541-385-3076 BEFORE THE BOARD OF COMMISSIONERS FOR DESCHUTES COUNTY, OREGON File Number: 247-19-000799-A, an appeal of the hearings officer's decision for file 247-19-000611-A on remand from the Land Use Board of Appeals, Case No. 2018-140. Appellant: Central Land and Cattle Company, LLC Applicant/Owner: Central Land and Cattle Company, LLC Proposal: Affirm Approval of Tentative Plan/Site Plan on Remand Subject Property: Tax Lots 7700, 7800, 7801 and 7900, Map 15-12-00 Hearings Officer: Dan Olsen Planning Staff: Jacob Ripper, AICP, Senior Planner APPELLANT'S PROPOSED DECISION I. SUMMARY OF DECISION Merits of Decision The Land Use Board of Appeals ("LUBA") remanded a County decision approving a tentative plan and site plan to determine whether the decision would meet the "no net loss/degradation" standard of DCC 18.113.070(D) without Condition of Approval 17. Compliance with the "no net loss/degradation" standard is achieved by compliance with the resort's FWMP or with comparable measures that achieve the same results because the FWMP and related mitigation measures were found to meet the standard by approval of the FMP. Condition 17 required CLCC to show it would obtain mitigation from sources identified in the FWMP, the resort's fish habitat mitigation plan (Doc 14). LUBA has required this condition to be removed because it allowed CLCC to change sources of mitigation water without public input. The question now is whether approval of the tentative plan approval will cause a violation of the no net loss/degradation standard of DCC 18.113.070(D). Condition 17 was imposed because the hearings officer thought it might be necessary for CLCC to purchase irrigation water for mitigation from sources not described by the FWMP. Uncertainty on this issue arose, as it relates to the Big Falls Ranch water rights, because opponents claimed CLCC's ability to acquire water rights from Big Falls Ranch was lost due to a transfer of the point of diversion (pod) of Deep Canyon Creek water rights to a point of appropriation from groundwater wells on the ranch. This uncertainty has, however, been erased. Page 1 — Decision of BOCC — Proposed by CLCC The evidence shows that the Big Falls Ranch transfer does not impair CLCC's ability to purchase Deep Canyon Creek water rights from Big Falls Ranch, that the water rights remain surface water rights and that the transfer itself provides the cold water benefits (water quality mitigation) to the Deschutes River earlier and in a far greater quantity than required by the FWMP to mitigate for Phase A-1 water use. When purchased, the Big Falls Ranch water rights will provide the quantity (volume) mitigation required by the FWMP as well as the quality mitigation already provided because Big Falls Ranch is no longer pumping cool creek water to irrigate its property. Procedural/Jurisdictional Argument raised by Annunziata Gould Opponent Gould filed a late appeal of LUBA's decision remanding the tentative plan/site plan approval to the County. The appeal was received by the Court of Appeals after the filing deadline. Ms. Gould's attorney attempted and failed to rely on the date of mailing the petition as the date of filing the petition. This was unsuccessful because he did not send the petition by a means of delivery allowed by ORS 19.260(1). As a result, Ms. Gould's appeal has been dismissed twice by the court due to a lack of jurisdiction due to the late fling of the petition for review. Oregon case law makes it clear that a failure to file a petition for review on time is jurisdictional. It does not address the issue whether Ms. Gould's challenge to the orders of dismissal gives the Court jurisdiction that supplants County authority to review remanded issues decided against a party who has not appealed. The Oregon Legislature has established a public policy that land use applications and decisions are entitled to expedited review by the county and appellate courts. County review of the issue on remand is fully consistent with that public policy. Currently, a petition for review of the Court of Appeals' dismissal is pending at the Oregon Supreme Court. The Supreme Court may or may not agree to consider Ms. Gould's appeal. If it does, the merits of LUBA's order will not be considered by that court. State law required CLCC to initiate this remand within 180 days of the date appellate review is complete or its land use approval would become void. If the dismissal by the Court of Appeals is upheld, LUBA's decision on the merits will be affirmed as having been final on July 12, 2019. As a result, it may be necessary to address the issue on remand now so that the application is not found, after the fact, to have become void while review of the order of dismissal is pending at the Oregon Supreme Court. Given all of these facts, the county finds that Gould's challenge to the order of dismissal does not deprive it of jurisdiction to consider the issue remanded by LUBA. In the event Gould's appeal is successful, LUBA's decision is considered by the Court of Appeals and a remand occurs, the county may address new remand issues at that time. A future decision on the merits, if one is rendered, would not involve the issue on remand (Condition 17) because Gould prevailed on this issue at LUBA. II. BACKGROUND FINDINGS A. Final Master Plan. In 2018, the subject property and adjoining land received final destination resort master plan (IMP) approval to be developed as the Thornburgh Resort. The FMP entitles the property owner to develop the subject property with the uses allowed by the IMP subject to either site plan or tentative plan review. Page 2 — Decision of BOCC — Proposed by CLCC B. Fish Mitigation Plan. The FMP approved a Fish and Wildlife Mitigation Plan for the Thornburgh Resort. The plan includes an addendum entitled "Thornburgh Resort Fish and Wildlife Mitigation Plan Addendum Relating to Potential Impacts of Ground Water Withdrawals on Fish Habitat" that is dated April 21, 2008. Doc 14, LUBA Rec 668 (Doc 8). This addendum is referred to as the "FWMP." The FWMP has been conclusively determined, when implemented, to achieve compliance with the no net loss/degradation standard of DCC 18.113.070(D). The FWMP is the plan that is the focus of the issue remanded to the County by LUBA. It provides mitigation measures that assure that the Thornburgh Resort will comply with the "no net loss/degradation" standard of DCC 18.113.070(D) as it relates to fish habitat. DCC 18.113.070(D) requires that "[a]ny negative impact on fish and wildlife resources will be completely mitigated so that there is no net loss or net degradation of the resource." Mitigation for impacts to fish habitat is achieved primarily by purchasing irrigation water rights ("mitigation water") to offset the reduction in streamflow attributable to groundwater pumping by Pinnacle Utilities, LLC, the public utility company that will be providing water to the Thornburgh Resort. The manager of Pinnacle and CLCC is Kameron DeLashmutt. The FWMP (as modified during review of the FMP by the County) and the terrestrial wildlife mitigation plan together provide approved measures that achieve compliance with the "no net loss/degradation" standard of DCC 18.113.070(D). Issues about the efficacy of the FWMP to achieve compliance with that standard were settled during the review of the FMP and do not provide a basis for denial of the 2018 Phase A-1 tentative plan and site plan. Initial Fish Mitigation Proposal/Identification of Water Quality Issue Initially, the applicant proposed to meet its groundwater mitigation obligations by complying with the requirements of the OWRD Deschutes Groundwater Mitigation program. OWRD's program required Thornburgh to obtain mitigation water to offset flow impacts in the Deschutes Basin in the General Zone of Impact identified by OWRD, shown on Figure 2 of the FWMP. LUBA Rec 668, 671, Doc 8, Doc 14 and Figure 2 at BOCC 1 848, also Doc 14. In January of 2008, ODFW raised concerns that groundwater pumping would impact cold water springs and seeps in the Deschutes River and Lower Whychus Creek near the confluence with Whychus Creek and in lower Whychus Creek. LUBA Rec 676, Doc 8, Doc 14. ODFW was concerned that flow reductions to these springs and seeps would raise the temperature of waters of the Deschutes River and lower Whychus Creek. LUBA Rec 676 (Doc 8), also Doc 14. This is the water quality issue. Newton in his September 25, 2018, letter regarding the tentative plan for Phase A-1 summarized the water quality issue as follows: 1 This is a reference to the page numbers assigned by and documents contained in the record provided to the Board of Commissioners by staff for its October 28, 2019 meeting. Page 3 — Decision of BOCC — Proposed by CLCC "While ODFW observed [in ODFW's June 2008 letter regarding the FWMP, LUBA Ree 681-683] "Under state law the Thornburgh Resort has fully offset its mitigation requirements for offsetting groundwater use2..." they were concerned about the impacts to springs and seeps and the thermal impacts that could be caused by the Resort's groundwater withdrawals stating: "any groundwater pumping will have an effect on local springs," "Springs are important...", and; "Springs provide a relative natural constancy of water temperature." (ODFW, June 13, 2008 letter, pg. 2). This is Gould's water uq alitX issue, which is related to DCC 18.113.070(D) that says: Any negative impact on fish and wildlife resources will be completely mitigated so that there is no net loss or net degradation of the resource." LUBA Rec 499, Doc 8, Doc 14. See also, LUBA Rec 681-683 (Doc 8) for ODFW letter of June 13, 2008; also Ex B of Doc 24. Response to ODFW's Water Quality (Temperature) Concerns In early 2008, Thornburgh's experts David Newton and Tetra Tech worked with ODFW to develop additional plans to address ODFW's concerns. The FWMP was prepared by Newton Consultants, Inc. to meet ODFW's concerns. It provided the following mitigation measures to achieve compliance with the "no net loss" standard: A. Compliance with OWRD Mitigation Requirements (quantity mitigation); and B. Inclusion of Big Falls Ranch water rights as part of the OWRD miti ag tion rp ogram to provide additional cold water benefits [to the Deschutes River]; and C. Removal of an existing instream irrigation pond in connection with the transfer of Big Falls Ranch water rights.' This dam was to be removed prior to beginning pumping for phase 2 of water development a time when pumping exceeds 1,201 acre feet annually; and D. Elimination of existing groundwater uses on the Resort property; and E. A measure to provide $10,000 in funding to complete an on-going thermal modeling project on Whychus Creek or a suitable alternative enhancement project. LUBA Rec 493 (Doc 8) summarizing FWMP at LUBA Rec 672-678 (Doc 8) and Doc 14. The FWMP mitigation and enhancement measures require CLCC to comply with OWRD mitigation requirements. Doc 14, pp. 8-9. The FWMP requires that Big Falls Ranch Z This statement by ODFW refers to "quantity" mitigation and acknowledges quantity is an issue within the purview of OWRD. ' ODFW also requested Thornburgh to remove the upper dam on Deep Canyon Creek prior to the start of pumping water for Phase A and Thornburgh agreed. The removal of the two dams will provide for unimpeded spring flow to the Deschutes River. LUBA Rec 489, Doc S. Page 4 — Decision of BOCC — Proposed by CLCC water rights be purchased and provided "in fulfilling its mitigation obligation under the OWRD water right." Doc 14, p. 9. OWRD requires the resort to provide mitigation water prior to pumping any water for uses allowed in Phase A-1 of the resort. ODFW reviewed the Resort's FWMP and advised Deschutes County: "In this particular case the potential impact to [cold water] springs and seeps will likely be mitigated by transferring spring flows used for irrigation directly back into Deep Canyon Creek and the Deschutes River. These springs should provide similar habitat and help with water temperatures in the Deschutes River." LUBA Rec 682 (Doc 8), also Ex B, Doc 24. "... [T]he mitigation water from the springs in Deep Canyon Creek exceeds the flows needed to mitigate for potential spring and seep impacts from the development (1.97cfs vs. 1.87 cfs). *** ODFW has determined that providing the proposed mitigation outlined above should mitigate for potential impacts on springs and seeps and provide a net benefit to the resource." LUBA Rec 683 (Doc 8), also Ex B, Doc 24. The 2008 hearing officer, Ann Briggs, found that the FWMP, with the removal of a second dam on Deep Canyon Creek and water quality mitigation for Whychus Creek, satisfied the no net loss standard. The source of Whychus Creek mitigation was not questioned by opponents during the 2018 tentative plan/site plan review and, therefore, is not relevant to the issue on remand. LUBA Rec 1378, 1380.5 Compliance with the FWMP is an ongoing responsibility of the Resort and a part of the FMP. Compliance will be monitored by the County, ODFW and members of the public. The County and members of the public may initiate enforcement actions if CLCC does not honor the FWMP. C. First Tentative Plan and Site Plan for Thornburgh Resort. In 2018, the applicant, Central Land and Cattle Company, LLC ("CLCC") obtained approval from Deschutes County's land use hearings officer, Dan Olsen, to subdivide a major part of Resort Phase A and to develop water and sewer facilities to serve future resort uses. This approval was 4 ODFW also considered Thornburgh's plan to abandon domestic wells located on the development property and to provide funds for an on-going thermal modeling project on Whychus Creek as a part of the proposed mitigation. No change is proposed to these elements of the FWMP. 5 The 2008 hearings officer found that the OWRD mitigation requirement did not fully address the quality of water habitat and imposed FMP Condition 39 to require Thornburgh to provide 106 acre feet of additional mitigation water to Whychus Creek. After numerous appeals and one modification, Condition 39 was upheld. Page 5 — Decision of BOCC — Proposed by CLCC appealed by Annunziata Gould to the Land Use Board of Appeals (LUBA) in LUBA No. 2018-140. In 2019, LUBA remanded the approval to Deschutes County to address a single question. The remand was based on a finding by LUBA that Condition 17 of the decision precluded public participation in resolving uncertainty about the source of mitigation water required by the FWMP. D. Scope of Review on Remand. The scope of review on remand before the hearings officer was limited to addressing the issue on remand. The parties were directed to submit new evidence regarding this issue only. A number of parties submitted evidence and arguments that are beyond the scope of review on remand. While the Board has not specifically rejected these materials, they are irrelevant and do not merit a specific response beyond what is provided in this decision. The review by the Board is on the record and a consideration of written arguments presented by parties based on evidence in the record. DCC 22.32.030(E). The BOCC has not opened the record for the consideration of any issue other than the issue remanded to the county by LUBA. II. LUBA's REMAND A. Question Posed by LUBA The question posed to the County by LUBA is: "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 [if proposed] constitutes a substantial change to the IMP approval, requiring a new application, modification of the application, or other further review consistent with FMP and DCC destination resort regulations." Gould v. Deschutes County, _ Or LUBA _ (LUBA No. 2018-140, June 21, 2019)("Gould TY'), page 32, Doc 6. This is the only question to be answered by the County on remand. The question is limited to mitigation for the Phase A-1 tentative plan only; not to other future development of the resort. All other issues related to the tentative plan and site plan were settled by LUBA in favor of CLCC.6 6Issues settled by LUBA or issues that could have been raised at LUBA may not be reconsidered now due to the doctrine of law of the case absent a decision by the Board to expand the scope of the issues on remand. Beck v. City of Tillamook, 313 Or 149, 831 P2d 678 (1992). In Order No. 2019-038, the Board decided it would not reopen issues on remand. BOCC 906. Page 6 — Decision of BOCC — Proposed by CLCC B. Condition 17 Condition 17 is not a relevant approval criterion. It is discussed because LUBA directed the county to consider whether the tentative plan and site plan will result in a violation of the no net loss/degradation standard of DCC 18.113.070(D) without Condition 17. Condition 17 says: "Prior to issuance of building permits for the single-family dwellings, obtain design approval for at least 50 OLUs, which approval shall demonstrate that: (a) OLUs qualify as such and (b) the Big [Falls] Ranch and COID 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 not to constitute a substantial modification or justify a modification to the FMP." LUBA Rec 25, Doc 8. LUBA found Condition 17 objectionable because it concluded it allowed a change in water sources for mitigation without a public review. LUBA said: "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." Gould TP at 32, Doc. 6. Condition 17(b) Condition 17(b) was imposed to assure compliance with FMP Condition of Approval 1 which states: "Approval is based upon the submitted plan. Any substantial change to the approved plan will require a new application." LUBA Rec 60, Doc 8. The hearings officer found that "a failure to obtain ODFW [Big Falls Ranch] and COID water referenced in the Mitigation Plan and FMP decision may constitute a substantial modification to the FMP approval" merited imposition of the condition on the assumption that a different source of mitigation would be substituted for the approved mitigation. LUBA Rec 70, Doc 8. This, however, will not be the case because the applicant has shown it is feasible for it to purchase the Big Falls Ranch water referenced in the FWMP. It is not necessary for CLCC to purchase mitigation water from COID because the amount of water to be purchased from Big Falls Ranch is more than sufficient to mitigate for Phase A-1 uses.7 Additionally, Big 7 LUBA's question on remand asks whether the tentative plan for Phase A-1 will comply with the no net loss standard. Gould TP at 32, Doc 8. As COID mitigation water is not needed to meet the mitigation needs associated with the Phase A-1 approval, the feasibility of obtaining mitigation water from this source is not material to finding compliance with the no net loss/degradation standard of DCC 18.113.070(D). Page 7 — Decision of BOCC — Proposed by CLCC Falls Ranch is the only source of water specifically promised by the FWMP and the only source that provides both water quality and water quantity mitigation. Big Falls Ranch Deep Canyon Creek water is 11 degrees Celsius whereas COID water is 26 degrees Celsius. Doc 22. Approval of the tentative plan/site plan does not require Condition 17 because CLCC remains bound to obtain water rights for mitigation from the sources specified by the FWMP. Additionally, CLCC has demonstrated that the alleged condition that created uncertainty about the Big Falls Ranch mitigation water rights — the transfer of the point of diversion of Big Falls Ranch water — does not prevent compliance with the FWMP. Condition 17(a) LUBA's question on remand assumes that no part of Condition 17 will remain in effect, including Condition 17(a). It does not ask the county to address whether this part of the condition is required to assure compliance of the county's approval with relevant approval criteria. Furthermore, it is clear Condition 17(a) is not needed to assure compliance with relevant approval criteria. The requirement imposed by Condition 17(a) — whether OLUs are OLUs — will be addressed by the County during review of the OLU site plan. C. Summary Answer to Question on Remand The answer to the question on remand is: The tentative plan for Phase A-1 will satisfy the no net loss/degradation standard of DCC 18.113.070(D) because CLCC will follow the FWMP; a plan found by LUBA to meet the no net loss standard. 8 The applicant will meet or exceed the water quality and water quantity promises of the FWMP by purchasing the Big Falls Ranch water rights described in the FWMP. These water rights provide the only FWMP-approved source of mitigation that provides both water quality (temperature) and water quantity mitigation. Condition 17 is not required to assure compliance with the "no net loss/degradation" standard because CLCC has shown it is feasible to obtain the Big Falls Ranch mitigation water. By so doing, CLCC will achieve full compliance with the no net loss/degradation standard. LUBA has found that the tentative plan does not alter the FWMP and, therefore, conditions of approval are not needed to assure compliance with the plan. Gould TP at 37-38, Doc 6. Absent a change in the source of mitigation water, there is no need to impose a condition of approval to assure compliance with the FWMP. Without Condition 17, the tentative plan approval no longer allows CLCC to change the source of the FWMP mitigation water without a public review. Gould TP at 29, Doc 6. The fact that 8 LUBA found that the county had determined that the mitigation plan will result in no net loss/degradation to fish and wildlife resources when it approved the FWMP. This occurred during the review and approval of the IMP. Gould TP at 21-22, Doc 6. Page 8 — Decision of BOCC — Proposed by CLCC Condition 17 allowed such a change without public review was the reason LUBA remanded the County's approval. Gould TP at 32, Doc. 6. That problem has been solved. LUBA explained that the hearings officer imposed Condition 17 because he was uncertain whether it was feasible to purchase water rights for mitigation from the sources described in the FWMP. This is the only uncertainty related to the Big Falls Ranch water rights related to the transfer of the point of diversion of Big Falls Ranch water rights from Deep Canyon Creek to a groundwater point of appropriation and whether this would make the water rights unavailable for purchase by Pinnacle or CLCC. This uncertainty led the hearings officer to believe a change in the source of water rights might be required and might constitute a modification of the FWMP and FMP. The change in water source — not the existence of uncertainty — causes the tentative plan, without Condition 17, to violate the no net loss standard. The FWMP requires that the water quantity and quality mitigation described in the plan be provided before CLCC may pump groundwater to serve Phase A-1 and thereby assures compliance with the no net loss standard. Furthermore, CLCC removed uncertainty about whether it can purchase the Big Falls Ranch irrigation water described in the FWMP. CLCC has shown that the Big Falls Ranch water rights associated with Deep Canyon Creek are and remain surface water rights even though they are pumped from groundwater wells. They may be purchased by CLCC or Pinnacle to mitigate for impacts that will occur after the resort starts to pump groundwater for resort uses. When Big Falls Ranch water rights are purchased, Big Falls Ranch will discontinue pumping the groundwater associated with the rights purchased. The only change caused by the transfer is that cold water mitigation is being provided sooner than required by the FWMP. Big Falls Ranch has ceased pumping cold water from Deep Canyon Creek and has removed the weir impoundment. Doing so allows the cool spring water of the creek to flow to the river. This provides a strong positive benefit for fish habitat in the Deschutes River. C. No Net Loss/Degradation Standard and the FWMP The FWMP achieves compliance with the no net loss/degradation standard. The applicant will comply with the FWMP and the no net loss/degradation standard by obtaining mitigation water from Big Falls Ranch. As no change is proposed to the FWMP, Condition of Approval 17 is not needed to assure compliance with the no net loss standard. Ms. Gould and other opponents may not challenge the merits of the FWMP because Ms. Gould failed to do so in her 2018 appeal. Beek v. City of Tillamook, 313 Or 149, 831 Ptd 678 (1992)(issues decided or that could have been but were not raised during review by LUBA but that were not raised may not be raised in subsequent appeals). As noted by LUBA, Ms. Gould did "not challenge the mitigation plan, but instead challenges the Phase 1-A [sic] approval as inconsistent with the mitigation plan" that results in no net loss/degradation to fish and wildlife resources. Gould TP 21-22, Doc 6. CLCC will meet the no net loss/degradation standard by following the FWMP and acquiring water rights from Big Falls Ranch as promised. The FWMP requires that this water be provided when required by OWRD — prior to pumping — not during the review and approval of the tentative plan. Arguments by opponents that compliance with the requirements of the FWMP will not meet the no net loss/degradation standard, therefore, do not merit denial of the tentative Page 9 — Decision of BOCC — Proposed by CLCC plan. They have been settled due to the doctrine of law of the case. These issues include claims that dropping groundwater levels in the Deschutes River basin will impair the efficacy of Big Falls Ranch water rights to mitigate water temperature (quality) impacts.9 D. The Source of Mitigation Water The issue on remand relates to the source of mitigation water for the Phase A-1 tentative plan. 10 The source of mitigation water will be Big Falls Ranch, a source identified by the FWMP and one that provides water quality and water quantity mitigation. The elimination of Condition 17 will address the problem that resulted in the remand by preventing the applicant from using sources of mitigation not discussed in the FWMP without a public review of such a change. We address the issue of the uncertainty of the source of mitigation water raised as a concern by opponents during the review of the tentative plan and site plan in 2018 in this decision but find that "uncertainty" about the source of water is not a condition that merits denial of the tentative plan or site plan. The relevant approval criterion that authorized the imposition of Condition 17 was Condition 1 of the IMP. It says: "1. Approval is based upon the submitted plan. Any substantial change to the approved plan will require a new application." 9 These arguments are also impermissible collateral attacks on the FWMP and IMP. The FWMP received final approval during the review of the FMP, the second step in the destination resort approval process, and may be relied on by CLCC when seeking development permits in the third stage of development review. Richardi v. City of Eugene, —Or LUBA _ (LUBA Nos. 2018- 082/083, 10/24/18), aff'd without opinion, 295 Or App 840 (2019)(determination that use allowed in applicable zoning district may not be collaterally attacked in subsequent review of development applications); McCollough v. City of Eugene, 74 Or LUBA 573 (2016)(use determination binding); Lockwood v. City of Salem, 51 Or LUBA 334, 344 (2006)(decision granting indefinite extension of Preliminary Declaration required as the first step for approval of a tentative plan for a subdivision not subject to collateral attack during review of tentative plan); Safeway, Inc. v. City of North Bend, 47 Or LUBA 489, 500 (2004)(shared parking issues that could have been decided in approval of fuel center site plan are not grounds for denial of subsequent parking lot development application); Butte Conservancy v. City of Gresham, 47 Or LUBA 282, 296, affd 11 195 Or App 763, 100 P3d 218 (2004) (assignments of error that collaterally attack a decision other than the decision on appeal do not provide a basis for reversal or remand); Sahagian v. Columbia County, 27 Or LUBA 341, 344 (1994); Corbett/Terwilliger Neigh. Assoc. v. City of Portland, 16 Or LUBA 49, 52 (1987). See also, Doney v. Clatsop County, 142 Or App 497 (1996)(approval of point of access in land use review precludes road authority from denying access permit in that location). " The issue on remand is the sole issue addressed by a section of LUBA's order entitled "Mitigation Water Sources." Gould TP at 28, Doc 6. This confirms the fact that the issue on remand is the source of mitigation water only. Page 10 – Decision of BOCC – Proposed by CLCC By eliminating Condition 17, no substantial change to the FMP/FWMP is authorized by approval of the tentative plan and the approval is based on the submitted plan, the FMP/FWMP. It, therefore, complies with Condition 1 of the IMP. In 2018, opponents argued it will not be feasible for CLCC to obtain mitigation water from Big Falls Ranch and Central Oregon Irrigation District ("COID"), the two primary sources of mitigation water identified in the FWMP. Opponents submitted a document that showed that Big Falls Ranch was proposing to transfer the point of division of surface water rights from Deep Canyon Creek to a point of appropriation from groundwater wells located on the Big Falls Ranch. Opponents also submitted a statement from COID that there were no current or active purchase agreements between COID and the resort. CLCC challenged opponent's evidence and arguments but the 2018 hearings officer found this evidence "sufficient evidence to call into question whether obtaining water from these sources [Big Falls Ranch and COID] remains feasible." Gould TP at 28, Doc 6.11 To resolve the uncertainty whether mitigation water would be provided from new sources, the hearings officer imposed Condition of Approval 17 (discussed below). CLCC addressed and eliminated the uncertainty about the source of water. The Big Falls Ranch irrigation water is the only water source identified in the FWMP (Doc 24) that mitigates water quality (temperature) impacts. It has shown it is feasible for it to obtain mitigation water from Big Falls Ranch, a source specified by the FWMP. It entered into an agreement to purchase irrigation water rights with Big Falls Ranch in an amount of water sufficient to mitigate impacts associated with Phase A-1. It has arranged with Big Falls Ranch to provide all water quality mitigation promised by the FWMP now. Big Falls Ranch has stopped pumping any cold water out of Deep Canyon Creek now. Big Falls Ranch has also agreed, in its contract with Pinnacle, that it will not pump water from the creek. When the water rights are purchased from Big Falls Ranch, Big Falls Ranch will cease pumping those purchased water rights from groundwater removing any chance that pumping might reduce the flow of the creek. E. The Source of Uncertainty LUBA's decision identified the two documents the hearings officer found created uncertainty about the source of water. One is a document suggesting that Big Falls Ranch proposed to transfer Deep Canyon surface water rights (LUBA Rec 191, Doc 8) and the other is a statement from COID. Gould TP at 28 (Doc 6). As CLCC is obtaining all Phase A-1 mitigation from Big Fall Ranch, the uncertainties created by the proposed transfer of Deep Canyon water rights are the only uncertainties that need be addressed by this decision. The claim of uncertainty was raised in a document that claimed that Big Falls Ranch was transferring its surface water rights off of Big Falls Ranch and converting it to a groundwater point of appropriation. LUBA Rec. 1991, Doc 8. Mr. Dewey, who submitted the document in 2018, said that Big Falls Ranch was apparently transferring surface water "to its own groundwater use" and he is correct. LUBA Rec 181, Doc 8. The transfer in question is OWRD 11 The hearings officer also found a change of source of mitigation water "may constitute a substantial modification of the IMP approval." Gould TP at 28, Doc 6 Page 11 — Decision of BOCC — Proposed by CLCC Transfer T-12651. It allows Big Falls Ranch to pump the Deep Canyon Creek water from its own groundwater wells rather than from the creek. BOCC 609, Doc 24 (Ex F). As Mr. Dewey noted, the transfer is a transfer of the point of diversion of water to a groundwater point of appropriation under an existing water right; not a transfer of water rights off of the Big Falls Ranch property. BOCC 609, Doc 24 (Ex F). The location of the use of the Big Falls Ranch water rights for irrigation has not changed. Rather than pump water from Deep Canyon Creek, Big Falls Ranch is pumping Deep Canyon Creek water rights from existing groundwater wells on the Big Falls Ranch property. BOCC 609-616, Doc 24 (Ex F). In 2018, Ms. Gould's attorney questioned whether Deep Canyon Creek water rights held by Big Falls Ranch will remain available for mitigation. This question was answered by Janet Neuman, CLCC's water law attorney. Ms. Neuman explained that the transfer from a surface water point of diversion on Deep Canyon Creek to a groundwater point of appropriation (to pump from existing wells on the Big Fall Ranch) would not make Big Falls Ranch water unavailable for mitigation. Further, Ms. Neuman explained that the transfer is consistent with Thornburgh's mitigation obligations under the FWMP. LUBA Ree 69, Doc 8. CLCC has provided additional evidence demonstrating that Ms. Neuman is correct. CLCC's evidence shows that the transfer of the point of diversion of the Big Falls Ranch water rights will not make the Big Falls Ranch water rights unavailable for use as mitigation water or prevent them from being transferred instream. The Big Falls Ranch water rights will remain surface water rights even though their point of diversion has been transferred to a groundwater point of appropriation. This fact is proven by information obtained from Rex Barber, Jr., President, of Big Falls Ranch, BOCC 284, Doc 57, p. 3 and Sarah Henderson, Flow Restoration Program Coordinator for the Oregon Water Resources Department ("OWRD"). BOCC 284 (Doc 57, p. 3), 579-580 (Doc 41, pp. 4-5), 585 (Doc 39). Sarah Henderson, OWRD, said: "The confirming certificates issued from the transfer of a SW POD (Surface water point of diversion) to a GW POA (groundwater point of appropriation) will be considered surface rights." Doc 39. Ms. Gould's attorney claims that "the transfer from surface to groundwater has no net benefit, and is akin to a shell game." Doc 24, Remand Memorandum, p. 12. This is untrue. The ranch will stop pumping the groundwater purchased by Pinnacle when the sale occurs. Both before and after the purchase, Big Falls Ranch will not be pumping cold spring water from Deep Canyon Creek. As observed by water law expert and CLCC attorney, Jan Neuman, the transfer is consistent with the FWMP. LUBA Ree 69, Doc 8. Opponents claim that a water rights transfer is required to change the Deep Canyon water rights from groundwater rights to surface water rights. They are wrong because the water rights remain Page 12 — Decision of BOCC — Proposed by CLCC surface water rights. Ms. Gould supported this claim with a letter written by Robert E. Long, Jr. of CwM. The Long letter provides an analysis of water rights transfers that is uninformed by the rules of the Deschutes River Basin. He claims that Big Falls Ranch's Deep Canyon Creek water rights are now groundwater rights and that OWRD must approve a transfer of these rights back to surface water rights before they can be used for mitigation. He is incorrect. The Deschutes River Basin is governed by its own set of groundwater pumping rules. Those rules, according to Sarah Henderson, Flow Restoration Program Coordinator for the Oregon Water Resources Department ("OWRD") and Rex Barber, Jr. of Big Falls Ranch provide that when the point of diversion of surface water is changed to a point of appropriation from groundwater, the water rights remain surface rights. BOCC 283, 585. There is no need to transfer the point of appropriation back to a point of diversion on Deep Canyon Creek to make them surface water right that may be purchased for use as mitigation water. Doc 88, p. 4, BOCC 57. This means that the uncertainties and delays claimed by Mr. Long and others to be attendant to a transfer of a water right from a groundwater right to a surface water right are irrelevant to the Big Falls Ranch Deep Canyon water rights. The uncertainty that led to the imposition of Condition 17 is limited to uncertainty caused by Transfer Order T-12651. No other issues related to the transfer were raised during the 2018 review or on appeal at LUBA in 2019. Therefore, all other issues raised by opponents intended to raise uncertainty about the ability of Big Falls Ranch to sell its irrigation water rights to Pinnacle are beyond the scope of review on remand. These new issues not timely raised in 2018 include a claim that trust deeds in the chain of title to the Big Falls Ranch property prevent Big Falls Ranch from selling water rights to CLCC. The BOCC finds that the encumbrance of the property does not prevent the sale of water rights to Big Falls Ranch. In a worst case scenario, CLCC or Pinnacle can pay off the debt in exchange for needed water rights. Additionally, Big Falls Ranch may seek a release of the water rights from the security granted by the trust deed from the Big Falls Ranch lender in return for the payment of a part of the loan from the proceeds of the sale of water rights to CLCC/Pinnacle. Either approach is feasible. Another new issue raised by opponents is a claim that pumping Deep Canyon Creek surface water rights from groundwater will deplete the flow of Deep Canyon Creek. While this is a possibility, in no case will pumping deplete the flow of the creek once Pinnacle or CLCC purchases water rights from Big Falls Ranch — which is the time set by the FWMP. This is illustrated by the following example: Big Falls Ranch formerly pumped 464.9 acres of water rights from Deep Canyon Creek. It has stopped pumping water from the creek. This means that the water needed to irrigate 464.9 acres of Big Falls Ranch property is being pumped from Deep Canyon Creek. With the removal of beaver dams, this cold water will flow to the Deschutes River and provide all of the cold water mitigation required by the FWMP to mitigate for the impacts of the development of the entire Thornburgh resort. Page 13 — Decision of BOCC — Proposed by CLCC 2. It is possible, but not likely, that BFR's pumping of ground water to irrigate its 464. 9 acres might has some impact on the flow of the springs that feed the creek. As explained by Mr. DeLashmutt, expert evidence provided during the review of the IMP showed that this impact, if it were to occur, would occur gradually over time. It is certain, however, that any reduction in flow of Deep Canyon Creek will not exceed the 464.9 acres of irrigation water rights now being pumped from groundwater. 3. When Pinnacle or CLCC purchases 175 acres of water rights from Big Falls Ranch, the ranch will only pump enough groundwater to irrigate 284.9 acres of the ranch and discontinue irrigating 175 acres of its land. At that time, there will be no possibility that pumping water to irrigate the 175 acres of land will reduce the flow of the springs because Big Falls Ranch won't be pumping the water to irrigate that 175 acres of land. F. Condition 10 Ms. Gould raised issues related to Condition 10 on appeal to LUBA. All were rejected. As a result, claims based on Condition 10 are barred by the doctrine of law of the case. Beck v. City of Tillamook, 313 Or 149, 831 P2d 678 (1992). The 2018 hearings officer's decision appealed by Gould found: "Condition 10 appears primarily to be an informational requirement requiring documentation of the water permit and an accounting of mitigation `under the water right. ' The record contains what appears to be a complete documentation of the status of the permit and IDP. This criterion [Condition 10] is met." LUBA accepted the hearings officer' interpretation of Condition 10 finding: "The hearings officer concluded that FMP Condition 10 requires "documentation of the state water permit and an accounting of mitigation `under the water right, "' and that the condition was satisfied by the complete documentation of the status of the permit and IDP." Gould TP at 33, Doc 6. Furthermore, Condition 17 was imposed to assure compliance with IMP Condition 1; not Condition 10. Condition 1 says that "[a]ny substantial change to the approved plan [IMP] will require a new application." LUBA Rec. 60, 70, Doc 8. As a result, opponents are barred by the doctrine of law of the case from challenging the hearings officer's determination of the meaning of Condition 10 on remand. Furthermore, the Board concurs with the hearings officer's 2018 findings interpreting Condition 10. Page 14 — Decision of BOCC — Proposed by CLCC G. Findings Addressing Specific Arguments Raised by Opponents The Board has provided supplemental findings in Exhibit A, attached, to address specific argument raised by opponents. Most of these arguments are outside the scope of the question posed on remand but they have been addressed to reduce the possibility of a second remand. H. Findings Addressing Objections to Final Argument The Board has provided supplemental findings in Exhibit B, attached, to address objections raised by Mr. Kleinman to post -hearing arguments filed on behalf of CLCC. III. JURISDICTION Legal Issue Mr. Kleinman failed to file Ms. Gould's petition for review of LUBA's decision with the Oregon Court of Appeals by July 12, 2019, the filing deadline. The date the petition is received by the Court Administrator is, by law, the date it is filed unless dispatched during the appeal period for delivery by a method described in ORS 19.260(1). Ms. Gould's attorney did not send the petition by a delivery method described in ORS 19.260(1) Instead, of filing Ms. Gould's petition with the court, Ms. Gould's attorney mailed the petition to the Court Administrator by first-class mail on July 12, 2019. It was not received by the court until July 15, 2019. The petition, therefore, was dismissed by the appellate commissioner of the Court of Appeals. Ms. Gould sought reconsideration of the dismissal. The dismissal was affirmed on reconsideration by the Chief Judge of the Oregon Court of Appeals based on the decision of State of Oregon v. Chapman, 298 Or App 603 (2019)(the date of service by mail is not the date of filing with the Court of Appeals if mailed first-class mail). Ms. Gould has filed a petition for review by the Oregon Supreme Court. She argues that Deschutes County lacks jurisdiction to issue a decision on remand until such time as her objections to the dismissal are resolved. She, however, cites no legal authority that stands for the proposition that the Court of Appeals obtains jurisdiction over an untimely filed appeal until challenges to the dismissal of the appeal are concluded. Mr. Kleinman has also claimed that the 120 -day review clock that applies to the County's review on remand is running from the date CLCC initiated the review on remand — a claim that is true only if Deschutes County has jurisdiction to decide the issue on remand. ORS 197.850(3) makes filing and service of a petition for review of a LUBA decision jurisdictional. It may not be waived by the court. According to the Court of Appeals: "[T]he filing of a single timely petition for judicial review in the Court of Appeals institutes `proceedings on review.' ORS 197.850(3)(a). At that time, the Court of Appeals acquires jurisdiction to review the LUBA order in its entirety." State ex rel Dodd v. Joseph, 313 Or 333, 336, 833 P2d 1273 (1992)(review of LUBA order). See also, Wal-Mart Stores, In v. City of Central Point, 341 Or 393, 144 P3d 914 Page 15 — Decision of BOCC — Proposed by CLCC (2006)(service of petition for review of a LUBA decision in the manner required by statute, as well as timely filing with the Court of Appeals, is jurisdictional). Given the fact Ms. Gould's petition for review was not filed on time, the Court of Appeals did not acquire jurisdiction. By extension, Deschutes County was not deprived of jurisdiction to act on LUBA's remand. It is well-settled that the failure to file a timely appeal deprives appellate courts of the jurisdiction to consider petitions for review of LUBA and other decisions issued by courts and administrative agencies. Haynes v. Board of Parole & Post -Prison Supervision, 362 Or 15, 403 P3d 394 (2017) (timely filing of appeal to Court of Appeals from a State agency such as LUBA is jurisdictional); 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 P3d 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); McQuary v. Bel Air Convalescent Home, Inc., 296 Or 653, 678 P2d 1222 (1984)(timely filing is jurisdictional); Southwest Forest Industries v. Anders, 299 Or 205, 701 P2d 42 (1985), Pohrman v. Klamath Falls Comm., 272 Or 390, 397, 538 P2d 70 (1975)("when a notice of appeal is timely served and filed, the appellate court has jurisdiction); Chapman, 298 Or App at 620 (Doc 56, Att. 6); State ex rel Juvenile Dep't of Multnomah County v. M. U (In re JH), 229 Or App 35, 210 P3d 254 (2009)(jurisdiction vests when a notice of appeal is timely filed and not otherwise);; This rule applies to appeals of decisions by administrative agencies such as LUBA. Haynes v. Board of Parole & Post -Prison Supervision, 362 Or 15 (timely filing of appeal to Court of Appeals from a State agency such as LUBA is jurisdictional)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 statutory time limits is jurisdictional). The case of Murray Well Drilling v. Deisch, 75 Or App 1, 704 P2d 1159 (1985) relied on by the hearings officer to find that he lacked jurisdiction to decide the issue on remand is not controlling precedent. It addresses a different question. In Murray Well Drilling, a timely appeal was filed. Nothing in the decision or Oregon case law indicates that if the appeal had not been timely filed that the Court of Appeals would have acquired jurisdiction to hear the appeal. See, Baugh v. Bryant Ltd. Partnership, 312 Or 635, 643 825 P2d 1383 (1992)(the Court of Appeals acquires jurisdiction over an appeal if a notice of appeal is timely served and filed). The Murray Well Drilling case involved a premature appeal of an order of a trial court. It did not involve a land use case that is subject to the expedited review processes of ORS 197.805 through 197.855 where "[i]t is the policy of the Legislative Assembly that time is of the essence in reaching final decision in matters involving land use and that those decisions be made consistently with sound principles governing judicial review." ORS 197.805. If the Court of Appeals' order of dismissal is affirmed, it will mean that there was no jurisdiction of LUBA's appeal in the Court of Appeals after July 12, 2019. In the case of land use cases, the law requires the applicant to proceed on remand at the local level within 180 days of the final order on remand or the applicant will be "terminated." ORS 215.435(2)(a). Thus, if the jurisdictional issue is not resolved in the 180 -day period and CLCC prevails, absent an initiation Page 16 — Decision of BOCC — Proposed by CLCC of remand, it would be nearly certain that Ms. Gould would argue that the entire tentative plan and site plan approval is void. If the Oregon Supreme Court agrees to consider Ms. Gould appeal, the only issue it will consider is whether the dismissal by the Oregon Court of Appeals was proper. It will not consider the merits of LUBA decision. Furthermore, no appellate court will consider the merits of the LUBA order unless the Oregon Supreme Court both accepts review of Ms. Gould's petition and rules in favor of Gould. If this occurs, the matter will be returned to the Court of Appeals for consideration of the merits. The issue regarding the source of mitigation water, however, will not be before the court because Ms. Gould prevailed on that issue and cannot claim the decision was in error. As a result, there is no risk of achieving inconsistent outcomes on this issue remanded to the County by LUBA. Resolving this issue now is consistent with the policy of Oregon law to provide for the expedited review of land use appeals by LUBA and the Oregon Court of Appeals. If Gould fails to prevail on the merits of her appeal to the Court of Appeals (assuming one is allowed), the matter will be settled. See, ORS 197.805 ("time is of the essence in reaching final decisions in matters involving land use"). If the Court of Appeals finds fault with LUBA's decision, the issues raised by Gould can be addressed and resolved at that time. The situation presented by the Gould appeal is most analogous to legal status of a land use approval while under appeal at LUBA and by the appellate courts. The decision is a final local approval. An applicant may proceed with development according to the terms of the permit at its own risk. At least until an appellate court renders a decision that it has acquired jurisdiction to review the LUBA appeal, no action has occurred that divests the County of its authority to address the issue remanded to it by LUBA. The case of Baugh v. Bryant Ltd. Partnerships I through XT , 98 Or App 419, 779 P2d 1071 (1989)12 also supports the idea that a lower review body such as the county retains jurisdiction over issues that are not subject to appeal. In that case, the Court of Appeals held that the trial court did not lose jurisdiction over parts of a case that were not appealed — in this case the issue on remand. The Baugh court relied on State ex rel Gattmann v. Abraham, 302 Or 301, 311, 729 P2d 560 (1986), a case in which the Oregon Supreme Court held that an appeal from a judgment entered pursuant to ORCP 67B did not deprive the trial court of jurisdiction over those portions of the case that were not involved in the judgment from which the appellant appealed: "It was not the intention to oust the trial court of jurisdiction of those parts of the litigation which are not directly involved in the appeal. 'Cause' [as used in ORS 19.033(1)] must have been chosen by the legislature because it has a broad meaning and may include a case or proceeding or any part thereof depending upon the circumstances from which an appealable judgment might be entered under ORS 19.010." The Baugh court adopted this approach because: 12 There is subsequent appellate history in this matter after this decision was issued and action was taken by the circuit court and appealed but this decision was not appealed. Page 17 — Decision of BOCC — Proposed by CLCC "Our conclusion makes practical as well as legal sense. Although the appellate court may later decide that the trial court's determination that it could enter a valid ORCP 67B judgment was erroneous, the trial court will usually act as though it were correct and may proceed to decide the unresolved matters. If we were to hold that an appeal from an invalid ORCP 67B judgment deprived the trial court of jurisdiction over the entire case, that court could never be sure whether it had any jurisdiction to act after an appeal from an ORCP 67B judgment. Although the trial court may believe the ORCP 67B judgment to be valid, every action it took after the appeal would be void as beyond its jurisdiction if the appellate court later decided that it was wrong. Under the rule that we adopt, cases will not hang in limbo while the appellate court decides if it has jurisdiction over the portion appealed." Baugh, 98 Or App at 425. Facts Related to Gould's Dismissed Appeal Mr. Kleinman, Ms. Gould's attorney, was aware that it was necessary to file the Gould appeal by certified mail to make the date of mailing the date of filing with the Court. He directed it be mailed certified mail and certified that it had been sent by that method of delivery but his legal assistant mailed the appeal by first-class mail. 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 type of service required by ORS 19.260(1) to have the date of mailing serve as the date of filing. 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 reasoning of the concurring and dissenting opinions in Chapman, when applied to the facts of the Gould appeal, lead to the conclusion that the Gould appeal was not timely filed." 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, the three business days were a period of five calendar days (Wednesday, July 17, 2019). Based on the foregoing findings, the Board of Commissioners approves the Phase A-1 tentative plan and site plan without Condition of Approval 17. 13 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. Page 18 — Decision of BOCC — Proposed by CLCC EXHIBIT A TO DECISION OF BOARD OF COMMISSIONERS FILE 247-19-000611-A DETAILED RESPONSES TO SPECIFIC ARGUMENTS PRESENTED BY OPPONENTS This exhibit, Exhibit A, provides a specific response to arguments raised by opponents and supplement the findings contained in the Board's decision in File 247-19-000611-A. A. Response to Kleinman's Argument that there is No Evidence Water Rights Have Been Secured A "requirement" that water rights be "secured" was imposed by Condition 17 — a condition that was stricken by LUBA. It is not a legal requirement imposed by the IMP or by the County's resort code which provide the laws that govern the County's review of the tentative plan. Furthermore, the question on remand is not whether water rights have been "secured," it is whether the tentative plan may be approved without Condition 17. The removal of Condition 17 from the tentative plan approval removes the ability of CLCC to change the source of mitigation water with public review. Without Condition 17, CLCC will be required to provide the water rights described in the FWMP as mitigation when required by its OWRD permit. Mr. Kleinman claims the last point for CLCC to prove "it has actually obtained the requisite water for mitigation" is during the review of the tentative plan. BOCC 169, Doc 173. The flaw in this argument is that it is an impermissible collateral attack on the FWMP and CMP/FMP. The FWMP provides that mitigation water is required when required by OWRD.' This reflects the BOCC's 2007 CMP approval that the resort need not hold water rights for mitigation until required to do so by OWRD. The BOCC found that the resort is not required to "provide evidence of actual mitigation credits as part of the land use application process and prior to the time when such evidence would be required by OWRD in the state water right process." Doc 21, BOCC 726, p. 71 of 99. This means that the applicant is not required to "secure" mitigation credits prior to obtaining approval of the tentative plan. The BOCC's CMP decision holds that prior to the time OWRD requires mitigation, the legal standard is whether the applicant "is not precluded * * * as a matter of law" from acquiring water rights for mitigation. Doc 21, BOCC 726, p. 71 of 99. It is clear on this record that CLCC is not precluded by law from acquiring the Big Falls Ranch water rights for mitigation purposes by the transfer of the pod of surface water right to a groundwater poa as OWRD has advised the county that Deep Canyon Creek water rights remain surface water rights — rights that may be used to meet mitigation requirements of the FWMP. Doc 41, p. 5, BOCC 580; Doc 57, p. 2, BOCC 283; Doc 39. The Board's CMP decision also found that the resort had met the higher standard of showing it is feasible for it to acquire mitigation water rights by showing "evidence that mitigation water is generally available in the basin and that Applicant has a reasonable plan for acquiring mitigation from available sources." In this case, the applicant has exceeded this 1 Mitigation is only required by the FWMP to be provided prior to pumping water. The resort is not now pumping water nor is it authorized to do so by the tentative plan. Page 1 — Exhibit A of Decision of BOCC — Proposed by CLCC (File 247-19-000611-A) requirement by entering into a contract to purchase water rights for mitigation from Big Falls Ranch. Doc 21, BOCC 726, p. 71 of 99. Mr. Kleinman claims "nothing in the BOCC's discussion [in the CMP] relates to the county's mitigation requirements, the no net loss/degradation standard of DCC 18.113.070(D)." This claim is clearly wrong. While the issue of when mitigation water must be obtained was discussed as it relates to an approval criterion that requires that water be available to serve the resort, the findings clearly determine when mitigation water must be provided to meet the no net loss/degradation standard of DCC 18.113.070. Furthermore, the FWMP reflects this finding by requiring that mitigation be provided when it is required by OWRD. This makes sense because, as noted by the 2018 hearing officer: "The primary focus of the FWMP, the OWRD and the IDP2 all are on mitigating use of water. As the applicant has stressed, if there is no water use, there is no impact." LUBA Ree 67-68, Doc 8. Pinnacle Utilities has secured the right to purchase no less than 175 acres of irrigation water rights (315 acre feet of mitigation) from Big Falls Ranch (also "BFR") by entering into a binding purchase agreement with Big Falls Ranch, Inc. and by recording a memorandum of contract with the Deschutes County Clerk. Doc 86 (BOCC 97), Doc 4. It has also shown that Big Falls Ranch is no longer pumping any cool spring water from Deep Canyon Creek. This means that all water needed to irrigate 464.9 acres of the BFR property (provides 836.82 AF mitigation water) is now coming from groundwater rather than from the creek. Doc 14, p. 5, BOCC 838. The contract between Pinnacle and Big Falls Ranch, also, prohibits Big Falls Ranch from pumping from the creek. Doc 4.3 The contract will meet and exceed the need for mitigation that will be created by approval of Phase A-1 and future approval of all development allowed in Phase A. Only 50 acre feet of mitigation water is needed for Phase A-1 uses permitted without additional site plan review (192 single-family homes). Only 203 acre feet of mitigation water is needed for the full development of all of Phase A of the resort whereas the Big Falls Ranch water rights being purchased by 2 The IDP is the resort's Incremental Development Plan. It provides the estimated timing of water use by the resort. Oregon law allows the applicant to amend its IDP to account for changes in timing and planning. Changes to IDP phasing do not affect compliance with the FWMP because the phasing provided by the FWMP was not relied on to achieve compliance with the County's "no net loss" approval criterion. Issues pertaining to the IDP were resolved by Hearing Officer Olsen in 2018 and LUBA in 2019 and are not a part of this remand. 3 BFR removed the weir from their dam that impounds the creek. This allows the creek to flow through the BFR land to the river as shown on aerial photos taken by project opponents and a video recording made by Kameron DeLashmutt. Doc 68, BOCC 190, 193, Doc 36. Page 2 — Exhibit A of Decision of BOCC — Proposed by CLCC (File 247-19-000611-A) Pinnacle will provide 315 acre feet of mitigation. Gould TP at 24, Doc 8.4 Pinnacle must purchase 27.78 acres of water rights from FWMP-approved sources to provide the 50 acre feet of mitigation required for Phase A-1.5 Only 12.14 acres of those rights, however, must be the Big Falls Ranch cold water mitigation described in the FWMP .6 B. Opponents' Claims that CLCC/Pinnacle Hold Mitigation Water Rights Now/Must Show Rights Have Been Transferred Instream Opponents argue that CLCC must "hold" mitigation water rights, provide mitigation before approval of the tentative plan or show that Big Falls Ranch water rights have transferred water instream to obtain approval of the tentative plana This is clearly wrong. It is also a blatant attempt to re -write the requirements of the FWMP to be more stringent. CLCC is bound by the FWMP but it is also entitled to rely on the FWMP as approved by the IMP. The FWMP requires mitigation when OWRD requires it. This a date in the future after approval of the tentative plan when the resort is ready to pump water. The Board's 2007 CMP decision settled the issue of when mitigation is required. It is required to be provided when required by OWRD. Until mitigation is required by OWRD, the 2007 CMP decision requires only that CLCC "is not precluded *** as a matter of law" from obtaining the required mitigation. CLCC has shown that it is not precluded as a matter of law from obtaining the Big Falls Ranch mitigation water rights described in the FWMP. It has also met the higher standard of showing that it is feasible for CLCC to obtain mitigation water as it has already obtained the agreement of Big Falls Ranch to discontinue pumping water from Deep Canyon Creek and has a contract to purchase water rights for mitigation. 4 These mitigation water rights will not be needed until a future date because there will be no water use to mitigate for a significant time into the future. No homes may be sold and occupied by new owners (water users) until after the Phase A-1 final plat has been recorded, 50 OLUs have been constructed, and all required Phase A resort facilities and 100 OLUs have been built or bonded. The final plat will not authorize the construction of OLUs or the resort's Phase A golf course. Both require site plan review. At that time, IMP Condition 10 will require an accounting of the mitigation water needed for those uses. 5 Each acre of water rights provides 1.8 acre feet of mitigation. The 175 acres of Big Falls Ranch water being purchased by Pinnacle, therefore, will provide 315 acre feet of mitigation. 6 According to expert David Newton, P.E., C.E.G., C.W.R.E., during the first phase of the FWMP, 43.7% of mitigation required by the plan (27.78 acres for Phase A-1) must be Big Falls Ranch cold water mitigation. This amount of cold water mitigation meets the water quality promises of the FWMP and achieves compliance with the no net loss standard. 'Ms. Gould intends to oppose any and all water permits for some time to come and says "we are a long way from the time that building permits could issue here." Doc 55, p. 10. During this time period, there will be no water use and mitigation water will not be needed at all. This is one reason why the timing of mitigation is keyed to water use, not to development approvals. Page 3 — Exhibit A of Decision of BOCC — Proposed by CLCC (File 247-19-000611-A) Furthermore, this issue was settled against Ms. Gould by LUBA when it rejected Ms. Gould's argument that the requirements of the FWMP, such as water rights transfers, must or may be made conditions of tentative plan approval. LUBA found: "[R]emoval of dams and provision of mitigation water is required by the FMP approval and the tentative plan does not alter the mitigation plan. * "The hearings officer was not required to impose additional conditions to the approval of the tentative plan [to assure compliance with the FWMP]." Gould TP at 3 8, Doc 8. In so finding, LUBA agreed with CLCC that the tentative plan approval does not alter the mitigation plan and, therefore, does not require the county to impose conditions of approval related to the provision of mitigation water. Gould TP at 37-38, Doc 8. Additionally, mitigation is needed to mitigate for the impacts of using water. It is not needed to mitigate for development approvals. In the remanded tentative plan decision, the hearing officer found: "The primary focus of the FWMP, the OWRD and the IDP all are on mitigating use of water. As the applicant has stressed, if there is no water use, there is no impact." LUBA Rec 67-68. The hearings officer also found: "The key to the IMP, the OWRD permit and the ODFW letter is that mitigation occur in advance of using water. It is to mitigate water use, not development approvals." LUBA Rec 68-69, Doc 8.8 Additionally, Hearings Officer Olsen found that Condition 10 of the IMP requires an accounting of the amount of mitigation required by the OWRD permit and does not require CLCC to provide mitigation water at the time of tentative plan review. That finding was not disturbed on review by LUBA and is a settled issue. 8 These findings were relied on by LUBA in rejecting other arguments presented by Gould regarding the impact of changing the timing of providing mitigation water. Page 4 — Exhibit A of Decision of BOCC — Proposed by CLCC (File 247-19-000611-A) C. Removal of Dams on Deep Canyon Creek The issues of when dams must be removed and whether they have been removed are outside the scope of remand. The issue on remand is the source of mitigation water. Furthermore, the issue of dam removal is barred by the doctrine of law of the case. Beck v. City of Tillamook, 313 Or 149, 831 P2d 678 (1992). In her petition for review to LUBA, Ms. Gould argued that the county should have required CLCC to remove one of the two dams in Deep Canyon Creek. LUBA disagreed finding that this obligation was imposed by the FWMP and did not require a condition of approval. Gould TP at 37-38, Doc 6. Being fully aware that LUBA ruled against her on this issue, Ms. Gould and others filled the record with evidence on the issue of dam removal. None of this evidence provides a basis for the County to deny the tentative plan. If the issue of dam removal were an issue on remand, it is clear that dam removal is feasible and will be accomplished under the terms of the FWMP and IMP. There is confusion about the requirements regarding the timing of dam removal that we clarify here. Central Oregon LandWatch ("COLW") quotes from and relies on a June 13, 2008 ODFW letter (LUBA Ree 677, Doc 8) in their September 17, 2019 argument to claim that the Big Falls Ranch dam must be removed first and prior to construction of Phase A. ODFW's June 13, 2008 letter, however, was in error and its statements regarding dam removal were corrected by ODFW's June 16, 2008 letter. (LUBA Rec 489, footnote 1, Doc 8). The order of dam removal is correctly described in the 2018 tentative plan approval. Hearing Officer Olsen wrote: "the balance of the letter (ODFW 06/13/2008) focuses on dam and well removal which the applicant states will be done as originally approved. To clarify, as represented in Mr. Newton's Sept. 25, letter the first dam (Nolan and Reimenschneider property) must be removed prior to beginning construction under the tentative plan approval at issue." LUBA Ree 68, Doc 8. Ms. Gould's Petition for Review of the tentative plan acknowledges that the first dam to be removed is the dam on the Nolan and Reimenscheider property; not the Big Falls Ranch dam. Doc 56, Item 1, p. 57. Ms. Gould, nonetheless, makes the erroneous claim that both dams must be removed now or as a condition of the tentative plan. LUBA rejected this claim as to one of the dams because the removal of dams is addressed by the FWMP and no change to the plan was made by the tentative plan. The same reasoning applies to two dams. Furthermore, opponents overlook the fact that Big Falls Ranch has ceased pumping water from Deep Canyon Creek and has removed the Big Falls Ranch weir. Doc 77, p. 9, BOCC 150. The beaver dam at this location has been removed. BOCC 579, 583 (video), 586 (photo before removal). This allows Deep Canyon Creek to flow into the Deschutes River. The photos submitted by opponent Sage Dorsey confirm that the Big Falls Ranch weir has been removed. Page 5 — Exhibit A of Decision of BOCC — Proposed by CLCC (File 247-19-000611-A) They show the line of the creek winding down from the Big Falls Ranch dam to where the creek enters the Deschutes River. Doc. BOCC 214, 217, Doc 68. The man-made "earthen dam"/"upper dam" does not, itself, impound water. It has been breached. This was explained in detail by Mr. DeLashmutt (Doc 77, pp. 8-9 at BOCC 149-150) and is proven by photographs in the record. Doc. 74, BOCC 162-165. Beavers have impounded water in this location by building a dam in the creek that will be removed when required by the IMP. This is, nonetheless an issue outside the scope of review on remand. It is critical to recognize that removal of the Big Falls Ranch dam is not required to occur until after completion of Phase A of the FWMP — long after completion of Phase A of the Resort. As noted by Newton in his September 25, 2018 letter, the Big Falls Ranch impoundment was not to be removed until after the applicant was pumping an amount of water equal to 1,201 acre feet annually. LUBA Rec 489, Doc 8. The reason pumping has been discontinued in advance of when required by the FWMP is that Big Falls Ranch, in consultation with applicant, moved the point of diversion (pod) from the creek to a point of appropriation (poa) in the ground. Water lawyer Ms. Neuman explained in 2018 that "the transfer of the point of appropriation away from Deep Canyon Spring may allow dam removal to occur sooner than outlined in the June 13, 2008 ODFW and the Newton Fish and Wildlife Mitigation Report of April, 2008, thereby providing additional benefits."9 LUBA Rec 169, Doc 8. Dam removal and the cold water from Deep Canyon Creek, together, provide the water quality mitigation expected as a result of purchasing Deep Canyon Creek water rights from Big Falls Ranch. As determined by hearings officer Ann Briggs in her 2008 decision approving the IMP: "To address water temperatures that affect salmonoid habitat, the applicant has entered into an agreement with Big Falls Ranch 10 to remove two diversion dams from the creek. As a result, water will flow directly from cold water springs and seeps into the creek, rather than be impounded above ground." LUBA Rec. 904, Doc 8. The FWMP (Doc 14, p. 9) explains: 9 The order of dam removal was erroneously stated in the ODFW June 13, 2008 letter but was corrected in a subsequent letter from ODFW as shown by Exhibit B of Kleinman's Memorandum dated August 27, 2019. ODFW's proposed timing of dam removal on page 4 of Exhibit B was not made a part of approval of the FMP/FWMP by the applicant or by the hearings officer who approved the FWMP/FMP. LUBA Rec 1352-1381; Exhibit C of Kleinman Memorandum of August 27, 2019. to The agreement with BFR only affects one of the dams while applicant has an agreement with Lower Bridge Road LLC to remove the upper dam which is located on their property. Page 6 — Exhibit A of Decision of BOCC — Proposed by CLCC (File 247-19-000611-A) "By retiring an existing irrigation water right [Big Falls], this measure will also result in restoration of 5.5 cfs of cold surface water flow to the Deschutes River from Deep Canyon Creek during the irrigation season. *** Thornburgh will work with the landowner to eliminate the existing instream impoundment [in Deep Canyon Creek] used as part of the [Big Falls Ranch] irrigation system. This is expected to provide a temperature benefit by eliminating temperature increases due to ponding effects." According to expert hydrologist and geologist David Newton: "ODFW requested that the Resort remove the first dam prior to beginning construction of Stage A, and that the second dam be removed prior to beginning Stage B. *** When Big Falls ceases pumping spring water from Deep Canyon Creek and the dams are removed, the Deep Canyon Spring water will flow unimpeded to the Deschutes River to address the quality issue of concern to ODFW."11 Doc 14, LUBA Rec. 489-490 (Doc 8). COLW also noted that two of the major issues about mitigation are: "..the necessity of removing two impoundments on Deep Canyon Creek and the need for surface water rights in Deep Canyon Creek to flow into the Deschutes River to mitigate for lost cold groundwater from the pumping of wells at the proposed resort." Doc 18, p. 1, BOCC 779. What COLW fails to recognize, however, is that these issues are addressed by the FWMP. They are not open for debate during the review of a tentative plan that makes no change to these elements of the plan. Gould TP at 37-38, Doc 6. COLW, ODFW, Newton and the 2008 Hearing Officer all understood that the cessation of pumping cold water from the Big Falls Ranch irrigation pond in Deep Canyon Creek and the removal of the two dams to allow Deep Canyon Creek to flow to the river when required by the FWMP and FMP were the actions that would provide the quality mitigation. It was understood, however, that the removal of the Big Falls Ranch dam would not occur until the second phase of water use (after the resort pumps 1201 AF of water under permit G-17036). Under its agreement with Pinnacle, Big Falls has already ceased pumping water from Deep Canyon Creek and has removed the lower impoundment (the second dam) which formerly caused the spring water to pond. According to the Big Falls Memorandum of Agreement, Doc 4: 11 Stage B was the last stage of water development anticipated in the FWMP. Under the revised Incremental Development Plan there are 5 stages of water development, the last running from 2030-2035. Page 7 — Exhibit A of Decision of BOCC — Proposed by CLCC (File 247-19-000611-A) "Upon the effective date of the Agreement, Seller has agreed to cease diverting water from Deep Canyon Creek...." The Applicant is be required by the FWMP to remove the upper dam (the first dam) on Deep Canyon Creek before pumping any groundwater. This will allow 100% of the Deep Canyon Spring water to flow unimpeded to the Deschutes River years earlier than the FWMP envisioned or ODFW requested. In short, the Resort will provide 100% of the water "quality" mitigation required by the Deep Canyon Creek water before pumping any water for use by the resort. By so doing, the Applicant will far exceed the water quality mitigation requirements of the FWMP. D. Response to Arguments by Kleinman and COLW about Northwest Farm Credit Services Trust Deeds Mr. Kleinman submitted evidence showing that the Big Falls Ranch water rights are a part of the property subject to the provisions of three trust deeds that apply to the Big Falls Ranch property. He failed, however, to point to anything in the trust deeds that precludes Big Falls Ranch from selling the water rights. 12 Instead his discussion centers on whether NWFCS would release their security, stating that "regardless of any glib assurance on the record by the applicant (not Big Falls Ranch or NWFCS), the record lacks any evidence whatsoever that the lender has, or will agree to any such release." Doc 55, pp. 7-8, BOCC 480. He himself offers one scenario whereby NWFCS would automatically release their security — payment of the debt owed by Big Falls Ranch. This proves that it is feasible to obtain the water rights by paying off the underlying debt. The Big Falls Ranch water rights and resort approval is of such importance to the applicant that this would be a price it would pay to assure compliance with the FWMP. COLW also claims that because the water rights are encumbered by loans, they are not available for mitigation. They claim the fact the applicant and Big Falls Ranch believe releases can be obtained from NWFCS does not satisfy the burden of proof. Mr. DeLashmutt responded to the Kleinman and COLW arguments by pointing out that 5 of the 6 trust deed paragraphs discussed by Mr. Kleinman deal with the possibility that Big Falls Ranch may sell its irrigation water and gives NWFCS rights in the proceeds of any sale; making it clear sales are anticipated. This means that NWFCS may require Big Falls Ranch to pay it all proceeds of the sale but it does not mean that the water rights may not be sold. The DeLashmutt rebuttal also provides evidence that NWFCS will release their security in the water rights purchased by Pinnacle. The evidence shows that Big Falls Ranch's principals are sophisticated businessmen, that Big Falls Ranch has had an ongoing relationship to sell the Big Falls Ranch rights to Thornburgh over the last 14 years, and that the sale of just the initial 175 acres of water alone is for a substantial portion of the total indebtedness noted by Kleinman. Given these factors it is highly probable that NWFCS will release its security. 12 The amount of BFR water required for this plan is about 12 acres of water rights which is a very small percentage of the total water owned by Big Fall Ranch. Page 8 — Exhibit A of Decision of BOCC — Proposed by CLCC (File 247-19-000611-A) Finally, the issue of whether NWFCS holds security in Big Falls Ranch water rights and its impact on Pinnacle's ability to acquire Big Falls Ranch water rights for mitigation was an issue that could have been but was not raised during the 2018 review of the tentative plan. These trust deeds were recorded in 2017 prior to the 2018 review of the tentative plan and site plan. The issues of feasibility raised on appeal in 2019 by Ms. Gould are related to the impact of the transfer of the point of diversion of the Big Falls Ranch water rights; not to the Big Falls Ranch trust deeds. As a result, this issue has been waived, ORS 197.763(1), 197.835(3) and is barred by the Beck law of the case doctrine. E. Response to Kleinman's Argument that the Kennedy Trust Deed Impairs Pinnacle's Right to Purchase Mitigation Water from Big Falls Ranch. The Kennedy trust deed with CLCC does not impair Pinnacle Utility LLC's right to purchase Big Falls Ranch irrigation water rights for use as mitigation water. Mr. Kleinman claims that a trust deed granted by Central Land and Cattle Company LLC to Mr. Kennedy against Central Land's resort property creates a security interest in Pinnacle Utility's' water rights contract. This is false. Mr. Kennedy, the holder of the security interest, has confirmed this fact. BOCC 133. Furthermore, a trust deed with CLCC cannot impair contract rights held by Pinnacle without Pinnacle's consent. No such consent has been obtained and no provision of the CLCC-Kennedy trust deed creates security in the water rights. As a result, it is clear that the Kennedy trust deed does not make it infeasible for Pinnacle to purchase mitigation water for use by the resort. F. Response to Kleinman's Claim that Mitigation Isn't Just for 192 homes but for All Other Elements of Phase A-1. OWRD requires that mitigation water be provided prior to pumping water; not prior to approval of land use permits. This is when mitigation water is required by the FWMP. In order to comply with OWRD's requirements, the resort must provide mitigation prior to pumping water for any stage of water development. The resort is in compliance with this requirement as noted in an email from Jeremy Giffin, OWRD Watermaster to David Arnold dated August 24, 2018 which states: "Thornburgh has done everything needed to be in compliance and good standing within OWRD in regards to G-17036 as well as purchasing mitigation credits and providing instream flow benefits without even using any water yet." LUBA Rec 1158. While the OWRD Watermaster makes it clear CLCC has done more than needed to comply with OWRD mitigation requirements, Mr. Kleinman attempts to force the resort to do more than the IMP, FWMP and OWRD require. Mr. Kleinman claims: "the required mitigation is not just for a phase consisting of 192 single family residences. ***[T]he tentative plan for Phase A-1 also includes 24 single-family Page 9 — Exhibit A of Decision of BOCC — Proposed by CLCC (File 247-19-000611-A) deed restricted overnight lodging units [for 110 OLUs] and 13 lots for overnight lodging units, together with roads, utility facilities lots and tracts for future resort facilities and open space. Mitigation water for these elements of Phase lA is essential." BOCC 476, Doc 55. The use permitted by the tentative plan and site plan is 192 single-family lots. While there are 37 other lots for overnight lodging units (OLUs), the OLUs may not be built until the applicant obtains site plan approval for the units. The same is true for future resort facilities, including the golf course. Condition 10 of the IMP requires that the amount of OWRD mitigation needed for those uses be accounted for during the site plan reviews for those facilities. Furthermore, even though 192 (or 227) lots are approved to be platted, the creation of the lots will not create any water usage. It is the occupancy of the homes to be built on the single-family lots that will create water usage. Homes may not be built until after 50 OLUs have been built and other resort facilities are built or bonded. Water will only be used when those homes are built and occupied. Development of the utility facilities lots and tracts is authorized by the site plan approved in 2018. Those facilities are a well and septic drain field. The well will not pump water under permit G-17036 until there is a use developed that requires water. The septic drain field is not a water user. It merely receives wastewater generated by water users. G. Kleinman says Applicant Provided Nothing Remotely Approaching the Accounting Required by Condition 10. Mr. Kleinman says that nothing remotely approaching the accounting required by Condition 10 has been provided. This argument, however, is barred by the Beck doctrine of law of the case. The hearings officer's 2018 decision found that the accounting provided by CLCC in 2018 complies with Condition 10. Ms. Gould raised issues about Condition 10 on appeal to LUBA but did not prevail. The hearings officer's finding that Condition 10 is an accounting requirement only — not a requirement to provide mitigation at the time of development reviews, therefore, is a settled issue. It may not be revisited during this review on remand. H. Response to Kleinman's Argument re OWRD Review Big Falls Ranch water rights are included as part of the OWRD mitigation program to provide the cold water benefits for fish habitat in the Deschutes River called for by the FWMP. It also provides the water quantity mitigation required by the OWRD permit. Since no water use is occurring, mitigation is not yet required by OWRD or by the FWMP. When the resort seeks permission to pump water for this plan from OWRD, it will be required to provide the Big Falls Ranch water rights mitigation described in the FWMP and its water rights permit. Page 10 — Exhibit A of Decision of BOCC — Proposed by CLCC (File 247-19-000611-A) The applicant will use the Big Fall Ranch water for 100% of Phase A-1 uses allowed by the tentative plan. 13 The FWMP stated that the initial transfer of Big Falls Ranch water was to be 175 acres of water. Doc 14, FWMP p.5. The current agreement between Pinnacle and Big Falls Ranch provides for an initial transfer of 175 acres of BFR water (315 acre feet of mitigation water). This is over 6 times the 50 acre feet of mitigation required by the Phase A-1 tentative plan. It also exceeds the 203 acre feet of mitigation required for all of Phase A, including the golf course, overnight lodging units (OLUs), restaurant, meeting rooms and guest facilities. Gould TP at 23-25, Doc 6. I. Big Falls Ranch Contract May Expire Pinnacle has a current, valid contract right to purchase Big Falls Ranch water rights up until the time it expires. It is reasonable to assume the expiration date was set to give Pinnacle sufficient time to purchase the water rights. The fact the contract will expire is not relevant to determining whether it is feasible for the applicant to purchase mitigation water from Big Falls Ranch at this time when the contract is valid. J. Ms. Gould's Challenge re Condition 10 and the OWRD Water Rights Permit This issue was settled against Ms. Gould by LUBA, therefore, is outside the scope of the issue on remand and barred by law of the case. At LUBA, Ms. Gould argued the hearings officer erred in finding compliance with Condition 10 of the IMP because Ms. Gould was then challenging the extension of the water rights permit. LUBA ruled against Ms. Gould and found that CLCC has a valid water right. Gould TP at 32-34. K. Ms. Gould's September 17, 2019 Letter Ms. Gould's September 17, 2019 letter raises issues that have no relevance to answering the question on remand and issues that have long been settled by the County's approval of the CMP, IMP and law of the case/raise it or waive rules that apply to the County's review of the tentative plan decision on remand. The only potentially relevant argument is Ms. Gould's claim that Pinnacle and CLCC do not "hold mitigation water." As explained earlier, the applicant is not required to "hold" mitigation water until it seeks OWRD approval to pump water to serve Phase A-1 or other resort uses. Gould: The TP does not include any of the golf courses or mitigation water for the golf courses. Response: The applicant has provided evidence to show that it has the ability to purchase a sufficient amount of mitigation water for all of Phase A, including golf course development. " While the FWMP only required 43.7% of the water for the first phase of the FWMP to come from cool BFR sources. 100% of the water needed to mitigate for this application will be cool BFR water. This will provide far greater benefits than provided by warm COID water. Page 11 — Exhibit A of Decision of BOCC — Proposed by CLCC (File 247-19-000611-A) Gould: The well indemnification agreement will not mitigate for impacts to area wells. Response: The issue of whether the well indemnification agreement would mitigate for impacts to area wells was settled by approval of the CMP and may not be collaterally attacked by Ms. Gould. It is also not relevant to addressing the issue on remand. Gould: Water levels are falling. Response: LUBA's decision found that "[i]n this appeal, petitioner does not challenge the mitigation plan, but instead challenges the Phase 1-A [sic] approval as inconsistent with the mitigation plan, as explained further below." Gould TP at 20. The claim that water levels are falling is one that challenges the sufficiency of the mitigation plan. As no such claim was presented on appeal to LUBA, it is barred by the doctrine of law of the case. Gould: Two dams impede the Deep Canyon Creek and cold spring water. Response: Dam removal is not the issue on remand. Furthermore, Ms. Gould lost the dam removal argument at LUBA and the issue is now barred by law of case. LUBA Rec 37-38. LUBA found that the issue is address by the FWMP and need not be addressed in the tentative plan/site plan decision. L. Claim that CLCC Must Abandon Exempt Wells on the Resort Property LUBA has determined that the County is need not require CLCC to remove the exempt wells located on the resort property as a condition of approval of the tentative plan and site plan. Gould TP at 37, Doc 6. This issue is settled and may not be revisited due to the Beck doctrine of law of the case. The FWMP requires the resort to terminate the use of exempt groundwater wells on the Thornburgh property. The Resort is not pumping from any of the on-site exempt wells and the wells will be abandoned when the water system is built. This need not occur until the Resort water system is developed. Doc 14, p. 9. M. COLW's Claim CLCC Has Not Addressed the Impact of New Groundwater Pumping on Deep Canyon Springs There is no "new" pumping. Prior to Pinnacle's most recent agreement with Big Falls Ranch, BFR was pumping 100% of its Deep Canyon water rights directly from Deep Canyon Creek spring water. Big Falls Ranch is now pumping the Deep Canyon water rights from groundwater wells on their property rather than from Deep Canyon Creek. Pinnacle is buying irrigation water rights from Big Falls Ranch. When Pinnacle acquires that water, Big Falls will cease pumping the acquired water from its wells. Page 12 — Exhibit A of Decision of BOCC — Proposed by CLCC (File 247-19-000611-A) N. COLW's September 17, 2019 Letter COLW claims that Pinnacle must share all of the details of its purchase agreement with Big Falls Ranch. Big Falls Ranch has required that the contract not be shared publicly but has confirmed what matters — that it has agreed to sell sufficient water to Pinnacle to meet mitigation obligations for development associated with the tentative plan approval. The record developed prior to the LUBA appeal shows that the initial amount of water being purchased is 175 acres (315 acres of mitigation water). This is more water than needed to mitigate for all of the Phase A resort development. COLW argues, based on LUBA's description of Condition 10 in dicta, that the mitigation water must first be approved in a public process during the review of the tentative plan. First, Condition 10 does not say that mitigation water must be approved — it simply requires an accounting; something the hearings officer correctly found had been provided. Furthermore, compliance with Condition 10 is settled in favor of CLCC and may not be revisited. COLW also makes more of LUBA's dicta then merited. COLW's argument ignores the fact the dicta relates to an argument about sub -phasing water use that was resolved in favor of CLCC. COLW's argument also ignores the fact that LUBA upheld the hearings officer's determination that CLCC had demonstrated compliance with the informational requirements of Condition 10. According to LUBA, the hearings officer found that "FMP Condition 10 requires "documentation of the state water permit and an accounting of mitigation `under the water right,"' and that the condition was satisfied by the "complete documentation of the status of the permit and IDP." LUBA Rec 33. OWRD informed the County that the OWRD permit was in good standing and was providing instream flow benefits without using water and the hearings officer properly relied on this information to find compliance with FMP Condition 10. LUBA Rec. 33. O. COLW's September 10, 2019 Letter COLW's letter of September 10, 2019 claims that CLCC must prove, on remand, that impacts of groundwater pumping of Deep Canyon Creek water rights by Big Falls Ranch do not impact Deep Canyon Springs. This issue is clearly outside the scope of remand as the question is whether it is feasible for CLCC to purchase water rights from Big Falls Ranch for use as mitigation. It also erroneously assumes that CLCC is required to restore flows to Deep Canyon Creek now. Flow restoration is not expected by the FWMP until such time as the resort is required to provide proof of mitigation to OWRD. As explained earlier, Big Falls Ranch no longer pumps water from the creek and the creek water is allowed to flow to the Deschutes River. In no case can pumping water to service these water rights from groundwater have a greater impact on Deep Canyon Creek than pumping the same amount of water directly from the creek. The purchase of Big Falls Ranch water rights was intended, at the time of purchase, to do two things: (a) provide quantity mitigation by discontinuing the irrigation of Big Falls Ranch land; and (b) provide quality mitigation by discontinuing Big Falls Ranch's diversion of cold water from Deep Canyon Creek. When water rights are purchased from Big Falls Ranch, the pumping of these water rights from groundwater will end and there will be no impact (potential or Page 13 — Exhibit A of Decision of BOCC — Proposed by CLCC (File 247-19-000611-A) otherwise) from pumping Deep Canyon Creek water rights from groundwater on the flow of Deep Canyon Creek. Therefore, there will be no impact on compliance with the no net loss/standard. The change in point of diversion provides a substantial benefit now and will never provide a benefit that is lesser than the benefit promised by the FWMP. Page 14 — Exhibit A of Decision of BOCC — Proposed by CLCC (File 247-19-000611-A) EXHIBIT B RESOLUTION OF OBJECTIONS TO FINAL ARGUMENT Jeffrey Kleinman objected to final arguments filed on behalf of CLCC in a letter dated October 1, 2019. The Board makes the following determinations about the objections. Final Argument by Janet Neuman dated September 24, 2019. Mr. Kleinman marked the parts of Ms. Neuman's argument to which he was objecting in brackets. We have numbered those objections on Exhibit B-1, attached and respond to the objections by those numbers. Objection #1. The statement that cold water is already being provided in the creek, several years ahead of when the Fish and Wildlife Mitigation Plan anticipated, is not new evidence. The Applicant stated this fact in many ways in various submittals, including my letter of August 9, 2019 and in Mr. DeLashmutt's testimony at the hearing. This is not new evidence but a summary of presented evidence and numerous statements made by the Applicant. The Applicant has presented this fact numerous times during review of the IMP and tentative plan. David Newton, PE, CEF, CWRE, offered comments during the review of the tentative plan that recognizes this fact. In discussing removal of the two dams on Deep Canyon Creek, he said "[i]t is the removal of these dams along with Big Falls discontinuing to pump its irrigation water from Deep Canyon Creek, which is fed by Deep Canyon Spring, that will allow the water from Deep Canyon Spring to flow unimpeded down Deep Canyon Creek and into the Deschutes River and mitigate for the potential thermal issues ODFW was concerned about." This is not new evidence but a key component of the FWMP. (Emphasis added.) LUBA Rec. 489. Aerial photography taken in 2019 by Mr. Dorsey shows the canyon and related elements, including a beaver dam. The Dorsey photos show the line of the creek running between the former Big Falls impoundment and the river. The Dorsey photos also show that the earthen dam/upper dam built by man has been breached and but that its flow is impeded by a beaver dam. Photos and video submitted by Mr. DeLashmutt confirm these facts. The text that says "[BFR] holds the only water rights for the use of water from Deep Canyon Creek (Certificates 76371 and 88027" may be new evidence and, therefore, was not relied on by the BOCC in making its decision. Objection #2: Mr. Kleinman objects to the discussion of and quotation from Transfer T- 12651. This is not new evidence. Mr. Kleinman submitted the Proposed Final Order in this transfer proceeding and Mr. Arnold submitted the Final Order into the record during the first post -hearing comment period. Ms. Neuman's discussion of what the transfer order says is not new evidence. The copy of the transfer order attached to the letter is not new evidence. It was provided to emphasize the point that there will be no surface diversions from Deep Canyon Creek pursuant to the terms of the Final Order. Page 1 — Exhibit B — Decision of BOCC Proposed by CLCC The sentence that says: "[t]hese commitments are also included in the terms of the Water Rights Purchase and Sale Agreement between my clients and Big Falls as follows:" is new evidence and, therefore, was not considered by the Board in making its decision. Objection #3: This is an excerpt from the agreement between the Applicant and BFR. This is new evidence and, therefore, was not considered by the Board in making its decision. Objection #4: Mr. Kleinman objects to statements about the breaching of the upper dam and plans to remove the beaver dam that has been built within the remaining structure. Response: These facts are in the record. The aerial photos submitted by Mr. Dorsey and Ms. Gould and the ground level photographs submitted by Mr. DeLashmutt show the dam has been breached and that the beavers have built a new dam in the channel. This point has been further discussed by Mr. DeLashmutt in his submittals. Doc 77, Pp. 8-9, BOCC 149-150. The fact that the Applicant has committed to removing the dam as called for in the FWMP, by the start of construction of Phase A, is also already in evidence. Objection #5: Mr. Kleinman objects to Ms. Neuman's discussion of the status of flows in Deep Canyon Creek. These facts are contained in State of Oregon documents that are subject to official notice. We understand, however, that officially noticed facts may not be relied on as adjudicative facts so they have not been considered by the Board in making its decision. Objection #6: Mr. Kleinman objects to Ms. Neuman's discussion of the September 17, 2019 letter from Robert Long and her discussion of water rights documents pertinent to this submission. The statement that the permits in Mr. Long's letter were proven up and replaced by certificates is shown by the chart attached to Mr. Long's letter as is a statement based on "black letter" law. The statement that this occurred years ago is new evidence that was not considered by the Board. The last sentence of this paragraph is a comment made based on the fact that the permits discussed and relied on by Mr. Long have been replaced. The other facts stated in this section of Ms. Neuman's argument were derived from public records that can be officially notice by the County. The purpose of providing this evidence was to demonstrate the irrelevancy of Mr. Long's letter; not to establish adjudicative facts. Nonetheless, to err on the side of caution, the Board has not relied on this evidence to make its decision. Objection #7: This may be new evidence and, therefore, was not considered by the Board in making its decision. Objection #8: This is a discussion of the Final Order in Transfer T-12651. This Final Order was placed in the record by David Arnold. It shows that it covers Deep Canyon Creek Certificates 76371 and 88027.1 Neither of these certificates were discussed by Mr. Long. The only part of this discussion that may be new evidence is the sentence that says "[t]he agreement with Big Falls Ranch covers portions of the water rights represented by surface water Certificates 76371 and 88027." It, therefore, was not relied on by the Board in making its decision. Ms. 1 See also the "Dewey Exhibit" identifying by number the certificates involved in the water rights transfer from Deep Canyon Creek to ground water, LUBA Rec 191. Page 2 — Exhibit B — Decision of BOCC Proposed by CLCC Neuman also submitted a copy of the Final Order in Transfer T-6854. This is new evidence so it, also, was not considered by the Board in making its decision. Objection #9: Mr. Kleinman objected to Ms. Neuman's statement that there is no requirement under the T-12651 order to transfer the groundwater POA back to a surface water POD. The Final Order is already in evidence and Ms. Neuman's comment on what is not contained therein is not new evidence. Final Argument by Kameron DeLashmutt of September 24, 2019 Mr. Kleinman objected to Exhibit B-1 and B-2 (Doc 84) of Mr. DeLashmutt's final argument. These exhibits are copies of aerial photographs filed by Sage Dorsey. The images were altered to remove color from parts of the photographs other than Deep Canyon Creek to make it easier to identify the line of the creek running down to the river. No evidence other than that provided by the Dorsey photograph is provided. Nonetheless, to err on the side of caution, the Board has not relied on Exhibits B-1 and B-2 (Doc 84) to make its decision. Final Argument by Liz Faucher of September 24, 2019 Objection #1: Mr. Kleinman claims, without explanation, that Paragraph J on page 14 should be stricken. Why this might be the case is unclear. The paragraph, in full, says: "Pinnacle will purchase BFR water rights prior to expiration of the Big Falls contract. The fact it [contract] will expire is not relevant to whether it is feasible for the applicant to purchase mitigation water." ORS 197.763(6)(e) allows an applicant to file final argument. ORS 197.763(9)(a) defines the term "argument" as follows: (a) "Argument" means assertions and analysis regarding the satisfaction or violation of legal standards or policy believed relevant by the proponent to a decision. The argument provided by Ms. Fancher is an assertion that the "no net loss/degradation" standard that applies to this case can be met during the life to the Big Falls contract because Pinnacle is entitled to purchase BFR water rights during the term of the contract. Facts in the record show that the Pinnacle contract allows it to purchase the Big Falls water rights required by the FWMP and that the contract will not expire until December 1, 2020 (Memorandum of Agreement, 2019-14711). The paragraph might be read to convey information that Pinnacle intends to purchase the water rights. This assertion was not considered by the Board in making its decision. Objection #2: Mr. Kleinman claims Ms. Fancher's statement on page 15 of her final argument for CLCC (Doc 87) that "[t]he dam at the former location of the BFR weir has been removed" is new evidence that is unsupported by the record. He is wrong. This statement Page 3 — Exhibit B — Decision of BOCC Proposed by CLCC follows the statement that "beavers impounded water by building dams." The dam referred to in the sentence challenged by Mr. Kleinman is the beaver dam built after the weir was removed from the Big Falls Ranch dam. Evidence in the record explains that this occurred and that this beaver dam was removed. This is also shown by the video footage submitted by Kameron DeLashmutt during the post -hearing comment period. Doc 35-37. Page 4 — Exhibit B — Decision of BOCC Proposed by CLCC 2.h September 24, 2019 Page 2 remand, as Mr. DeLashmutt has pointed out in previous submissions and in his final argument. Cold Water Mitigation in Deep Canyon Creek. Applicant is already providing cold water mitigation in Deep Canyon Creek, seve 1 years ahead of the time that was anticipated in the Fish and Wildlife #1 Mitigation Plan approved by the county as part of its approval of the Final Master Plan. Big Falls Ranch ("BFR") holds the only water rights for the use of water from Deep Canyon Creek (Certificates 76371 and 88027) and the ranch has stopped diverting any water from the creek Transfer T-12651 approved a change from the previously -used surface water 0 point o iversion ("POD") on Deep Canyon Creek to groundwater Points of Appropriation ("POA") at three wells. Paragraph 7 of T-1.2651 says, "The original N #2point. of diversion of surface water shall not be retained as an additional or N supplemental point of diversion under the transferred portion of the right." c (Emphasis added.) These commitments are also included in the terms of the Water Rights Purchase and Sale Agreement between my clients and Big Falls as follows ,. #3 "6. Removal of Deep Canyon Spring Impoundments and Danns. a. Immediately upon the Effective Date [February 1.3, 2019], and for so long as this Agreement is effective, Seller shall: i. Cease diverting surface waters directly from Deep Canyon Creek. ii. Cease impounding surface waters of Deep Canyon Creek and will not otherwise impede the flows of such surface waters to the Deschutes River. Seller will open any existing release valves, flashboards, or other devices that would allow surface waters to flow through any earthen barriers or impoundment structures in Deep Canyon Spring or Deep Canyon Creek on the Big Falls Ranch b. Buyer, at its sole discretion and at its sole cost, will cause the removal of the upper dam on the Weigand and Reimenschneider property (the "W & R Property") adjacent to the Big Falls Ranch. A :k sl• c. Buyer, at Buyer's cost, may remove any remaining earthen barrier or impoundment structure on the Big Falls Ranch in Deep Canyon Creek at any time after April 1, 2024...." i Packet Pg. 48 September 24, 2019 Page 3 Thus, BFR is legally and contractually bound to cease pumping surface water from the creek and has already met this commitment. My clients and Big Falls have also already removed the weir (flashboards) from the concrete channel previously used by Big Falls to impound and divert the spring water from the creek into their irrigation pumps. As a result, the water can now flow through the concrete channel to the Deschutes River.2 Applicant acknowledged that beavers had subsequently blocked the channel, but; the beaver dam has now been removed, V as shown by the photos and videos submitted during the rebuttal period. E h per dam (not on BFR property) has already been breached as well, The -LIP #4 tho g I teavers have since plugged that opening as well. That beaver dam and the u�T remaining earthen footings will be removed in accordance with the FWMP prior to construction of Phase A as requiref] 0 The important point is that without the diversion by BFR cold spr' ng water This is now allowed to flow down Deep Canyon Creek to the Deschutes River. This flow CD N is legally protected in the creek because no other surface water rights are 0 authorized for this source and OWRD's administrative rules and its water availability analysis substantially preclude new surface water rights in the #5 Deschutes Basin. Furthermore, ODFW has a pending permit application 0 (Application IS -70695) for an instream right in a segment of the Deschutes River 0 that includes Deep Canyon Creek for 250 efs of instream flow, thus further insuring there could not be any new water rights available at this locati Gould Submission/Letter from Robert Long. Through her attorney Jeffrey Kleinman, Ms. Gould offered a September 17, 2019 letter from Consultant Robert Long. Mr. Long says that he reviewed "two rights under Permit 5-32049, one right under Permit 5-37392, and one surface water certificate 76372." He then goes on to say that his letter "focuses on the likely permitting requirements necessary to use the Primary water rights under Permit 5-32049 as instream mitigation for new water rights or a water right transfer downstream." I am not sure why Mr. Long is discussing these three water rights at all. #6 First, both permits he references were proven up and replaced by certificates some First, ago, Certificate 44281 was initially issued upon proving up of Permit 5-32049 and Certificate 44283 was issued upon proving up of Permit 5-37392. In 2000, OWRD approved transfer T-6854, which made changes to those two certificates #7 As previously noted, the remaining concrete footings will be removed soon Eafter April 1, 2024, which is the, completion date for T-12651, Packet Pg. 49 #6 #8 #9 *. ■ September 24, 2019 Page 4 (and others as well). As a result of the transfer, Certificates 44281 and 44283 were both cancelled and replaced by new certificates reflecting both the portion of the water rights not changed by the transfer and. the portion of the water rights changed and proven up under the transfer. After completion of that transfer, Big Falls Ranch held Certificates 76371, 87558, 87655, 88027, 88028, and 88224. Only Certificate 76371 and 88027 were for surface water in Deep Canyon Creek; the others are groundwater rights. Deschutes Valley Farms held surface water Certificate 76372 (to a creek in McKenzie Canyon, not Deep Canyon) and groundwater certificates 75672, 76373, and 79237. The two permits referenced by Mr. Long are no longer pertinent to any discussion of Big Falls Ranch water rights and these rights are not inchoate, as he claims' Second, as noted, Certificate 76372 pertains to water withdrawn from a stream in McKenzie Canyon, not to Deep Canyon Creek, which is the focus of this proceeding. Third, crucially, Mr. Long's discussion of requirements that might apply to changing the terms of a permit is not pertinent to either Applicant's water A purchase a{;reement with Big Falls Ranch or to Trans er - o at approved changing the surface water point of diversion for certain water rights from surface water PODS to groundwater points of appropriation located on Big Falls Ranch. The agreement with Big Falls Ranch covers portions of the water rights represented by surface water Certificates 76371 and 88027. Transfer T-12651 covers Certificates 76371, 87655, and 88027, the first and third of which pertain to Deep Canyon Creek. (Note that the effect of Transfer T-12651 will be to cancel those three certificates and replace them with new certificates once the transfer has been completed.) See attached copies of transfer orders Finally, even if Mr. Long's letter pertained to theFinally, even if Mr. Long's letter pertained to the water rights at issue here, all that his letter does is describe that further OWRD review proceedings would be required to make changes to any water rights. Applicant has never argued otherwise. However, to the extent that Mr. Long argues that Permit 5-32049 is inchoate and requires a transfer back to its original point of diversion before it could be subject to any further transfer by the Applicant, he is simply w • g. First, as noted, that permit is not inchoate and it was proven up long ago. Additionally, there is no requirement under T-12651 to transfer the groundwater POA back to a surface water POD. Mr. Long cites to condition #6 of the Transfer Order approving T- 12651 (al ugh he is really citing condition #7), which says in part: "...if within 5 years after approval of the transfer, the Department receives a transfer application to return to the last authorized surface water point of diversion..." _ E 4) _ L 0 a) N a) N _ 0 U d E 0 0 U 4) W M E Y 0 0 C6 0 04_ a) E U a Packet Pg. 50 Jacob Ripper From: Kameron DeLashmutt <kameron@bendcable.com> Sent: Sunday, November 10, 2019 11:23 PM To: Jacob Ripper Cc: Adam Smith; 'Liz Fancher' Subject: Additional Argument for Thornburgh Phase A-1 Remand, 247-19-000611-A Attachments: 20191910 Kam Cover.pdf; 20191110 Comment Chart Final no link.pdf Follow Up Flag: Follow up Flag Status: Flagged [EXTERNAL EMAIL] Jacob, Please forward this onto the Commissioners along with Liz's materials for their review. Sincerely, Kameron DeLashmutt 541-350-8479 (P) 866-492-5354 (F) The information in this email is confidential and only for the use of the reciepient named. You are not allowed to forward it on without the permission of the sender. If you have received this message in error please delete it. Central Land and Cattle, LLC November 10, 2019 BOARD OF COMMISSIONERS DESCHUTES COUNTY CIO JACOB RIPPER DESCHUTES COUNTY PLANNING 117 NW LAFAYETTE AVENUE BEND, OR 97703 Re: File 247-19-000611-A, Thornburgh Phase A -I Remand Dear Commissioners, The permitting review of the Thornburgh Resort by Deschutes County, appellate bodies, and other regulatory agencies is now nearing the end of its 14th year. During this time the resort plans have gone more than 30 separate appeals with project opponent Ms. Gould litigating against the project in 7 separate jurisdictions at the local, state and federal level, including the Board of County Commissioners, the Land Use Board of Appeals, the Oregon Court of Appeal, the Oregon Supreme Court, the Internal Board of Land Appeals (US. Government), protests to the Oregon Department of Water Resources, and in the Oregon Circuit Court of Marion County. There have been 7 appeals of Thornburgh's Conceptual Master Plan before its final approval, another 6 appeals of the CMP as Gould attempted to invalidate the CMP approval, 9 appeals of the FMP, and now, this is the 5th appeal of the Phase A-1 Tentative Plan. In addition there has been 4 protests and appeals related to the water rights permit. Aside from creating tremendous delays and causing Thornburgh to spend huge sums of capital Gould's extensive history of appeals has produced little change to any resort plan. But then, Gould makes no secret that her motives have little to do with the merits of this or any other individual case. Gould has already determined she will oppose and contest anything proposed by the Resort and take any position no matter how tenuous to achieve her goals. Given her past actions, it is expected that Gould's arguments will be crafted to what offers the greatest chance of success in meeting the ideological objective. There will be little attention paid to established facts, certainly where the facts don't advance Gould's objective. Karl G. Amita, who currently represents Gould in a contested case at OWRD against Pinnacle confirms our view of Gould's approach stating, in a brief filed with OWRD, that Gould "doesn't believe there is any fight way to do the wrong thing." The "wrong thing" in this context is allow development of the Thornburgh Resort. In spite of the fact Thornburgh is allowed under state law and county code to develop the subject property as a destination resort, Gould knows better than them. It is not enough for Gould that Thornburgh has shown over and over again that it meets standard after standard. After all "there is no right way to do the wrong thing." For Gould this is not about making sure we secure the Big Falls water or a sincere belief that we won't adhere to the FWMP. For Gould this is about doing whatever is needed, and saying what is required to delay the process and halt the development of the Thornburgh Resort. Gould's actions are an abuse of the land use process. Every statement made, every piece of evidence provided, every argument advanced or rebuttal offered is tainted by Gould's mission to destroy the Thornburgh Resort. The transfer of the Big Falls Ranch water rights is a prime example. By the transfer we have been able to accomplish the bulk of the actions the FWMP anticipated to provide the cool spring water mitigation. Only instead of doing them over 15 years or more as impacts were created we have been able to cease pumping 100% of the Deep Canyon Spring water, remove the Big Falls weir letting the pond drain and the creek to flow to the river. The Deep Canyon Spring water is legally protected in the creek. In spite of the tremendous benefits we provide in advance of creating any impacts, Gould and other project opponents try to taint those actions, raising dozens of spurious claims that have nothing to do with the issue on remand. This is done to divert attention and distract from the significant benefits already provided. Benefits far in excess of what's needed to meet the no net loss standard. Attached to this email is a chart that summarizes many of those claims with the opponent arguments, a summary of the response, and the relevant documents. The document list has links that if you click on them will take you direct to the page of the documents that pertain to the arguments, in most cases both for and against. I appreciate your consideration of the items contained herein and emphatically ask that you approve the tentative plan and site plans. 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Kleinman <kleinmanjl@aol.com> Sent: Sunday, November 10, 2019 11:58 PM To: Jacob Ripper Cc: Adam Smith Subject: Thornburgh Resort Subdivision --Board of Commissioners Appeal Attachments: PROPOSED FINDINGS (Gould) 11-10-19.pdf Follow Up Flag: Follow up Flag Status: Flagged [EXTERNAL EMAIL] Jacob, Here are our proposed findings. Jeffrey L. Kleinman Attorney at Law The Ambassador 1207 SW Sixth Avenue Portland, OR 97204 Tel (503) 248-0808 Fax (503) 228-4529 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW A. JURISDICTION 1. Ms. Gould and at least one other party contend that the county lacks jurisdiction to make a decision in this remand proceeding, because no appellate judgment has yet been entered in what is now a petition for review process before the Supreme Court of Oregon. 2. Counsel for the parties have presented their respective legal arguments on this issue. We have carefully considered those arguments. 3. While we recognize the applicant's desire to move forward on remand, Deschutes County either has jurisdiction to decide this matter on the merits, or it does not. The county is not responsible for the quandary the parties find themselves in on this issue. On balance, we agree with our Hearings Officer, who held that this proceeding must be dismissed: "I do this reluctantly, knowing that it creates a lot of uncertainty for the parties and the County as to how best to proceed. But not dismissing, issuing a decision, and then getting a determination that I do not have jurisdiction after possible years of litigation seems at least, if not more, convoluted." 4. On the basis of the above findings, we conclude that we lack jurisdiction; that the applicant's appeal must be denied; and that this proceeding on remand from LUBA must be dismissed. ALTERNATIVE FINDINGS AND CONCLUSIONS In the event the above conclusion is held to be in error, we make the following, alternative Findings and Conclusions: B. GOULD'S OBJECTION TO NEW EVIDENCE CONTAINED IN APPLICANT'S FINAL WRITTEN ARGUMENT 1. At the conclusion of the evidentiary hearing in this matter, the Hearings Officer established time periods for further submittals from the parties, as follows: (1) Open Record Period No. 1, for any materials any party wished to submit. (2) Open Record Period No. 2, for rebuttal argument, including evidence. (3) Applicant's Final Written Argument with No New Evidence, as allowed by statute. 2. On October 1, 2019, Ms. Gould filed objections to portions of materials the applicant filed with the county as the applicant's final written argument. Ms. Gould contended that the identified selections were in fact new evidence and could not be received. 3. We have reviewed Ms. Gould's objections and the responses filed on behalf of the applicant. Based upon that review, we conclude that the specific objections filed by Ms. Gould are well taken. We order that the specifically challenged materials be stricken. C. REVIEW ON THE MERITS (CONFINED TO THE RECORD BELOW) 1. We are mindful that, as in all proceedings before the county, an applicant bears the burden of proof. 2. The applicant wishes us to strike Condition of Approval 17, arguing that it has been satisfied and is unnecessary. However, the applicant did not raise a challenge to Condition 17 in its answering brief before LUBA, or file a cross-appeal for this purpose. LUBA declined to approve the applicant's subsequent request to eliminate this condition. 3. We have reviewed the memoranda submitted by the parties and the materials in the record before us, and have considered the arguments of counsel. 4. After due consideration, we conclude that the applicant has not met the burden of proof required of it in this case. Therefore, Condition of Approval 17 remains in effect. The applicant has not justified our removing it or deeming it met. 5. This appeal is accordingly denied. Page 2 Jacob Ripper From: Jeffrey L. Kleinman <kleinmanjl@aol.com> Sent: Sunday, November 10, 2019 11:44 PM To: Jacob Ripper Cc: Adam Smith Subject: Thornburgh Resort Subdivision -Board of Commissioners Appeal Attachments: GOULD BOARD OF COMMISSIONERS MEMO 11-10-19.pdf Follow Up Flag: Follow up Flag Status: Flagged [EXTERNAL EMAIL] Hi Jacob, Attached for the record in the above matter please find Ms. Gould's memorandum to the Board of Commissioners. Proposed findings to follow shortly. Thank you. Jeffrey L. Kleinman Attorney at Law The Ambassador 1207 SW Sixth Avenue Portland, OR 97204 Tel (503) 248-0808 Fax (503) 228-4529 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.com November 10, 2019 APPEAL MEMORANDUM OF ANNUNZIATA GOULD TO: Deschutes County Land Use Hearings Officer FROM: Jeffrey L. Kleinman RE: File No. 247-19-000611-A, Thornburgh Destination Resort Subdivision This memorandum is submitted on behalf of Annunziata Gould, in compliance with the schedule established by this Board for review of the applicant's appeal. I. DESCHUTES COUNTY AND ITS HEARINGS OFFICER LACK JURISDICTION OVER THIS MATTER. We state for the record that Ms. Gould's participation in this appeal proceeding is without prejudice to her assertion that this Board lacks jurisdiction to decide this matter whether outright, or conditionally as hypothesized at your meeting of November 6, 2019. At the outset, we would like to emphasize one key point in addressing the problem of the Board's jurisdiction in this matter. Simply stated, this problem—and the quandary that the Board finds itself in—are all of the applicant's making. It was the applicant that Page 1 - GOULD MEMORANDUM ON APPEAL TO BOARD OF COMMISSIONERS rushed to initiate this proceeding on remand from LUBA without waiting for the appellate process to play out to a conclusion. The time constraints faced by all participants in this process flow from that decision. When it comes to jurisdiction, no party can bestow it where it does not otherwise exist, and it cannot lie in two places at the same time. Even a stipulation to the Board's jurisdiction—whether by means of a stay of proceedings or otherwise—would be null and void. Jurisdiction lies and will continue to lie with the appellate courts until an appellate judgment has been entered. Oregon Rule of Appellate Procedure (ORAP) 14.05 governs appellate judgments and provides in material part: 14.05 APPELLATE JUDGMENT (1) As used in this rule, (a) "Appellate judgment" means a decision of the Court of Appeals or Supreme Court together with a final order and the seal of the court. (b) "Decision" means a designation of prevailing party and allowance of costs together with, (i) In an appeal from circuit court or the Tax Court, or on judicial review of an agency proceeding, an order disposing of the appeal or judicial review or affirming without opinion; or with respect to a per curiam opinion or an opinion indicating the author, the title page of the opinion containing the court's disposition of the appeal or judicial review. (ii) In a case of original jurisdiction in the appellate court, in addition to the documents specified in subparagraph (i) of this paragraph, an order denying, dismissing, or allowing without opinion the petition or other document invoking the court's jurisdiction. An order allowing a petition for an alternative writ of mandamus or writ of habeas corpus is not a decision within the meaning of this rule. Page 2 - GOULD MEMORANDUM ON APPEAL TO BOARD OF COMMISSIONERS (c) "Designation of prevailing party and allowance of costs" means that part of a decision indicating, when relevant, which party prevailed before the appellate court, whether costs are allowed, and, if so, which party or parties are responsible for costs. (d) "Final order" means that part of the appellate judgment ordering payment of costs or attorney fees in a sum certain by specified parties or directing entry of judgment in favor of the Judicial Department for unpaid appellate court filing fees, or both. (2) The decision of the Supreme Court or Court of Appeals is effective: (a)With respect to appeals from circuit court or the Tax Court, on the date that the Administrator sends a copy of the appellate judgment to the court below. (b) With respect to judicial review of administrative agency proceedings, on the date that the Administrator sends a copy of the appellate judgment to the administrative agency. (3) The Administrator shall prepare the appellate judgment, enter the appellate judgment in the register, send a copy of the appellate judgment with the court's seal affixed thereto to the court or administrative agency from which the appeal or judicial review was taken, and send a copy of the appellate judgment to each of the parties. (a) With respect to a decision of the Court of Appeals, the Administrator will not issue the appellate judgment for a period of 35 days after the decision to allow time for a petition for review pursuant to ORS 2.520 and ORCP 9.05. If a petition for review is filed, the appellate judgment will not issue until the petition is resolved. (b) With respect to an order of the Supreme Court denying review or a decision of the Supreme Court, the Administrator will not issue the appellate judgment for a period of 21 days after the order or decision to allow time for a Page 3 - GOULD MEMORANDUM ON APPEAL TO BOARD OF COMMISSIONERS petition for reconsideration under ORCP 9.25 or a petition for attorney fees or submission of a statement of costs and disbursements under ORCP 13.05 and ORAP 13.10. (Emphasis added.) We understand that the applicant is in a rush to obtain what it assumes and expects will be yet another approval from the county. However, no degree of urgency on the part of any party or decision maker can alter where jurisdiction lies. In this regard, we would point out that none of the above triggering events has occurred; that Ms. Gould has filed her petition for review in the Supreme Court of Oregon; and that petition remains pending. This will remain the case so long as Ms. Gould's appeal remains before the appellate courts. 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 Ptd 1315 (1989). LUBA will reverse a local government 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). The cases cited by the applicant are not helpful to its position. The question of whether Ms. Gould's appeal was timely filed, vesting the appellate courts with jurisdiction, has not been finally decided. The statute controlling methods of filing appeals, ORS 19.260,was amended in 2015 to broaden the number of methods of filing in Page 4 - GOULD MEMORANDUM ON APPEAL TO BOARD OF COMMISSIONERS the Court of Appeals. Ms. Gould believes that her filing was timely made under the amended statute. This is a question of first impression, and may well be of interest to the Supreme Court. If the Court allows the petition for review and then decides in favor of Ms. Gould on the merits, the Court of Appeals will then have to decide the underlying appeal itself. (Ms. Gould's opening brief in the Court of Appeals has already been filed.) The applicant suggests that the current appellate process would somehow create a precedent for other parties in the future to take the same approach, and to do so for purposes of delay. We disagree. No attorney or party would voluntarily seek out this process. Not one. The applicant is incorrect in its characterization of my statement at the evidentiary hearing in this case. I have reviewed a transcript of that portion of the hearing. In our discussion of timing on the record of the hearing, I stated that delayed county action, should the hearing on the merits not proceed, would not require the applicant to start over. However, the hearing on the merits (including a multi -stage open record period) did in fact proceed, and my statement did not extend to a delay beyond the maximum time otherwise allowed by statute. At all times, I preserved all objections as to jurisdiction. In addition, as I explained to Adam Smith in discussing a possible stay should the applicant initiate an appeal to this Board, my client simply does not have the ability to confer jurisdiction where by statute none exists. Page 5 - GOULD MEMORANDUM ON APPEAL TO BOARD OF COMMISSIONERS The applicant also overlooks the fact that other parties than Ms. Gould presented written or oral testimony or both in the remand proceeding before the hearings officer. We could not speak for them. No stipulation to a stay could take effect without their agreement. To the best of our knowledge, none of those parties was even contacted regarding such consent. For this reason as well, Ms. Gould's assent to a stay would not have helped the applicant or served to confer jurisdiction upon the county here. Finally, the applicant's criticism of Ms. Gould's participation in the county's public processes regarding the Thornburgh resort is not well -taken. Ms. Gould has continuously asserted the public interest in assuring (or trying her darned best to assure) that county codes and ordinances are properly applied, especially in an area with constrained water supplies, and that the requirements of state law as to (1) destination resorts, (2) use of scarce water resources, and (3) protection of the Deschutes River's anadromous fish runs, are met. This has been a costly and time-consuming effort, but one that Ms. Gould as a citizen of the county and nearby resident has felt it imperative to undertake. It has not been a source of amusement or entertainment, and it has not been conducted out of personal animosity toward the applicant(s) or related persons or entities. Further, as we have said, the timing problem in this case is of the applicant's making and not that of Ms. Gould. ORS 215.435 establishes the time limits applicable to county review following remand from LUBA. Under the statute, the 120 -day period for county review was Page 6 - GOULD MEMORANDUM ON APPEAL TO BOARD OF COMMISSIONERS triggered by the applicant's premature request to the county. The statute does not provide for a mandamus remedy against a county which lacks jurisdiction in the first place. Under the circumstances, the decision already reached by your hearings officer—that he lacked jurisdiction to decide the matter—was a sound one. Your affirming it on appeal will defeat any mandamus action the applicant may choose to commence. At the same time, it will serve to avoid a highly rushed review of a lengthy and complex record, with its inherent risk of further error. II. GOULD'S OBJECTIONS TO NEW EVIDENCE CONTAINED IN THE APPLICANT'S FINAL WRITTEN ARGUMENT TO THE HEARINGS OFFICER SHOULD BE SUSTAINED. On October 1, 2019, Ms. Gould filed objections to materials the applicant filed with the county, which were required to consist of final written argument with no new evidence. The relevant items are listed in the table of contents staff prepared for you, as follows: (1) Applicant's final written "argument" Items 84-88 (2) Ms. Gould's objection Item 89 (3) Fancher response to objection Item 90 (4) Neuman response to objection Item 92 Unfortunately, a supportable resolution of the objections in question would entail review of the record in its entirety. Having heard the oral testimony and reviewed the written testimony and demonstrative evidence in the record, with ample time to evaluate Page 7 - GOULD MEMORANDUM ON APPEAL TO BOARD OF COMMISSIONERS them, the hearings officer was in a reasonable position to do so. Because he determined that he lacked jurisdiction in the first place, he simply did not get there. We would respectfully submit that with the time constraints invoked by the applicant, this Board is not necessarily well-placed to decide this objection. In any event, having reviewed the above responses filed by Ms. Fancher and Ms. Neuman, our objection stands. We do not believe the challenged selections are in the record or derived from evidence in the record. Accordingly, they must be stricken as part of the Board's on -the -record review. III. ARGUMENT ON THE MERITS We incorporate by reference here the evidence and arguments Ms. Gould and other opponents submitted into the record before the hearings officer. The materials in question include but are not limited to the recording of the hearing held on August 27, 201, and Ms. Gould's submittals of August 27, September 10, September 17, and October 1, 2019, and video (including aerial video) and photographic evidence presented by Ms. Gould. We also wish to raise the procedural objection that given (1) the extraordinarily limited time provided for Board review of a long and convoluted record, and (2) our inability to respond to the applicant's materials or object if they stray from the record, a Board decision on the merits would fail to follow the procedures applicable to the matter before it in a manner which prejudices the substantial rights of the opponent parties. Page 8 - GOULD MEMORANDUM ON APPEAL TO BOARD OF COMMISSIONERS A. The Applicant Did Not Appeal Condition of Approval 17 to LUBA, and LUBA Held that It Would Not Consider the Applicant's Request to Remove It. We incorporate by reference here the argument set out by Central Oregon Land Watch (COLW) in its letter filed today. While the applicant belatedly asked LUBA to remove Condition 17, LUBA held that because the applicant had not filed a cross -petition for review, the request was untimely and could not be considered or granted. Condition 17, which this Board affirmed in denying Ms. Gould's appeal of the underlying decision of your hearings officer at the end of 2018, provides: 17. Site design approval. Prior to issuance of building permits for the single -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 Springs Ranch and COID water referenced in the Mitigation Plan and IMP 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 or justify a modification to the IMP. It was demonstrated on the record that Central Oregon Irrigation District water is not available to the applicant. The remaining question is whether the necessary water from Big Springs Ranch has been obtained. This is no longer the usual question of "feasibility." The application in this case contains the one and only site plan for proposed Phase A-1. The applicant either has the water or not. In this remand proceeding, the applicant contended that it does. However, it failed to so demonstrate. Page 9 - GOULD MEMORANDUM ON APPEAL TO BOARD OF COMMISSIONERS In Ms. Gould's appeal, LUBA held in material part: As the hearings officer found, the mitigation plan relies on both quantity and quality of mitigation water acquired from the COID and Big Falls Ranch and the record does not support a conclusion that a change of source for the mitigation water would satisfy both quantity and quality of mitigation water. The no net loss/degradation issue has been litigated at length and affirmed based on facts and expert evidence modeled on assumptions of water sourced from COID and Big Falls Ranch, which includes the quality of those sources, including water temperature, and impacts on downstream fish habitat. * * * 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. Gould v. Deschutes County, LUBA No. 2018-140 (Final Opinion and Order, June 21, 2019) slip op 30, 32. On remand, the applicant contended that it was not changing the source of the required mitigation water. Thus, it was left to prove that, without Condition 17, the tentative plan approved in 2018 satisfies the no net loss/degradation standard. (If the applicant characterizes the question differently, we would only point out that the applicant did not appeal LUBA's Final Opinion and Order.) Suffice it to say, the applicant did not meet its burden of so proving. If it had, the hearings officer would not have included Condition 17 in the first place. Page 10 - GOULD MEMORANDUM ON APPEAL TO BOARD OF COMMISSIONERS B. THE APPLICANT DID NOT MEET ITS BURDEN OF PROOF WITH RESPECT TO THE NO NET LOSS/DEGRADATION STANDARD. As the Board can see, the evidence and argument on the above point were extensive to say the least. Both sides offered the arguments of counsel. Fact witnesses provided the hearings officer with evidence. Ms. Gould also submitted an expert's letter from Robert E. Long, Registered Professional Geologist (Oregon), Certified Water Rights Examiner (Oregon and Washington), and Registered Professional Geologist and Hydrogeologist (Washington), on September 17, 2019. (This is your Item No. 72 or 73; we cannot tell which.) Mr. Long's letter demonstrates that the applicant had not met its burden of proving acquisition of the necessary mitigation water. Thus, the applicant's effort to convince this Board to do what the hearings officer did not and LUBA would not—to remove Condition 17—must fail. We would like to emphasize an additional point. In making its argument, the applicant chose to rely heavily upon the contention that a "memorandum of agreement" between Pinnacle Utilities, LLC and Big Falls Ranch Co. ("BFR"), recorded on May 8, 2019, showed that it had obtained the necessary water. The memorandum appears as Exhibit C to the applicant's "burden of proof statement," Item No. 4 in your table of contents. It refers to an unrecorded "Purchase and Sale Agreement for Water Rights" between Pinnacle and Big Falls Ranch. The agreement ("Agreement") itself was never Page 11 - GOULD MEMORANDUM ON APPEAL TO BOARD OF COMMISSIONERS produced for review by the hearings officer or the parties. It is not in the record before you. According to the terms of the memorandum, the Agreement had an effective date of February 13, 2019, and expires on December 1, 2020. Pursuant to the memorandum, Pinnacle has the right to purchase certain water rights from BFR, which in turn have ostensibly been transferred by BFR from a surface water point of diversion to groundwater points of appropriation. According to the memorandum, BFR "has agreed to cease diverting surface water from Deep Canyon Creek subject to the terms and conditions of the Agreement." The memorandum further provides: This Memorandum is not a complete summary of the Agreement. Provisions in this Memorandum shall not be used in interpreting the Agreement provisions. In the event of a conflict between this Memorandum and the unrecorded Agreement, the unrecorded Agreement shall control. If Pinnacle's memorandum of agreement was intended to demonstrate the availability and adequacy of the described water rights, it fails in every regard: • What does the underlying Agreement actually say? • What contingencies were agreed upon by the parties? • What are the specifics of the "certain water rights" in question? • What happens when the underlying Agreement expires on December 1, 2020? • Where is the proof that BFR "has recently transferred certain water rights associated with the Property from a surface water point of diversion to groundwater points of appropriation?" What are those water rights? Page 12 - GOULD MEMORANDUM ON APPEAL TO BOARD OF COMMISSIONERS Moreover, as stated on the face of the document, this "Memorandum is not a complete summary of the Agreement." The memorandum is not even to be used in interpreting the provisions of the Agreement, and in the event of a conflict in language, "the unrecorded Agreement shall control." So where is it? What hoops must Pinnacle jump through in order to actually secure the water rights? When the Agreement expires, what BFR water rights will Pinnacle possess, if any? As an example of what can happen, and has happened in the past with respect to the Thornburgh Resort Subdivision, we identified and addressed another memorandum of agreement by which the developer was to purchase water rights from BFR, entered into in 2007. This memorandum is Exhibit E to our hearing memo of August 27, 2019, which in turn appears to be Item No. 24 in your table of contents. This memorandum and the underlying agreement were in fact revoked by instrument filed in 2009. Exhibit E at 6. The same thing can very easily take place again, if the applicant fails to timely jump through the secret hoops in the secret agreement. In addition, Exhibit D to our August 27 memo is a Deed of Trust, the original of which was recorded in the records of Deschutes County on November 7, 2018. The grantor of the deed of trust is the applicant herein, Central Land and Cattle Company, LLC. The beneficiary (not the trustee) is Albert Kennedy, Ms. Neuman's law partner at the Tonkon Torp firm. The deed of trust secures Mr. Kennedy in the subject property herein, and conveys all of the applicant's "right, title and interest in that property, Page 13 - GOULD MEMORANDUM ON APPEAL TO BOARD OF COMMISSIONERS [t]ogether with all tenements hereditaments and appurtenances, including easements, and all other rights thereunto belonging or in anyway hereafter appertaining, and the rents, issues, and profits thereof * * *." The deed of trust secures performance of a promissory note in an unstated amount; the note was not attached. In any event, this trust deed impairs any water rights the applicant may procure from BFR under the Agreement and memorandum of agreement discussed above. On this basis alone, the applicant could not demonstrate a sufficient transfer of water rights to satisfy the mitigation requirements in this case. The water rights of Big Falls Ranch are themselves impaired, and cannot be transferred to the applicant without a written agreement from BFR's lender to release its security interest in those rights. No such agreement appears in the record. As Exhibit B to our memorandum of September 10, 2019 (Table of Contents Item No. 53), we submitted a lot book report on BFR's property dated September 9, 2019, from First American Title. It lists as Exceptions 24-26 three trust deeds BFR granted to Northwest Farm Credit Services (NWFCS) in 2016 and 2017, to secure indebtedness in a combined amount of $2,450,000. Copies of the recorded trust deeds were submitted as Exhibits C, D, and E (Item Nos. 52, 51 and 50, respectively). Each contains the following provision describing BFR's grant of security to its lender in the form of BFR's water rights: Page 14 - GOULD MEMORANDUM ON APPEAL TO BOARD OF COMMISSIONERS 1.2 Water Assets. All right, title, and interest at any time of Grantor (or any of its bailees, agents, or instrumentalities), whether now existing or hereafter arising or acquired, whether direct or indirect, whether owned legally, of record, equitably or beneficially, whether constituting real or personal property (or subject to any other characterizations), whether created or authorized under existing or future laws or regulations, and however arising in, without limitation, the water, water rights and other assets and items more specifically described hereinafter (collectively the "Water Assets"). A description of some Water Assets may also be included with the description of the Land set forth above or in an exhibit hereto. a. All water (including any water inventory in storage), water rights and entitlements, other rights to water and other rights to receive water or water rights of every kind or nature whatsoever and howsoever evidenced, including but not limited to the following: (i) the groundwater on, under, pumped from or otherwise available to the Land, whether as the result of groundwater rights, contractual rights or otherwise, together with Grantor's right to remove and extract any such groundwater including any permits, rights or licenses granted by any governmental authority or agency or any rights granted or created by any use, easement, covenant, agreement, or contract with any person or entity; (ii) any rights to which the Land is entitled with respect to surface water, whether such right is appropriative, riparian, prescriptive, decreed or otherwise and whether or not pursuant to permit or other governmental authorization, or the right to store any such water; (iii) any water, water right, water allocation, distribution right, delivery right, water storage right, or other water -related entitlement appurtenant or otherwise applicable to the Land by virtue of the Land being situated within the boundaries of any governmental district or agency, or within the boundaries of any private water company, mutual water company, irrigation company, ditch company or other non-governmental entity that owns, stores, diverts and/or delivers water including, any and all stock, interest or other rights Grantor has in such entity, including voting or decision rights, and any and all rights from any entity or other person to acquire, receive, exchange, sell, lease, or otherwise transfer any Water Assets, to store, deposit or otherwise create water credits in a water bank or similar or other arrangement for allocating water, to transport or deliver water, or otherwise to deal with any Water Asset; and (iv) all water and existing and future water rights, however evidenced, to the use of water for irrigation, livestock and domestic purposes. References to "water" and "water rights" are used herein in the broadest and most comprehensive sense of the terms. The term"water" includes water rights and rights to water or whatever rights to money, proceeds, property or other benefits are exchanged or received for or on account of any Water Assets or any conservation or other nonuse of water, including whatever rights are achieved Page 15 - GOULD MEMORANDUM ON APPEAL TO BOARD OF COMMISSIONERS by depositing one's share of any Water Assets in any water bank or with any water authority, or any other water reallocation rights. b. All licenses, permits, approvals, contracts, decrees, rights and interests to acquire or appropriate any Water Assets, water bank or other credits evidencing any right to Water Assets, to store, carry, transport or deliver Water Assets, to sell, lease, exchange, or otherwise transfer any Water Asset, or to change the point for diversion of water, the location of any Water Asset, the place of use of any Water Asset, or the purpose of the use of any Water Asset. c. All rights, claims, causes of action, judgments, awards, and offer judicial, arbiter or administrative relief in any way relating to any Water Asset. d. All storage and treatment rights for any Water Asset, whether on or off the Land or other property of Grantor, together with all storage tanks, and other equipment used or usable in connection with such storage and any water bank deposit credits, deposit accounts or other rights arising on account of the storage or nonuse of any Water Asset. e. All irrigation and watering equipment, including all pumps, pumping plants, storage tanks, pump, motors, electrical generators (all of which are declared to be fixtures), and all systems, ditches, laterals, conduits, and rights-of-way used to convey water or to drain the Land, all of which rights are or are hereby made appurtenant to the Land. f. All guaranties, warranties, marketing, management or service contracts, indemnity agreements, and water right agreements, including joint use agreements, other water related contracts and water reallocation rights, all insurance policies regarding or relating to any Water Asset. g. All rents, issues, profits, proceeds and other accounts, instruments, chattel paper, contract rights, general intangibles, deposit accounts and other rights to payment arising from or on account of any use, nonuse, sale, lease transfer or other disposition of any Water Asset. Thus, BFR's water rights are tied up tighter than the proverbial drum. It is perhaps conceivable that NWFCS would release the above-described security interest. Payment of $2,450,000, together with accrued interest, would most likely cover it. However, the Page 16 - GOULD MEMORANDUM ON APPEAL TO BOARD OF COMMISSIONERS record lacks any substantial evidence whatsoever that the lender has agreed or will agree to any such release. The mere statement from BFR that this would or could happen is not substantial evidence of agreement by the lender. Nothing in the record before you could overcome the above encumbrance, or prove the availability of BFR water for the required mitigation for fish habitat. For the above reasons and all those identified by opponents on the record, the applicant has simply not met the burden of proof required of it in this case. Condition of Approval 17 remains in effect, and the applicant has not justified either removing it or deeming it met. IV. CONCLUSION For all the above reasons, this appeal must be dismissed or, alternatively, denied by the Board of Commissioners. DATED: November 10, 2019. Respectfully submitted, Jeffrey L. Kte� Jeffrey L. Kleinman, OSB No. 743726 Attorney for Annunziata Gould Page 17 - GOULD MEMORANDUM ON APPEAL TO BOARD OF COMMISSIONERS Jacob Ripper From: Carol Macbeth <carol @colw.org > Sent: Sunday, November 10, 2019 3:41 PM To: Jacob Ripper; Peter Gutowsky; Adam Smith Subject: File No. 247-19-000799-A, LandWatch comments Attachments: LanclWatch Thornburgh letter Nov. 10.pdf Follow Up Flag: Follow up Flag Status: Flagged [EXTERNAL EMAIL] HI Jacob, Attached please find LandWatch's comments on.Thornburgh File. No. 247-19-000799-A. Please forward our comments to the Board. Best regards, Carol Macbeth Carol Macbeth Staff Attorney Central Oregon LandWatch LANDWATCH November 10, 2019 Board of Commissioners Deschutes County 1300 NW Wall Street Bend, OR 97703 www.centi-cloi-egonlandwatch.org Re: File No. 247-19-000799-A, an appeal of 247-19-000611-A, on remand from LUBA Dear Commissioners: Central Oregon LandWatch (LandWatch) has participated in the proceedings below and will not repeat here all of our prior arguments, such as in our letters of August 27, September 10 and September 17. As an initial matter we do not believe the County Board has jurisdiction to hear the Applicant's appeal. Though the Oregon Court of Appeals ruled that Ms. Gould's appeal of LUBA's decision in LUBA No. 2018-140 was not timely, Ms. Gould appealed to the Oregon Supreme Court and the appellate courts retain exclusive jurisdiction until such time as an appellate judgment is issued. No such judgment has been issued. Accordingly, the Hearings Officer correctly determined that he did not have jurisdiction and the County Board should not hear CLCC's appeal. It is also not appropriate for the County Board to make determinations on the merits of the case now. The issues are complex, the Record is voluminous and the Board's time for review of the Record and deliberations is only a week or two. With all due respect, the Board cannot be expected to go through the Record in that timeframe. Such hasty consideration is also not consistent with the Board's usual practice of hearing appeals de novo. Instead, the Board should decide not to hear the appeal and let the Hearings Officer's decision be directly appealed by the Applicant to LUBA, which is better positioned to address a jurisdictional issue such as in this case. With regard to the merits of the appeal, LUBA in its decision noted that CLCC asserted that the IMP did not require mitigation water be sourced from water provided by the Central Oregon Irrigation District (COID) and Big Falls Ranch (BFR). LUBA ruled to the contrary: "The no net loss/degradation issue has been litigated at length and affirmed based on 2 facts and expert evidence modeled on assumptions of water sourced from COID and Big Falls Ranch, which includes the quality of those sources, including water temperature, and impacts on downstream fish habitat." Slip Op 30 In essence, CLCC has been attempting to amend its FMP as to the required sources of water. LUBA rejected that attempt, pointing out that CLCC "did not file a cross -petition for review seeking remand or cross -assigning error to the imposition of TP Condition 17" and that the issue could not be raised in a respondent's brief. (Slip Op 31) Because CLCC did not challenge or appeal the Hearings Officer's finding, LUBA accepted the Hearings Officer's decision that the FMP approval relied on the COID and BFR water sources. The water sources became an issue when evidence in the Record showed that COID and BFR water were actually not available. LUBA stated: "The hearings officer found that petitioner's evidence calls into question whether Intervenor will be able to satisfy the requirements of procuring and providing the quantity and quality of water required to execute the mitigation plan to satisfy the no net loss/degradation standard." Slip Op 31-32 Accordingly, the Hearings Officer adopted Condition of Approval 17 to try to address this problem. Condition 17 provides: "Prior to issuance of building permits for the single-family dwellings,... demonstrate that....(b) the Big Falls Ranch and COID water referenced in the Mitigation Plan and FMP Decision have been secured, demonstrate that the proposed alternate source is acceptable to ODFW and provides the same quantity and quality mitigation so as not to constitute a substantial modification or justify a modification to the FMP." Ms. Gould challenged the adequacy of Condition 17 and LUBA affirmed her challenge: "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 satisfied 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." Slip Op 32 The underlying problem that Condition 17 attempted to solve still remains, and the appropriate correction to the inadequacy of Condition 17 is to incorporate a public process both on whether the COID and BFR water referenced in the Mitigation Plan and IMP decision have been secured and whether the proposed alternate source is acceptable and provides the same quantity and quality of mitigation. The Appellant's apparent argument that Condition 17 is not needed not only undercuts the public process but also does not satisfy the required proof for satisfaction of the no net loss/degradation standard. The Record is clear that the Applicant has failed to show that the alleged mitigation water from COID and BFR is secured. That is why the Applicant attempted to argue that it was not restricted to COID and BFR water and why Condition 17 was drafted. As stated by LUBA, "Petitioner submitted a statement from COID that there are no current or active agreements between COID and the resort and a document suggesting that Big Falls Ranch proposes to transfer surface water rights that the resort had intended to acquire for mitigation water." Slip Op 28 In our letter of August 27, we pointed out that the original agreement between Big Falls Ranch and the proposed destination resort for cold spring mitigation water had been revoked and that the February 13, 2019 "MEMORANDUM OF AGREEMENT" ostensibly being a new agreement was inadequate proof of availability because the details of the alleged agreement were in a separate agreement not provided. The Applicant in its September 10 filings attempts to dodge the issue of the missing agreement by merely stating it is "private." While it may be fine for a private transaction to keep its details out of the public eye, that is not the case where an applicant has the burden of proof to show compliance with the relevant approval criteria. The County Board cannot find that the BFR mitigation water is secured where the alleged agreement supposedly providing that is not in the Record, and the Applicant has only presented a memorandum of agreement merely saying that the alleged agreement exists. The Applicant also attempts to claim that the feasibility of the mitigation has already been determined in earlier approvals which cannot now be attacked. That is not correct for several reasons. First, the Applicant attempted to make that argument below and LUBA rejected it, in part because the Applicant failed to appeal Condition 17 to LUBA. That issue has been resolved and the Applicant cannot resurrect it. Second, any earlier feasibility is invalid where it was based on an agreement that was subsequently revoked. Further, any claim of feasibility for this current application must be based on the current agreements supposedly concluded in 2019. Again,the Applicant cannot satisfy its burden of proof based on a "private" agreement not in the Record. Finally, we are past the point where "feasibility" can be a substitute for actually doing the mitigation. With regard to the Applicant's further obligation to remove dams and impoundments on Deep Canyon Creek (the BFR water), its videos and photos do not show removal of the impoundment, but only the clearing of debris from the impoundment outlet so that the built-up algae and associated warm water could flow into the Deschutes. Also contrary to the Applicant's representations, the video does not show removal of a beaver dam. The rakes are being used to remove grass debris, not to deconstruct a beaver dam. The remand application Burden of Proof argues that the remand involves "a single narrow issue" and contends that CLCC does not propose any change in the source of mitigation water. To the contrary, 9 where the COID water is now off the table, where the original agreement for the resort to acquire from BFR the surface water rights of Deep Canyon Creek was revoked (see the Ex. G attachment to our August 27 letter), where the points of diversion of surface water rights have been transferred to groundwater wells, where those water rights are now encumbered as collateral for loans (and there is no evidence that the encumbrances will be released—only a mere statement by CLCC that supposedly BFR "believes" they can be—see CLCC's September 10, 2019 letter, p 1), and where the actual amount of flow in Deep Canyon Creek is unknown because of the hydrological effect of the groundwater wells to which the water rights have been transferred, the availability of this water for mitigation has not been established. The Applicant has the burden of proof in this case and as it has not satisfied that burden, the Board should deny the application. Finally, to the extent that "Findings" from the parties are being required by the Board, we object where we have not had the opportunity to see the bases and arguments being raised in this proceeding by the Applicant/Appellant on which Findings would be made. We reserve the right to supplement the Findings that are stated above and incorporate by reference the Findings submitted by Ms. Gould. Thank you for this opportunity to comment. Very truly yours, Carol Macbeth Staff Attorney www.centraloregon landwatch.org Jacob Ripper From: Jeff Freund Sent: Monday, November 4, 2019 1:08 PM To: Jacob Ripper Subject: Thornburrgh Follow Up Flag: Follow up Flag Status: Flagged Hi Jacob, I perused the latest Thornburgh review and don't think anything changed from my end as it does not affect the drinking water system and my original notes still apply. Let me know if you need any clarification. Thanks Jeff Freund, R51 Environmental Health Specialist I11 2577 NE Courtney Drive Bend, Oregon 97701, Tel: (541) 388-6563 1 Fax: (541) 322-7604 1106 Enhancing the lives of citizens by delivering quality services in a cost-effective manner. \)I E S C0GZ 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 Monday Meeting of November 18, 2019 DATE: November 8, 2019 FROM: Chris Doty, Road Department, 541-322-7105 TITLE OF AGENDA ITEM: Discussion of Terrebonne Wastewater Feasibility Scope and RFP RECOMMENDATION & ACTION REQUESTED: Staff will be seeking Board input regarding the content of the Request For Proposals document and direction regarding if/when to proceed with its issuance. BACKGROUND AND POLICY IMPLICATIONS: In August, the Board provided direction to staff to develop a scope and request for proposals (RFP) document to conduct an updated wastewater feasibility study for the community of Terrebonne. The attached draft RFP has been developed to solicit proposals from qualified consultants to evaluate the feasibility of a municipal system (similar to what was evaluated in the 1999 study) as well as evaluate the potential for smaller and phased cluster systems. Given the public outreach and involvement necessary to fully vet the feasibility within the community, a communications plan/strategy has been requested as well as use of a wastewater advisory committee approach. FISCAL IMPLICATIONS: It is estimated that this study will cost approximately $80,000 to $100,000 to address feasibility and obtain public involvement and input necessary to reach a decision point. A $20,000 grant is available via Business Oregon (via application) and additional financing options (low interest loans) are potentially available via Business Oregon as well. Traditional funding sources, such as DEQ, Special Public Works Fund, etc, are generally reserved for design and construction efforts - not feasibility studies. On September 30, 2019, the Board authorized approval of a separate $20,000 technical assistance grant application to the Department of Land Conservation and Development. If successful, grant funding could provide up to $40, 000 in funds to offset the cost of the feasibility study, leaving a $40,000 to $60,000 gap to complete the project. ATTENDANCE: Chris Doty, Road Department; Nick Lelack, Community Development REQUEST FOR PROPOSALS ENGINEERING CONSULTANT SERVICES Terrebonne Wastewater System Feasibility Study - 2019 PROPOSALS DUE: wT ES CO ROAD a DEPARTMENT DATE, 2:00 PM PST 61150 SE 27TH STREET BEND, OREGON 97702 PHONE: (541) 388-6581 FAX: (541) 388-2719 WEB: www.deschutes.org/road SECTION 1: STATEMENT OF PROJECT Introduction Terrebonne is a small rural community located at the northern edge of Deschutes County. The community is served by a water district (Terrebonne Domestic Water District) but does not have a community wastewater system or utility. With the exception of two small, private systems serving two relatively new residential subdivisions, properties rely upon on-site wastewater systems (septic/drainfield/drill-hole or sandfilter systems). Some properties pipe effluent offsite for drainfield disposal on adjacent or nearby properties. Wastewater system feasibility has previously been explored in Terrebonne, most recently in 1999 (HGE Inc.) and prior to that in 1982 (Century West). Although a community wastewater system was deemed feasible in the 1999 study, the system was not pursued for a variety of reasons. According to staff within the Environmental Soils Division (of CDD), the number of malfunctioning septic systems appears to be increasing. Within the last 5 years (2015-2019), 33 repair permits have been issued — whereas 20 repair permits were issued from 2010 to 2015. The biggest concern is that commercial properties will experience catastrophic failures that cannot be repaired or replaced per state regulations. Recently, several property owners have approached the County regarding concerns associated with failing septic systems and have asked the County to explore the feasibility of a community wastewater system. Deschutes County is not a wastewater utility provider or candidate provider for any systems within the Terrebonne area. However, as the jurisdictional planning entity, the County is willing to explore wastewater system viability to better understand the emerging wastewater problems in the community and help coordinate or facilitate potential creation of a solution. To that end, the County seeks proposals from a qualified engineering firm to refine and explore the following scope items: PHASE ONE: Develop a communications strategy and plan to initiate the feasibility study within the community and obtain input from stakeholders. a. The communication plan/strategy should involve public input and check -ins at logical phases throughout the process. b. Key stakeholders also include the four primary funding agencies (Oregon DEQ, Business Oregon, USDA, and Rural Community Assistance Corporation), who should be consulted at the onset of the process. 2. Establish a Terrebonne wastewater advisory committee comprised of the residents, businesses, and stakeholders to: a. Provide input on public involvement strategies, and assist in conducting public outreach such as community open houses/forums. b. Review and gain an understanding of existing conditions, including prior Terrebonne feasibility studies and DEQ regulations (Task 3 below). c. Review and provide comments on the draft wastewater feasibility study options (Tasks 4 and 5 below). d. Review and provide comments on the draft wastewater feasibility implementation strategies, including governance options for ownership and operation (Tasks 6 and 7 below). e. Recommend a preferred option to address the future of wastewater treatment in the community. 3. Research existing and available septic system data and quantify the functionality of the existing systems, including, but not limited to the average age of existing systems, lifecycles, and commercial/residential occupancy. The purpose of this research is to identify the extent of the Page 2 of 7 problem to inform the Terrebonne community of the potential need for a community solution and the timing of the solution. a. Estimate the remaining life or viability of the existing systems in use within the community. b. Evaluate repair options (if any) and costs for existing system types in use. Review and/or update the 1999 HGE Wastewater Feasibility Study. a. Provide validation or alternative recommendation associated with the study's collection and treatment/disposal recommendation(s). b. Updated construction costs. c. Updated operation and maintenance costs. d. Updated funding options available for capital construction (grants, loans, etc.). e. Updated rate calculations and rate modelling. f. Identify potential phasing options for construction and implementation of the proposed system. 5. Identify other municipal wastewater collection and treatment systems that have emerged with the potential to serve Terrebonne. a. Provide estimates for items 3 b -f, above. 6. Evaluate the potential for smaller, individual systems to serve clusters of development based on a variety of factors, such as: geography, type of use, availability of disposal area, remaining life expectancy of existing systems, etc. a. Provide a level of detail necessary to compare and contrast with the recommendations of items 3 and 4. b. Provide individual estimates or analysis for: i. Construction cost. ii. Operation and maintenance costs. iii. Capital funding options (grants, loans, etc.). iv. Estimate rate calculations. v. Identify potential phasing options for construction and implementation of the proposed system. vi. Describe how operating agreements would work for small, cluster systems. 7. Provide a summary of governance options for ownership and operation of a wastewater system in Terrebonne. a. Provide a list of pros/cons for each option. b. Provide a recommendation. PHASE TWO: 8. Provide a Wastewater Planning Document (Preliminary Engineering Report) per the requirements and recommendations of the Water Facility Planning Guide (2018), published by the Oregon DEQ, Business Oregon, USDA, and Rural Community Assistance Corporation. a. https://www rd usda gov/files/OR-Guide-PreparingWastewaterPlanningDocuments- 07.2018.pdf Page 3 of 7 SECTION 2: PROPOSAL PREPARATION, SCHEDULE, CRITERIA AND REVIEW There will be no mandatory pre -proposal meeting. All questions shall be made in writing via email to NAME, COUNTY STAFF (name(a)deschutes.org) by 2:00 p.m. (PST) DATE. Faxed requests for information will not be accepted. Responses to questions will be made in writing as soon as practical, and no later than DATE. Consultants intending to submit a proposal must register on-line when retrieving the RFP packet for this project at: https://www.deschutes.org/rfps. Proposals must be received by the Deschutes County Road Department office no later than 2:00 pm (PST), DATE. Proposals received after the deadline will not be considered. The County anticipates the following schedule for the project: RFP Advertisement: DATE Proposal Due Date: DATE RFP Review completed: DATE County Commission approval of contract: DATE Notice to proceed: DATE The Proposal will be judged on the completeness and quality of content. Only those consultants who supply complete information as required in the Evaluation Criteria below will be considered for evaluation. Deschutes County reserves the right to reject any or all proposals. It is understood that all statements will become part of the public file on this matter, without obligation to Deschutes County. The County is not liable for any cost incurred by the consultant in the preparation or presentation of their proposal. Evaluation Criteria: The Proposal submitted shall respond to the following criteria in the order as listed below: Criteria Explanation: A. Introductory Letter: A statement in the introductory letter shall specifically stipulate that all terms and conditions contained in the RFP are accepted by the consultant. The letter shall also name the person(s) authorized to represent the consultant in any negotiations and sign any contract which may result. Page 4 of 7 ITEM MAXIMUM PAGE SCORE ALLOWANCE A Introductory Letter 1 0 B Project Team 3 35 C Firm's Capabilities 1 15 D Project Understanding and Approach (Scope) 4 40 E Communication and Availability 1 5 F Supportive information (references, resumes, 6 5 licenses, etc. Criteria Explanation: A. Introductory Letter: A statement in the introductory letter shall specifically stipulate that all terms and conditions contained in the RFP are accepted by the consultant. The letter shall also name the person(s) authorized to represent the consultant in any negotiations and sign any contract which may result. Page 4 of 7 B. Project Team: This criterion relates to the project principal, the project manager, key staff and sub consultants. The basic issue is how well the team's qualifications and experience relate to this specific project. Elements to be considered: • Extent of principal's involvement • Key member experience on similar projects • Team experience on similar projects • Unique qualifications of key members • Qualifications and relevant individual experience • Qualifications and relevant sub -consultant experience • Comprehensive team expertise to cover all phases of the project • Project manager's expertise with similar projects and with interdisciplinary teams • Approximate number of people to be assigned to the project • Organizational Chart (Project Team) may be included under supportive information • Familiarity with appropriate state, federal, and local laws and regulations • Project Manager or Principal must be a licensed Professional Engineer in Oregon. C. Firm Capabilities: This criterion relates to the firm's capabilities and resources in relation to the project. Elements to be considered: Resources available to perform the work for the duration of the project (Include Capacity Chart, i.e., Can the firm accommodate the work?) • Other on-going projects • Similar projects (by type and location) performed within the last five years that best characterize work quality and cost control • Similar projects completed for other government agencies (references will be contacted by Deschutes County) • The firm's experience with Deschutes County • Internal procedures and/or policies associated or related to work quality and cost control • Management and organization capabilities D. Project Understanding and Approach: This criterion relates to the basic or preliminary understanding of the project, and the methodology and course of action used to meet the goals and objectives of the project. The basic issue is whether the firm has a clear and concise understanding of the project (based on existing information) and the major issues to address and whether a project approach has been formulated. Elements to be considered: • The firm's basic understanding of the project as demonstrated within their proposal. • Provision of a clear and concise explanation of work required. • A typical project schedule that shows major tasks and approvals required to complete the job on schedule. • A draft, line item scope of work for consultant services (not including hourly or cost estimates within the body of the proposal) should be included. • The consultant may propose an alternative approach to Phase One in its entirety or elements therein. E. Communication and Availability: This criterion relates to the consultant's accessibility, availability, and interaction with the Deschutes County staff. Elements to be considered: • Ability to establish and maintain functional and productive working relationships. • Accessibility for interaction with Deschutes County staff. • Effectiveness of presentation skills. • Community engagement skills. Page 5 of 7 F. Supportive Information: Supportive material may include graphs, charts, photographs, resumes, references, etc., and is totally discretionary, but, as outlined in the Evaluation Criteria, it will be scored. Elements to be considered: Quality and relevancy of material provided NOTE: All proposals submitted in response to this RFP shall become the property of Deschutes County and maybe utilized in any manner and for any purpose by Deschutes County. Be advised that proposals and all documents submitted in response to this RFP are subject to public disclosure as required by applicable state and/or federal laws. If you intend to submit any information with your proposal which you believe is confidential, proprietary or otherwise protected from public disclosure (trade secret, etc.), you must separately bind and clearly identify all such material. The cover page of the separate binding must be red, and the header or footer for each page must provide as follows: "Not Subject to Public Disclosure." Where authorized by law, and at its sole discretion, Deschutes County will endeavor to resist disclosure of properly identified portions of the proposals. SECTION 3: EVALUATION A RFP evaluation committee will be appointed to evaluate the submitted proposals. Consultants will be evaluated on their response to the evaluation criteria. SECTION 4: SELECTION The proposals will require up to 21 calendar days for evaluation. The top ranked firms may, at the County's discretion, be required to make a presentation in support of their proposal to the evaluation committee. The interview will serve to assist the County in selecting the successful firm and will serve as a tool to refine scoring of the RFP to produce a final ranking. Contract negotiations will follow the selection of the top firm. An initial scope and fee proposal will be required to be submitted within 14 calendar days of notification. The consultant selection process will be carried out under Oregon Revised Statutes, Chapter 279C.110. SECTION 5: CONTRACT REQUIREMENTS AND ADMINISTRATION The successful consultant will be required to enter into a County Services Contract (see attached) with Deschutes County. The successful consultant must also submit documents addressing tax law, professional liability insurance, workers compensation, and overhead expense as part of the contract, as well as an Oregon tax account number. If the County and the top ranked consultant are not able to negotiate a contract, the County will initiate negotiation with the second place consultant, and so on. Any reference or general condition of employment of consultant that seeks to have State of Oregon indemnify and hold harmless the consultant, its sub -consultants, agents and employees from and against all claims, damages, losses and expenses, direct and indirect, or consequential damages arising out of, or resulting from the performance of work by consultant, or the work of others, is limited to the extent permitted by Oregon Constitution, Article XI, Section 7, and the Oregon Tort Claims Act ORS 30.300 inclusive. SECTION 6: SUBMISSION Submit the Proposal in pdf format (10 MB maximum file size) as an email attachment to name(a)deschutes.org no later than 2:00 pm, DATE. Enter "RFP: Terrebonne Wastewater System Feasibility Study, 2019" as the email subject line. Direct all other questions or inquiries to: Page 6 of 7 NAME Attachments: Project Location Map Preliminary septic data Wastewater Feasibility Study, HGE Inc., September 1999 Deschutes County Consultant Contract Template Page 7 of 7 vT E S COG 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 Monday Meeting of November 18, 2019 DATE: November 13, 2019 FROM: Kyle Collins, Community Development, 541-383-4427 TITLE OF AGENDA ITEM: Preparation for Public Hearing: Outdoor Mass Gathering Permit to Hold the 2020 4 Peaks Music Festival at 21085 Knott Road. The Deschutes Board of County Commissioners ("Board") is conducting a work session on November 18, 2019 in preparation for their public hearing on November 25, 2019, to consider a proposal by 4 Peaks Presents, LLC for an Outdoor Mass Gathering (OMG) permit. The applicant, 4 Peaks Presents, LLC, is proposing to hold the 2020 4 Peaks Music Festival at the subject property located at 21085 Knott Road, Bend. This multi -day event will be held on June 18-21, 2020. The event includes overnight camping, parking, and food and drink for an estimated 3,000 people, including staff, vendors, and volunteers. The property is approximately 150 acres in size and developed with a single- family dwelling and multiple accessory structures. The surrounding area consists of small scale farm and residential uses. COMMWNITY DEVELOPMENT STAFF MEMORANDUM TO: Board of County Commissioners FROM: Kyle Collins, Associate Planner DATE: November 11, 2019 RE: Work Session for an Outdoor Mass Gathering, File No. 247-19-000690-OMG PURPOSE The Deschutes Board of County Commissioners ("Board") is conducting a work session on November 18, 2019 in preparation for their public hearing on November 25, 2019, to consider a proposal by 4 Peaks Presents, LLC for an Outdoor Mass Gathering (OMG) permit. PROPOSAL The applicant, 4 Peaks Presents, LLC, is proposing to hold the 2020 4 Peaks Music Festival at the subject property located at 21085 Knott Road, Bend. This multi -day event will be held on June 18- 21, 2020. The event includes overnight camping, parking, and food and drink for an estimated 3,000 people, including staff, vendors, and volunteers. The property is approximately 150 acres in size and developed with a single-family dwelling and multiple accessory structures. The surrounding area consists of small scale farm and residential uses. The applicant has held the music festival outside of Tumalo' for nine years and at the subject property for the past three years. The total proposed dates for the 4 Peaks Music Festival is June 13- 22, 2020, which includes set-up and removal of equipment, structures, and similar materials used for the festival. Specific event dates and hours are listed below. Saturday. lune 13 8:00 a.m. - Preparation of site will begin (Some volunteers, staff, and security will be staying/camping on the property from June 13 - 22.) Thursday,lune 18 8:00 a.m. to 10:00 p.m. - Gates open 8:00 a.m. -Yoga and kids activities begin (no music) 1 The music festival was conducted on property located at 19449 Tumalo Reservoir Road. 117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005 �� (541) 388-6575 @ cdd@deschutes.org @ www.deschutes.org/cd 9:00 a.m. to 10:00 p.m. - Music festival 10:00 p.m. to 11:59 p.m. - Music festival in side tent only Friday. June 19 12:00 a.m. to 1:59 a.m. - "Silent disco" (use of headphones) in side tent 8:00 a.m. to 10:00 p.m. - Gates open 10:00 a.m. to 10:00 p.m. - Music festival 10:00 p.m. to 11:59 p.m. - Music festival in side tent only Saturday,lune 20 12:00 a.m. to 1:59 a.m. - "Silent disco" (use of headphones) in side tent 8:00 a.m. to 10:00 p.m. - Gates open 10:00 a.m. to 10:00 p.m. - Music festival 10:00 p.m. to 11:59 p.m. - Music festival in side tent only Sunday, June 21 12:00 a.m. to 1:45 a.m. - "Silent disco" (use of headphones) in side tent 8:00 a.m. to 10:00 p.m. - Gates open 9:00 a.m. to 7:00 p.m. - Music festival Throughout the day, camping patrons will depart and volunteers will begin to take down and clean up festival materials. There will be a limited number of people camping overnight on June 21 to continue cleanup the following day. Monday,lune 22 Break down of equipment and site clean-up. All event activities will conclude by end of day on June 22 The subject property has been divided into specific areas for the music festival. The main activity area is on the central portion of the subject property, which contains the stages, vendors, restrooms, water, first aid, trash and recycling collection, and basic operational aspects of the festival. The entrance to the festival is located on the northeast corner which includes the general admission vehicle lanes, ticket will call, day -use parking, and an area for authorized personnel. Other areas surrounding the main event to the south and southeast are designated as car and RV camping. The design layout includes separate vehicle and pedestrian access aisles and an emergency access road. The applicant has addressed in their proposal the requirements involving insurance, sanitary facilities, water supply, fire protection, medical services, public safety and enforcement, parking facilities, alcohol and dangerous drugs, and hours of operation. OUTDOOR MASS GATHERING REQUIREMENTS/CRITERIA Deschutes County Code (DCC) Chapter 8.16 provides approval criteria for an Outdoor Mass Gathering permit. The applicant has satisfied the requirements addressed in Section 8.16.160, including obtaining signatures on the application form from the following agencies: • Bend Fire Department • Deschutes County Health Department • Deschutes County Environmental Health Division 247-19-000690-OMG Page 2 of 3 • Deschutes County Sheriff Staff believes the proposed outdoor mass gathering permit request can comply with the applicable standards and criteria outlined in Chapter 8.16 below if conditions of approval are met. Conditions will be noted in the Staff Report for the public hearing. The applicant is requesting a waiver from the requirement to maintain an ambulance on-site during the festival. However, no waiver is sought for the first aid station and the applicant indicates it will comply with County Code. The applicant has provided a Medical Service Plan, which includes the use of Adventure Medics, an event medical service. The Board may waive permit requirements, in this case ambulance service, upon showing good cause by the event organizer (see DCC 8.16.150(B)). Furthermore, if the Board determines no County law enforcement or other services are necessary and no significant public health, safety, or welfare issues are involved, the Board may waive that requirement as well. The Board waived the permit requirement for on-site ambulance service for the last five outdoor mass gathering permits for this festival when it was at the Tumalo and Bend location. For reference, the closest fire station, Bend Fire Station #303, located at 61080 Country Club Drive, is approximately two (2) miles from the event site. PUBLIC NOTICE The Planning Division mailed notice to several agencies. Comments received will be noted in the Staff Report. Public notice was also published in the Bend Bulletin on November 2, 2019. In addition, the Planning Division sent notice of the proposal to all property owners within 750 feet of the subject property. Attachments A. 247-19-000690-OMG Application Materials and Supplemental Information 247-19-000690-OMG Page 3 of 3 Kyle Collins From: Sean Miller <sean@thericallc.com> Sent: Thursday, October 31, 2019 11:20 AM To: Phil Henderson; Patti Adair; Tony DeBone; Kyle Collins Subject: Support for the 2020 4 Peaks Music Festival! [EXTERNAL EMAIL] Board Members - I'm writing to you in support of the 4 Peaks Music Festival andI would like to voice my opinion in favor of the festival. I have attended the festival for the last 9 years and it's one of my favorite reasons of visiting the greater Bend area. Not only has the festival become an annual pilgrimage for my family, but it has allowed us to discover what Deschutes County has to offer. In fact, we're currently looking at some vacation property within the county. I'm in support of this festival. It's a family festival where my friends from all over the state come to the Bend to enjoy live music,friendship and create memories. Every event, no matter the type event, is sure to have its share of negatives. But when the positives outweigh the negatives it's easy to be in favor of the event. Over the last 9 years, I have witnessed 4 Peaks grow into an unbelievable event. One that welcomes all,provides a family friendly environment, attracts great music acts, and all around a great time. In my opinion, not only should 4 Peaks be granted their permit because they met all of the requirements, but because Bend needs more festivals like 4 Peaks. Thank you for your time and I look forward to this year's 4 Peaks. cheers, Sean Miller Portland, OR seangthericallc.com 503-388-7092 - OR Office Kyle Collins From: Ron Reynolds <ron@highdeserthotels.com> Sent: Monday, November 4, 2019 3:55 PM To: Phil Henderson; Patti Adair; Tony DeBone; Kyle Collins Subject: Support for 4 Peaks Music Festival Mass Gathering Permit 2020 [EXTERNAL EMAIL] Hello, I am emailing my support to allow 4 Peaks Music Festival mass gathering permit for 2020. 1 have been a Bend resident since 2002 and have attended all of Stacy's 4 Peaks events since they started at the Rocking R Ranch and now Stevenson Ranch. She provides an exemplary example of how a family oriented gathering should take place and has my full support. Best Regards, Ron Reynolds High Desert Hotels 541.480.0416 Kyle Collins From: Angela Quall <studiog97702@gmail.com> Sent: Wednesday, October 30, 2019 1:02 PM To: Phil Henderson Cc: Patti Adair; Tony DeBone; Kyle Collins Subject: 4 Peaks Music Festivals [EXTERNAL EMAIL] Dear Commissioners, My name is Angela Quall. I am a 6th generation Oregonian, as well as a Deschutes County resident and a business owner (Studio Q Salon in the Box Factory) in Bend. I am writing on behalf of 4 Peaks Music Festival. I have attended 4 Peaks without fail since its inception. I believe it's been 13 years! Watching it grow and serve our community celebrating live music has been wonderful! Every year gets better and more organized. I love the pack it in - pack it out policy as well as the kind regard for all neighbors. The peaceful tribe of people who come from near and far to gather is exceptional. We travel extensively to music events, and this little gem is on the top of our list! 4 peaks really brings the community together and creates a wholesome experience for ALL ages, races, genders and walks of life. I believe Bend and Deschutes county are truly lucky to have a cultural event of this caliber. The Stevens Ranch is an ideal setting and we are grateful to be a part of it. I suggest you attend to experience the magic for yourself.....:) I hope you will take this into consideration during your upcoming vote. Thank you for your time and service to all Deschutes County residents! Kind regards, Angela Quall 61404 Blakely Rd Bend, Oregon 97702 541-420-7371 Kyle Collins From: Sarah Bodo <SarahB@bendparksandrec.org> Sent: Tuesday, October 29, 2019 4:20 PM To: Kyle Collins Subject: 247-19-000690-OMG [EXTERNAL EMAIL] Kyle, Please find BPRD's comments below regarding file number 247-19-000690-OMG for the 4 Peaks Music Festival. In past years, the festival has not impacted the neighboring undeveloped park property (High Desert park site). We anticipate that the organizers will ensure overnight camping, parking, and leaving trash on the park property will be avoided to help ensure that the property remains in good condition for future development as a park. Thank you! Sarah Sarah Bodo, AICP, Park Planner Direct: (541) 706-6118 / Office: (541) 389-7275 / Fax: (541) 330-1019 Bend Park & Recreation District Office, 799 SW Columbia St., Bend, OR 97702 www.bendparksandrec.org ,4� Head Park & � r ( 4e - Recreation ,_,t—, , 81 parks • 70 miles of trail • Over 1000 different recreation programs Kyle Collins From: Cynthia Smidt Sent: Monday, October 28, 2019 4:40 PM To: Kyle Collins Subject: FW: 4peaks music festival For you. -----Original Message ----- From: Tony DeBone <Tony.DeBone@deschutes.org> Sent: Monday, October 28, 2019 4:27 PM To: 'Cynthia Ledder' <cynalittle@me.com> Cc: Cynthia Smidt <Cynthia.Smidt@deschutes.org> Subject: RE: 4peaks music festival Mr. Ledder, Thank you for the note. Have a great day! Anthony (Tony) DeBone Commissioner 1300 NW Wall St. Suite 200 1 Bend, Oregon 97703 Tel: (541) 388-6568 Enhancing the lives of citizens by delivering quality services in a cost-effective manner. -----Original Message ----- From: Cynthia Ledder <cynalittle@me.com> Sent: Monday, October 28, 2019 2:18 PM To: Tony DeBone <Tony.DeBone@deschutes.org> Subject: 4peaks music festival [EXTERNAL EMAIL] Board members I live on Sholes Road, directly behind the Stevenson ranch where the festival is held. I totally support Stacy and her team for the great job they do putting together a family friendly festival. I hope they are again granted their permit, they deserve it. Dave Ledder 21110 Sholes rd. Bend Kyle Collins From: Eric Mone Sent: Wednesday, October 23, 2019 12:26 PM To: Kyle Collins Subject: 247-19-000690-OMG Hi Kyle, Deschutes County EH has no objections or comments re this proposal. We reviewed and approved the EH portion of their OMG app. Thanks. Eric Mone, REHS I Environmental Health Supervisor 2577 NE Courtney Dr. Bend, Oregon 97701 Tel: (541) 388-6566 1 Office: (541) 322-7400 Enhancing the lives of citizens by delivering quality services in a cost-effective manner-. _T 2577NECourtney Drive, Bend, Oregon 97701 Public Health (541)322-74OO.Fax (541)322-7485 Behavioral Health (541)322'7508.Fax (541)322'75O5 vmmw.dem:hubyo.o0g OUTDOOR MASS GATHERING ENVIRONMENTAL HEALTH CHECKLIST 1. EVENT NAME: jf - CONTACT PERSON: 00 - EVENT ADDRESS. TE # 2. TOILETS: a,_11 PER 100 PERSONS SHOWN ON PLAN b. ',4 CONTRACT AGREEMENT ATTACHED 3. HANDWASHING FACILITIES: '4 ripe, S"I RUNNING WATER? IF YES, SEE b, IF NO SEE 9 t? b. , ADEQUATE SOAP AND PAPER TOWELS /'7'1— c._&�,PREPACKAGED SANITARY WET TOWELS PROVIDED, CONVENIENTLY LOCATED 4. WATER: a.__X_PUBLIC WATER? AV b, — PRIVATE WATER? IF PRIVATE, MUST HAVE BIOLOGICAL AND CHEMICAL TESTING DONE. CONTACT 541-388-6563 c.__X_ADEQUATE SUPPLY ~ bADEQUATE WATER DISPENSING EQUIPMENT (i.e., paper cups) APPLICATION AT LEAST 7 DAYS IN ADVANCE OF EVENT ,�� 6. WASTEIGARBAGE COLLECTION AND REMOVAL: a. el"14 CONTRACT AGREEMENT WITH SOLID WASTE FIRM ATTACHED b --W-FREQUENCY OF PICK-UP . I -NOTED. IN -CONTRACT c._2S—DISPOSAL SITE LOCATION 6. FOOD SERVICE FACILITIES: a.__2�_LOCATION OF TEMPORARY RESTAURANTS b. X FOOD SERVICE OPERATORS NOTIFIED TO SUBMIT FOOD SERVICE c X WHEREWILL WASTEWATER BEDISPOSED OF? (SHOW ONSKETCH, SEE #7 BELOW) ` d. |FMOBILE FOOD UNIT VENDOR, HAVE DOEHLICENSE 7KETCH WHICH SHOWS THE FOLLOWING: a. A NUMBER AND TYPE AND LOCATION OF TOILETS b. X, HANDWASHINGFAC|L|T|E8 WATER SUPPLY LOCATIONS d. F03[�GERV|{�ELC}CAT|DNG e.-\�_SOUDVVA8TECOLLECT|ONbOCAT|ONG DU�PL�Q�|�WG `—`—� �� oom*Ir-w2oxr ~� �r /r �//«� �/'/' / /� w- ^ ------- be - Community Development Department Planning Rivislon Building Ssraly Orvtsion linvOnm»entai Soils Division SCANNED P.O, 6ax (5005 117 NW Lafayette Avenue Bend, c rgq n ig, 06005 Phone: (541) 388-6575 ��Fax; t.�_�li t�o4 http://t%vlu,deschutes.ot-gl'cd OUTDOOR MASS GA THLRING APPLI CA TIONPLEASE PRINT � SEA: -tq' Applicant/Organizer: �� a ICIS f (e < ''VA LL,, C Prone: Mailing Address.,. CityiStatelZip: C;' C� Of i� � W) 5 Propercy Description: Township_ Range Section_ Tax Lot CC` m� Address: 2, c) S" w% 1 L f CitytState/Zip: Ili _� 20 Estimated Attendance: c `�a�-}C 3 Cate and Time of Gathering: �t�1t', � �' `° � ��AZLO D ription of Type of Gathering/Purpose (i.e., music, art, etc.) I f's - t: a I i.ri i t l )v ii f--- L, -� lues 11a/ � e-� Contactrson who will be available onsite during "1( 11 t.' 1 11 1 C Pe g gathering: Name: lsiqc �,l 1CC Phone. 3S it>`i )I J Email: J-U!tC( . (r, IA p ern VQ. pr"cS0,�'t ( c1J," AGENCY APPROVALS: Please have the following agencies/departments review your proposal before submitting this application. Signatures: p° j ,, .. /} lir" V (3 r N IR MENTAL HEALTH DIV18ION (indicates approval of sanitary facilities in accordance with 8. 16.220) 1 OTECTION DISTRICT OR STATE IRE MARSHAL (indicates approval f fire protection devices o -se, in accord vice with 8. 16.230) O/+vL iiRs��e�i vi!' ehA F 1 re - or COPYTY HEALTH ARTME1dT (indicates approval of medical service, in accordance with i3, {6.240) nESCHUTES COUNTY SHERIFF (indicates approval of a public safety plan and parking plan in accordance with 8. 16.250 and 8.16.260, respectively) On a separate sheet, please provide a plot plan showing the types, numbers and locations of the following items. If color exhibits are submitted, black and white copies with captions or shading delineating the color areas shall also be provided. a. Toilets b. Washing facilities c. Water suotily Applicant's Signature. Property Owner's Signature (if different)": d. Food preparation ..•. service e. Solid waste collection Agent's Name (if applicable): Rhone: Mailing Address: City/Statealp: 0-lz sli 9 •Ii this application is not signed by the property owner, a letter authorizing signature by the applicant must be attached. By signing this application, the applicant understands and agrees that Deschutes County may require a deposit for hearings officers" fees prior to the application being deemed complete; and if the application Is heard by a hearings officer, the applicant will be responsible for the actual costs of the hearings officer. (Rev. 11/15) o :Yrs q / I i 14 1 Permit application Table of Contents 4 Peaks 2020 Narrative Exhibit A — Legal description of subject property Exhibit B — Site location map Exhibit C1— Site map with satellite image and key Exhibit C2 — Site map Exhibit C3 — Venue map Exhibit C4 — Lava Rock and Garden area Map Exhibit D — Medical service plan Exhibit E — Public safety traffic and Crowed control plan Exhibit F — Environmental Health plan 4 Peaks 2020 OMG Application Narrative 4 Peaks LLC shall comply with all applicable ordinances and provisions pertaining to this Outdoor Mass Gathering permit. This year's event is scheduled to take place on June 18'x', 19`x', 20tH, and 21St of 2020 and will be located at 21085 KNOTT RD, BEND, OR 97702. Setting up for this event is to begin on June 13'2020. Clean up and removal of all signs, temporary structures will be concluded by day's end on June 22, 2020. The site shall be restored to pre -event conditions when 4 Peaks LCC relinquishes premises back to owner. Chapter 8.16. EVENTS, PARADES, FUNERAL PROCESSIONS AND OUTDOOR MASS GATHERINGS 8.16.150. Outdoor Mass Gathering and Extended Outdoor Mass Gathering Exclusions. A. The requirements in this chapter for Outdoor Mass Gatherings and Extended Outdoor Mass Gatherings shall not apply to any regularly scheduled religious service, regularly organized and supervised school district activity or program that takes place on school property, any activities at the Deschutes County Fairgrounds, or to any activity of a municipal corporation or government agency. Response: 4 Peaks LLC is aware that the provisions of this section apply to the permit request. B. The Board may waive the permit requirements for certain limited Outdoor Mass Gatherings and Extended Outdoor Mass Gatherings upon a showing by the Organizer of good cause, when no significant public health, safety or welfare issues are involved and when the Board determines that no County law enforcement or other County services are necessary. Response: As discussed in greater detail below, 4 Peaks Presents LLC is requesting that the Board modify the requirement to provide an on-site ambulance (compliance with DCC 8.16.240.). C. The Board may waive part or all of the permit fee for an Outdoor Mass Gathering or Extended Outdoor Mass Gathering upon a showing by the Organizer of good cause to reduce or waive the fee Response: 4 Peaks Presents LLC is not requesting a waiver of the permit fee. 8.16.160. Outdoor Mass Gathering or Extended Outdoor Mass Gathering Permit Required. The following responds to the general permit applicatl ion requirements. A. No Organizer shall hold, conduct, advertise or otherwise promote an Outdoor Mass Gathering or Extended Outdoor Mass Gathering or allow an Outdoor Mass Gathering or Extended Outdoor Mass Gathering to be held on real property the Organizer owns, leases or possesses outside the limits of any city unless the Organizer obtains a permit to hold such an Outdoor Mass Gathering or Extended Mass Gathering. Response: By submitting this application, the applicant has demonstrated that it will not proceed with the Outdoor Mass Gathering until a permit is issued by the County. We do, however, request to be able to promote the event location, news and exciting things happening this year, without selling tickets to the event prior to the permit being approved. (00215247;2) B. No permit for an Outdoor Mass Gathering or Extended Mass Gathering shall be issued unless the landowner of the property that is the site of the Outdoor Mass Gathering or Extended Outdoor Mass Gathering also signs the application. Response: As shown on the application form, the property owner has signed the application.. C. All Outdoor Mass Gatherings as defined in this Chapter are exempt from the requirements of Deschutes County Code Titles 17 through 23, except where noted. Response: The applicant is aware that the cited provisions will not apply to this application. D. One permit shall be required for each Outdoor Mass Gathering or Extended Mass Gathering. Response: Only one mass gathering permit is requested because only one event will be held. E. A permit issued under this section does not entitle the Outdoor Mass Gathering or Extended Mass Gathering Organizer to construct any permanent physical alterations to or on the real property which is the site of the Outdoor Mass Gathering or Extended Mass Gathering. Resyonse: No permanent physical alterations will be made to the property. All improvements are temporary and will be removed at the end of the event. F. The Organizer of a proposed Outdoor Mass Gathering or Extended Outdoor Mass Gathering shall file an application with the Department more than 90 days prior to the Outdoor Mass Gathering or Extended Mass Gathering. Reponse: The event is planned for June 18 -21st, 2020. The applicant has met the 90 -day filing deadline. G. The application shall include the following: 1. Name and address of the Organizer. Reshonsc: The application form includes the name and address of the applicant, 4 Peaks Presents, LLC. 2. Legal description of the location of the proposed Outdoor Mass Gathering or Extended Mass Gathering. Res aow e: A copy of the legal description of the subject property, as disclosed by the most recent property tax statement, is attached as Exhibit A. 3. A map of the Outdoor Mass Gathering or Extended Outdoor Mass Gathering desired route, including assembling and disbanding points. Response: A copy of the map of the event, including the desired route to the property and the relevant operational locations is attached as Exhibit B. 4. The date or dates of the proposed Outdoor Mass Gathering or Extended Mass Gathering. Response: As discussed. above, the proposed dates of the event are June 18-21, 2020, with set up and take down of the event expected to begin on June 13, 2020 and end on June 22, 2020. 5. The proposed starting and ending time(s) of the Outdoor Mass Gathering or Extended Outdoor Mass Gathering. Response: Due to the extensive logistics and mobilization of set up It will be necessary to have access to site prior to .June 13th for deliveries and site prep (removing rocks, brush, and grooming the grounds). Site prep crews will not exceed 12 persons on site prior to June 13th. Work will be (00215247;2) conducted between the hours of 8:00 am and 7:00 pm. Dates for site prep in June TBD. Construction/Erecting of temporary structures will not begin until June 13th. There will be a number of volunteers, staff and security staying/camping on site to preform set up/take down between June 13" and 22"d 2020. Set up will begin no earlier than 8:00 am on June 13th, 2020. On June 18t" The entry gates will be open no earlier than 8:00 am. The music will begin at 5:00 pm and end at 10:00pm. On June 18; Gates will be open from 8:00 am till 10:00 pm Music will begin no earlier than 9:00am (with Yoga and kids activities at 8am). The main stage will shut down at 10:00pm and the side stage will continue till 12:00pm at which time we will begin broadcast of a silent disco via headphones to patrons until 2am. On June 19-20; Gates will be open from 8:00am till 10:00pm Music will begin no earlier than I0:00am. The main stage will shut down at 10:00 pm and the side stage will continue till 12:00pm at which time we will begin broadcast of a silent disco via headphones to patrons until 2am. On June 21; Gates will be open from 8:00am till 5:00pm Music will begin no earlier than 9:00am. The side stage will shut down by 7:00 pm. The patrons will be leaving, and crews will begin take down and clean up on June 21st, 2020. There will be a limited number of people camping overnight on June 21't to continue clean up the next day. 6. The estimated number of persons, vehicles and animals that will be attending, participating in or viewing the Outdoor Mass Gathering or Extended Mass Gathering. Response: We are holding the ticket sales to 2500, which will include comp tickets which we give away to special guests. That leaves room for 499 people before going over the allotted 3000. These 499 will include Vendors and their staff (approx. 50), sound and video crews (approx. 40), Volunteers (approx. 250) and bands which will be coming and going as scheduled and will not all be on site at one time. If we do make our goal of a sell out of 2500 tickets, then we will still have less than 2999 in attendance on site at one time. 7. Nature of the proposed Outdoor Mass Gathering or Extended Mass Gathering. Rcs onse: The event will be an extremely family friendly music festival, with local and national touring acts scheduled to play. Local craft beverages, artisans and food vendors will be on site all weekend. We will be showcasing artists and their works from all over the region. Overnight camping is available on site. 8. A sketch, and other detailed information showing the type, number and location of all toilets, washing facilities, water supply, food preparation, food service facilities and solid waste collection locations. Response: Exhibits Cl, C2, C3 and C4 are maps of the festival site showing all components of the event. 9. The name and phone number of the contact person who shall be easily identified and who shall remain at the Outdoor Mass Gathering or Extended Outdoor Mass Gathering site at all times. Response: The names and contact information of the primary contact person is: 100215247;21 Stacy Koff, Event Promoter — (541) 350-6474 Jeffrey Swager, Site Manager — (360) 305-7956 Sean Miller, COO — (201) 600-6278 10. A sketch, and other detailed information showing the type, number and location of all toilets, washing facilities, water supply, food preparation, food service facilities and solid waste collection locations. ]tcs onse : Exhibits Cl, C2, C3 and C4 are maps of the festival site showing all components of the event. 4 Peaks LLC. will have on reserve 45 standard toilets 7 ADA compliant toilets and 14 hand washing facilities for event. We intend to provide 1 toilet to 50 attendees, twice the number required by the county. Final numbers on site will be determined by total ticket sales. Water supply is provided by Avion Water and will be available in the locations shown on the map attached as Exhibit C3. Food service will be provided by a variety of licensed food carts and will be concentrated in the area shown on Exhibit C2 and C3. Solid waste collection sites will be in areas shown on Exhibit C2. 11. Approval by the appropriate Fire District Officer or State Fire Marshall in accordance with DCC 8.16.230. Re__tse: Approval may be obtained at the time of filing of this application. We have submitted the same plan that had been approved in 2019 for this property. 12. A medical services plan demonstrating compliance with DCC 8.16.240, Response: Attached as Exhibit D is the medical services plan. 4 Peaks Presents LLC. Is once again requesting a waiver as approved last year from DCC 8.16 .240(b) which requires the event to have one ambulance on site. No waiver is sought for the first aid station and proposed aid station is in full compliance with DCC 8.16.240. We also will have an AED Device and a full medically trained staff on site at the medical tent in the unlikely event that it will be needed. Under DCC 8.16.150(B), the Board may waive any standards upon a showing of good cause, and when the request does not involve any significant public health, safety or welfare issues involved, and when the Board determines that no law enforcement or other County services are involved. We are submitting a recommendation from Drew Norris, Deputy Chief of EMS for Bend Fire and Rescue, stating that it would be reasonable for an ambulance provided through Deschutes County 911 to provide EMS services to the patrons of 4 Peaks Music Festival given the level of medical service that has been represented to him. We also will have an AED Device on site at the fully staffed medical facility with the proper level of medical support, in the unlikely event that it will be needed. The Bend Fire Station, #303 is located 2 miles away at 61080 Country Club Dr, Bend, OR 97702. 13. A public safety plan in accordance with DCC 8.16.120. Response: Attached as Exhibit E, is the public safety plan which demonstrates compliance with DCC 8.16.120. 14. A parking plan demonstrating compliance with DCC 8.16.250, Response,: Attached as Exhibit C2 is the parking plan which demonstrates compliance with DCC 8.16.120. 15. A copy of the proposed participant entry form for the Outdoor Mass Gathering or Extended Mass Gathering, including a release agreement releasing Deschutes County, its officers, agents, employees or volunteers from liability for any or all injuries. (00215247;2) ices nLnse.: No entry form is proposed; however, the applicant will sign the waiver and release agreement when provided by the County. 16. A signed indemnity agreement on a form provided by the County. .Rest onse: the applicant will sign the waiver and release agreement when provided by the County. 17. Such other appropriate information as the Director or Board may require in order to insure compliance with the provisions of this chapter, as well as rules of the Oregon Department of Human Services Rcsponse: No additional information has been requested. It Any application for an Outdoor Mass Gathering or Extended Mass Gathering lacking any requirement of DCC 8.16.160(G) shall, unless waived by the Board, be deemed incomplete and the pennit shall be denied except that, if additional information requested pursuant to DCC 8.16.030(G)(17) is not supplied within two weeks of the Board's request, the application shall be deemed incomplete and the pen -nit shall be denied. IZesponse: The applicant believes that all required information has been provided and will, at the request of the County, supply any missing information. 1. The application for an Outdoor Mass Gathering and Extended Outdoor Mass Gathering shall be accompanied by the appropriate fee pursuant to the County fee schedule. Reil onse: Included with this application is the fee required by the County. J. Incomplete applications shall be denied and the application fee, less County costs, shall be returned to the permit applicant. Response: The applicant believes that all required information has been provided and will, at the request of the County, supply any missing information. K. The Director shall furnish a copy of the Outdoor Mass Gathering or Extended Mass Gathering permit to the Sheriff and to any other jurisdiction in which the Outdoor Mass Gathering or Extended Mass Gathering takes place. Rcs nesse: The applicant believes that this is an obligation of the County. L. If the application is submitted fewer than 90 days prior to the event and the Board accepts the application, the processing fee shall be double. Response: The applicant has filed this application outside the 90 -day period. 8.16.170. Outdoor Mass Gathering and Extended Outdoor Mass Gathering Hearing Required. fres onse: 4 Peaks LLC is aware that a public hearing may be held for this request. Because the event is not an Extended Mass Gathering, no hearing before the Planning Commission is required. 8.16.180. Outdoor Mass Gathering and Extended Outdoor Mass Gathering Departmental and Agency Notice. Response: The applicant believes that the requirements of this section are an obligation of the County. 8.16.190. Outdoor Mass Gathering and Extended Outdoor Mass Gathering General Approval Criteria. (00215247;2) A. An Outdoor Mass Gathering or Extended Mass Gathering permit shall be approved upon demonstration by the Organizer of compliance with or the ability to comply the provisions of this chapter, as well as all health and safety rules governing all Outdoor Mass Gatherings, Extended or otherwise, adopted by the Oregon Department of Human Services. _Response: As shown in this application and the supporting documentation, as well as, 12 -years of operation with no county code violations, the applicant has demonstrated that it meets or exceeds all applicable standards for the event and requests approval from the County. B. Each public official receiving notice of the application for an Outdoor Mass Gathering or Extended Mass Gathering permit who wishes to comment on the application shall submit such comment in writing to the Hearings Body no later than the date and time for the hearing. Response: The applicant believes that the requirements of this section are an obligation of the County or those wishing to comment on the application. C. The comment from any public official regarding an Outdoor Mass Gathering or Extended Mass Gathering permit may include recommendations related to the official functions of the officer as to granting the permit and any recommended conditions that should be imposed. Resgonse: The applicant believes that the requirements of this section are an obligation of the County or those wishing to comment on the application. D. The Hearings Body shall consider the imposition of any suggested conditions submitted by public officials who received notice of the proposed Outdoor Mass Gathering or Extended Mass Gathering. Restaonsq: The applicant believes that the requirements of this section are an obligation of the County. E. The Hearings Body may consider and impose any reasonable condition on a permit for an Outdoor Mass Gathering or Extended Outdoor Mass Gathering recommended that is submitted at or prior to the public hearing by a member of the public or public official. Response: The applicant believes that the requirements of this section are an obligation of the County. 8.16.210. Outdoor Mass Gathering and Extended Outdoor Mass Gathering Insurance. Reapgi se: 4 Peaks intends to obtain a special event insurance policy that will: • Provide general liability of 5,000,000 • Cover against liability for injury or disability of any human, or for damage of property arising out of this outdoor mass gathering event 4 Peaks LLC shall provide the Director with an insurance certificate and copy of the insurance policy naming the county as an additional insured. This will be provided prior to 14 days before the event and will comply with all requirements of this section. 8.16.220. Outdoor Mass Gathering and Extended Outdoor Mass Gathering Sanitary Facilities. Res poi se: Exhibit C2, C3 and F includes the applicant's sanitary plan for the event. The plan shows the location of all water facilities, food service area, toilets, water sources and solid waste disposal. 8.16.230. Outdoor Mass Gathering and Extended Outdoor Mass Gathering Fire Protection Standards. {00215247;2} Res x7nse: Exhibits C3 show the locations of all fire protection devices for the event. The event is within the Rural Fire District #2 Bend fire protection district, consequently, approval from the State Fire Marshall is not required. 8.16.240. Outdoor Mass Gathering and Extended Outdoor Mass Gathering Medical Services. Res, onse: Exhibit D is the Medical Service Plan for the event. 4 Peaks .Presents LLC. Is again requesting a waiver as approved last year from DCC 8.16 .240(b) which requires the event to have one ambulance on site. No waiver is sought for the first aid station and proposed aid station is in full compliance with DCC 8.16.240. We also will have an AED Device and a full medically trained staff on site at the medical tent in the unlikely event that it will be needed Under DCC 8.16.150(B), the Board may waive any standards upon a showing of good cause, and when the request does not involve any significant public health, safety or welfare issues involved, and when the Board determines that no law enforcement or other County services are involved. We will be submitting a recommendation from the Deputy Chief of EMS for Bend Fire and Rescue, stating that it would be reasonable for an ambulance provided through Deschutes County 911 to provide EMS services to the patrons of 4 Peaks Music Festival given the level of medical service that has been represented to him. We also will have an AED Device on site at the fully staffed medical facility with the proper level of medical support, in the unlikely event that it will be needed. The Bend Fire Station, #303 is located 2 miles away at 61080 Country Club Dr, Bend, OR 97702. 8.16.250. Outdoor Mass Gathering and Extended Outdoor Mass Gathering Public Safety. Respc)nse: Exhibit E is the event Public Safety Plan. The plan demonstrates compliance with all requirements of this section. Both traffic control and crowd control staff will meet the numeric requirements of this section. All necessary background information regarding the crowd control and traffic control personnel has been or will be submitted to the County no latter than thirty (30) days before event. 8.16.260. Outdoor Mass Gathering and Extended Outdoor Mass Gathering Parking Facilities. Response: Exhibit CI, C2, are site maps that illustrates the designated areas for day parking and overnight camping with this application. The event site can accommodate more then twice as many vehicles as required for an event of this size. As the exhibits demonstrates, there are adequate areas for ingress and egress to into the site and throughout the parking and camping areas. 8.16.270. Outdoor Mass Gathering and Extended Outdoor Mass Gathering Permit Posting. Response: 4 Peaks Presents LLC is aware of, understands, and intends to comply with this provision. 8.16.280. Inspection of Outdoor Mass Gathering and Extended Outdoor Mass Gathering Premises. Res onse: 4 Peaks Presents LLC grants permission and gives consent for any law enforcement, public health or fire control officers to come upon the premises for which this permit has been granted for the purposes of inspecting and enforcement of the terms and conditions of this permit and DCC 8.16. and any other applicable laws or ordinance. (00215247-12) 8.16.290. Outdoor Mass Gathering and Extended Outdoor Mass Gathering Restricted Hours of Operation. lkesonse: 4 Peaks LLC is aware of, understands, and intends to comply with this provision. No event performances will occur during the prohibited hours, nor will amplification be used in a manner which would violate the sound standards of this section. 8.16.300. Outdoor Mass Gathering and Extended Outdoor Mass Gathering Enforcement. 17es q se: The applicant has designated Stacy Koff as the primary contact person for the event and provided the contact number. (541.) 350-6474 will stay on the event premises during the entire event. 8.16.310. Outdoor Mass Gathering and Extended Outdoor Mass Gathering Intoxicating Liquor Prohibition. C csponse: As with past events on the premises, the applicant will apply for the required permits for the sale of beer and wine with OLCC and intends to comply with all regulations and requirements that pertain. Event patrons will not be permitted to bring any intoxicating liquors onto the premises, in compliance with this section. 8.16.320. Outdoor Mass Gathering and Extended Outdoor Mass Gathering Narcotic and Dangerous Drugs Prohibition. Response: Event patrons will not be permitted to bring upon the premises or use any narcotic or dangerous drugs at the event. Illegal drugs are prohibited at all 4 Peaks Presents LLC events. Conclusion For the reasons stated above, the applicant, 4 Peaks Presents LLC, requests that the County approve this Mass Gathering Permit. 100215247;2) August 28th, 2019 To the Deschutes County Commissioners: 4 Peaks Presents, LLC requests that the County Commissioners waive the requirements for the following sections of the Outdoor Mass Gathering code: 8.16.240 Medical Service 4 Peaks Presents asks that the Commissioners waive the requirement for having an ambulance on the festival site. We are submitting a recommendation from Drew Norris, Deputy Chief of EMS for Bend Fire and Rescue, stating that it would be reasonable for an ambulance provided through Deschutes County 911 to provide EMS services to the patrons of 4 Peaks Music Festival given the level of medical service that has been represented to him. We also will have an AED Device on site at the fully staffed medical facility with the proper level of medical support, staffed by Adventure Medics, in the unlikely event that it will be needed. The Bend Fire Station, #303 is located 2 miles away at 61080 Country Club Dr., Bend, OR 97702. We hope that the County of Deschutes and 4 Peaks Presents will have a long relationship that will be beneficial to all involved: the music .loving community, local business owners, and the county tax rolls. Thanks you for your consideration on these matters. Sincerely, Stacy Koff Festival Director/Owner, 4 Peaks Presents, LLC August 30, 2019 To the Deschutes County Commissioners: This is to advise that I have Spoken with Stacy Koff, Owner of 4 Peaks Presents LLC regarding her request for an ambulance variance for a mass gathering event to be held at 21085 NE Knott Road, Bend OR 97702 on June 18-21, 2020. I believe, given the staff and equipment she will have available for this event that having an ambulance respond from Bend Fire station number 303 on 61080 Country Club Road, Bend OR 97702, would be a sound decision. I did request that an AED be Present in the first aid tent and she willingly complied, and has had one on site for the last 9 years. If you have any questions or concerns, pleas feel free to contact me. Thanks you for your consideration on these matters. Sincerely, Drew Norris Deputy Chief EMS Operations Bend Fire and Rescue 541-388-6387 Exhibit A Location and legal description of the subject property where 4 Peaks Music Festival is to be held on June 1821, 2020 Mailing Name: D M STEVENSON RANCH L L C Map and Tax lot: 1812220000100 Account: 110399 Situs Address: 21085 KNOTT RD, BEND, OR 97702 Tax Status: Assessable o Q z N m y t1 n 8 to a 1 G � Q} d1 M C L �« IL > 414 13 r 014N .,j 4A W U. V ttn M be Q W O. u r�1 LW r tA aC W H 4A • , • Lu t(h • uj 04u) • • T _- ZCLLUOUJ11 LL ro N s 't r �! s. i tfi s Ze�,ry �SL� g'�•r i,�gyp > r. ". a TSVMQ 2� ; S � 3' r r ON ,`� go- N,12 I„< I €^',<T ;�s '�. axx a"Trod � r � # h !w tee 1 € P".s � Vii'• � .',.� � � { � � a � i '�` ''`�. � ' . 141 r_ ax 3r xr fix' k�; '�^�,• ,. ;'�*• % `. 1 141 ff i. }}y< F I • ((' L.t P. X 6 ill Ilk, �, F �t 47� W. �g +iJ U C Pagel of 2 4 Peaks Music Festival 2020 Exhibit D 9/10/2019 Community Development Department 117 NW Lafayette Ave. Bend, OR 97701-1925 (541)388-6575 ATTN: Health Department Re; 4 Peaks Outdoor Mass Gathering Application Medical Service Plan 4 Peaks festival 2020 will take place on June 18, 191, 29 and 21, of 2020, and will be located at 21085 KNOTT RD, BEND, OR 97702. Expected attendance is 2999 persons on site in the event the festival is sold out. Setting up for this event is to begin on June 13th 2020. Clean up and removal of all signs, temporary structures will be concluded by day's end on June 23r1, 2020 Debris and rubbish will be hauled away no later than June 25th 2020. In order to comply with Deschutes County Health Ordinance 8.16.240, Outdoor Mass Gathering Medical Service Plan, 4 Peaks LLC shall make available the following; A first aid station located near the main entrance to the Music venue area (Refer to map exhibit C3) Names and qualifications of medical staff: Names and qualifications will be provided no less than thirty (30) days before event. Adventure Medics will be in charge of setting up and staffing this area. Adventure Medics 20585 NE Brinson Blvd #4 Bend, OR 97701 541-639-9993 info@advmedies.com 4 Peaks LLC. Is again requesting a waiver as approved last year from DCC 8.16.240(b) which requires the event to have one ambulance on site. No waiver is sought for the first aid station and proposed aid station is in full compliance with DCC 8.16.240. We also will have an AED Device and a full medically trained staff on site at the medical tent in the unlikely event that it will be needed Under DCC 8.16.150(B), the Board may waive any standards upon a showing of good cause, and when the request does not involve any significant public health, safety or welfare issues involved, and when the Board determines that no law enforcement or other County services are involved. The primary reason that a waiver is being requested is that We are submitting a recommendation from Drew Norris, Deputy Chief of EMS for Bend Fire and Rescue, stating that it would be reasonable for an ambulance provided through Deschutes County 911 to provide EMS services to the patrons of 4 Peaks Music Festival given the level of medical service that has been represented to him. We also will have an AED Device on site at the fully staffed medical facility with the proper level of medical support, in the unlikely event that it will be needed. The Bend Fire Station, #303 is located 2 miles away at 61080 Country Club Dr, Bend, OR 97702. Page 2 of 2 August 30th, 2019 To the Deschutes County Commissioners: 4 Peaks Presents, LLC requests that the County Commissioners waive the requirements for the following sections of the Outdoor Mass Gathering code: 8.16.240 Medical Service 4 Peaks Presents asks that the Commissioners waive the requirement for having an ambulance on the festival site. We are submitting a recommendation from Drew Norris, Deputy Chief of EMS for Bend Fire and Rescue, stating that it would be reasonable for an ambulance provided through Deschutes County 911 to provide EMS services to the patrons of 4 Peaks Music Festival given the level of medical service that has been represented to him. We also will have an AED Device on site at the fully staffed medical facility with the proper level of medical support, staffed by Adventure Medics, in the unlikely event that it will be needed. The Bend Fire Station, #303 is located 2 miles away at 61080 Country Club Dr., Bend, OR 97702. We hope that the County of Deschutes and 4 Peaks Presents will have a long relationship that will be beneficial to all involved: the music loving community, local business owners and the county tax rolls. Thanks you for your consideration on these matters. Sincerely, Stacy Koff Festival Director/Owner, 4 Peaks Presents, LLC Pagel of 2 4 Peaks Music Festival 2020 Exhibit E 9/10/2019 Deschutes County Sheriff 63333 W. Hwy 20 Bend, OR 97701 541-388-6655 ATTN: Deputy in charge of community events Re; 4 Peaks Outdoor Mass Gathering Application Event Public Safety and Crowed Control plan Deschutes County Ordinance 8,16.060 Traffic Control plan - Details and descriptions 4 Peaks festival 2020 will take place on June 18, 19, 20, and 21, of 2020 and will be located at 21085 KNOTT RD, BEND, OR 97702. Expected attendance is 2999 persons on site in the event the festival is sold out. Setting up for this event is to begin on June 13, 2020. Clean up and removal of all signs, temporary structures will be concluded by day's end on June 22, 2020. Debris and rubbish will be hauled away no later than June 24, 2020. Traffic Control Plan Entry and access to 4 Peaks Festival will be from Knott RD. Signs will be posted along the roadway to alert drivers as they approach, as well as certified flaggers. In order to ensure ample space to line up vehicle off highway at will call/check in, we have the following procedure in place; All vehicles will pull off Knott Rd. on to festival grounds and proceed at least 100' down driveway/staging area. At that point general admission vehicle will be directed into one of six 180`lanes to await ticketing. All but two of these lanes will be converted into day parking after the majority of our patrons arrive and extra lanes are no longer needed. There will be a separate lane to the general admission entry for authorized vehicles only to be used by staff, crews, services, and emergency vehicles. Temporary parking will be provided for ticketing and parking instructions.. The event site can accommodate more than twice as many vehicles as required for an event of this size. As exhibits C 1, and C2, demonstrate, there are adequate areas for ingress and egress to the site and throughout the parking and camping areas. A minimum of six (6) traffic control and parking monitors will be on duty during each shift. Two (2) will be stationed at entrance, with the remaining three (3) assigned to parking and camping areas. Safety vests will be worn by all traffic and parking staff while on duty and equipped with flags for signaling drivers. Page 2 of 2 Traffic is expected to be very light, with attendee's arrivals spread out over time, starting Thursday after 8:00am and late arrivals trickling in until Saturday midday. Departures will occur throughout the day on Sunday, after the festival is over. We feel this extended time frame for arrivals and departures will prevent any traffic congestion or hazards on the roadway. Contact person; Steve Arnold - Parking Crew Leader — (541) 420-2850 Select Temp and 4 Peaks to provide certified flaggers for Knott Road — (541) 749-7931 Crowd Control/Security Plan - Details and descriptions 4 Peaks festival 2019 will take place on June 18, 191, 20, and 21, of 2020 and will be located at 21085 KNOTT RD, BEND, OR 97702. Expected attendance is 2999 persons on site in the event the festival is sold out. Setting up for this event is to begin on June 13, 2020. Clean up and removal of all signs, temporary structures will be concluded by day's end on June 22, 2020. Debris and rubbish will be hauled away no later than June 24, 2020 To ensure for the comfort and safety of our patrons, 4 Peaks LLC has contracted with Donal Liebermann of Dark Eden Inc to provide security for the event. A minimum Six (6) uniformed DPSST licensed personnel will be on duty during the festival with additional personnel on call. Additional personnel will be added as needed to maintain a ratio of 1 crowd control person to 100 persons attending on site. In addition 4 Peaks will have certified alcohol monitors and paid security staff roaming the crowds at all times beer and wine are to be sold. 4 Peaks LLC is committed to meet or exceed Deschutes County requirements. Contact info: Security will be provided by; Donal Liebermann, Dark Eden Inc. Executive Manager DPSST #63527 OLCC #443561 PO Box 8685 Bend, OR. 97708 PH: (541) 693-3797 Page 1 of 2 4 Peaks Music Festival 2020 Exhibit F 9/10/2019 Community Development Department 117 NW Lafayette Ave. Bend, OR 97701-1925 (541)388-6575 ATTN: Environmental Health Division Re; 4 Peaks Outdoor Mass Gathering Application Environmental Health Checklist 4 Peaks festival 2020 will take place on June 18, 19, 29 and 21, of 2020, and will be located at 21085 KNOTT RD, BEND, OR 97702. Expected attendance is 2999 persons on site in the event the festival is sold out. Setting up for this event is to begin on June 13, 2020. Clean up and removal of all signs, temporary structures will be concluded by day's end on June 22, 2020 Debris and rubbish will be hauled away no later than June 24, 2020. To ensure for the comfort and safety of our patrons 4 Peaks Presents LLC is committed to meet or exceed Deschutes County standards. In order to comply with Deschutes County Health Ordinance 8.16.220, Outdoor Mass Gathering Sanitary Facilities, 4 Peaks LLC shall provide the following; 1. Contact persons Jeffrey Swager, Site Manager (305) 205-7956 Kevin Byrne — Bar Manager — 541280-003 5 2. Toilets, 4 Peaks LLC has contracted with Little Johns to provide Toilets and hand washing facilities for the event. It is our understanding that a minimum of 1 portable toilet to 100 persons on site is required by the Deschutes County Health ordinance. To ensure for the comfort and safety of our patrons, 4 Peaks will be providing 1 portable toilet for every 50 persons on site during the festival the total numbers of portable toilets will be determined by ticket sale prior to the event. 4 Peaks LLC is committed to meet or exceed Deschutes County requirements. Estimated totals if event is sold out Forty five (45) standard toilets, Seven (7) ADA (locations shown on map Exhibit C2) Toilets and hand washing facilities provided by; Little Johns — Bathrooms - 114 NE Penn Ave, Bend, OR 97701 Phone: (541) 617-6060 Hand Washing Facilities Page 2 of 2 The total numbers of hand washing facilities will be determined by ticket sale prior to the event. 4 Peaks Presents LLC is committed to meet or exceed Deschutes County requirements. Estimated totals if event is sold out Twelve (14) hand washing stations at 12 restroom locations shown on map Exhibit C2 Toilets and hand washing facilities provided by; Little Johns — Bathrooms - 114 NE Penn Ave, Bend, OR 97701 Phone: (541) 617-6060 1. Water supply - Avion Water Supply 2. Waste Collections and Removal One (1) — l0yd dumpster, twenty (20) rolling garbage bins, ten (10) commingle recycle bins, and 7 glass bins Bins to be empted three times daily by Volunteer staff 10 yd dumpster to be hauled away End of day Monday, June 22, 2020 Containers and removal services provided by; Bend Garbage and Recycling (541) 382-2263 3. Food Service Facilities (locations shown on maps C2 and C3) Vendors will be licensed and permitted no later than fourteen (14) days prior to event. 4. Refer to attached site maps Exhibits C2, and C3, for facilities locations