2022-151-Ordinance Recorded 4/21/2022REVIEWED
LEGAL COUNSEL
Recorded in Deschutes County C J2022_151
Steve Dennison, County Clerk
Commissioners' Journal 04/21 /2022 4:20:02 PM
2022-151
..................
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Deschutes County Code
Title 18, the Deschutes County Zoning Map, to
Change the Zone Designation for Certain Property
From Exclusive Farm Use to Multiple Use
Agricultural and Prescribing an Effective Date on the
90"' Day After the Date of Adoption.
ORDINANCE NO. 2022-004
WHEREAS, Central Oregon Irrigation District (COID) applied for a Deschutes County Comprehensive
Plan Map (247-21-000616-PA) and Deschutes County Zoning Map (247-21-000617-ZC) change, to rezone
certain property from Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA10); and
WHEREAS, after notice was given in accordance with applicable law, a public hearing was held on
September 21, 2021 before the Deschutes County Hearings Officer and, on November 24, 2021 the Hearings
Officer recommended approval of the comprehensive plan map and zone change; and
WHEREAS, on this same date, the Board of County Commissioners ("Board") adopted Ordinance 2022-
003 amending DCC Title 23, changing the plan designation of the property from Agriculture (AG) to Rural
Residential Exception Area (RREA); and
WHEREAS, a change to the Deschutes County Zoning Map is necessary to implement the plan
amendment adopted in Ordinance 2022-003; and
WHEREAS, pursuant to DCC 22.28.030(C), the Board heard de novo the application for zone change
from Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA10) to conform to the newly adopted plan
amendment; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. AMENDMENT. DCC Title 18, Zoning Map, is amended to change the zone designation
from Exclusive Farm Use (EFU) to Rural Residential Exception Area (RREA) for certain property described in
Exhibit "A" and depicted on the map set forth as Exhibit "B", with both exhibits attached and incorporated by
reference herein.
Section 2. FINDINGS. The Board adopts as its findings in support of this decision, the Decision of the
Hearings Officer, attached as Exhibit "C", and incorporated by reference herein.
PAGE 1 OF 2 - ORDINANCE NO.2022-004
Section 5. EFFECTIVE DATE. This Ordinance takes effect on the 90' day after the date of adoption.
Dated this 17 of 20�
ATTEST:
Recording Secreta y
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
P TTI ADAIR, Chair
ANTHONY DeBONE, Vice air
PHIL CH NG, Commissioner
Date of 1 st Reading: day of , 2022.
Date of 2nd Reading: day of (126 2022.
Commissioner
Patti Adair
Anthony DeBone
Phil Chang
Record of Adoption Vote
Yes No Abstained Excused
01
Effective date: day of 2022.
ATTEST
Recording Secretfiry
PAGE 2 OF 2 - ORDINANCE NO.2022-004
Exhibit "A"
Legal Description
A parcel of land situated in the Northeast Quarter of the Southwest Quarter (NEI/4 SWI/4)
and the Southeast Quarter of the Northwest Quarter (SEI/4 NWT/4), Section Eighteen (18),
Township Seventeen (17) South, Range Thirteen (13) East of the Willamette Meridian,
Deschutes County, Oregon.
EXHIBIT A TO ORDINANCE 2022-004
Legend
Proposed Zone Change Boundary
Zoning
PROPOSED BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ZONING MAP
Exhibit "B"
to Ordinance 2022-004
Patti Adair, Chair
Tony DeBone, Vice Chair
Phil Chang, Commissioner
EFUAL - Alfalfa Subzone
EFUTRB - Tumalo/Redmond/Bend Subzone
MUA10 - Multiple Use Agricultural
0 400 800 1,600
Feet
January 12, 2022
ATTEST: Recording Secretary
Dated this day of , 2022
Effective Date: 2022
Exhibit T" to Ord. 2022-004 Mailing Date:
Wednesday, November 24, 2021
DECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBERS: 247-21-0000616-PA, 617-ZC
HEARING: September 21, 2021, 6:00 p.m.
Barnes & Sawyer Rooms
Deschutes Services Center
1300 NW Wall Street
Bend, OR 97708
APPLICANT/
OWNER: Dave Swisher
250 NW Franklin Avenue, Suite 401
Bend, OR 97703
Property 1:
Don Swisher Trust, Dave Swisher, Successor Trustee
Carolyn J. Swisher Trust, Dave Swisher Successor Trustee
Mailing Name: DON SWISHER TRUST ET AL
Map and Taxlot: 171318C000100
Account: 109158
Situs Address: 63350 ABBEY RD, BEND, OR 97701
Property 2:
Don Swisher Trust, Dave Swisher, Successor Trustee
Carolyn J. Swisher Trust, Dave Swisher Successor Trustee
MacCloskey Revocable Trust, Craig and Jane I. MacCloskey,
Trustees
Mailing Name: DON SWISHER TRUST ET AL
Map and Taxlot: 1713180000600
Account: 106933
Situs Address: NO SITUS ADDRESS
SUBJECT PROPERTY: Tax Lot 100, Assessor's Map 17-13-18C ("Tax Lot 100")
Tax Lot 600, Assessor's Map 17-13-18 (Tax Lot 600")
ATTORNEY
FOR APPLICANT: Liz Fancher
2465 NW Sacagawea Lane
Bend, OR 97703
247-21-000616-PA, 21-617-ZC Page 1 of 74
TRANSPORTATION Joe Bessman
ENGINEER: Transight Consulting, LLC
REQUEST: The applicant requests approval of a Comprehensive Plan
Amendment to change the designation of the property from
Agricultural (AG) to Rural Residential Exception Area (RREA). The
applicant also requests approval of a corresponding Zone
Change to rezone the property from Exclusive Farm Use -
Tumalo/Redmond/Bend subzone (EFU-TRB) to Multiple Use
Agricultural (MUA-10) as the subject property does not qualify
as "Agricultural Land" pursuant to State Law and administrative
rules
HEARINGS OFFICER: Stephanie Marshall
STAFF CONTACT: Kyle Collins, Associate Planner
Phone: 541-383-4427
Email: Kyle.Collins@deschutes.org
RECORD CLOSED: October 15, 2021'
I. STANDARDS AND APPLICABLE CRITERIA
Title 18 of the Deschutes County Code, the County Zoning Ordinance:
Chapter 18.04, Title, Purpose, and Definitions
Chapter 18.16, Exclusive Farm Use Zones (EFU)
Chapter 18.32, Multiple Use Agricultural Zone (MUA10)
Chapter 18.80, Airport Safety Combining Zone (AS)
Chapter 18.113, Destination Resorts Zone (DR)
Chapter 18.136, Amendments
Title 22, Deschutes County Development Procedures Ordinance
Deschutes County Comprehensive Plan
At the conclusion of the public hearing, the Hearings Officer made an oral ruling, granting a request
to leave the record open through October 5, 2021. Thereafter, on October 5, 2021, staff contacted the
Hearings Officer, informing her of the fact that Central Oregon LanclWatch submitted a letter and
exhibits at the conclusion of the first open record period on September 28, 2021. The submission was
misidentified with the wrong file number and thus was not initially included in the file for the
referenced applications. The Hearings Officer issued an Order Extending Open Record Period dated
October 5, 2021, extending the open record period through October 15, 2021. The Order is included
in the record.
247-21-000616-PA, 21-617-ZC Page 2 of 74
Chapter 2, Resource Management
Chapter 3, Rural Growth Management
Appendix C, Transportation System Plan
Oregon Administrative Rules (OAR), Chapter 660
Division 6, Forest Lands
Division 12, Transportation Planning
Division 15, Statewide Planning Goals and Guidelines
Division 33, Agricultural Land
Oregon Revised Statutes (ORS)
Chapter 215.211, Agricultural Land, Detailed Soils Assessment
II. FINDINGS OF FACT
A. LOCATION: Property 1 described above has a situs address of 63350 Abbey Road,
Bend, OR 97701. Property 2 described above does not have a situs address. Property 2 is
directly adjacent to the north of Property 1. The subject property is generally east of the
City of Bend, north of Butler Market Road and west/northwest of Powell Butte Highway and
the Bend Airport. Property 1 and Property 2 are referred to collectively herein as the
"Subject Property."
B. LOT OF RECORD: Property 1 described above was found to be a legal lot of record
pursuant to local land use decision 247-20-000396-LR. Property 2 described above was found
to be a legal lot of record pursuant to local land use decision 247-20-000395-1-R.
C. ZONING AND PLAN DESIGNATION: The Subject Property is zoned EFU-TRB and is
designated Agricultural (AG) in the Deschutes County Comprehensive Plan. The Airport
Safety Overlay Zone (AS) and the Destination Resort Overlay Zone (DR) also apply to the
Subject Property. The Subject Property does not have any Goal 5 resource designations.
D. PROPOSAL: The Applicant requests approval of a Comprehensive Plan Map
Amendment to change the designation of the Subject Property from an Agricultural (AG)
designation to a Rural Residential Exception Area (RREA) designation. The Applicant also
requests approval of a corresponding Zoning Map Amendment to change the zoning of the
Subject Property from Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA10). The
Applicant asks that Deschutes County change the zoning and the plan designation because
the subject property does not qualify as "agricultural land" under Oregon Revised Statutes
(ORS) or Oregon Administrative Rules (OAR) definitions. The Applicant submits that no
exception to Statewide Planning Goal 3, Agricultural Land is required because the Subject
Property is not agricultural land.
247-21-000616-PA, 21-617-ZC Page 3 of 74
Submitted with the application is an Order 1 Soil Survey of the Subject Property, titled "Soil
Assessment for Two 40-acre Parcels, Bend Oregon" (hereafter referred to as the "soil study")
prepared by soil scientist Andy Gallagher, CPSSc/SC 03114 of Red Hill Soils. The Applicant has
also submitted a traffic analysis prepared by Transight Consulting, LLC titled "Swisher Rezone"
hereafter referred to as "traffic study." Additionally, the Applicant has submitted an application
form, a burden of proof statement, and other supplemental materials, all of which are included
in the record for the subject applications.
E. SITE DESCRIPTION: Property 1 and Property 2 each are approximately 40 acres in
size and adjacent to one another in a north -south orientation. The Subject Property is
relatively level with mild undulating topography. Vegetation consists of juniper trees, sage
brush, bunch grasses, and other native vegetation. Property 1 and Property 2 are both
undeveloped and not irrigated. Access to the Subject Property is provided by Abbey Road, a
designated local access road which extends from Butler Market Road to the southwest. The
nearest portion of the City of Bend's Urban Growth Boundary (UGB) is located approximately
1.3 miles to the southwest, and the Bend Municipal Airport is located approximately0.5 miles
to the east. The Subject Property is 0.25 miles south of Butler Market Road and adjoins Abbey
Road.
Neither Property 1 nor Property 2 have water rights, and neither has been farmed or used
in conjunction with any farming operation in the past. The Applicant's Burden of Proof
statement at page 3 states, "According to COID, the seller of this property entered into a
contract with the predecessor of the district to purchase 25 acres of water for each of the
two tax lots. See, Exhibit C. The contract was, however, never fulfilled and no water rights
were adjudicated to these properties." An old COID ditch crosses Property 1. There are no
COID facilities on Property 2.
The Natural Resources Conservation Service (NRCS) map shown on the County's GIS
mapping program identifies two soil complex units on the Subject Property: 38B, Deskamp-
Gosney complex and 58C, Gosney-Rock outcrop-Deskamp complex. Neither soil complex
38B, the predominant soil complex on the Subject Property, nor soil complex 58C, are
defined as high -value soils by DCC 18.04. The Applicant's Burden of Proof statement states
on pages 3-4:
The applicant obtained a professional soils assessment for the two properties. The
assessment was made by Andy Gallagher, CPSSc/SC 03114. Mr. Gallagher determined that
88916 of Tax Lot 100 is comprised of LCC 7 and 8 soils and 82916 of Tax Lot 600 is comprised
of LCC 7 and 8 soils. The remainder of each property is comprised of soils that are rated
LCC 6 when not irrigated. A copy of Mr. Gallagher's soils assessment is included as part of
Exhibit D to this burden of proof. Mr. Gallagher also provided a professional estimate of
the amount of dryland forage each tax lot might produce. He found that Tax Lot 100 would
produce approximately 494 pounds per acre per year and that Tax Lot 600 would produce
approximately 440 pounds per acre per year.
247-21-000616-PA, 21-617-ZC Page 4 of 74
As discussed in detail below in the Soils section, there is no irrigation on the Subject Property
and an Agricultural Soils Capability Assessment (Order 1 soil survey) conducted on the
properties determined Class 3 irrigated and 6 nonirrigated are mapped as a consociation
and the Gosney, rock outcrop and very shallow soils mapped as a complex in which all three
components are either Capability Class 7 or 8. The soils in both of the 40 acre parcels are
predominantly shallow and ashy -skeletal and rock outcrops Land Capability Class 7 and 8.
F. SOILS: According to Natural Resources Conservation Service (NRCS) maps of the area,
the Subject Property contains two different soil types as described below: 58C - Gosney-Rock
Outcrop-Deskamp complex, and 36A - Deskamp loamy sand.
The Applicant submitted a soil study report (Applicant's ), which was prepared by a certified
soil scientist and soil classifier that determined the Subject Property is comprised of soils
that do not qualify as Agricultural Land 3. The purpose of this soil study was to inventory and
assess the soils on the Subject Property and to provide more detailed data on soil
classifications and ratings than is contained in the NRCS soils maps. The NRCS soil map units
identified on the properties are described below. The Applicant's soils study has been
verified by DLCD.
3813 Deskamp Gosney complex 0 to 8 percent slopes: This soil is composed of 50 percent
Deskamp soil and similar inclusions, 35 percent Gosney soil and similar inclusions, and 15
percent contrasting inclusions. The Deskamp soils are somewhat excessively drained with
rapid permeability, and an available water capacity of about 3 inches. The Gosney soils are
somewhat excessively drained with rapid permeability, and an available water capacity of
about 1 inch. The contrasting inclusions contain Clovkamp soils in swales, soils that are very
shallow to bedrock, and are on ridges with occasional rock outcrops. The major use of this
soil is for livestock grazing. The Deskamp soils have ratings of 6e when unirrigated, and 3e
when irrigated. The Gosney soils have ratings of 7e when unirrigated, and 7e when irrigated.
This soil type is not considered high -value soil. Approximately 96.3 percent of the Subject
Property is made up of this soil type.
58C Gosney-Rock Outcrop-Deskamp complex 0 to 15 percent slopes: This soil type is
comprised of 50 percent Gosney soil and similar inclusions, 25 percent rock outcrop, 20
percent Deskamp soil and similar inclusions, and 5 percent contrasting inclusions. Gosney
soils are somewhat excessively drained with rapid permeability. The available water capacity
is about 1 inch. Deskamp soils are somewhat excessively drained with rapid permeability.
Available water capacity is about 3 inches. The major use for this soil type is livestock grazing.
The Gosney soils have ratings of 7e when unirrigated, and 7e when irrigated. The rock
outcrop has a rating of 8, with or without irrigation. The Deskamp soils have ratings of 6e
3 As defined in OAR 660-033-0020, 660-033-0030
247-21-000616-PA, 21-617-ZC Page 5 of 74
when unirrigated, and 4e when irrigated. Approximately 3.7 percent of the Subject Property
is made up of this soil type, all located within the northern parcel.
G. SURROUNDING LAND USES: The Subject Property is located in Northeast Bend near
the Bend Airport. Its south boundary adjoins a large tract of land zoned MUA-10 that is
developed with rural residences. EFU-TRB and MUA-10 zones are intermixed in the greater
area around the subject property. EFU-zoned lands in the vicinity are developed with small
scale agricultural operations and single-family dwellings. The remaining parcels consist of
County exception lands zoned MUA10, which are predominately developed with single-
family dwellings and host small -acreage irrigation for pasture and hobby farm uses. There
are also significant EFU-zoned parcels which contain no irrigation or substantial agricultural
operations. The nearest portion of the City of Bend's UGB is located approximately 1.3 miles
to the southwest, and the Bend Municipal Airport is located approximately 0.5 miles to the
east.
The adjacent properties are outlined below in further detail:
North: The City of Bend's sewage treatment plant tract is north of the Subject Property. The
developed part of the City's treatment plant is at least 0.6 miles north, the land between the
plant and the Subject Property is vacant, dry, open land. The predominant soil mapping units
on these properties are 58C and 59C soils that are primarily comprised of Class 7 and 8 soils.
The adjacent property to the north, Tax Lot 104 (Assessor's Map 17-13-00) is a 1,213.82 acre
EFU-zoned property owned by the City of Bend that is unirrigated and predominately
undeveloped, with the major exception of the city's wastewater treatment facility. Northeast
is Tax Lot 105 (Assessor's Map 17-13-00), an 80 acre EFU-zoned property also owned by the
City of Bend that is unirrigated and undeveloped.
West. Immediately west of the Subject Property are four EFU-zoned parcels. Tax Lots 700 and
701 (Assessor's Map 17-13-18) are 19.6 acres and 19.2 acres in size respectively. Tax Lots 200
and 300 (Assessor's Map 17-13-18C) are 17.9 acres and 16.3 acres in size respectively. All four
parcels are developed with single-family dwellings (land use file nos. CU-89-133 for Tax Lot
300. The dwellings on Tax Lots 201 and 700 predate modern land use standards and
requirements. It is unclear what land use decision formally approved the dwelling on Tax Lot
700, which was constructed in 1986 pursuant to building permit no. 247-Bl3811), accessory
structures, and three of the properties (Tax Lots 700, 200, and 300) are partially irrigated.
Tax Lot 701 lacks irrigation water rights. None of these properties appear to be engaged in
commercial farm use.
East: The Bend Airport is one half mile east of the Subject Property. It is developed with
commercial and industrial uses related to aviation and as an airport. Tax Lot 100 is separated
from the airport by Powell Butte Highway and small parcels zoned EFU-TRB. Immediately
east of the Subject Property is a 40-acre square that has been divided into four small EFU-
zoned parcels. Tax Lots 100, 200, 300, and 400 (Assessor's Map 17-13-18DB) are 8.5 acres,
247-21-000616-PA, 21-617-ZC Page 6 of 74
12.2 acres, 8.0 acres, and 10.0 acres in size respectively. All four parcels are developed with
single-family dwellings (land use file nos. CU-02-18 for Tax Lot 100, CU-03-8 for Tax Lot 200,
CU-90-35 for Tax Lot 300, and CU-88-146 for Tax Lot 400). It does not appear that any of
these parcels contain irrigation rights, but several of the properties do appear to contain very
minor hobby farming operations. Continuing east are two additional EFU-zoned parcels. Tax
Lots 100 and 200 (Assessor's Map 17-13-18D) are both 19.5 acres in size respectively. Tax Lot
100 contains several agricultural buildings and Tax Lot 200 is undeveloped. Farther east is
an assemblage of properties associated with the Bend Municipal Airport. The block of
nonfarm properties to the east of the Subject Property (which are not receiving farm tax
deferral) precludes it from being farmed with small farm parcels further to the east.
South: Immediately south of the Subject Property are four MUA-10-zoned properties all
located within the Butler subdivision. All the parcels are approximately 9.85 acres in size, and
all are developed with single-family dwellings and assorted residential accessory structures.
Southwest of the subject properties is an EFU-zoned parcel (Tax Lot 500, Assessor's Map 17-
13-18C) that is approximately 19.3 acres in size and is developed with a single-family dwelling
(land use file no. CU-99-46). Tax Lot 500 does not appear to contain any irrigation water
rights, but does appear to have some minor agricultural operations onsite. Continuing
southeast are numerous MUA-10-zoned properties located within the Classic Estates
subdivision -16 lots - all of which are developed with single-family dwellings and a variety of
residential accessory structures. These lot sizes range from 2.12 to 2.59 acres. A large
amount of land south of Classic Estates and south of Butler Market Road is also zoned MUA-
10.
H. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice on June 23, 2021,
to several public agencies and received the following comments:
Deschutes County Senior Transportation Planner Peter Russell
1 have reviewed the transmittal materials for 247-21-000616-PA/617-ZC to amend the
Comprehensive Plan designation Zone of the subject properties from Agriculture and Exclusive
Farm Use (EFU) to Rural Residential Exception Area (RREA) and Multiple Use Agriculture (MUA-
10). The two 40-acre properties are at 63350 Abbey Road, aka County Assessor's Map 17-13-18C,
Tax Lot 100 and a property with no situs address but described as 17-13-18, Tax Lot 600.
The applicant's traffic study dated Feb. 22, 2021, uses marijuana production as one of the outright
permitted uses in the EFU zone when comparing and contrasting a reasonable worst case scenario
of traffic generation from EFU vs. MUA-10. The County has banned marijuana production so this
appears to staff to be an inappropriate choice. Nevertheless, in looking at the other outright
permitted uses in EFU vs. MUA-10, staff agrees the plan amendment/zone change will not result in
any significant adverse effect and thus the complies with the Transportation Planning Rule.
247-21-000616-PA, 21-617-ZC Page 7 of 74
The property accesses Abbey Road, a public road not maintained by Deschutes County and
otherwise known as a Local Access Road (LAR) and functionally classified as a local road. The
County remains the road authority. The applicant will need to either provide a copy of a driveway
permit approved by Deschutes County prior to development or be required obtain one as a
condition of approval prior to development occurring to comply with the access permit
requirements of DCC 17.48.210(A).
The County will assess transportation system development charges (SDCs) when development
occurs based on the type of proposed use. However, as a plan amendment or a zone change by
itself does not generate any traffic, no SDCs are triggered at this time.
Deschutes County Building Official, Randy Scheid
The Deschutes County Building Safety Divisions code mandates that Access, Egress, Setbacks, Fire
& Life Safety, Fire Fighting Water Supplies, etc. must be specifically addressed during the
appropriate plan review process with regard to any proposed structures and occupancies.
Accordingly, all Building Code required items will be addressed, when a specific structure,
occupancy, and type of construction is proposed and submitted for plan review
Oregon Department of Aviation Seth Thompson
Thank you for providing the opportunity for the Oregon Department of Aviation (ODA) to comment
on File Number: 247-21-000616-PA, 617-ZC.
The ODA has no comment on the subject proposal. However, future development on the subject
parcels will be subject to the following requirements by the ODA and FAA:
1) Prior to issuance of any subsequent building permits on these parcels, the applicant must file
and receive aeronautical determinations from the ODA and FAA as required by OAR 738-070-0060
on FAA Form 7460-1 Notice of Proposed Construction or Alteration to determine if any new
structures will pose an obstruction to aviation safety at the Bend Municipal Airport.
2) The height of any new structures shall not penetrate FAA Part 77 Imaginary Surfaces, as
determined by the ODA and FAA.
Central Oregon Irrigation District Kelley O'Rourke
Please be advised that Central Oregon Irrigation District (COID) has reviewed the provided
application dated June 22, 2021 of the above referenced project. COID has no facilities or water
rights on the subject property (1713180000600).
247-21-000616-PA, 21-617-ZC Page 8 of 74
Please note that COID facilities are located within the vicinity of the project, contact COID if any
work and/or crossings will be done near the COID facilities and not shown on the provided plans.
The comments from COID only referenced one property (Map and Tax Lot: 1713180000600),
Property 2 described above. However, the subject application references two parcels
(secondary property: Map and Tax Lot 171318C000100). Based on internal County records
and comments within the submitted application materials, both Property 1 and Property 2
are located within the boundaries of the Central Oregon Irrigation District, but neither parcel
contains any listed water rights.
I. PUBLIC COMMENTS: The Planning Division mailed notice of the application to all
property owners within 750 feet of the subject property on June 23, 2021. The Applicant also
complied with the posted notice requirements of Section 22.24.030(B) of Title 22. The
Applicant submitted a Land Use Action Sign Affidavit indicating the Applicant posted notice
of the land use action on June 23, 2021. Two public comments were received from
neighboring property owners.
The first comment was received from Michael and Donna Grace Higham, residents and
owners of property located at 63225 Peterman Lane, Bend, OR 97701 on June 26, 2021:
"We OPPOSE this change of rezoning of this land.
We are extremely surprised that proposed development of 40 acres is being looked at. We
have so much traffic from the airport and Prineville. WE ARE SHORT OF C01 WATER. The
amount of people and activities will increase by 200%. Having development should be
closer to Bend City.
Then the next development will be Don Swishers other 40 acres next to this property.
This is NOT an orderly development from Bend City to urban growth boundaries. Bend was
developing from the city out."
The second comment was received from Kurt and Sue Conrad, a residents and owners of
property located at 22220 Parker Lane, Bend, OR 97701 on July 1, 2021:
"We are opposed to the above -referenced land use application. Listed below are our
reasons broken down into collective and personal:
Collective: Zoning change request
When Don and Carolyn Swisher purchased this land, they did so with the knowledge it
could not be developed for residential use. The LCDC laws had been in place for 15 years
at that time.
247-21-000616-PA, 21-617-ZC Page 9 of 74
This attempt to develop the properties has been requested only after the passing of Mr.
and Mrs. Swisher. And coincidentally, (?) when there is little to no available land to develop
in the appropriate zoning. The current applicant is a well -established local developer.
The land use laws that were in place at the time were designed by a group of citizens and
elected officials who genuinely love Oregon for the greater good of all citizens. To quote
Tom McCall in 1973, it was to prevent the "unfettered despoiling of the land, sagebrush
subdivisions, coastal condomania, and the ravenous rampage of suburbia in the
Willamette Valley all threaten to mock Oregon's status as the environmental model for the
nation."
This proposal would be breaking the protective laws in place for the singular purpose of
personal gain.
Changing from EFU to RREA/MUA10 will set a precedent that will be the ruin of our lovely
area, County and State. just like Covenants, Codes and Restrictions in a neighborhood,
once they are broken and not rectified they are no longer enforceable. Others in the State
will use this as a reason they, too, will be able to develop subdivisions wherever they please.
End Game of Part One - arbitrary development and subdivision
We who live here purchased this property in good faith that multi -home developments
would not be allowable in the remaining vacant lands. We are a reasonable distance from
the UGB/reserve to believe we were protected from subdivisions - even 'ten -acre lot ones.
How will the lack of irrigation rights be handled? Are xeriscaped properties required, or will
homeowners be using potable water for their lawns? Or, will water be sucked directly from
the aquifer for landscaping aesthetic purposes when natural supplies are dwindling? What
about the additional fire risk 8 or more properties will bring? Will fire hydrants be a
requirement now that excessive heat and red flag warnings are a concern?
Ten acres per home may sound large, but 8 homes clustered together is significant change
for the worse. We moved out to the country for the quiet enjoyment of our homes and
yards. We all have numerous pets and animals used to the peaceful country sounds who
be affected by the constant noise.
Since there is rock at the surface of our 2-112 acres in many places, this will most likely
involve extreme measures for the foundation. All this chaos will go on for years.
There is abundant wildlife in these two parcels. It is their homes and who knows where
they be forced to retreat. We see them regularly.
247-21-000616-PA, 21-617-ZC Page 10 of 74
In finishing, I circle back to the "why" of this zoning change. The general public will not reap
the greater good, just a developer and 8 additional high -end homebuyers in Central
Oregon.
LCD's far-ranging planning prohibited endless building during the frenzy of the early 2000s.
They also enabled us to come back stronger. We must stay the course. This is not the time
to be changing our structured laws in places. It is time for honoring what we have here in
extraordinary Oregon."
(emphasis in original).
Applicant Response: After submission of the public comments above, the Applicant
provided the following response on September 13, 2021:
'A. Location: The location of the subject properties is marked as TL 100 and TL 600 on the
following aerial photograph. The owners of two small properties (about 2.5 acres each),
Conrad and Highom, filed comments opposing approval of the requested zone change and
plan amendment. Their properties are located southeast of the subject property on
Peterman Lane and Parker Lane in the Classic Estates subdivision. These roads are shown
on the aerial photograph, below.
247-21-000616-PA, 21-617-ZC Page 11 of 74
B. Zoning. The zoning of the Classic Estates lots is MUA-10, the same zoning proposed by
the applicant for TL 100 and 600. Deschutes County has not applied a WA overlay zone to
this property to protect wildlife. Protections for wildlife must be sanctioned by the County's
Goal 5 ESEEs and WA or similar wildlife overlay zoning to be relevant to review of this
application.
C. Road Impacts: Access to Classic Estates lots is provided by Peterman Lane and Parker
Lane. Traffic associated with new development of the subject property will not rely on either
road for access. Impacts to the greater area arterial street network will be negligible as
shown by the traffic impact analysis filed with the land use applications.
D. Classic Estate Subdivision: A copy of the Classic Estates subdivision plat is included to
illustrate the lot pattern and roads established by it.
E. Properties Owned by Opponents: The following photographs are aerial photographs
that show the setting of the properties owned by opponents Conrad and Higham. The
247-21-000616-PA, 21-617-ZC Page 12 of 74
northwest corner of the Conrad property touches the southeast corner of TL 100.
The Higham property does not adjoin the subject properties. Its northwest corner is
approximately 700 feet from the southeast corner of TL 100. There are two developed
single-family home lots between it and TL 100.
247-21-000616-PA, 21-617-ZC Page 13 of 74
F. Development Under EFU-TRB Zoning: Tax Lots 100 and 600 are legal lots of record.
Each, based on its poor soil conditions, should qualify to be divided into two nonfarm
parcels with a nonfarm dwelling on each of the tax lots. Such divisions would allow a total
of four nonfarm dwellings on the subject property. The subject property will not remain
vacant land even if this application is denied.
F. Water for Homes and Irrigation: The applicant has shown that the subject property
can obtain water service from Avion Water System as shown by Exhibit F and G of the
application materials we filed with Deschutes County Planning.
247-21-000616-PA, 21-617-ZC Page 14 of 74
G. Purpose of EFU Zoning/Land Use Planning. The purpose of EFU zoning, as stated by
Statewide Goal 3, is "to preserve and maintain agricultural lands." The term "Agricultural
Land" is defined by Goal 3. The subject properties do not meet the definition of 'Agricultural
Land." As a result, they may be zoned MUA-10, a zoning district that allows low -density
rural residential development. The MUA-10 zone has been acknowledged by the Land
Conservation and Development Commission as being compliant with the Statewide Goals
that protect the community from urbanization of rural lands that formerly occurred in
"sagebrush subdivisions."
H. Location of City of Bend UGB and Airport: The density of development allowed by the
proposed plan amendment and zone change is not urban development. Instead, the MUA-
10 zone has been determined, through the land use planning process, to be a zoning
district that is both an appropriate zone for nonagricultural land and one that does not
allow urban development. Nonetheless, the subject property is only approximately 1.25
miles east of the City of Bend's UGB and approximately one-half mile from the Bend
Airport. The relatively large lot sizes required by the MUA-10 zone will preserve this land
for future urban development. If the City makes the logical decision to expand its
boundaries toward the Bend Airport, a location that is an employment area of the
community, the subject properties will likely remain suitable for redevelopment given their
size.
Central Oregon LanclWatch (COLW), through its attorney Carol Macbeth, participated in the
public hearing and submitted materials into the record during the open record period
objecting to the applications.
The Applicant submitted Post -Hearing Evidence on September 28, 2021 as follows:
"Rural Resource Lands Research Report" dated May 16, 2019 prepared by DLCD
Public Research Lands Fellow Stephanie Campbell (part)
-"Agricultural Soils Assessment" webpages published by and obtained from DLCD
website on 9/28/2021
-Central Oregon LandWatch v. Deschutes County, LUBA No. 2016-12 (relevant part)
"Conservation Neighbor: Andy Gallagher" article by Teresa Matteson dated
December 29, 2020 published on Benton County Soil and Water Conservation
District's website
-"Soil Survey Deschutes Area Oregon" published by USDA Soil Conservation Service
-December 1958 (obtained from Web Soil Survey of the NRCS) (part)
247-21-000616-PA, 21-617-ZC Page 15 of 74
•Resume for Andy Gallagher
•"Soil Survey of the Upper Deschutes River Area" published by the USDA and NRCS
(part)
•WebSoil Survey "Custom Soil Resource Report" for the subject property (location
approximate) obtained from NRCS
•ORS 215.211, Agricultural land
•OAR 660-033-0030, Identifying Agricultural Land
•OAR 660-033-0045, Soils Assessments by Professional Soils Classifiers
The Applicant also submitted Rebuttal and Final Argument on October 15, 2021 which
included, among other attachments, a letter from soils scientist Andy Gallagher dated
October 14, 2021.
The Hearings Officer addresses the submitted public comments and testimony in the
Conclusions of Law below.
J. LAND USE HISTORY: As noted above, Property 1 and Property 2 both have been
determined to be legal lots of record. There is no other land use history for Property 1 or
Property 2. In its burden of proof, the Applicant included the following:
In 1979, Deschutes County adopted its first comprehensive plan and zoning ordinance that
implemented the Statewide Land Use Planning Goals. The County's comprehensive plan
map was, however, developed without the benefit of reliable, detailed soils mapping
information. The map was prepared prior to the USDA/NRCS's publication of the "Soil
Survey of Upper Deschutes River Area, Oregon." This soil survey is more comprehensive
than prior soils mapping efforts but continues to provide general soils information - not
an assessment of soils on each parcel in the study area. This land application use
application includes a more detailed and accurate Order 1 soils survey that is a part of
Exhibit D. It provides Deschutes County with the information required to find that the
subject property does not qualify as "agricultural land" as defined by Statewide Goal 3,
Agricultural Land. Consistent with the requirements of ORS 215.211, this survey has been
approved for use by Deschutes County by the Department of Land Conservation and
Development ("DLCD') as shown by Exhibit D. This approval was sent directly to Deschutes
County Planning by DLCD on June 17, 2021.
When the County first implemented Statewide Goals, it applied resource zoning using a
broad brush. All rural lands were assumed to be resource land. Then -existing development
lands not suited for resource use were granted exceptions to the Goals that protect
247-21-000616-PA, 21-617-ZC Page 16 of 74
resource lands. The County allowed landowners a brief period of time after adoption of
PL-15 (1979) to petition the County to remove nonresource properties from resource zone
protections but made no effort to determine whether lands might be nonresource lands
that do not merit the imposition of stringent land use regulations that protect rural
resources - typical farm and forest resources.
Beginning around 2007, Deschutes County has rezoned properties from EFU to MUA-10
zoning and has applied a Rural Residential Exceptions Plan designation to lands found to
be nonresource land. The County's comprehensive plan was also amended to authorize
this type of change. This type of an amendment has been approved when soils are shown
to be "nonagricultural"soils and not otherwise suited for farm use. Some of the ordinances
and decisions that have approved this type of zone change and plan amendment include:
Ordinance No. 2013-009 for File PA-11, ZC-11-2, State of Oregon DSL, Exhibit H.
The Board's findings in this decision conclude that the current comprehensive plan
allows the county to approve applications to change the plan designation of
nonagricultural land from Agricultural to RREA. The Board's findings also conclude
that a goal exception is not required to allow the county to approve an RREA plan
designation for nonagricultural land because Goal 3 does not require protection of
nonagricultural land and that an RREA designation is appropriate for
nonagricultural land.
Ordinance No. 2007-025, PA-07-1/ZC-07-1, Pagel, Exhibitf
Ordinance No. 2011-014, PA-08-1/ZC-08-1, The Daniels Group, Exhibit K.
Ordinance No. 2019-006, 247-18-000485-PA/247-18-000486-ZC, Eastside Bend,
LLC, Exhibit L.
Central Oregon Landwatch v. Deschutes County (Aceti), LUBA NO. 2016-012,
August 10, 2016, Exhibit M. LUBA's decision is relevant to this application for the
following reasons:
1. LUBA found that it was appropriate for Deschutes County to rely on a site -
specific soils survey prepared by soils scientist Roger Borine to find that a
majority of the property is comprised of Class VII and Vlll soils rather than
on information provided by the NRCS Soil Survey. LUBA noted that the
NRCS's maps are intended for use at a higher landscape level rather than
on a property -by -property basis.
2. LUBA affirmed the County's determination that property that had been
irrigated and used to grow hay in 1996 and earlier years was not
agricultural land based on the Borine Order 1 soils survey that showed that
247-21-000616-PA, 21-617-ZC Page 17 of 74
the poor soils on the property are Class VII and Vlll soils when irrigated, as
well as when not irrigated. The Swisher property has no history of irrigation,
a fact confirmed by Central Oregon Irrigation District, Exhibit C.
3. LUBA accepted the following evidence provided by the applicant, to
establish that the Aceti property is not "other than Class I -VI Lands taking
into consideration farming practices.
"It is not an accepted farm practice in Central Oregon to irrigate and cultivate poor
quality Class Vll and Vlll soils - particularly where, as here those soils are adjacent
to rural industrial uses, urban density residential neighborhoods that complain
about dust and chemicals and to high traffic counts on the surrounding roads and
highways. Irrigating rock is not productive."
In Aceti, the County also found that commercial agricultural uses in the vicinity were
limited.
The Swisher property, like the Aceti property, is located in close proximity to dense
residential development, the Bend Airport and two major arterial roads (Butler
Market Road and Powell Butte Highway). Adjoining EFU-zoned lands are vacant or
engaged in hobby farming only. Farming in the area is not "commercial"
agriculture. As with the Aceti property "irrigating rocks [on the Swisher property] is
not productive."
K. PUBLIC SERVICES: The Subject Property receives police services from the Deschutes
County Sheriff and is within the Deschutes County Rural Fire Protection District (DCRPFD) No.
2. DCRPFD No. 2 provides fire protection and ambulance services to the property through a
contract with the City of Bend Fire Department, Fire Station 304 is located about three miles
from the Subject Property at 2500 NE Neff Road, Bend. The Subject Property is easily
accessed from this location via the arterial roadways of Hamby Road and Butler Market
Road. Access to the Subject Property by fire trucks is provided by arterial streets with the
exception of a small stretch of Abbey Road that will be required to be improved as a condition
of a future land division of the subject property. The Subject Property is included in the Bend-
LaPine School District. The Pine Nursery and Big Sky Park will serve the park needs of future
new residents of the Subject Property.
L. UTILITY SERVICES: The Subject Property is in the service area for Central Electric
Cooperative, Inc (CEC). CEC is willing to serve the Subject Property with electricity. Avion
Water is willing to serve the Subject Property with public water services.
M. NOTICE REQUIREMENT: On August 20, 2021, the Planning Division mailed a Notice
of Public Hearing to all property owners within 750 feet of the subject property and agencies.
A Notice of Public Hearing was published in the Bend Bulletin on Sunday, August 24, 2021.
247-21-000616-PA, 21-617-ZC Page 18 of 74
Notice of the first evidentiary hearing was submitted to the Department of Land
Conservation and Development on August 12, 2021.
The Applicant complied with the posted notice requirements of DCC 22.24.030(B). The
applicant submitted a Land Use Action Sign Affidavit, dated June 23, 2021, indicating the
Applicant posted notice of the land use action on June 23, 2021.
Deschutes County sent notice of the proposed change to its comprehensive plan and land
use regulation to the Oregon Department of Land Conservation and Development, received
by DLCD on August 12, 2021.
N. REVIEW PERIOD: The subject application(s) were submitted on June 18, 2021, and
deemed complete by the Planning Division on July 18, 2021. According to Deschutes County
Code 22.20.040(D), the review of the proposed quasi-judicial plan amendment and zone
change application is not subject to the 150-day review period.
III. CONCLUSIONS OF LAW
Title 18 of the Deschutes County Code, County Zoning
Chapter 18.136, Amendments
Section 18 136.010, Amendments
DCC Title 18 may be amended as set forth in DCC 18.136. The procedures for text or
legislative map changes shall be as set forth in DCC 22.12. A request by a property
owner for a quasi-judicial map amendment shall be accomplished by filing an
application on forms provided by the Planning Department and shall be subject to
applicable procedures of DCC Title 22.
FINDING: The Applicant, also the property owner, requested a quasi-judicial plan
amendment and filed the applications for a plan amendment and zone change. The
Applicant filed the required Planning Division's land use application forms for the proposal.
The application is reviewed utilizing the applicable procedures contained in Title 22 of the
Deschutes County Code. The Hearings Officer finds these criteria are met.
Section 18 136.020 Rezoning Standards
The applicant for a quasi-judicial rezoning must establish that the public interest is
best served by rezoning the property. Factors to be demonstrated by the applicant
are:
A. That the change conforms with the Comprehensive Plan, and the change is
consistent with the plan's introductory statement and goals.
247-21-000616-PA, 21-617-ZC Page 19 of 74
FINDING: The Applicant provided the following response in its submitted burden of proof
statement:
The Plan's introductory statement explains that land use must comply with the statewide
planning system and sets out the legal framework set by State law. It summarizes the
Statewide Planning Goals. It also explains the process the County used to adopt the current
comprehensive plan. This application is consistent with this introductory statement
because the requested change has been shown to be consistent with State law and County
plan provisions and zoning code that implement the Statewide Planning Goals.
The following provisions of Deschutes County's amended comprehensive plan set outgoals
or text that may be relevant to the County's review of this application. Other provisions of
the plan do not apply.
The Applicant utilizes this analysis, as well as analyses provided in prior Hearings Officers'
decisions to determine consistency with and respond to the Comprehensive Plan Goals and
policies that apply, which are listed in the Comprehensive Plan section of this Decision in
further detail.
Kurt and Sue Conrad submitted public comments in opposition to the applications, stating
that the public interest will not be served by rezoning the property and that the only
beneficiaries will be the Applicant and future buyers of new residences constructed on the
Subject Property. Mr. and Mrs. Conrad assert that the proposal would be "breaking the
protective laws in place for the singular purpose of personal gain." They further argue that a
change from EFU to RREA/MUA10 will set a precedent that will adversely affect the
surrounding area, the County and the State as a whole. Mr. and Mrs. Conrad argue, "Just like
Covenants, Codes and Restrictions in a neighborhood, once they are broken and not rectified
they are no longer enforceable." The Conrads' residence is situated on property zoned MUA-
10, the same zoning classification to which the Applicant requests changing the Subject
Property.
The Applicant submitted rebuttal to these arguments stating that, because the Subject
Property is not agricultural land that is protected by Oregon land use laws, "they will not be
unwound by approval of this application." The Applicant filed an additional ten (10)
photographs that show the condition of the land, stating, "[t]hese confirm our position and
the results of the soil study that show that this property is not suitable for agricultural use
and is not'agricultural land."' The Applicant further argued, "The system designed to protect
resource lands will in no way be harmed by allowing nonresource land to be developed with
somewhat more housing than the four homes that should be able to be approved on this
property given its current EFU zoning."
The Applicant noted that the Conrads' testimony and submissions state that "there is not a
lot of potential for farming that 80 acres [the Subject Property]." The Conrads also expressed
247-21-000616-PA, 21-617-ZC Page 20 of 74
concern that because there is rock at the surface of their property, development of homes
on the Subject Property "will most likely involve extreme measures for the foundation."
The Applicant detailed a list of potential uses of the Subject Property under current EFU
zoning and noted that the uses permitted outright in the MUA-10 zone are much more
limited than the uses allowed outright in the EFU zone. Compare DCC 18.32.020 with DCC
18.16.020 and DCC 18.16.025.
The Hearings Officer finds that the question of whether the public interest is best served in
approving the applications requires analysis of each of the factors set forth in DCC
18.136.020(A) through (D). The Applicant is correct in its argument that Oregon's protection
of resource lands will not be "unwound" or otherwise undermined by approval of the
applications if the Subject Property is determined not to be agricultural land.
The Hearings Officer further finds that approval of the applications will not set a negative
precedent nor result in a "free for all" rush to rezone and develop EFU lands because each
rezone application is decided on its own merits and must be supported by substantial
evidence in the record for a requested rezone to be approved. The Deschutes County zoning
regulations in Title 18 of the Deschutes County Code do not constitute "covenants, conditions
and restrictions" that become unenforceable when a rezone of a particular property is
approved. Zoning regulations are not set in stone, as evidenced by the fact that the
Deschutes County Code includes a process and standards for rezoning properties where
applicable standards are met and consistency with the Comprehensive Plan and Statewide
Planning Goals is established.
The Hearings Officer finds the above provision is met, based on Comprehensive Plan
conformance as set forth in subsequent findings.
B. That the change in classification for the subject property is consistent with
the purpose and intent of the proposed zone classification.
FINDING: The Applicant provided the following response in the submitted burden of proof
statement:
The approval of this application is consistent with the purpose of the MUA-10 zoning
district which stated in DCC 18.32.010 as follows:
"The purposes of the Multiple Use Agricultural Zone are to preserve the rural
character of various areas of the County while permitting development consistent
with that character and with the capacity of the natural resources of the area; to
preserve and maintain agricultural lands not suited to full-time commercial
farming for diversified or part-time agricultural uses; to conserve forest lands for
forest uses; to conserve open spaces and protect natural and scenic resources; to
247-21-000616-PA, 21-617-ZC Page 21 of 74
maintain and improve the quality of the air, water and land resources of the
County, to establish standards and procedures for the use of those lands
designated unsuitable for intense development by the Comprehensive Plan, and to
provide for an orderly and efficient transition from rural to urban land use."
The subject property is not suited to full-time commercial farming and has no history of
farm use.
The MUA-10 zone will preserve nonagricultural soils for future part-time or diversified
agricultural use. The low -density of development allowed by the MUA-10 zone will conserve
open spaces and protect natural and scenic resources. This low level of development will
also help maintain and improve the quality of the air, water and land resources of the
county by encouraging the future owners of the property to return irrigation water to area
waterways or to more productive farm ground elsewhere in the county rather than to
waste it on unproductive lands.
The subject property adjoins lands zoned MUA-10. They and the subject property provide
a proper transition zone from EFU rural zoning to urban land uses in the City of Bend UGB.
The Hearings Officer finds that the purpose of the MUA-10 zoning classification is to allow
low -density rural residential development. The MUA-10 zone has been acknowledged by
LCDC as being compliant with the Statewide Goals that protect the community from
urbanization of rural lands that formerly occurred on "sagebrush subdivisions." This zoning
district is both an appropriate zone for nonagricultural land and one that does not allow
urban development. For these reasons, the Hearings Officer finds that the density of
development allowed by the proposed plan amendment and zone change is not, and will not
lead to, urban development. Therefore, the Hearings Officer finds that the proposed rezone
of the Subject Property is consistent with the purpose of the MUM 0 zoning classification.
The Hearings Officer notes that, in recent years, Deschutes County has recognized the value
in rezoning non -productive agricultural lands and has issued decisions in support of plan
amendments and zone changes where the applicant demonstrates the property is not
agricultural land and, therefore, Statewide Goal 3, Agricultural Lands, does not apply. This is
further supported by the plain language in Policy 2.2.3 of the Deschutes County
Comprehensive Plan ("Allow comprehensive plan and zoning map amendments, including
for those that qualify as non -resource land, for individual EFU parcels...") and Section 3.3 of
the Comprehensive Plan ("As of 2010 any new Rural Residential Exception Areas need to be
justified through initiating a nonresource plan amendment and zone change by
demonstrating the property does not meet the definition of agricultural or forest land...").
Cases pertinent to the proposed request include:
247-21-000616-PA, 21-617-ZC Page 22 of 74
Kelly Porter Burns Landholdings LLC ("Landholdings")/File nos. 247-16-000317-ZC/318-
PA
On November 1, 2017, the Board of County Commissioners approved Kelly Porter Burns
Landholdings LLC's request to change the plan designation on certain property from
Agricultural to Rural Residential Exception Area and to change the zone designation from
EFU-TRB to MUA-10 zone. The property consists of about 35 acres.
Based on the Order 1 soil survey for the property and the submitted evidence, the Hearings
Officer found that the Landholdings property does not constitute agricultural land and does
not merit protection under Goal 3, and therefore, approved the change in Plan designation
and Zoning of the property from Agri culture/EFU-TRB to RREA/MUA-10.4
Division of State Lands Decision/File Nos. PA-11-7 and ZC-11-2
The Division of State Lands decision was a 2013 approval by the Board for a plan amendment
from Agriculture to Rural Residential Exception Area and a zone change from EFU-TRB to
Multiple Use Agricultural (MUA-10). Based on the Order 1 soil survey for the property and
the submitted evidence, the Board found that the property was not agricultural land and
therefore, Goal 3 did not apply.
Paget Decision/File Nos. PA-07-1, ZC-07-1
The Paget decision was a 2007 approval of a plan amendment from Agriculture to Rural
Residential Exception Area and a zone change from EFU to MUA-10. The Board adopted the
Hearings Officer's decision, which found that the property did not constitute "agricultural
land" and therefore, the plan amendment and zone change to MUA-10 was consistent with
Goal 3.
The Daniels Group/File Nos. PA-08-1, ZC-08-1
The Daniels Group decision was a 2011 Board decision approving a change to the
Comprehensive Plan map from Surface Mine and Agriculture to Rural Residential Exception
Area and a zone change from EFU-LB and Surface Mining to Rural Residential (RR-10). The
Board found that the property did not constitute "agricultural land" as defined in Goal 3, was
4 The Board adopted as its findings the Hearings Officer's decision with one exception: that if the
property is divided, it must be developed as a cluster development and the two irrigation ponds must
be included in the common area. In addition, the Board required the applicant to sign a Conditions of
Approval agreement to 'assure that future residential development of the property will be harmonious
with existing development in the area and so that a part of the property may be developed at urban densities
if and when the property is annexed to the City of Bend."
247-21-000616-PA, 21-617-ZC Page 23 of 74
not subject to protection under Goal 3, and therefore, the plan amendment and zone change
did not require an exception to Goal 3. (Exhibit 4).
The Hearings Officer finds the Applicant has demonstrated that the requested change in
classification is consistent with the purpose and intent of the MUA-10 Zone. A change in
classification will preserve the rural character of the Subject Property, due to the low density
of development allowed in the MUA-10 zone, while permitting development consistent with
that character. As set forth in the findings below, the Subject Property is not suited to full-
time commercial farming but could be used for hobby farming. Low density development
will also conserve open spaces and protect natural and scenic resources. The Hearings
Officer finds that approval of the proposed rezone to MUA-10 would permit applications for
low -density development. The Hearings Officer's findings regarding agricultural land,
consistency with the Comprehensive Plan and Goal 3 are set forth in the findings below.
C. That changing the zoning will presently serve the public health, safety and
welfare considering the following factors:
1. The availability and efficiency of providing necessary public services
and facilities.
FINDING: There is no proposal to develop the property at this time. The above criterion asks
if the proposed zone change will presently serve public health, safety, and welfare. The
Applicant provided the following response in the submitted burden of proof statement:
Necessary public facilities and services are available to serve the subject property.
Will -serve letters from Central Oregon Electric Cooperative and Avion Water Company, Inc.,
Exhibits E, F and G of this application show that electric power and water services are
available to serve the property.
The subject property is located a short distance to the north of Butler Market Road, an
arterial street. It is also approximately one-half mile west of the Powell Butte Highway. The
impact of rezoning the subject property will be extremely minor. With its current zoning, it
is theoretically possible to divide each 40-acre parcel into two nonfarm dwelling parcels.
This would allow a total of four dwellings to be built on the subject property. If MUA-10
zoning is applied, the approval of a standard subdivision would allow the creation of eight
residential lots. If cluster development approval is allowed as a conditional use, the
maximum number of houses allowed would be ten (one per 7.5 acres) - an increase of six
houses over the number allowed in the EFU zone. An increase of six houses is a de minimus
impact. The existing road network is available to serve the use. This has been confirmed by
the transportation system impact review conducted by Transight Engineering, Exhibit N of
this application.
247-21-000616-PA, 21-617-ZC Page 24 of 74
The property receives police services from the Deschutes County Sheriff. The southern half
of the property is in a rural fire protection district and the nearest fire station is about
three miles away. The applicant is pursuing annexation of the northern parcel to the rural
fire protection district and believes, based on conversations with District representative,
that inclusion in the district will be obtained. Access to the subject property by fire trucks
is provided by arterial streets with the exception of a small stretch of Abbey Road that will
be required to be improved as a condition of a future land division of the subject property.
It is efficient to provide necessary services to the property because the property is already
served by these service providers and adjacent to and large tracts of land zoned MUA-10
that have been extensively developed with rural residences on small lots and parcels.
The record shows that neighboring properties contain residential and small scale agricultural
uses, which have water service primarily from wells, on -site sewage disposal systems,
electrical service, telephone services, etc. The record does not contain any evidence of known
deficiencies in public services or facilities that would negatively impact public health, safety,
or welfare.
Mr. and Mrs. Conrad expressed concern about the lack of irrigation rights and queried
whether homeowners would be using potable water for their lawns. They also asked
whether fire hydrants will be required, alleging additional fire risk associated with new
development.
The Hearings Officer finds that the Applicant has demonstrated public water is available to
the Subject Property through submittal of a will -serve letter from Avion Water Company, Inc.
Irrigation water is not required for approval of the requested rezone. Although no
development is proposed at this time, prior to development, the Applicant will be required
to comply with the applicable requirements of the Deschutes County Code, including
possible land use permit, building permit, and sewage disposal permit processes. Through
these development review processes, assurance of adequate public services and facilities
will be verified.
For the foregoing reasons, the Hearings Officer finds this criterion is met.
2. The impacts on surrounding land use will be consistent with the
specific goals and policies contained within the Comprehensive Plan.
FINDING: The Applicant provided the following response in the submitted burden of proof
statement:
The MUA-10 zoning is consistent with the specific goals and policies in the comprehensive
plan discussed above. The MUA-10 zoning is the some as the zoning of many other
properties in the area of the subject property and is consistent with that zoning.
247-21-000616-PA, 21-617-ZC Page 25 of 74
The only adjoining lands inform use - and marginally, noncommercial farm use at that -
are those west of the subject property. The proposed zone change and plan amendment
will impose new impacts on this EFU-zoned farm land because these lands are separated
from the subject property by Abbey Road, each parcel is under twenty acres in size and is
developed with a single-family residence. Furthermore, these farm parcels are close
proximity to the J-Bar J therapeutic boarding school. The Academy at Sisters. Farm uses in
the greater area, also, are occurring on properties that have been developed with
residences and/or are in close proximity to lands zoned MUA-10 that are developed with
residences.
In addition to this statement, the Applicant provided specific findings for each relevant
Comprehensive Plan goal and policy, which are addressed below. The Applicant's Rebuttal
and Final Argument details the uses permitted outright in the EFU zone, compared to those
allowed outright in the MUA-10 zone, which are more limited. Compare DCC 18.32.020 with
DCC 18.16.020 and 18.16.025. The Hearings Officer finds that a change in zoning of the
Subject Property will not materially alter the impacts on neighbors and the environment that
may occur as a result of development of the property.
Mr. and Mrs. Conrad object to the applications in part because they believed their property
would be protected from subdivisions, given the distance from the UGB/reserve. They
further stated concern regarding pets and animals "used to the peaceful country sounds who
will be affected by the constant noise." The Hearings Officer notes that a belief that
surrounding properties would not ever be rezoned is not evidence of "impact on surrounding
land use," or inconsistency with specific goals and policies within the Comprehensive Plan.
Moreover, there is no evidence in the record to support a finding that rezoning the Subject
Property to MUA-10 would result in "constant noise." Any future development and use of the
Subject Property will be required to be consistent with the County Noise Control Ordinance,
DCC Chapter 8.08, which sets forth regulations to protect the public peace, health, safety and
general welfare from unreasonably loud or raucous noise.
The Hearings Officer finds the Applicant has demonstrated the impacts on surrounding land
use will be consistent with the specific goals and policies contained within the
Comprehensive Plan. Specifically, the Hearings Officer finds that the MUA-10 zoning is the
same zoning of many other properties in the areas west, northwest, east and south of the
Subject Property. There is no evidence that the requested zone change will impose new
impacts on EFU-zoned land in the vicinity of the Subject Property.
For the foregoing reasons, the Hearings Officer finds this criterion is met.
D. That there has been a change in circumstances since the property was last
zoned, or a mistake was made in the zoning of the property in question.
247-21-000616-PA, 21-617-ZC Page 26 of 74
FINDING: The Applicant is proposing to rezone the Subject Property from EFU to MUA10 and
re -designate the Subject Property from Agriculture to Rural Residential Exception Area. The
Applicant provided the following response in the submitted burden of proof statement:
There has been a change in circumstances since the subject property was last zoned and
a mistake in designating the subject property EFU/Agriculture when soils did not merit a
designation and protection as 'Agricultural Land." This zone was applied to the property
in 1979 and 1980 when Deschutes County adopted zones, a zoning ordinance and
comprehensive plan that complied with the Statewide Goals.
In 1979 and 1980, undeveloped rural lands that contained poor soils but undeveloped
were zoned EFU without regard to the specific soil characteristics of the property. Land
owners were required to apply for a zone change to move their unproductive EFU
properties out of the EFU zone. The County's zoning code allowed these owners a one-year
window to complete the task. This approach recognized that some rural properties were
mistakenly classified EFU because their soils and other conditions did not merit inclusion
of the property in the EFU zone.
Some of the other property owners of lands east of Bend received approval to rezone their
properties from EFU to MUA-10 because their properties contained poor soils and were
improperly included in the EFU zone. The soils on the subject property are similarly poor
and also merit MUA-10 zoning to correct the "broad brush" mapping done in 1979 and
1980. Since 197911980, there is a change of circumstances related to this issue. The
County's comprehensive plan has been amended to specifically allow individual property
owners to have improperly classified land reclassified.
Additionally, circumstances have changed since the property was zoned EFU. The City of
Bend has been developed to the east toward the subject property. The Bend Airport has
grown significantly in this time period and now provides many aviation -related jobs. The
property is located within easy commuting distance to Saint Charles Medical. It has grown
significantly and its need for workers has increased. The area now includes The Academy
at Sisters, a 20 student and 20 employee therapeutic boarding school forgirls.
Since the property was zoned, it has become evident that farm uses are not viable on the
property or on other area properties. The economics of farming have worsened over the
decades making it difficult for most Deschutes County property owners to make money
farming good ground and impossible to earn a profit from attempting to farm Class 7 and
8 farm soils. In 2017, according to Table 4 of the 2017 US Census of Agriculture, Exhibit O,
only 16.03916 of farm operators achieved a net profit from farming (238 of 1484 farm
operations). In 2012, the percentage was 16.45% (211 of 1283 farm operations). In 2007,
according to the 2012 US Census of Agriculture, that figure was 17916 (239 of 1405 farm
operations). Exhibit P. The vast majority of farms in Deschutes County have soils that are
superior to those found on the subject property. As farming on those soils is typically not
247-21-000616-PA, 21-617-ZC Page 27 of 74
profitable, it is reasonable to conclude that no reasonable farmer would purchase the
subject property for the purpose of attempting to earn a profit in money from agricultural
use of the land.
The Hearings Officer makes the following findings. First, whether or not owners of other
properties may, or may not, request a change of comprehensive plan designation and zoning
in the future is not relevant to the Hearings Officer's consideration of the current
applications. Each application must be considered on its own merits.
Second, concerns regarding development encroachment support a finding of change of
circumstances. As set forth in more detail in the findings below, the Subject Property is not
comprised of agricultural soils, and is not land that could be used for agricultural uses in
conjunction with adjacent property.
Third, the Hearings Officer does not have authority to deny the requested applications on
the basis of concerns about growth. While understandable, the applications may be granted
where, as here, all applicable criteria are met.
Finally, concerning wildlife concerns, the Hearings Officer finds the Subject Property is not
within a Wildlife Area combining zone and is not subject to wildlife protections sanctioned
by the County's Goal 5 ESEEs. Moreover, there is no evidence that the requested rezone, in
and of itself, will impact wildlife.
For all the foregoing reasons, and based on evidence in the record that shows declining farm
operations and limited numbers of financially successful farm operations, the Hearings
Officer finds that a change of circumstances since the time the Subject Property was last
zoned exists. Based on the soils report and the detailed findings below, the Hearings Officer
finds that a mistake was made in designating the Subject Property EFU/Agriculture because
the soils on the property did not merit a designation and protection as "Agricultural Land."
Classification and zoning of the Subject Property as EFU/Agricultural was a mistake due to
the poor soils on the Subject Property which must be revised to correct the "broad brush"
mapping done in 1979 and 1980. The Hearings Officer finds this criterion is met.
Deschutes County Comprehensive Plan
Chapter 2, Resource Management
Section 2.2 Agricultural Lands
Goal 1, Preserve and maintain agricultural lands and the agricultural industry.
FINDING: The Applicant and Central Oregon LandWatch (COLW) disagree on whether the
NRCS soil mapping units are the most detailed soils information for determining land
capability class. The Applicant and COLW both submitted extensive argument concerning
247-21-000616-PA, 21-617-ZC Page 28 of 74
classification of the Subject Property as agricultural land. Statewide Land Use Planning Goal
3 states:
'Agricultural Land ... in eastern Oregon is land predominantly Class I, ll, ll, IV, V and VI
soils as identified in the Soil Capability Classification System of the United States Soil
Conservation Service... "
APPLICANT'S EVIDENCE AND ARGUMENTS
Summarized briefly, the Applicant submits that Goal 3 does not say that "agricultural land" is
land mapped by NRCS soil studies as Class I, II, III, IV, V and VI. The Applicant argues that
DLCD rules supplement the goal; they say that NRCS mapped soils in Class I -VI are
agricultural land, but they also provide property owners with the right to challenge NRCS soil
study results. This is done by hiring a certified soil scientist to conduct a more detailed soils
study and obtaining DLCD approval to use the study in the present application. The Applicant
states that a soil classification system and soil study maps are not one and the same thing.
The Applicant notes that the right to challenge NRCS mapping is allowed both by the text of
Goal 3 itself and by ORS 215.211. In the event of conflict, ORS 215.211 controls over the
conflicting provisions of the Goal 3 rules adopted by LCDC. The law requires soil scientists to
study and report on the soils based on the SCS soil classification. OAR 660-033-0030(5)(a).
The Applicant submits that it is permissible to use the results of the soils survey to determine
whether soils on a particular property are properly classified as being in Class I -VI. It states,
"Nothing in the soils study rules suggests that the results of the study are confined to
addressing the suitability of Class VII and Vill for farm use."
The Applicant provided the following in its submitted burden of proof statement:
The applicant's soils study, Exhibit D, and the findings in this burden of proof demonstrate
that the subject property is not agricultural land. This goal, therefore, does not apply. The
vast majority of the subject property is comprised of Class 7 and 8 nonagricultural soils
and the property has no known history of agricultural use. As noted in the Eastside Bend
decision, Exhibit L, "these [Class 7 and 8] soils [according to soils scientist and soils
classifier Roger Borine] have severe limitations for farm use as well as poor soil fertility,
shallow and very shallow soils, surface stoniness, low available water capacity, and limited
availability of livestock forage. "According to Agricultural Handbook No. 210 published by
the Soil Conservation Service of the USDA, soils in Class 7 "have very severe limitations that
make them unsuited to cultivation and that restrict their use largely to grazing, woodland,
or wildlife." Class Vlll soils "have limitations that preclude their use for commercial plant
production and restrict their use to recreation, wildlife, or water supply or to esthetic
purposes."
The Applicant also submitted an Applicant's Response to Staff Report Supplement to Burden
247-21-000616-PA, 21-617-ZC Page 29 of 74
of Proof addressing this Chapter, Section and Goal 1:
The evidence clearly shows that the subject property is not agricultural land. The property
is not comprised predominantly of Class VI or better soils. So, it does not qualify for
protection as agricultural land based on the classification of its soils. Only if the extremely
poor Class Vll and VIII soils on the subject property are "suitable for farm use" taking into
consideration a host of factors. Lands are suitable for 'form us" only if a farmer can expect
a profit from growing crops or raising livestock on the property. Wetherell v. Douglas
County, 342 Or 666, 160 P3d 614 (2007).
In Deschutes County it is clear that farming Class Vll and Vlll soils will not be profitable.
Only 16.03% of farmers in Deschutes County made a profit in 2017 according to the 2017
US Census of Agriculture. From my twenty-nine years of experience working in Deschutes
County with a focus on rural land use, I can say that the subject property has one of the
highest percentages of Class Vll and V111 soils of any EFU-zoned property in the County. This
makes it evident that it would be unreasonable for a property owner to expect to make a
profit by attempting to farm on the subject property.
The subject property has never been irrigated and has no known history of farm use.
Approximately 85% of the soils on the property are Class Vll and V111 nonagricultural soils.
This percentage is higher than the percentage of these soils found to warrant rezoning to
MUA-10 in the following similar applications for lands on the eastside of Bend. The
following are the percentages:
Eastside Bend, LLC 58% for TL 1600 and 1601
56% for TL 1400
Porter Kelly Burns 67%
DSL 51.5%
LCC VII and Vlll soils are so poor that the NRCS Soil Survey of Upper Deschutes River Area
says that the soils "have very severe limitations that make them unsuitable for cultivation."
The LCC VII and VIII soils are described by soil scientist Andy Gallagher as predominantly
shallow and ashy -skeletal with interspersed rock outcrops. The only possible agricultural
use of the property is livestock grazing. The soils report shows that these soils are so poor
they produce only approximately one-half the typical amount of forage expected based on
the soil classification -far below the level of forage production expected on typical Central
Oregon rangeland.
Only 15 percent of the soils on the combined properties are rated Class VI and these areas
are not suitable for farm use given their limited extent and location. According to the NRCS,
Class VI soils also "have severe limitations that make them generally unsuitable for
247-21-000616-PA, 21-617-ZC Page 30 of 74
cultivation." They are [sic] do not support the growth of cultivated crops.
The Applicant's Rebuttal and Final Argument, submitted on October 15, 2021 states, in
relevant part:
The evidence in this matter is clear. The subject property is not suitable for farm use or
forest use. As stated by adjoining property owner Sue Conrad "there is not a lot of potential
for farming that 80 acres.' As Ms. Conrad observed in pre -hearing comments "[s]ince there
is rock at the surface of our 2 %Z acres in many places, this (development of homes on the
Swisher Trust property] will most likely involve extreme measures for the foundation." Land
of this type is not "agricultural land" of the type Statewide Land Use Planning Goal 3 seeks
to protect.
Like the Conrad property, there is rock at the surface in many places throughout the subject
property. A set of ten photographs have been filed with the County to illustrate the fact that
this is the condition of the property....
Ms. Conrad argues that EFU zoning and Oregon's statewide land use planning require that
this property be remain [sic] undeveloped open space and that the Swishers purchased the
property knowing it could not be developed. Her arguments against approval of the zone
change and plan amendment assume that retaining EFU zoning will assure that the
Swisher/MacCloskey property will remain undeveloped. This is an unwarranted
assumption.
EFU zoning does not preclude development of the Swisher/MacCloskey property. The EFU
zoning that applies to the property now allows the applicant to see approval of any of the
following developments without approval of the requested zone and plan change.6...[list
omitted]
If the property contained soils that could support farm use, the property might qualify for
approval of the following additional uses.... [list omitted].
Additionally, the uses permitted outright in the MUA-10 zone are much more limited than
the uses allowed outright in the EFU zone. Compare, DCC 18.32.020 (single-family dwelling,
stables, horse events, Type 1 home occupation and other uses allowed in EFU zone) with
DCC 18.16.020 and 18.16.025 (exploration of minerals, fire service facilities, exploration
and production of geothermal resources, outdoor mass gathering, composting, relative
5 This comment was offered in Ms. Conrad's testimony at the 9/21 /2021 hearing.
6 Most listed uses require County review either to confirm they meet special provisions to be allowed
without conditional use review or to demonstrate they meet conditional use criteria. Mining and
processing would occur only if resource is determined to be present on the property. Some uses such
as a fire station are allowed subject only to site plan review.
247-21-000616-PA, 21-617-ZC Page 31 of 74
farm assistance dwelling, church and cemeteries, utility facilities including wetland waste
treatment systems, winery, farm stands, model aircraft "airport," processing farm crops).
Given these facts, it is clear that a change of zoning will not materially alter the impacts on
neighbors and the environment that may occur as a result of development of the property.
Additional materials submitted by the Applicant include the "Rural Resource Lands Research
Report" dated May 16, 2019 prepared by DLCD Public Research Lands Fellow Stephanie
Campbell (part). This Report states on page 6 with respect to the definition of Agricultural
lands in OAR 660-033-0020(1):
The agricultural land definition includes land based on soil capability but also requires an
in-depth analysis of whether the land is suitable for farm use, which typically requires the
use of discretion by local decision makers. OAR 660-033-0030 provides additional
guidance on identifying agricultural land and provides an option for the use of soil
assessments that are more detailed than NRCS mapping, In addition, there is
substantial case law which has served to further refine how suitability for farm use should
be addressed.
(emphasis added). This Report continues on page 7, in relevant part:
Presently, counties may designate rural resource lands through two methods. The
first, and to date only process utilized, is by identifying land that does not meet the
definition of "Agricultural Land" or "Forest Land" and thus is not subject to Goal 3
or 4 protection. These lands are typically designated in the county comprehensive plan as
"nonresource lands" and may be developed for residential or other uses not allowed in
farm and forest zones....
Ten Oregon counties have utilized this method to rezone land from EFU and forest. The
primary purpose for nonresource designations appears to be the creation of rural
residential parcels! Between 2008 and 2018, DLCD identified 24 zone changes associated
with nonresource designations. These zone changes did not require an exception from
Statewide Planning Goals 3 or 4.
(emphasis added). In the "Agricultural Soils Assessment" submitted by the Applicant,
published by and obtained from DLCD website, it states, in relevant part:
Oregon has some of the most productive soil in the world,. Soil mapping done by the USDA
Natural Resources Conservation Service (NRCS) is the most common tool used for
identifying the types of soils in an area. The NRCS provides a rating for each soil type that
indicates how suited the soil is for agriculture. Oregon's land use laws help keep the best
soils for crop cultivation and agricultural use. Soils that are less productive have more
Clatsop, Crook, Deschutes, Douglas, Jackson, Josephine, Klamath, Linn, Lane, Wasco.
247-21-000616-PA, 21-617-ZC Page 32 of 74
opportunities for development than higher quality soils.
MRCS does not have the ability to map each parcel of land, so it looks at larger areas. This
means that the map may miss a pocket of different soils. DLCD has a process landowners
can use to challenge NRCS soils information on a specific property. Owners who believe
soil on their property has been incorrectly mapped may retain a "professional soil classifier
... certified by and in good standing with the Soil Science Society of America (ORS 215.211)
through a process administered by DLCD. This soils professional can conduct an
assessment that may result in a change of the allowable uses for a property.
Soil capability is a measure the soil's productivity potential for farm crops and forests. The
rules for an assessment of a soil's productivity apply to land zoned exclusive farm use or
for mixed farm and forest use (OAR 660-033-0045). They also apply to rezoning forestland
for non -resource use when the applicant relies on alternate soils information to show that
the land should not be agricultural. The rules can apply to other changes as well, including
those for comprehensive plan designations, zoning, non farm land divisions, and certain
dwellings.
In the Applicant's Rebuttal submitted October 5, 2021 at page 4, the Applicant states:
The Class 38B soils are a soils complex. This means that a large unit of land is mapped as
containing a mix of soils of different types. In this case, the Deskamp soils are Class VI and
the Gosneysoils are Class Vll. Soil classifier Andy Gallagher's soil survey that was approved
by DLCD determined that the subject property contains much a [sic] percentage of Gosney
and Class V111 rock outcrop soils than Deskamp soils than found in the entire Class 38B soil
mapping unit that applies to the subject property.
Ms. Macbeth filed color photographs of other Bend area properties that are mapped 38B
by the NRCS soil survey. The pattern of development shown in the aerial photos is a mix of
irrigated and non -irrigated land that is not in farm use - presumably a pattern dictated by
the location of the suitable Deskamp and unsuitable Gosney soils. Large non -irrigated
areas much like the subject property that are not employed in visible farm use are shown
in Figure 1.
Photos of farm pastures in areas allegedly mapped as being Class 38B soils by the NRCS
soil survey were filed by Ms. Macbeth. The COL W photos prove little or nothing of relevance
to the subject property because it is unknown whether any of the photographs depict land
mapped Class 38B that is 85% Gosney soil or whether they are similar to the subject
property. It is highly unlikely that they do. The subject property contains rock outcrops and
surface rock not seen in Ms. Macbeth's photos of farm uses occurring on 38B soil (excluding
the aerial photograph).
Ms. Macbeth claims that the applicant could irrigate the subject property by obtaining
247-21-000616-PA, 21-617-ZC Page 33 of 74
rights to irrigate the subject property. The applicant disagrees. The subject property has no
legal right to obtain water from Central Oregon Irrigation District. It has no access to
irrigation water. The subject property was previously owned by the District and it did not
establish irrigation water rights on the property. It is very telling that the district which
delivers and holds irrigation water rights chose not to irrigate its own property - most
logically due to its nonagricultural soils.
Furthermore, irrigation water must, by law, be put to beneficial use. Irrigating land that is
comprised of 85% Class Vll and Vlll is not a beneficial use of water and one COID would
surely not allow. Drilling a well and purchasing water rights to irrigate to irrigate [sic] these
nonagricultural soils in a futile attempt to farm them is cost prohibitive and not an
accepted farm practice in Central Oregon. Such an approach would require a person
farming good farm ground to retire their water right and transfer it to the applicant to
irrigate rocks because no new water rights are available in the Deschutes Basin to serve
the subject property. See, photographs of the subject property.
The Applicant submitted the following in its Rebuttal and Final Argument:
1. Goal 3's definition of "agricultural land" does not say that counties must rely on the soils
maps and rating provided by NRCS soil surveys. Instead, it says that the determination of
whether soil is agricultural land is based on the soil classes (I-Vlll) described in the Soil
Capability Classification System of the US Soil Conservation Service. COLVV's arguments
erroneously conflate the two (soil classification system and soils mapping)....
2. OAR 660-033-0020(i)(a)(A), Definitions, broadens the definition of "agricultural land"
provided in Goal 3 to include "lands classified by the US Natural Resources Conservation
Service (NRCS) as predominantly *** Class I -VI soils in Eastern Oregon." This broadening,
however, does not remove the language of Statewide Goal 3 that specifically allows
counties to rely on more detailed soils data to determine whether land is or is not
"Agricultural Land." ... The purpose of Goal 3 is to preserve agricultural land. It is not
intended to preserve land that does not meet the definition of "agricultural land."A more
detailed soils study helps Counties properly sort one from the other by making a better
determination of whether land qualifies as agricultural land due to soil classification (LCC).
3. The Oregon Legislature adopted ORS 215.211(1) to assure property owners the right to
provide local governments with more detailed soils information than provided by the
NRCS's Web Soil Survey to "assist a county to make a better determination of whether land
qualifies as agricultural land." ORS 215.211 sets the conditions for such "more detailed"
surveys. It requires that soil scientists who conduct the assessment belong to the narrow
pool of persons who are soils classifiers and are certified in good standing with the Soil
Science Society of America. It also requires that reports be reviewed by DLCD before use by
local governments in deciding whether land qualifies as agricultural land. Mr. Swisher
obtained DLCD's permission to rely on the Red Hill Soils/Gallagher soils study to address
247-21-000616-PA, 21-617-ZC Page 34 of 74
the "agricultural land" issue.
4. ... It is clear that the report is expected by DLCD to be used in this zone change and plan
amendment application (under OAR 660-033-0030(5)(c)(A)].... The fact that the soils report
must report results based on the NRCS soil classification makes it clear that its
classification based on the NRCS system may be used in lieu of the more general
information on the topic provided by the NRCS soils study to determine whether a property
meets the definition of agricultural land. COLW's argument to the contrary, therefore,
should be rejected as it renders meaningless the LCC-based survey results that must be
provided to the county, to decide whether a property is "agricultural land."
5. DLCD describes its understanding of the role NRCS soils mapping and the more detailed
soils surveys play in "defining agricultural land" on its website....
6. COLW's argument that the less -detailed NRCS soil study conducted at a landscape level
must control over the more detailed information provided by an Order 1 soils survey for a
particular property is illogical. It is an argument rejected by the Oregon Legislature when
it adopted ORS 215.211 and by DLCD....
The Applicant submitted a rebuttal letter from Andy Gallagher dated October 14, 2021 to
address COLW's "layperson arguments about soils mapping and the suitability of Soil
Mapping Unit 38B for agricultural use." Among other things, Mr. Gallagher stated:
1. It would be a mistake to confuse farms in the photographs filed by COLW with the Swisher
property. They have no bearing on the conditions that exist on the Swisher property which
are "rough, rocky land, lava blisters and native vegetation, not farmland."
2. COLW misstates the information provided by the NRCS soil survey.
3. Even if the NRCS soil study data is used and the contrasting inclusions in the 38B soil
mapping unit are correctly identified as Bedrock Outcrop, the subject property is
predominantly Class VII and higher.
4. The Order 1 more detailed soil survey shows that the NRCS soil survey is very inaccurate
for the Swisher property.
The following constitutes an excerpt from Mr. Gallagher's October 14, 2021 letter:
In the letter (COLW] erroneously claim the parcel is mapped only as Class 111 irrigated and
Class VI nonirrigoted soils,. Why didn't the letter mention the Class VIl and Class VIII land
that is mapped here? The fact is that the 38B soil map unit is a complex. Soil complexes
are used in soil mapping where two or more dissimilar soils are mapped together
where they either follow a regular pattern or are unpredictable in distribution but
247-21-000616-PA, 21-617-ZC Page 35 of 74
are too complexly associated at the given scale to delineate individually and have a
legible map. Typically, in a complex each major component occurs in each
delineation, although the proportions may vary appreciably from one delineation to
another. This last point is key in this case that the proportions may vary appreciably from
one delineation to another. Also critical in this case is that if the soils are mapped as a
complex and the percentages can vary appreciably from one delineation to the other then
the NRCS soil survey does not actually report a hard number for acres of Class 3 and Class
6 soils as the COL letter states and it is open to interpretation or better yet, more intensive
soil mapping.
... [T]hese percentages in the NRCS soil survey are not hard facts but are ballpark estimates
that vary appreciably between delineations....
Fine detail needed for land use decisions cannot usually be shown at the scale of the NRCS
soil survey, nor is this the intent of the soil survey. The minimum size map delineation is
very scale -dependent. This is where the Order-1 soil mapping is important and provides a
distinct advantage over the NRCS map. The Order-1 soil survey map is a larger scale map
and the minimum map delineation can be much smaller than at the Order-2 scale of the
Soil Survey. More detail can be determined because there is more intensive sampling, and
more detail can be shown because the map scale is larger.... The intensive sampling of the
Order-1 soil surveysupplies a much more realistic measure of map composition of a parcel
than the NRCS soil survey. In this case, I was able to map the Deskamp soil as a
consociation, separately from the Gosney and Bedrock Outcrop, which gets directly at the
issue at hand here of calculating acreage of soils that are Class VI and lower and soils that
are Class Vll and higher.
Another strength the Order-1 soil survey has over the NRCS for detailed land use planning
decisions is that all field observations are located with GPS and their positions are shown
on the map and each profile is logged in the soil profile descriptions section of the report.
This is verifiable information that the NRCS soil survey just does not have and cannot
provide.
If the NRCS soil survey is to be followed like a hard fact, then all the 38B map
delineations would have to have the identical markup of 50% Deskamp, 35% Gosney
and 15% contrasting inclusions. This defies all reason and experience. These
published percentages are simply an estimate based on limited data and projected
over the survey area, and this is often far off from the truth on the ground. It is a
mistake to believe that the percentages NRCS publishes are anything but the
approximation of a concept.
(emphasis added).
With respect to arguments regarding "accuracy" of Order 1 soil surveys and, in particular, the
247-21-000616-PA, 21-617-ZC Page 36 of 74
Red Hill Soils/Gallagher study, Mr. Gallagher commented in his October 14, 2021 letter:
The real issue is "map accuracy" which is based upon set standards for maps. National
Map Accuracy Standard (NMAS) provides insurance that maps conform to established
accuracy specifications, thereby providing consistency and confidence in their use in
geospatial applications. An example of such a standard: "maps on publication scales larger
than 1:20,000, not more than 10 percent of the points tested shall be in error by more than
1/30 inch, measured on the publication scale, for maps on publication scales of 1:20,000
or smaller, 1/50 inch." The error stated is specific for a percentage of points, and to suggest
that accuracy in maps is the unattainable freedom from error as the COL letter does, is not
a relevant or a serious argument.
When one map shows point data like an Order-1 soil survey the accuracy can be measured,
and when another map does not (like the NRCS soil map) there is a shortage of
information, so the accuracy of the MRCS map cannot be determined for point data. The
accuracy of the NRCS estimate of the percentage of components in the 38B soil complex
can be shown to be very inaccurate in this case, and it clearly underestimates the Class 7
and Class 8.
Finally, Mr. Gallagher commented on the photographs submitted by COLW that purport to
show successful farming operations on properties with the same LCC soils classification as
the Subject Property:
In her long letter Ms. Macbeth Hof COLW] references the soil assessment that I made for the
Swishers on eighty acres northeast of Bend and while she does not deny any of the basic
findings of my soil assessment report, there are a number of claims in her letter that are
not correct.
She submits aerial photographs and landscape images that seem to be selected specifically
to mislead the decision makers by trying to portray this land as having much more
agricultural potential than it has. The photos offered are claimed to be from land mapped
as 38B and they may well be, but it is a mistake to confuse the farms in the pictures with
this land, because this land is not 38B.
I did not map any 38B on the eighty acres, so all the landscape photos are irrelevant. If
anything these photos provide further evidence that the NRCS soil map here is unreliable.
It raises suspicion that COL did not include photos of the Swisher property in their
collection of photos. For if they had included photos of the Swisher's land the photos would
have shown rough, rock land, lava blisters and native vegetation, not farmland.
CENTRAL OREGON LANDWATCH EVIDENCE AND ARGUMENTS
COLW argues that it is impermissible for the County to rely on the Order 1 Red Hill
247-21-000616-PA, 21-617-ZC Page 37 of 74
Soils/Gallagher soils survey because the NRCS conducted a less -detailed soil survey that
included the Subject Property. Summarized briefly, COLW asserts that the NRCS soil survey
is controlling and cannot be directly or indirectly challenged by a landowner's submission of
an Order 1 soil survey conducted on a particular property. COLW argues that the landscape
level NRCS soil survey on which classification of "agricultural land" in eastern Oregon was
based means that any lands comprised of Class I -VI soils in eastern Oregon are per se
agricultural and cannot be rezoned or reclassified without a Goal 3 exception.$ COLW
submitted a number of photographs of property alleged to be comprised of 38B soils with
the same MRCS classification as the Subject Property. These photographs show green fields
and farming operations on these other properties.
COLW argues that it would be disingenuous to "mislead" the Hearings Officer into believing
that use of an Order 1 survey replaces or changes the NRSC soil survey. COLW asserts that
"accuracy means free from error," and states that the Applicant's Order 1 survey is not free
from error.
In a September 21, 2021 email to Staff, COLW submitted:
It is not the qualifications of the person hired to prepare a report, but the demonstrably
incorrect legal theory the report is being used to support that LandWatch argues against.
For the Hearings Officer's information please find attached a copy of Edward Sullivan's (a
member of the law faculty at Lewis and Clark Law School) article in the San Joaquin
Agricultural Law Review explaining the history of protection of farmland in Oregon, in
which Edward Sullivan explains that the MRCS capability classifications, as LandWatch
stated this evening, were expressly and deliberately chosen as the basis for the definition
of agricultural land protected by Statewide Planning Goal 3.
"As adopted in 1975, Goal 3 incorporated the approach first proposed by OSPIRG during
the 1973 legislative session to identify and define agricultural lands using the Soil
Conservation Service soil capability ratings, rather than merely "prime farmlands,"
preferring protection of all suitable agricultural lands. It defined "agricultural land"
differently for two distinct regions of the state (East and West): those lands predominantly
composed of Class I -IV soils in western Oregon and Class 1-VI in eastern Oregon, as well as
other lands "suitable for farm use" and other lands necessary to permit farm practices" on
adjacent or nearby lands. These are the lands required to be inventoried and preserved."
The applicant's statements in the hearing to the contrary are incorrect.
8 In response, the Applicant notes that this same argument was presented to and rejected by LUBA in
Central Oregon LandWatch v. Deschutes County (Aceti), _ Or LUBA _ (LUBA No. 2016-012, August 10,
2016)
247-21-000616-PA, 21-617-ZC Page 38 of 74
COLW submitted into the record a copy of the cited Agricultural Law Review article entitled
"The Long and Winding Road: Farmland Protection in Oregon 1961-2009."
In its September 25, 2021 submission COLW stated, in relevant part:
We respectfully urge the Hearings Officer to deny the application. The fallowed subject
property is classified as Class 111 and Class VI land by the NRCS and so is agricultural land
by definition. An exception to Goal 3 is required. Because no exception has been justified,
the application must be denied.
Applicant's theory of the case is erroneous for three main reasons. First, the Oregon Court
of Appeals has already determined that additional detail such as that provided by the
applicant's paid report has no effect on whether land determined by the MRCS to be Class
I -VI in eastern Oregon is agricultural land. Such data are relevant only to whether land not
comprised of the specified classes determined by the NRCS is also agricultural land.
Second, the paid report is an "Order 1 survey. "Application, 7. Order 1 surveys, by definition,
do not affect the NRCS land capability classifications of the official soil survey, which here
are Class Ill and Class Vl. Third, the applicant misinterprets the meaning of "accurate" and
the relationship between detail and accuracy, and thus confuses the significance of the
paid report, an Order 1 survey. Each of these reasons is explained in more detail below.
The applicant's land is predominantly 38B according to the official survey of the NRCS. Att.
1. The land is classified by the NRCS as a 'farmland of statewide importance." Id. The same
38B land is shown to be in use across Deschutes County for irrigated crop production.
Figures 1-12.
The Court of Appeals has interpreted Goal 3 to mean land comprised of the specified
classes I -VI is per se agricultural land. Any additional information, such as the applicant's
paid report, is relevant only to whether land which is not predominantly comprised of such
soils is also agricultural land. 1000 Friends of Oregon v. LCDC, 85 Or App 18, 22-23, 735
P.2d 645 (1987). While applicant correctly noted that more detailed information may be
used, the purpose of such information is to identify whether more land may qualify as
agricultural land in addition to the lands identified as Class I -VI by the NRCS.
The Oregon Court of Appeals decision accords with the legislative history of Goal 3. The
legislative history leading to the adoption of the NRCS land capability classifications as the
applicable legal standard is summarized in Edward Sullivan's law review article on the
history of protection of Oregon farmland.... As the article further explains, the underlying
assumption of the Oregon program to protect agricultural lands is that long-term resource
decisions should not be based on short-term economics or finances. Id. Here, the
applicant's lack of interest in farming is irrelevant to Oregon's agricultural land use policy
247-21-000616-PA, 21-617-ZC Page 39 of 74
to preserve the state's agricultural industrial land base for future generations of farmers.
The Court of Appeals decision in 1000 Friends of Oregon v. LCDC, the legislative history of
the definition of agricultural land in Oregon, and the plain language of both Goal 3 and
OAR 660-033-0020 mean that agricultural land include all lands classified by the NRCS as
Class I, I1, III, IV, V, and VI in eastern Oregon, and thus include the fallowed subject property.
Order 1 surveys have no effect on NRCS land capability classifications.
(emphasis in original). COLW states on page 4 of its submittal:
The NRCS explains in the attached official published document from the U.S. Department
of Agriculture that an Order 1 Survey has no effect on the results of the NRCS survey. Att.
3:
"Order 1 soil surveys and site -specific data collected are supplements to the official
soil survey, but they do not replace or change the official soil survey."
An Order 1 survey is used to support a determination of whether a manure storage facility,
or other highly specialized land use, can be placed on land like the applicant's land that is
currently lying fallow.... The evidence presented by the applicant is supplemental to, but
does not change, the official NRCS survey information. Applicant's paid report provides
detailed, but irrelevant, data for this inquiry.
Goal 3 defines agricultural land as land in classes I -VI in eastern Oregon as determined by
the official NRCS soil survey. The applicant's evidence is not directed at this legal standard
and has no effect on it. The land is agricultural land by definition, an exception to Goal 3
is required, and the application must be denied. Applicant misrepresents the nature of
map units and the effect of more detail
(emphasis in original).
HEARINGS OFFICER'S ANALYSIS AND FINDINGS
The Hearings Officer finds that NRCS soil survey maps are not definitive or "binding" with
respect to a determination of whether the Subject Property is, or is not, agricultural land. As
LUBA determined in the Aceti case, OAR 660-033-0030(5)(a) and (5)(b) allow the County to
rely on more detailed data on soil capability than provided by NRCS soil maps to define
agricultural land, provided the soils survey has been certified by DLCD. The NRCS provides
an Order 2 soil survey, which extrapolates more limited data from the Upper Deschutes River
247-21-000616-PA, 21-617-ZC Page 40 of 74
Survey to determine LCC soil classifications at a landscape level. On the other hand, the
Applicant's soil scientist, Mr. Gallagher, conducted a more detailed Order 1 survey.
The Soil Survey of the Deschutes Area, Oregon describes Class VII soils as "not suitable for
cultivation and of severely limited use for pasture or as woodland." It describes Class VIII soils
as "not suitable for growing vegetation for commercial uses." The Soil Survey of Upper
Deschutes River Area, Oregon describes the broad, general level of soil surveying completed
by NRCS on page 16, "At the less detailed level, map units are mainly associations and
complexes. The average size of the delineations for most management purposes was 160
acres. Most of the land mapped at this level is used as woodland and rangeland. At the more
detailed level, map units are mainly consociations and complexes.... Most of the land
mapped at the more detailed level is used as irrigated and nonirrigated cropland."
With respect to COLW's arguments regarding "accuracy," the Hearings Officer finds that
DLCD confirmed in its review of the Applicant's soils report that the Red Hills Soils/Gallagher
soils report is more detailed than the NRCS soils survey. The Applicant notes that, "If it were
not, DLCD would not have allowed the applicant to rely on the report in this proceeding." The
Hearings Officer agrees. The Hearings Officer finds persuasive Mr. Gallagher's October 14,
2021 letter in which he stated, "When one map shows point data like an Order-1 soil survey
the accuracy can be measured, and when another map does not (like the NRCS soil map)
there is a shortage of information, so the accuracy of the NRCS map cannot be determined
for point data. The accuracy of the NRCS estimate of the percentage of components in the
38B soil complex can be shown to be very inaccurate in this case, and it clearly
underestimates the Class 7 and Class 8."
The Hearings Officer finds that the Subject Property is mapped by the NRCS soil survey as
being comprised predominantly of 38B soils, which is a soils complex. The Applicant's Order
1 soils study shows that about 85% of the Subject Property is Class VII and VIII soil. This is
explained by the Red Hills Soils/Gallagher report which found that the Subject Property
contains a much higher percentage of Gosney and Class VIII rock outcrop soils than Deskamp
soils, as compared to those found in the entire Class 38B soil mapping unit that applies to
the Subject Property. The findings and conclusions in the Red Hills Soils/Gallagher report are
supported by photographs of the Subject Property submitted by the Applicant that show
rocky, shallow soils.
COLW's evidence of other properties alleged to be comprised of 38B soils does not change
this determination as there is no supporting documentation that includes any Order 1 soil
survey of the photographed properties. The Hearings Officer cannot determine, based on
evidence in the record, that the photographs of farming operations submitted by COLW are
on lands comprised of 85% Class VII and Class VIII soils, such as the Subject Property, and/or
on lands that lacked irrigation rights and had to acquire such rights. Thus, the Hearings
Officer finds the photographs submitted by COLW are not relevant to the determination of
whether the Subject Property is "agricultural land."
247-21-000616-PA, 21-617-ZC Page 41 of 74
The Hearings Officer rejects COLW's implied assertion that the Red Hill Soils/Gallagher soils
study is unreliable because it is a "paid report."The Applicant retained a certified soil scientist
and DLCD reviewed and approved the Order 1 soils report prepared by the certified soil
scientist. There is no persuasive evidence that the Red Hill Soils/Gallagher soils study is
erroneous, or should not be given weight by the County in these proceedings. Neither COLW
nor any neighbor opposing the applications submitted any competing evidence to challenge
the findings of the Red Hills Soils/Gallagher report.
The Hearings Officer also rejects COLW's argument that NRCS land classifications based on
its soil maps cannot be varied, unless a landowner requests an Order 1 soils study to qualify
additional land as agricultural land. This is directly contrary to LUBA's holding in Central
Oregon Landwatch v. Deschutes County and Aced, LUBA No. 2016-012: 'The Borine Study is
evidence a reasonable person would rely on and the county was entitled to rely on it. As
intervenor notes, the NRCS maps are intended for use at a higher landscape level and include
the express statement 'Warn i ng: Soil Ratings may not be valid at this scale.' Conversely, the
Borine Study extensively studied the site with multiple on -site observations and the study's
conclusions are uncontradicted, other than by petitioner's conclusions based on historical
farm use of the property. This study supports the county's conclusion that the site is not
predominantly Class VI soils." COLW's assertion is also directly contrary to ORS 215.211 and
OAR 660-033-0030(5)(a), (5)(b) and (5)(c)(A).
ORS 215.211(1) specifically allows for the submittal by a certified soil scientist of an
assessment of the capability of the land based on more detailed soils information than that
contained in the Web Soil Survey operated by the NRCS to "assist a county to make a better
determination of whether land qualifies as agricultural land." The Applicant followed this
procedure by selecting a professional soil classifier who is certified by and in good standing
with the Soil Science Society of America to prepare the Order 1 soils report. DLCD reviewed
the soils report pursuant to ORS 215.211(2) and determined it could be utilized in this land
use proceeding.
The Hearings Officer finds the County is entitled under applicable law to rely on the Order 1
soils survey in these applications in making a determination that the soils on the Subject
Property are not predominantly Class I -VI soils and are thus not "agricultural land" and/or
otherwise suitable for farm use. The Hearings Officer finds that the more detailed, onsite soil
study submitted by the Applicant provides property -specific information not available from
the NRCS mapping. The Hearings Officer finds that the Applicant's soil study supports a
finding that the Subject Property does not constitute agricultural land and thus is not subject
to Section 2.2, Goal 1 of the Comprehensive plan as "agricultural lands" to be preserved and
maintained.
The Hearings Officer finds substantial evidence in the record supports a finding that the
Subject Property is not "agricultural land," and is not land that could be used in conjunction
with adjacent property for agricultural uses. I find that the requested plan amendment and
247-21-000616-PA, 21-617-ZC Page 42 of 74
rezone will not contribute to loss of agricultural land in the surrounding vicinity. The
agricultural industry will not be negatively impacted by re -designation and rezoning of the
subject property. Therefore, the Hearings Officer finds the applications are consistent with
Section 2.2, Goal 1, "preserve and maintain agricultural lands and the agricultural industry."
Policy 2.2.2 Exclusive Farm Use sub -zones shall remain as described in the
1992 Farm Study and shown in the table below, unless adequate legal
findings for amending the sub -zones are adopted or an individual parcel is
rezoned as allowed by Policy 2.2.3.
FINDING: The Applicant is not requesting to amend the subzone that applies to the Subject
Property; rather, the Applicant is seeking a change under Policy 2.2.3 and has provided
evidence to support rezoning the Subject Property to MUM 0. The Hearings Officer finds this
Policy is inapplicable.
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.
FINDING: The Applicant is seeking approval of a plan amendment and zone change to re-
designate and rezone the properties from Agricultural to Rural Residential Exception Area
on the basis that the Subject Property qualifies as non -resource land. The Applicant is not
seeking an exception to Goal 3 - Agricultural Lands, but rather seeks to demonstrate that
the subject properties do not meet the state definition of "Agricultural Land" as defined in
Statewide Planning Goal 3 (OAR 660-033-0020).
The Applicant provided the following response in the submitted burden of proof statement:
The applicant is seeking a comprehensive plan amendment from Agriculture to RREA and
a zone change from EFU-TRB and UAR-10 to MUA-10 for non -resource land. This is the
some change approved by Deschutes County in PA-11-1/ZC-11-2 on land owned by the
State of Oregon (DSL). In findings attached as Exhibit H, Deschutes County determined that
State law as interpreted in Wetherell v. Douglas County, 52 Or LUBA 677 (2006) allows this
type of amendment. LUBA said, in Wetherell at pp. 678-679:
"As we explained in DLCD v. Klamath County, 16 Or LUBA 817, 820 (1988), there are
two ways a county can justify a decision to allow nonresource use of land previously
designated and zoned for farm use or forest uses. One is to take an exception to
Goal 3 (Agricultural Lands) and Goal 4 (Forest Lands). The other is to adopt findings
which demonstrate the land does not qualify either as forest lands or agricultural
lands under the statewide plonninggoals. When a county pursues the latter option,
it must demonstrate that despite the prior resource plan and zoning designation,
247-21-000616-PA, 21-617-ZC Page 43 of 74
neither Goal 3 or Goal 4 applies to the property. Caine v. Tillamook County, 25 Or
LUBA 209, 218 (1993), DLCD v. Josephine County, 18 Or LUBA 798, 802 (1990)."
LUBA's decision in Wetherell was appealed to the Oregon Court of Appeals and the Oregon
Supreme Court but neither court disturbed LUBA's ruling on this point. In fact, the Oregon
Supreme Court used this case as an opportunity to change the test for determining whether
land is agricultural land to make it less stringent. Wetherell v. Douglas County, 342 Or 666,
160 Pad 614 (2007). In that case, the Supreme Court stated that:
"Under Goal 3, land must be preserved as agricultural land if it is suitable for 'farm
use" as defined in ORS 215.203(2)(a), which means, in part, "the current
employment of land for the primary purpose of obtaining a profit in money"
through specific farming -related endeavors." Wetherell, 343 Or at 677.
The Wetherell court held that when deciding whether land is agricultural land "a local
government may not be precluded from considering the costs or expenses of engaging in
those activities." Wetherell, 342 Or at 680. In this case, the applicant has shown that the
subject property is primarily composed of Class Vll and Vlll nonagricultural soils when
irrigated and when not irrigated making farm -related endeavors unprofitable. The
property is not currently employed in any type of farm use and has no known history of
that use. Accordingly, this application complies with Policy 2.2.3.
COLW argued that the County's comprehensive plan requires that "no more housing will be
approved [in rural residential areas] without the required exceptions [to Statewide Planning
Goals]." The text of the Comprehensive Plan, Section 3.3 Rural Housing, Rural Residential
Exception Areas states:
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.
The Hearings Officer finds that the text above does not require the Applicant to obtain plan
amendments for approval of its applications where, as here, the Applicant has demonstrated
that its land is not Goal 3 "agricultural land." The Hearings Officer further finds that a goal
exception is not required by the Comprehensive Plan.
The Hearings Officer finds that the facts presented by the Applicant in the burden of proof
for the subject applications are similar to those in the Wetherell decisions and in the
aforementioned Deschutes County plan amendment and zone change applications.
247-21-000616-PA, 21-617-ZC Page 44 of 74
Therefore, the Hearings Officer finds the Applicant has met its burden of proving the
property is not agricultural land and does not require an exception to Goal 3 under state law.
The Hearings Officer finds the applications are consistent with Policy 2.2.3.
Policy2.2.4 Develop comprehensive policy criteria and code to provide clarity
on when and how EFU parcels can be converted to other designations.
FINDING: This plan policy provides direction to Deschutes County to develop new policies to
provide clarity when EFU parcels can be converted to other designations. The policy is not
directed to an individual applicant, as the Board of Commissioners held in File No. 247-16-
000317-ZC/318-PA, Porter Kelly Burns Landholdings, LLC.
The Hearings Officer finds that the County's prior land use decisions hold that EFU land may
be converted to RREA designation when shown that the land does not meet the definition of
"Agricultural Land" provided by Statewide Land Use Planning Goal 3. In the DSL findings,
Deschutes County found that this policy does not impose a moratorium on requests for
applications of the type filed by property owners (Exhibit H). The Board of Commissioners
also noted that it had approved the conversion of EFU land to an RREA plan designation and
MUM 0 zoning in the Pagel decision (Exhibit J) and that nothing in this plan policy prohibits
that action. The Applicant stated that the County's interpretation of Policy 2.2.3 indicates
when and how EFU parcels can be converted to other designations.
The Hearings Officer finds that, based on the County's previous determinations in plan
amendment and zone change applications, and based on substantial evidence in the record
regarding soils on the Subject Property and use of surrounding lands, the proposal is
consistent with this Policy.
Goal 3, Ensure Exclusive Farm Use policies, classifications and codes are consistent
with local and emerging agricultural conditions and markets.
Policy 2.2.13 Identify and retain accurately designated agricultural lands.
FINDING: This plan policy provides direction to the County to identify and retain agricultural
lands that are accurately designated. The policy is not directed to an individual applicant.
Nonetheless, the Hearings Officer finds that the Subject Property was not accurately
designated as demonstrated by the soil study, NRCS soil data, and use of surrounding lands,
as discussed in the findings above. The County is not required to retain the Subject Property
as "agricultural lands" because it was not accurately so designated.
The Hearings Officer finds the proposal is consistent with this Policy.
Section 2.5, Water Resources Policies
247-21-000616-PA, 21-617-ZC Page 45 of 74
Goal 6, Coordinate land use and water policies.
Policy 2.5.24 Ensure water impacts are reviewed and, if necessary, addressed
for significant land uses or developments.
FINDING: The Applicant is not proposing a specific development at this time. Therefore, the
Hearings Officer finds the Applicant is not required to demonstrate water impacts associated
with development. Rather, the Applicant will be required to address this criterion during
development of the Subject Property, which would be reviewed under any necessary land
use process for the site (e.g. conditional use permit, tentative plat). The Applicant included
the following in its submitted burden of proof:
Irrigation is essential for commercial farm use in Central Oregon. Irrigating poor farm
ground consumes a large amount of the area's precious water resources without the
resulting economic benefits of profitable agricultural production. Homes consume less
water than would be needed for farm field irrigation on the subject property.
In its DSL findings, Exhibit L, Deschutes County found that impacts of any proposed future
development of the DSL property on water resources would be reviewed by Deschutes
County in future development applications. That finding was sufficient to demonstrate
compliance with this plan policy. Together with the findings above and the later review by
Deschutes County, this policy is satisfied.
Future development on the subject property will be able to be served by Avion Water
System when developed as shown by Exhibit F and G.
The Hearings Officer finds that substantial evidence in the record shows the applications are
consistent with this policy given the fact that future development applications require review
of water resources impacts and the fact that future development of the Subject Property will
be served by Avion Water System. Moreover, rezoning and reclassifying the Subject Property
will allow for some productive use of the property. Uses permitted in the MUA-10 zone and
RREA classification will result in less consumption of water than if Applicant was somehow
able to obtain irrigation rights to irrigate the poor soils on the Subject Property for farm uses.
Section 2.7 Open Spaces, Scenic Views and Sites
Goal 1. Coordinate with property owners to ensure protection of significant
open spaces and scenic view and sites.
Policy 2.7.3 Support efforts to identify and protect significant open spaces and
visually important areas including those that provide a visual separation
between communities such as the open spaces of Bend and Redmond or lands
that are visually prominent.
247-21-000616-PA, 21-617-ZC Page 46 of 74
Policy 2.7.5 Encourage new development to be sensitive to scenic views and
sites.
FINDING: The Hearings Officer finds these policies are fulfilled by the County's Goal 5
program. The County protects scenic views and sites along rivers and roadways by imposing
Landscape Management Zoning overlay zones, The County has not, however, imposed the
LM overlay zone on the Subject Property. Further, no new development is proposed. The
Hearings Officer finds these provisions of the plan are not impacted by approval of the
proposed zone change and plan amendment.
Chapter 3, Rural Growth
Section 3.2, Rural Development
Growth Potential
As of 2010, the strong population growth of the last decade in Deschutes County was
thought to have leveled off due to the economic recession. Besides flatter growth
patterns, changes to State regulations opened up additional opportunities for new
rural development. The following list identifies general categories for creating new
residential lots, all of which are subject to specific State regulations.
• 2009 legislation permits a new analysis of agricultural designated lands
• 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
FINDING: This section of the Comprehensive Plan does not contain Goals or Policies, but
does provide the guidance above. In response to this section, the Applicant's burden of proof
provided the following:
This part of the comprehensive plan is not a relevant approval criterion for a plan
amendment and zone change application,. Instead, it is the County's assessment of the
amount of population growth might occur on rural residential lands in the future based
on its understanding of the types of changes allowed by law,. Comprehensive Plan Policy
2.2.3 specifically authorizes rezoning and comprehensive plan map amendments for any
property zoned EFU and is the code section that defines the scope of allowed zone changes.
This section makes it clear, however, that EFU-zoned land with poor soils adjacent to rural
residential development is expected to be rezoned for rural residential development during
the planning period. The subject property has extremely poor soils that do not qualify as
agricultural land that must be protected by Goal 3. The subject property also adjoins a
sizeable area of property zoned MUA-10 that is bisected by Butler Market Road. This area
is developed with single-family homes.
247-21-000616-PA, 21-617-ZC Page 47 of 74
The MUA-10 zone is a rural residential zone. It will provide for an orderly and efficient
transition from rural to urban land use as intended by the purpose of the MUA-10 zone.
As a result, rezoning the subject property MUA-10 is consistent with Section 3.2.
The Applicant also submitted an Applicant's Response to Staff Report Supplement to Burden
of Proof with respect to this Section:
The staff report asks the hearings officer to determine whether the subject property has
soils of poor quality. The soils analysis and other information in the record establishes that
the soils are poor quality soils that are not "agricultural land."
The Hearings Officer finds that the County's Comprehensive Plan provisions anticipate the
need for additional rural residential lots as the region continues to grow. This includes
providing a mechanism to rezone farm lands with poor soils to a rural residential zoning
designation. The Hearings Officer notes this policy references the soil quality, which is
discussed above.
The Hearings Officer finds that, while the rezone application does not include the creation of
new residential lots, the Applicant has demonstrated the Subject Property is comprised of
poor soils that are in the vicinity of rural residential MUA-10 zone uses to the south, west,
northwest and east. Rezoning the subject property to MUA-10 is consistent with this
criterion, as it will provide for an orderly and efficient transition from the City of Bend to rural
and agricultural lands.
The Hearings Officer finds that rezoning the Subject Property to MUA-10 is consistent with
Section 3.2, Chapter 3 of the Deschutes County Comprehensive Plan as it will provide for an
orderly and efficient transition from urban to rural and agricultural lands.
Section 3.3, Rural Housing
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
247-21-000616-PA, 21-617-ZC Page 48 of 74
justified through initiating a nonresource plan amendment and zone change by
demonstrating the property does not meet the definition of agricultural or forest
land, or taking exceptions to farm, forest, public facilities and services and
urbanization regulations, and follow guidelines set out in the OAR.
FINDING: The Applicant provided the following response in the burden of proof:
The quoted language is a part of the background text of the County's comprehensive plan.
It is not a plan policy or directive and is not an approval standard for this application. This
fact was confirmed by former Deschutes County Senior Planner Terri Hansen Payne, AICP
during the County's review of the DSL rezoning and plan amendment application. See
Exhibit 1. County zone change and plan amendment decisions adopted by the Board of
Commissioners have so found.
Even if this plan language were found to be relevant to the County's review of this
application, it does not bar application of the RREA plan designation to non -resource land.
This application does not require that an exception be taken to apply the RREA designation
to non -resource land. Instead, as stated by the Board's findings in Exhibit H, the language
"appears to be directed at a fundamentally different situation than the one presented in
this application." The text is written to require that exceptions be taken for resource lands
that required an exception; not to require goal exceptions for non -resource lands that do
not require such exceptions. As LUBA and the Oregon Supreme Court recognized in the
Wetherell decision, there are two ways a county can justify a decision to allow non -resource
use of land previously designated and zoned for farm or forest uses. The first is to take an
exception to Goal 3 and Goal 4 and the other is to adopt findings that demonstrate the
land does not qualify either as forest lands or agricultural lands under the statewide
planning goals. Here, the applicant is pursuing the latter approach. The quoted plan text
addressed the former. If the quoted plan text were read to require an exception to Goal 3
or 4 where the underlying property does not qualify as either Goal 3 or Goal 4 resource
land, such a reading would be in conflict with the rule set forth in Wetherell and Policy
2.2.3 of the Comprehensive Plan.
The Deschutes County Board of Commissioners has interpreted its RREA plan designation
to be the proper "catchall" designation for non -resource land in its approval of the Daniels
Group amendment and zone change by adopting the following finding by Hearings Officer
Ken Helm:
"1 find that Deschutes County has interpreted the RREA plan designation as the
property "catchall" designation for non -resource land."
As a result, the RREA plan designation is the appropriate plan designation for the subject
property.
247-21-000616-PA, 21-617-ZC Page 49 of 74
The Hearings Officer finds that prior Hearings Officer's decisions have found that Section 3.3
is not a plan policy or directive9. Further, I find that no goal exception to Statewide Planning
Goal 3 is required for the rezone application because the subject property does not qualify
as farm or forest zoning or agricultural lands under the statewide planning goals, as
discussed in more detail in the findings above. The County has interpreted the RREA plan
designation as the proper "catchall" designation for non -resource land and therefore, the
Rural Residential Exception Area (RREA) plan designation is the appropriate plan designation
to apply to the subject property10
Based on past Deschutes County Hearings Officer interpretations, the Hearings Officer finds
that the above language is not a policy and does not require an exception to the applicable
Statewide Planning Goal 3. The Hearings Officer finds the proposed RREA plan designation
is the appropriate plan designation to apply to the Subject Property.
Section 3.7, Transportation
Appendix C - Transportation System Plan
ARTERIAL AND COLLECTOR ROAD PLAN
Goal4. Establish a transportation system, supportive of a geographically distributed
and diversified economic base, while also providing a safe, efficient network for
residential mobility and tourism.
Policy 4.4 Deschutes County shall consider roadway function, classification
and capacity as criteria for plan map amendments and zone changes. This
9 See PA-1 1-1 7/ZC-1 1-2, 247-16-000317-ZC, 318-PA, and 247-18-000485-PA, 486-ZC
'o The Hearings Officer's decision for PA-1 1-1 7/ZC-1 1-2 concerning this language of Section 3.3 states:
To the extent that the quoted language above represents a policy, it appears to be directed at a
fundamentally different situation than the one presented in this application. The quoted language
addresses conversions of'form"or'forest"land to rural residential use. In those cases, the language
indicates that some type of exception under state statute and DLCD rules will be required in order
to support a change in Comprehensive Plan designation. See ORS 197.732 and OAR 660, Division
004. That is not what this application seeks to do. The findings below explain that the applicant has
been successful in demonstrating that the subject property is composed predominantly of
nonagricultural soil types. Therefore, it is permissible to conclude that the property is not'farmland"
as defined under state statute, DLCD rules, and that it is not correctly zoned for exclusive farm use.
As such, the application does not seek to convert "agricultural land" to rural residential use. If the
land is demonstrated to not be composed of agricultural soils, then there is no "exception" to be
taken. There is no reason that the applicant should be made to demonstrate a reasons, developed
or committed exception under state law because the subject property is not composed of the type
of preferred land which the exceptions process was designed to protect. For all these reasons, the
Hearings Officer concludes that the applicant is not required to obtain an exception to Goal 3.
247-21-000616-PA, 21-617-ZC Page 50 of 74
shall assure that proposed land uses do not exceed the planned capacity of
the transportation system.
FINDING: The Hearings Officer finds this plan policy applies to the County and advises it to
consider the roadway function, classification and capacity as criteria for plan amendments
and zone changes. The County will comply with this direction by determining compliance
with the Transportation Planning Rule (TPR) aka OAR 660-012, as described below in
subsequent findings.
OREGON ADMINISTRATIVE RULES CHAPTER 660, LAND CONSERVATION AND
DEVELOPMENT DEPARTMENT
Division 6, Goal 4 - Forest Lands
OAR 660-006-0005, Definitions
(7) "Forest lands" as defined in Goal 4 are those lands acknowledged as forest
lands, or, in the case of a plan amendment, forest lands shall include:
(a) Lands that are suitable for commercial forest uses, including adjacent
or nearby lands which are necessary to permit forest operations or
practices, and
(b) Other forested lands that maintain soil, air, water and fish and
wildlife resources.
FINDING: The Subject Property is not zoned for forest lands, nor are any of the properties
within a seven -mile radius. The Subject Property does not contain merchantable tree species
and there is no evidence in the record that the Subject Property has been employed for
forestry uses historically. None of the soil units comprising the parcels is rated for forest uses
according to NRCS data. The Hearings Officer finds that the Subject Property does not
constitute forest land.
Division 33 - Agricultural Lands & Statewide Planning Goal 3 - Agricultural Lands;
OAR 660-015-0000(3)
To preserve and maintain agricultural lands.
Agricultural lands shall be preserved and maintained for farm use, consistent with
existing and future needs for agricultural products, forest and open space and with
the state's agricultural land use policy expressed in ORS 215.243 and 215.700.
FINDING: Goal 3 defines "Agricultural Land," which is repeated in OAR 660-033-0020(1). The
Hearings Officer's findings above are incorporated herein by reference.
247-21-000616-PA, 21-617-ZC Page 51 of 74
OAR 660-033-0020, Definitions
For purposes of this division, the definitions in ORS 197.015, the Statewide Planning
Goals, and OAR Chapter 660 shall apply. In addition, the following definitions shall
apply.
(1)(a) "Agricultural Land" as defined in Goal 3 includes:
(A) Lands classified by the U.S. Natural Resources Conservation Service
(NRCS) as predominantly Class I -IV soils in Western Oregon and I -VI
soils in Eastern Oregon";
FINDING: The Applicant does not request an exception to Goal 3 because the Subject
Property does not meet the definition of "Agricultural Land." In support, the Applicant offers
the following response in the submitted burden of proof statement:
State law allows the County to rely on the more detailed and accurate information
provided by the Exhibit D study, That study shows that approximately 85% of the subject
property is comprised of Class V11 and V111(88916 of Tax Lot 100 and 82916 of Tax Lot 600). As
a result, the land is not predominantly comprised of Class I -VI soils.
The subject property is not properly classified as Agricultural Land and does not merit
protection under Goal 3. The soils are predominately Class 7 and 8 soils as shown by the
more detailed soils report prepared by soils scientistAndy Gallagher, which State law, OAR
660-033-0030, allows the County to rely on for more accurate soils information. Mr.
Gallagher found that approximately 649,61 of the soils on the subject property (about 24
acres) is Land Capability Class 7 and 8 soils that have severe limitations for farm use. He
also found the site to have low soil fertility, shallow and very shallow soils, abundant rock
outcrops and rock fragments in the surface, lava tubes, and irrigation ditches, low
available water capacity, and limiting areas suitable for grazing and restricting livestock
accessibility, all of which are considerations for the determination for suitability for farm
use. Because the subject property is comprised predominantly of Class 7 and 8 soils, the
property does not meet the definition of "Agricultural Lands" under OAR 660-033-
0020(1)(a)(A) listed above, that is having predominantly Class I -VI soils.
The Hearings Officer finds that the soil study provided by Mr. Gallagher of Red Hill Soils is an
accurate representation of the data for the Subject Property. Therefore, the Hearings Officer
finds, based on the submitted soil study and the above OAR definition, that the Subject
Property is comprised predominantly of Class 7 and 8 soils and, therefore, does not
constitute "Agricultural Lands" as defined in OAR 660-033-0020(1)(a)(A) above.
11 OAR 660-033-0020(5): "Eastern Oregon" means that portion of the state lying east of a line beginning at
the intersection of the northern boundary of the State of Oregon and the western boundary of Wasco County,
then south along the western boundaries of the Counties of Wasco, Jefferson, Deschutes and Klamath to the
southern boundary of the State of Oregon.
247-21-000616-PA, 21-617-ZC Page 52 of 74
(B) Land in other soil classes that is suitable for farm use as defined in
ORS 215.203(2)(a), taking into consideration soil fertility, suitability
for grazing, climatic conditions, existing and future availability of
water for farm irrigation purposes, existing land use patterns,
technological and energy inputs required, and accepted farming
practices, and
FINDING: The Applicant's decision not to request an exception to Goal 3 is based on the
premise that the Subject Property is not defined as "Agricultural Land." The Applicant
provided the following analysis of this determination in the burden of proof.
This part of the definition of "Agricultural Land" requires the County to consider whether
the Class Vll and Vlll soils found on the subject property are suitable for farm use despite
their Class Vll and Vlll classification. The Oregon Supreme Court has determined that the
term 'farm use" as used in this rule and Goal 3 means the current employment of land for
the primary purpose of obtaining a profit in money through specific farming -related
endeavors. The costs of engaging in farm use are relevant to determining whether farm
activities are profitable and this is a factor in determining whether land is agricultural land.
Wetherell v. Douglas County, 342 Or 666, 160 P3d 614 (2007).
The primary agricultural use conducted on properties that lack irrigation water rights and
have poor soils is grazing cattle. The extremely poor soils found on the property, however,
make it a poor candidate for dryland grazing. The dry climate, the proximity to two major
roadways (Butler Market Road and the Powell Butte Highway and area development
prevent grozingfrom being a viable or potentially profitable use of the property. The soils,
also, are so poor that they would not support the production of crops even if irrigation
water rights could be obtained for that purpose. The soils simply do not hold enough water
to sustain and support crop growth.
Given the high cost of irrigating and maintaining the property as pasture or cropland (high
labor costs, labor-intensive, high cost of irrigation equipment and electricity, high cost of
fertilizer, etc.), dry land grazing is the accepted farm use of poor soils in Deschutes County.
This use can be conducted until the native vegetation is removed by grazing (see the
discussion of the suitability of the property for grazing, below). When assessing the
potential income from dry land grazing, Deschutes County uses a formula and
assumptions developed by the OSU Extension Service. This formula is used by the County
to decide whether EFU-zoned land is generally unsuitable for farm use. It assumes that one
acre will produce 900 pounds of forage per year. The subject property will, however, due
to its extremely poor soils, only produce at little more than one half that amount of forage
in a normal year - 440 pounds per acre for Tax
Lot 600 and 494 pounds per acre for Tax Lot 100.
One AUM is the equivalent to the forage required for a 1000 lb. cow and calf to
247-21-000616-PA, 21-617-ZC Page 53 of 74
graze for 30 days (900 pounds of forage).
• On good quality forage, an animal unit will gain 2 pounds per day.
• Two animal units will eat as much in one month as one animal unit will eat in
two months.
• Forage production on dry land is not continuous. Once the forage is consumed, it
typically will not grow back until the following spring.
• An average market price for beef is $1.20 per pound.
Based upon these assumptions, the value of beef production on the entire subject property
can be
calculated using the following formula:
30 days x 2#/day/acre = 60.0 lbs. Beef/acre
(1 acre per AUM)
60.0 lbs. Beef/acre x 80 acres x $1.15/Ib. _ $5,520 per year forgood rangeland
Adjust expected income based on forage on subject property.
440 + 49412 = 467 pounds of forage per acre per year
467 pounds/900 pounds of forage per acre per year assumed in OSU formula = 51.89%
51.89% of $5,520 annual income for good range land = $2,708.66 annual income for
subject
Property.
Thus, the total gross beef production potential for the subject property would be
approximately $2,708.66 annually. This figure represents gross income and does not take
into account real property taxes, fencing costs, land preparation, purchase costs of
livestock, veterinary costs, or any other costs of production which would exceed income.
Property taxes, alone, were $4,341.64 for the two tax lots in 2020.
A review of the seven considerations listed in the administrative rule, below, show why the
poor soils found on the subject property are not suitable for farm use that can be expected
to be profitable:
Soil Fertility., Class 7 and 8 soils are not fertile soils. They are not suited for the production
of farm crops. This fact has been recognized in numerous County land use cases, including
the zone change and plan amendment applications being filed with this land use
application. Farm use on these soils is limited to rangeland grazing at a level that does not
qualify as 'farm use. "No person would expect to make a profit bygrazing livestock on the
subject property.
247-21-000616-PA, 21-617-ZC Page 54 of 74
Suitability for Grazing: The climate is cold and dry. The growing season is very short.
According to the OSU Extension Service the growing season is only 80 to 90 days long.
Exhibit Q. The average annual precipitation is only 11.36 inches. This means that the
amount of forage available for dry land grazing is low. This also means that a farmer has
,a short period of amount of time to irrigate pastures. This makes it difficult for a farmer to
raise sufficient income to offset the high costs of establishing, maintaining and operating
an irrigation system.
Existing and Future Availability of Water for Farm Irrigation Purposes: No new
irrigation water rights are expected to be available to the Central Oregon Irrigation District
(COID) in the foreseeable future. In order to obtain water rights, the applicant would need
to convince another COID customer to remove water rights from their property and sell
them to the applicant and obtain State and COID approval to apply the water rights to the
subject property. In such a transaction, water rights would be taken off productive farm
ground and applied to the nonagricultural soils found on the subject property. Such a
transaction runs counter to the purpose of Goal to maintain productive Agricultural Land
in farm use. Most of the soils on the property are Class Vll and Vlll soils. The subject
property does not have irrigation water rights. The property is located within the boundary
of the Central Oregon Irrigation District. Given the poor quality of these soils, however, it is
highly unlikely that Central Oregon Irrigation District would approve a transfer of water
rights to this property. In addition, no person intending to make a profit in farming would
go to the expense of purchasing water rights, mapping the water rights and establishing
an irrigation system to irrigate the poor soils found on the subject property.
Existing Land Use Patterns: The applicant's analysis of existing land use patterns
provided earlier in this burden of proof shows that the subject property is located in an
area of small lots and marginal farm land that is primarily devoted to residential and
hobby farm uses. Areas of MUA-10 zoning are interspersed with EFU-TRB zoning. The
subject property adjoins MUA-10 properties on the south and lots developed at a density
of one lot per 10 acres on its eastern boundary. The properties to on its west boundary are
small parcels less than 20 acres in size. The only large EFU-TRB property adjoining the
subject property (north and east of TL 600) is owned by the City of Bend and used as the
City's sewage treatment plant. It is not in farm use.
Technological and Energy Inputs Required: Given its poor soils, this parcel would require
technology and energy inputs over and above accepted farming practices. Excessive
fertilization and soil amendments, very frequent irrigation, and marginal climatic
conditions restrict cropping alternatives. Pumping irrigation water requires energy inputs.
The application of lime and fertilizer typically requires the use of farm machinery that
consumes energy. The irrigation of the property requires the installation and operation of
irrigation systems. All of these factors are why Class 7 and 8 soils are not considered
suitable for use as cropland.
247-21-000616-PA, 21-617-ZC Page 55 of 74
Accepted Farming Practices: As determined by the County in the Aceti case, farming lands
comprised of soils that are predominately Class Vll and VIII is not an accepted farm
practice in Central Oregon. Dryland grazing, the farm use that can be conducted on the
poorest soils in the County, typically occur on Class VI non -irrigated soils that have a higher
soils class if irrigated. Crops are typically grown on soils in soil class /11 and IV.
The Hearings Officer finds that many of the factors surrounding the Subject Property, such
as the current residential and non-agricultural related land uses in the area, soil fertility, and
lack of availability of water rights result in an extremely low possibility of successful farming
on the Subject Property.
The Hearings Officer finds that soils on the Subject Property can only be made fertile through
artificial means, which is cost prohibitive from a profitability standpoint. The Subject Property
is not suitable to grazing on a commercial scale given management limitations and expected
low production of suitable vegetation. Climactic conditions result in difficulty for production
of most crops. Given the fact that no new irrigation water rights are expected to be available
to the COID in the foreseeable future and the poor quality of soils on the Subject Property,
it is unlikely COID would approve a transfer of water rights to the Subject Property. Moreover,
a transfer of water rights to the Subject Property would be contrary to the purpose of Goal
3 to maintain productive agricultural land in farm use. Expenses associated with irrigation of
pastures on the poor soils of the Subject Property limit the suitability of grazing animals on
the Subject Property and result in required technological and energy inputs over and above
accepted farming practices.
The Hearings Officer finds that existing land use patterns consist of a pattern of relatively
small lots, primarily devoted to residential and hobby farm uses, interspersing MUA-10
zoned property with EFU-TRB zoning. The only large EFU-TRB property adjoining the subject
property is owned by the City of Bend and used as the City's sewage treatment plant.
The Hearings Officer finds that accepted farm practices in Central Oregon do not include
farming lands comprised of soils that are predominantly Class 7 and 8. In order to conduct
dryland grazing on the subject property, the applicant would have to take measures beyond
accepted farming practices, including attempting to obtain a water rights transfer.
For all the foregoing reasons, the Hearings Officer finds that the Subject Property, primarily
comprised of Class 7 and 8 soils, is not suitable for farm use as defined in ORS 215.203(2)(a),
taking into consideration the soil fertility, suitability for grazing, climactic conditions, existing
and future availability of water for farm irrigation purposes, existing land use patterns,
technological and energy outputs required and accepted farming practices. Substantial
evidence in the record supports a determination that the Subject Property cannot be
employed for the primary purpose of obtaining a profit in money through farming -related
endeavors, considering the costs of engaging in farm use. Wetherell v. Douglas County, 342 Or
666,160 P3d 614 (2007).
247-21-000616-PA, 21-617-ZC Page 56 of 74
(C) Land that is necessary to permit farm practices to be undertaken on
adjacent or nearby agricultural lands.
FINDING: The Applicant offers the following response in the submitted burden of proof
statement:
The subject property is not land necessary to permit farm practices to be undertaken on
adjacent or nearby lands. The following facts are shown by the applicant's discussion of
surrounding development in Section E of this application, above and by the additional
information provided below.
West. Properties to the west of the subject property, with one exception, are separated
from the subject property by Abbey Road. The road makes it infeasible to use the subject
property for farm use in conjunction with these properties. Additionally, the subject
property is not necessary to permit farm practices to be undertaken on adjacent or nearby
lands to the west. Farm practices have been occurring on these properties for decades
without any need to use the juniper covered subject property to conduct farm practices.
Tax Map, Lot
Farm Use
Potential farm
Need Subject
and Size
Practices
Property?
17-13-18C 400
Wilderness Horse
Grazing
No, TL 400 about 660'
19.32 acres
Adventures (trail
Dry lot feeding
west of subject
riding business not a
Fertilizing field
property.
farm use), dwelling.
Herbicide use
Horses used for trail
Irrigation
riding
out of area. Adjoins
nonfarm dwelling.
17-13-18C 500
Nonfarm dwelling,
Grazing
No, self-contained
19.32 acres
irrigated pasture for
Fertilizing field
hobby farm use.
grazing.
Herbicide use
Irrigation
17-12-13D 200 &
Small pasture and
Grazing
No, about 1200' away
300, 6.6 acres and
horses. A part of
Fertilizing field
from subject
15.01 acres
property is MUA-10
Herbicide use
property.
and developed with a
Irrigation
Also, the horse use is
private boarding
incidental to
school.
boarding
school use and is not
conducted to earn a
profit in money.
17-12-13D 100
Irrigated pasture with
Grazing
No, about 1320'west
22.64 ac
interspersed juniper
Fertilizing field
of subject property
247-21-000616-PA, 21-617-ZC Page 57 of 74
trees. Dwelling and
Herbicide use
and separated by
vacation cabin on
Irrigation
other farm
property.
properties.
17-12-13A 100
Irrigated pasture,
Grazing
No, too remote
39.26 acres
patchygrowth of
Fertilizing field
(13209 and separated
grass. Approved for
Herbicide use
by other farm
Measure 49 dwelling.
Irrigation
properties.
17-12-13A 200
Nonfarm parcel;
None
No.
Measure 49 dwelling
approval.
17-12-13A 300
Irrigated pasture;
Grazing
No, too remote
patchygrowth of
Fertilizing field
(about
grass. Single-family
Herbicide use
15009 and separated
dwelling and two
Irrigation
by other farm
machine sheds.
properties.
North: All of the land north of the subject property is owned by the City of Bend and is
operated as a sewer treatment plant. Farm practices are not occurring on this property.
East: The City of Bend's sewer treatment plan adjoins the eastern boundary of Tax Lot 600.
No farm practices are occurring on this property. Two tax lots adjoin the eastern boundary
of Tax Lot 100. One is 8 acres in size. The other is 12.21 acres in size. Both tax lots are
developed with residences. Neither receive special assessment for farm use. East of them
are two other small parcels that are not in farm deferral. One is 8.48 acres and the other
is 10 acres. All four parcel are developed with dwellings. As the properties are not
recognized by the Tax Assessor as being in farm use, the activities occurring on the
properties are not farm practices. Even if they are viewed as such, the agricultural uses are
limited to the irrigation of small areas of land and horse facilities and one of the parcels is
not irrigated. The practices associated with these uses are similar to those of pastures and
horse operations outlined in the charts above. The agricultural practices related to this
"hobby farming" do not require the subject property to remain in its current vacant state
to allow them to conduct agricultural practices.
South: All of the land south of the subject property is zoned MUA-10 and is not engaged in
farm use.
The Hearings Officer finds the Subject Property is not necessary for the purposes of
permitting farm practices on adjacent or nearby land, or the larger surrounding area
generally, based on the factors discussed in the previous finding, the current use of adjacent
properties, and separation of the Subject Property by Abbey Road from properties to the
west.
247-21-000616-PA, 21-617-ZC Page 58 of 74
(b) Land in capability classes other than I-IV/1-VI that is adjacent
to or intermingled with lands in capability classes 1-IV/141
within a farm unit, shall be inventoried as agricultural lands
even though this land may not be cropped or grazed,
FINDING: The Applicant provided the following response in the submitted burden of proof
statement:
The subject property is not and has not been a part of a farm unit. It has not been farmed.
As a result, this rule does not apply to the County's review of this application.
Even if the subject property is considered to be a 'farm unit" despite the fact it has never
been farmed, Goal 3 applies a predominant soil test to determine is a property is
"agricultural land." The predominant soils classification of the subject property is Class Vll
and V111 which provides no basis to inventory the property as agricultural land unless the
land is shown to be, in fact, productive farmland.
All parts of the subject property were studied by the applicant's soils analysis, Exhibit D.
The analysis shows that the predominant soil type found on the property is Class Vll and
Vlll, nonagricultural land. Some Class Vl soils are intermingled with the nonagricultural soil
not vice versa. As a result, this rule does not require the Class Vll and Vlll soils to be
classified agricultural land.
The Applicant also provided a Supplement following the Staff Reportwhich states, in relevant
part:
Oregon case law explains the meaning of this rule. It applies to lands to land [sic] that have
a recent a recent [sic] history of farm operations. In particular, it applies where land is
divided to create a parcel of nonagricultural land from a larger farm property that was
formerly operated as a farm across the entire property. Wetherell v. Douglas County, 235
Or App 246, 230 P3d 976, rev den 349 Or 57 (2010). The rule is written to prevent the
"piecemeal fragmentation" of large farm properties to carve out areas for rezoning to a
nonagricultural zoning designation. This rule does not apply to the subject property
because it has never been farmed at all. This rule does not supplant and render
meaningless the predominance and suitability test set by Goal 3 to determine whether land
is or is not agricultural land by requiring all land on a property to be inventoried as
agricultural land if there is any Class VI soil on the property.
The Hearings Officer finds that there are no bases on which to find that the Subject Property
must be inventoried as agricultural lands under this criterion. The farm unit rule is written to
preserve large farming operations in a block. It does this by preventing property owners from
dividing farmland into smaller properties that, alone, do not meet the definition of
"agricultural land." The Subject Property is not formerly part of a larger area of land that is
247-21-000616-PA, 21-617-ZC Page 59 of 74
or was used for farming operations and was then divided to isolate poor soils so that land
could be removed from EFU zoning. As demonstrated by the historic use patterns and soils
report, it does not have poor soils adjacent to or intermingled with good soils within a farm
unit. The Subject Property is not in farm use and has not been in farm use of any kind. It has
no history of commercial farm use and contains soils that make the property generally
unsuitable for farm use as the term is defined by State law. It is not a part of a farm unit with
other land. The Subject Property does not relate to land in active farming, and there are no
parcels in the area that were once part of the Subject Property.
Goal 3 applies a predominant soil type test to determine if a property is "agricultural land".
If a majority of the soils is Class I -VI in in Central or Eastern Oregon, it must be classified
"agricultural land." Case law indicates that the Class I -VI soil test applies to a subject property
proposed for a non-agricultural plan designation while the farm unit rule looks out beyond
the boundaries of the subject property to consider how the subject property relates to lands
in active farming in the area that were once a part of the area proposed for rezoning. The
Hearings Officer finds it is not a test that requires that 100% of soils on a subject property be
Class I -VI. A majority of the soils on the Subject Property are not Class I -VI. Therefore, under
the predominance test, the Subject Property is not agricultural. The farm unit rule does not
mandate a different result.
(c) "Agricultural Land" does not include land within acknowledged
urban growth boundaries or land within acknowledged
exception areas for Goal 3 or 4.
FINDING: The Subject Property is not within an acknowledged urban growth boundary or
land within acknowledged exception areas for Goals 3 or 4. The Hearings Officer finds this
criterion is inapplicable.
OAR 660-033-0030 Identifying Agricultural Land
(1) All land defined as "agricultural land" in OAR 660-033-0020(1) shall be
inventoried as agricultural land.
(2) When a jurisdiction determines the predominant soil capability classification
of a lot or parcel it need only look to the land within the lot or parcel being
inventoried. However, whether land is "suitable for farm use" requires an
inquiry into factors beyond the mere identification of scientific soil
classifications. The factors are listed in the definition of agricultural land set
forth at OAR 660-033-0020(1)(a)(8). This inquiry requires the consideration of
conditions existing outside the lot or parcel being inventoried. Even if a lot
or parcel is not predominantly Class WV soils or suitable for farm use, Goal 3
nonetheless defines as agricultural "lands in other classes which are
necessary to permit farm practices to be undertaken on adjacent or nearby
lands". A determination that a lot or parcel is not agricultural land requires
247-21-000616-PA, 21-617-ZC Page 60 of 74
findings supported by substantial evidence that addresses each of the
factors set forth in 660-033-0020(1).
FINDING: The Applicant addressed the factors in OAR 660-033-0020(1) above and the
Hearings Officer made findings thereon above. The Applicant's burden of proof statement
also includes the following:
The subject property is, in no way, necessary to permit farm practices to be undertaken on
adjacent and nearby lands.
Lands to the west are divided from the subject property by the right-of-way forAbbey Road
making it infeasible to farm the properties together. The adjoining farm activities are
occurring on small properties that are both developed with single-family homes. The future
residential development allowed by MUA-10 zoning will not introduce a new use to the
area that will impact farm practices. The more distant EFU properties to the west adjoin
MUA-10 zoned lands that are fully developed - primarily with residences - and in no way
rely on the subject property remaining in EFU zoning in order to conduct farm practices on
their properties.
Land to the north is owned by the City of Bend and is not in farm use and the applicant's
property is not necessary to permit farm practices to be undertaken on this property which
would likely be limited to livestock grazing given the soil type and lack of irrigation water
rights for this large property. This property also adjoins the east boundary of Tax Lot 600.
The properties to the east are zoned EFU but are all divided into very small parcels that
average 10 acres gross. They are developed with houses similar to those found in the MUA-
10 zoning district and do not receive special assessment for farm use indicating that they
are not employed in farm use. The subject property is not needed by these land owners to
conduct farm practices on their properties.
The property south of the subject property is zoned MUA and is not engaged in farm use.
Land on the subject property is not necessary to permit farm practices to be undertaken
on these adjacent and nearby lands.
As the Hearings Officer has found herein, the Subject Property is not "agricultural land," as
referenced in OAR 660-033-00300 ), and contains barriers for farm use including poor quality
soils and lack of irrigation. The soil study prepared by Mr. Gallagher focuses solely on the
land within the Subject Property and the Applicant provided responses supporting a finding
that the Subject Property is not necessary to permit farm practices undertaken on adjacent
and nearby lands.
The Hearings Officer finds that substantial evidence in the record shows the Subject Property
is not "agricultural land" because the property is predominantly Class 7 and 8 soils. The
247-21-000616-PA, 21-617-ZC Page 61 of 74
Subject Property is not necessary to permit farm practices to be undertaken on adjacent or
nearby lands.
(3) Goal 3 attaches no significance to the ownership of a lot or parcel when
determining whether it is agricultural land. Nearby or adjacent land,
regardless of ownership, shall be examined to the extent that a lot or parcel
is either "suitable for farm use" or "necessary to permit farm practices to be
undertaken on adjacent or nearby lands" outside the lot or parcel.
FINDING: The Applicant set forth the following in the submitted burden of proof statement:
The evidence that shows that the subject property is not suitable for farm use and is not
necessary to permit farm practices to be undertaken on adjacent or nearby lands has
assigned no significance to the ownership of adjoining properties.
The City of Bend property to the north and east of the subject [sic] is very similar to the
subject property and its predominant soil types are Class 58C and 59C. Both of these soil
types are predominantly Class Vll and V/ll soils that do not support farm use - agricultural
uses intended to secure a profit in money. This property is not necessary for others in the
area to undertake farm practices.
The EFU subdivision to the east is developed with single-family homes on lots averaging 10
acres in size gross. These parcels are committed to rural residential development. The land
not so committed is too small to be utilized for agricultural uses intended to obtain a
profit in money from the use.
The land to the south is not agricultural and is not inform use.
The land to the west is 80 acres in size and comprised of four twenty -acre parcels, There is
an area of 36A soils on the southern two of these parcels that are high -value soils when
irrigated. These soils are located almost entirely on one of these parcels at 63400 Silvas
Road. It is the only property that is high -value farmland. The 36A soils are an irrigated farm
field. The 36A soils do not extend onto the subject property and this parcel is separated
from the subject property by Abbey Road which provides a buffer between uses that
protects farm uses on this parcel.
A small part of mapping unit 16A is found on the property to the south and it is also
irrigated but that.parcel is not high -value farmland by definition. This field is about 500
feet to the west of the south part of the subject property.
Hearings Officer finds that substantial evidence in the record, including examination of lands
outside the boundaries of the Subject Property, shows the subject property is not
"agricultural land." Substantial evidence shows that the Subject Property is not suitable for
247-21-000616-PA, 21-617-ZC Page 62 of 74
farm use and is not necessary to permit farm practices to be undertaken on adjacent or
nearby lands.
(5)(a) More detailed data on soil capability than is contained in the USDA Natural
Resources Conservation Service (NRCS) soil maps and soil surveys may be
used to define agricultural land. However, the more detailed soils data shall
be related to the NRCS land capability classification system.
(b) If a person concludes that more detailed soils information than that
contained in the Web Soil Survey operated by the NRCS as ofJanuary2, 201Z
would assist a county to make a better determination of whether land
qualifies as agricultural land, the person must request that the department
arrange for an assessment of the capability of the land by a professional soil
classifier who is chosen by the person, using the process described in OAR
660-033-0045.
FINDING: The Applicant's burden of proof statement sets forth the following:
The Red Hills Soils report, Exhibit D, provides more detailed soils information than
contained on the Web Soil Survey, the Internet soil survey of soils data and information
produced by the National Cooperative Soil Survey. Those sources provide general soils data
for large units of land. The Red Hills Soils report provides detailed and accurate
information about a single property based on numerous soil samples taken from the
subject property. The depth of these soils was also determined. The soils samples taken
from the subject property were tested to determine soil type and water -carrying capacity
of the soils. The results of this analysis were used to develop an accurate soils map of the
subject property. The soils assessment is related to the NRCS land capability classification
system that classified soils Class 1 through 8. An LCC rating is assigned to each soil type
based on rules provided by the NRCS.
The NRCS mapping for the Subject Property is shown below in Figures 1 and 2. According to
the NRCS Web Soil Survey tool, the Subject Property contains approximately 96.3% 38B soil
and approximately 3.7% 58C soil. The soil study conducted by Mr. Gallagher of Red Hill Soils
finds the soil types on the Subject Property vary from the NRCS identified soil types.
The soil types described in the Red Hill Soils soil study are described below (as quoted from
Exhibit D of the submitted application materials) and the characteristics and LCC rating are
shown in Tables 1 and 2 below.
GR Gosney-Rock Outcrop Complex
Capability Class 7
These soils are mapped together in a complex because both components are Capability
Class 7 or greater, and it was not practical to map them separately. These soils are
247-21-000616-PA, 21-617-ZC Page 63 of 74
estimated to be about 25 percent Rock Outcrop and 75 percent Gosney. They have lower
productivity than NRCS map unit 38B because they do not contain a mappable area of
Deskamp soils that were mapped separately. The productivity reported in Table 2 for
Gosney-Rock Outcrop are 20 percent less than the 58C map unit to account for more
shallow and very shallow soils in the GR map unit in the revised map unit. Based on the
observations here the map unit is about 40 percent very shallow soils, 35 percent Gosney
soils and 25 percent rock outcrops.
Gosney (0 to 15 percent slopes)
Description: Gosney series consists of shallow 10 to 20 inches to hard basalt
bedrock, somewhat excessively drained soils on lava plains. These soils have rapid
permeability. They formed in volcanic ash over hard basalt bedrock. Slopes are 0
to 15 percent. The mean annual precipitation is less than 12 inches, and the mean
annual temperature is about 45 degrees F.
Capability Class: 7
Soil Variability. Depth to bedrock is from surface exposures of bedrock to 20
inches depth. There may be small inclusions of soils like Deskamp that are
moderately deep (>20 inches). Many of the pedons are sandy skeletal family. This
unit includes very shallow soils <10 inches.
Very shallow phase 0-15 percent slopes
Description: this component of the complex is less than 10 inches to basalt.
Capability Class: 7
Soil Variability: Depth to bedrock is from 1 to 10 inches. This soil is a very shallow
soil that is similar to Gosney but shallower. It has lower available water holding
capacity and an estimated 40 percent lower productivity.
Rock Outcrop (0 to 15 percent slopes)
Description: This is a large proportion of the map unit and represents areas where
bedrock is at the surface often times standing several feet about the general grade,
and in places where suspected lava tubes collapsed the rock out crops are rimrock
Capability Class: 8
Soil Variability. In places rocks are an inch or two below the surface but mainly
are surface exposed and are detectible in aerial photographs.
Dk Deskamp
Description: Moderately Deep somewhat excessively drained soils with rapid
permeability on lava plains. They formed in ash and have hard basalt at 20 to 40
inches. Slopes are 1 to 15 percent. The A and AB horizon are loamy sand. The 2B is
loamy sand and gravelly loamy sand. The NRCS soil survey mapped Deskamp, and
Gosney in a complex described as 50% Deskamp and 35% Gosney. In this Dk unit I
broke out the Deskamp component of the former complex based on much more
detailed soil sampling than the NRCS soil survey.
247-21-000616-PA, 21-617-ZC Page 64 of 74
Capability Class: 3 irrigated and 6 non -irrigated
Soil Variability. There are inclusions of rock outcrop and of deep soils with sandy
skeletal family. Any rock outcrop 1 observed in the field was delineated from the
Deskamp unit, but because not all rock outcrops could be resolved at the one
boring per acre average soil observation given the brushy conditions.
Table 1 - Summary of Order I Soil Survey (Tax Lot 600)
Previous
Revised
Capability
Previous
Revised Map
Map
Map
Soil Series Name
Class
Map*
Ac
%-
Ac
%-
Symbol
Symbol
(subclass)
nonirrigated
38B
--
Deskamp-Gosney complex,
6 and 7
0 to 8 percent slopes
36.8
92
0
0
58C
--
Gosney-Rock outcrop-
6, 7 and 8
Deskamp complex, 0 to 15
3.2
8
percent slopes
0
0
--
Dk
Deskamp
6
0
0
7.2
18
--
GR
Gosney-Rock Outcrop
7 and 8
Complex
I0
0
32.8
82
*Soils that were previously mapped as components of a complex that are mapped as consociations in
revised map.
Table 2 - Summary of Order I Soil Survey (Tax Lot 100)
Previous
Revised
Capability
Previous
Revised Map
Map
Map
Soil Series Name
Class
Map*
Ac
%-
Ac
Symbol
Symbol
(subclass)
non -irrigated
38B
--
Deskamp-Gosney complex,
6 to 7
0 to 8 percent slopes
40
100
0
0
--
Dk
Deskamp
6
0
0
4.7
12
--
GR
Gosney-Rock Outcrop
Complex
7 and 8
0
0
35.3
88
*Soils that were previously mapped as components of a complex that are mapped as consociations in
revised map.
247-21-000616-PA, 21-617-ZC Page 65 of 74
Mr. Gallagher's soils assessment report provides a high intensity Order-1 soil survey and soil
assessment - a detailed and accurate soils assessment on the Subject Property based on
numerous soil samples - to determine if the subject property is "agricultural land" within the
meaning of OAR 660-033-0020. The soils report is related to the NCRS Land Capability
Classification (LLC) system that classifies soils class 1 through 8. An LCC rating is assigned to
247-21-000616-PA, 21-617-ZC Page 66 of 74
each soil type based on rules provided by the NRCS. The soils report provides more detailed
soils information than contained on the Web Soil Survey operated by the NRCS, which
provides general soils data at a scale generally too small for detailed land use planning and
decision making.
The state's agricultural land rules, OAR 660-033-0030, allow the County to rely on the high
intensity Order-1 soil survey and soil capability analysis prepared by Mr. Gallagher, which is
more detailed than the general NRCS soil maps and soil surveys and the Web Soil Survey
operated by the NRCS as of January 2, 2012. The Hearings Officer finds that the Order-1 soil
survey is related to the NRCS land capability classification system.
The Hearings Officer finds that the more detailed soils information in the report prepared by
Mr. Gallagher assists the County to make a better determination of whether the Subject
Property qualifies as agricultural land. As set forth above, DLCD completed a Soil Assessment
Completeness Review pursuant to OAR 660-033-0045(6)(a), confirming the report prepared
by Mr. Gallagher meets the requirements for agricultural soils capability reporting.
Based on Mr. Gallagher's qualifications as a certified Soil Scientist and Soil Classifier, the
Hearings Officer finds the submitted soil study to be definitive and accurate in terms of site -
specific soil information for the Subject Property. For all the foregoing reasons, the Hearings
Officer finds the Subject Property is not "agricultural land."
(c) This section and OAR 660-033-0045 apply to:
(A) A change to the designation of land planned and zoned for exclusive
farm use, forest use or mixed farm forest use to a non -resource plan
designation and zone on the basis that such land is not agricultural
land, and
FINDING: The Applicant is seeking approval of a non -resource plan designation on the basis
that the Subject Property is not defined as agricultural land.
(d) This section and OAR 660-033-0045 implement ORS 215.211, effective on
October 1, 2011. After this date, only those soils assessments certified by the
department under section (9) of this rule may be considered by local
governments in land use proceedings described in subsection (c) of this
section. However, a local government may consider soils assessments that
have been completed and submitted prior to October 1, 2011.
FINDING: The Applicant submitted a soils study by Mr. Gallagher of Red Hill Soils dated
November 2, 2020. The soils study was submitted following the ORS 215.211 effective date.
Staff received acknowledgement via email on June 16, 2021, from Hilary Foote, Farm/Forest
Specialistwith the DLCD thatthe soils study is complete and consistent with DLCD's reporting
247-21-000616-PA, 21-617-ZC Page 67 of 74
requirements. The Hearings Officer finds this criterion to be met based on the submitted
soils study and confirmation of completeness and consistency from DLCD.
(e) This section and OAR 660-033-0045 authorize a person to obtain additional
information for use in the determination of whether land qualifies as
agricultural land, but do not otherwise affect the process by which a county
determines whether land qualifies as agricultural land as defined by Goal 3
and OAR 660-033-0020.
FINDING: The Applicant has provided a DLCD-certified soils study as well as NRCS soils data.
The Hearings Officer finds that the Applicant has complied with the soils analysis
requirements of OAR 660-033-0045 in order to obtain DLCD certification. DLCD's certification
establishes compliance with OAR 660-033-0045.
The Hearings Officer finds this criterion is met.
DIVISION 12, TRANSPORTATION PLANNING
OAR 660-012-0060 Plan and Land use Regulation Amendments
(1) if an amendment to a functional plan, an acknowledged comprehensive plan,
or a land use regulation (including a zoning map) would significantly affect
an existing or planned transportation facility, then the local government
must put in place measures as provided in section (2) of this rule, unless the
amendment is allowed under section (3), (9) or (10) of this rule. A plan or land
use regulation amendment significantly affects a transportation facility if it
would:
(a) Change the functional classification of an existing or planned
transportation facility (exclusive of correction of map errors in an
adopted plan),
(b) Change standards implementing a functional classification system, or
(c) Result in any of the effects listed in paragraphs (A) through (C) of this
subsection based on projected conditions measured at the end of the
planning period identified in the adopted TSP. As part of evaluating
projected conditions, the amount of traffic projected to be generated
within the area of the amendment may be reduced if the amendment
includes an enforceable, ongoing requirement that would
demonstrably limit traffic generation, including, but not limited to,
transportation demand management. This reduction may diminish or
completely eliminate the significant effect of the amendment.
(A) Types or levels of travel or access that are inconsistent with
the functional classification of an existing or planned
transportation facility,
247-21-000616-PA, 21-617-ZC Page 68 of 74
(B) Degrade the performance of an existing or planned
transportation facility such that it would not meet the
performance standards identified in the TSP or comprehensive
plan; or
(C) Degrade the performance of an existing or planned
transportation facility that is otherwise projected to not meet
the performance standards identified in the TSP or
comprehensive plan.
FINDING: The Hearings Officer finds the above language is applicable to the proposal
because it involves an amendment to an acknowledged comprehensive plan. The proposed
plan amendment would change the designation of the subject properties from AG to RREA
and change the zone from EFU to MUA10. The Applicant is not proposing any land use
development of the properties at this time.
The Applicant has submitted a transportation impact analysis (TIA) with the application. The
TIA was reviewed by the County Transportation Planner, who agreed with the report's
conclusions. No rebuttal evidence was introduced into the record and there was no
testimony in opposition to the conclusions in the TIA.
Public comments received by the County indicate concerns with potential traffic impacts as
a result of the proposed plan amendment and zone change. These comments are non-
specific in nature, do not include any findings contrary to the findings set forth in the
Transight Consulting, LLC analyses, and do not include any information that is inconsistent
with the Transight Consulting, LLC's reports. Public comments express a generalized concern
about traffic impacts associated with additional growth if the subject property is developed.
The Hearings Officer notes that additional transportation/traffic review will be required at
the time of any future development application(s).
The Applicant further noted that access to Classic Estates lots is provided by Peterman Lane
and Parker Lane. Traffic associated with potential future development of the Subject
Property will not rely on either road for access. As shown in the TIA, impacts to the greater
area arterial street network will be negligible.
The Hearings Officer finds that the proposed rezone will not significantly affect an existing
or planned transportation facility for the following reasons: (1) it will not change the
functional classification of an existing or planned transportation facility; (2) it will not change
standards implementing a functional classification system; and (3) it will not result in any of
the following effects - types or levels of travel or access that are inconsistent with the
functional classification of an existing or planned transportation facility, degradation of the
performance of an existing or planned transportation facility such that it would not meet
performance standards identified in the TSP or comprehensive plan, or degradation of the
247-21-000616-PA, 21-617-ZC Page 69 of 74
performance of an existing or planned transportation facility that is otherwise projected not
to meet performance standards identified in the TSP or comprehensive plan.
Based on the TIA, the Hearings Officer finds the proposed plan amendment and zone change
will be consistent with the identified function, capacity, and performance standards of the
County's transportation facilities in the area. The proposed changes will not change the
functional classification of any existing or planned transportation facility or change the
standards implementing a functional classification system. The changes will not allow types
or levels of land uses, which would result in levels of travel or access, which are inconsistent
with the functional classification of nearby transportation facilities. Furthermore, it will not
reduce the performance standards of the facility below the minimum acceptable level in the
County's transportation system plan.
The Hearings Officer finds that, based on OAR 660-012-060(1), the County is not required to
put in place measures as provided in Section (2) of this rule. Based on the County Senior
Transportation Planner's comments and the traffic study from Transight Consulting LLC, the
Hearings Officer finds the Applicant has demonstrated compliance with the TPR. These
criteria are met.
DIVISION 15, STATEWIDE PLANNING GOALS AND GUIDELINES
OAR 660-015, Division 15, Statewide Planning Goals and Guidelines
FINDING: The Statewide Planning Goals are addressed below, as set forth in the Applicant's
burden of proof:
Goal 1, Citizen Involvement. Deschutes County will provide notice of the application to
the public through mailed notice to affected property owners and by requiring the
applicant to post a "proposed land use action sign" on the subject property. Notice of the
public hearings held regarding this application will be placed in the Bend Bulletin. A
minimum of two public hearings will be held to consider the application.
Goal 2, Land Use Planning. Goals, policies, and processes related to zone change
applications are included in the Deschutes County Comprehensive Plan and Titles 18 and
23 of the Deschutes County Code. The outcome of the application will be based on findings
of fact and conclusions of law related to the applicable provisions of those laws as required
by Goal 2.
Goal 3, Agricultural Lands. The applicant has shown that the subject property is not
agricultural land so Goal 3 does not apply.
Goal 4, Forest Lands. The existing site and surrounding areas do not include any lands
that are suited for forestry operations. Goal 4 says that forest lands "are those lands
247-21-000616-PA, 21-617-ZC Page 70 of 74
acknowledged as forest lands as of the date of adoption of this goal amendment." The
subject property does not include lands acknowledged as forest lands as of the date of
adoption of Goal 4. Goal 4 also says that "[W]here **a plan amendment involving forest
lands is proposed, forest land shall include lands 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." This plan amendment does not involve any forest land. The subject property
does not contain any merchantable timber and is not located in a forested part of
Deschutes County.
Goal 5, Natural Resources, Scenic and Historic Areas, and Open Spaces. The subject
property does not contain any inventoried Goal 5 resources.
Goal 6, Air, Water and Land Resources Quality. The approval of this application will not
cause a measurable impact on Goal 6 resources. Approval will make it more likely that the
irrigation and pond water rights associated with the property will ultimately be returned
to the Deschutes River or used to irrigate productive farm ground found elsewhere in
Deschutes County.
Goal 7, Areas Subject to Natural Disasters and Hazards. This goal is not applicable
because the subject property is not located in an area that is recognized by the
comprehensive plan as a known natural disaster or hazard area.
Goal 8, Recreational Needs. This goal is not applicable because the property is not
planned to meet the recreational needs of Deschutes County residents and does not
directly impact areas that meet Goal 8 needs.
Goal 9, Economy of the State. This goal does not apply to this application because the
subject property is not designated as Goal 9 economic development land. In addition, the
approval of this application will not adversely impact economic activities of the stat or
area.
Goal 10, Housing. The County's comprehensive plan Goal 10 analysis anticipates that farm
properties with poor soils, like the subject property, will be converted from EFU to MUA-10
or RR-10 zoning and that these lands will help meet the need for rural housing. Approval
of this application, therefore, is consistent with Goal 10 as implemented by the
acknowledged Deschutes County comprehensive plan.
Goal 11, Public Facilities and Services. The approval of this application will have no
adverse impact on the provision of public facilities and services to the subject site. Utility
service providers have confirmed that they have the capacity to serve the maximum level
of residential development allowed by the MUA-10 zoning district.
247-21-000616-PA, 21-617-ZC Page 71 of 74
Goal 12, Transportation. This application complies with the Transportation System
Planning Rule, OAR 660-012-0060, the rule that implements Goal 12. Compliance with that
rule also demonstrates compliance with Goal 12.
Goal 13, Energy Conservation. The approval of this application does not impede energy
conservation. The subject property is located in a part of the community that contains a
large amount of rural residential development. Providing homes in this location as
opposed to more remote rural locations will conserve energy needed for residents to travel
to work, shopping and other essential services.
Goal 14, Urbanization. This goal is not applicable because the applicant's proposal does
not involve property within an urban growth boundary and does not involve the
urbanization of rural land. The MUA-10 zone is an acknowledged rural residential zoning
district that limits the intensity and density of developments to rural levels. The compliance
of this zone with Goal 14 was recently acknowledged when the County amended its
comprehensive plan. The plan recognizes the fact that the MUA-10 and RR zones are the
zones that will be applied to lands designated Rural Residential Exception Areas.
Goals 15, Willamette Greenway. This goal does not apply because the subject property
is not located in the Willamette Greenway.
Goals 16 through 19. These goals do not apply to land in Central Oregon.
The Hearings Officer finds consistency with Goal 1 (Citizen Involvement) has been
established with the public notice requirements required by the County for these
applications (mailed notice, posted notice and two public hearings). Similarly, the Hearings
Officer finds consistency with Goal 2 (Land Use Planning) based on the applications'
consistency with goals, policies and processes related to zone change applications as set
forth in the Comprehensive Plan and Titles 18 and 23 of the Deschutes County Code.
Based on the findings above, the Hearings Officer finds consistency with Goal 3 (Agricultural
Lands) has been demonstrated because the Subject Property is not Agricultural Land. The
property is not comprised of Forest Lands; Goal 4 is inapplicable.
With respect to Goal 5 (Natural Resources, Scenic and Historic Areas, and Open Spaces), the
Hearings Officer finds that the Subject Property does not include any inventoried Goal 5
resources. While the Subject Property is currently open and undeveloped, the County Goal
5 inventory does not include the subject property as an "open space" area protected by Goal
5. Members of the public expressed concern regarding potential impact on wildlife. However,
the Hearings Officer notes that the property does not include a wildlife overlay (WA)
designation and, more importantly, no development is proposed at this time. Rezoning the
Subject Property will not, in and of itself, impact wildlife on the subject property. Protections
for wildlife must be sanctioned by the County's Goal 5 ESEEs and WA or similar wildlife
247-21-000616-PA, 21-617-ZC Page 72 of 74
overlay zoning. The Hearings Officer finds there are no wildlife protections applicable to
these applications.
The Hearings Officer finds consistency with Goal 6 (Air, Water and Land Resources Quality)
because there is no measurable impact of approval of the application to rezone the Subject
Property from EFU to MUA-10. Future development activities will be subject to local, state
and federal regulations that protect these resources.
With respect to Goal 7 (Areas Subject to Natural Disasters and Hazards), the Hearings Officer
finds consistency with this Goal based on the fact that rezoning the Subject Property to MUA-
10 does not change the Wildfire Hazard Area designation that is applicable to the entirety of
Deschutes County. The subject property is within the Rural Fire Protection District #2. Any
application(s) for future development activities will be required to demonstrate compliance
with fire protection regulations.
The Hearings Officer finds consistency with Goal 8 (Recreational Needs) given the fact that
no development is currently proposed and that rezoning, in and of itself, will not impact
recreational needs of Deschutes County. Members of the public commented regarding
concerns of loss of the currently vacant property as open space and for recreational uses.
The Hearings Officer finds that the Subject Property is not planned to meet the recreational
needs of Deschutes County residents and does not directly impact areas that meet Goal 5
needs.
The Hearings Officer finds Goal 9 (Economy of the State) is inapplicable because the Subject
Property is not designated as Goal 9 economic development land and approval of the
application will not adversely impact economic activities of the state or area.
The Hearings Officer finds the applications are consistent with Goal 10 (Housing) because
the Comprehensive Plan Goal 10 chapter anticipates that farm properties with poor soils will
be converted from EFU to MUA-10 or RR-10 zoning, making such properties available to meet
the need for rural housing. Although no development of the Subject Property is proposed at
this time, rezoning the Subject Property from EFU to MUA-10 will enable consideration of the
property for potential rural housing development in the future.
The Hearings Officer finds the applications are consistent with Goal 11 (Public Facilities and
Services). The record establishes that utility service providers have capacity to serve the
Subject Property if developed at the maximum level of residential development allowed by
the MUA-10 zoning district. The proposal will not result in the extension of urban services to
rural areas.
Based on the findings above regarding the Transportation System Planning Rule, OAR 660-
012-0060, the Hearings Officer finds the applications are consistent with Goal 12
(Transportation).
247-21-000616-PA, 21-617-ZC Page 73 of 74
The Hearings Officer finds the applications are consistent with Goal 13 (Energy Conservation)
because there is no evidence approval of the applications will impede energy conservation.
Rather, if the Subject Property is developed with residential dwellings in the future, energy
conservation will be increased - not impeded - as residents will not be required to travel as
far to work, shopping and other essential services provided in the City of Bend.
The Hearings Officer finds the applications are consistent with Goal 14 (Urbanization). The
Subject Property is not within an urban growth boundary and does not involve urbanization
of rural land because the MUA-10 zone does not include urban uses as permitted outright
or conditionally. The MUA-10 zone is an acknowledged rural residential zoning district that
limits the intensity and density of developments to rural levels. The state acknowledged
compliance of the MUA-10 zone with Goal 14 when the County amended its comprehensive
plan.
The Hearings Officer finds that Goals 15-19 do not apply to land in Central Oregon.
For all the foregoing reasons, the Hearings Officer finds compliance with the applicable
Statewide Planning Goals has been demonstrated.
IV. DECISION & RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer finds
the Applicant has met the burden of proof necessary to justify the request for a
Comprehensive Plan Map Amendment to re -designate the subject property from Agriculture
to Rural Residential Exception Area and a corresponding request for a Zone Map
Amendment (Zone Change) to reassign the zoning of the subject property from Exclusive
Farm Use (EFU) to Multiple Use Agricultural (MUA-10).
The Deschutes County Board of Commissioners is the final local review body for the
applications before the County. DCC 18.126.030. The Hearings Officer recommends approval
of the applications based on this Decision of the Deschutes County Hearings Officer.
Stephanie Marshall, Deschutes County Hearings Officer
Dated this 24th day of November, 2021
Mailed this 24th day of November, 2021
247-21-000616-PA, 21-617-ZC Page 74 of 74
Owner
Agent
InCareOf Address
CitystZip
Type
cddid
HIGHAM,MICHAEL E & DONNA G
63225 PETERMAN LN
BEND, OR 97701
Hearings Officer Decision
21-616-PA, 21-617-ZC
CONRAD,KURT J & SUSAN L
22220 PARKER LN
BEND, OR 97701
Hearings Officer Decision
21-616-PA, 21-617-ZC
FANCHER, LIZ
2465 SACAGAWEA LN
BEND, OR 97701
Hearings Officer Decision
21-616-PA, 21-617-ZC
Joe Bessman
Transight Consulting
Via Email
Hearings Officer Decision
21-616-PA, 21-617-ZC
SWISHER, DAVE
250 NW FRANKLIN AVE, STE 401
BEND, OR 97703
Hearings Officer Decision
21-616-PA, 21-617-ZC
Central Oregon LandWatch
Carol Macbeth
2843 NW Lolo Drive
Bend, OR 97703
Hearings Officer Decision
21-616-PA, 21-617-ZC
1000 Friends of Oregon
Andrew Mulkey
PO Box 40367
Portland, OR 97240
Hearings Officer Decision
21-616-PA, 21-617-ZC
•
Mailing Date:
Wednesday, November 24, 2021
NOTICE OF HEARINGS OFFICER'S DECISION
The Deschutes County Hearings Officer has approved the land use application(s) described below:
FILE NUMBERS: 247-21-000616-PA, 617-ZC
LOCATION: Property 1.
Map and Taxlot: 171318C000100
Account: 109158
Situs Address: 63350 ABBEY RD, BEND, OR 97701
Property 2:
Map and Taxlot: 1713180000600
Account: 106933
Situs Address: NO SITUS ADDRESS
OWNER/
APPLICANT: Dave Swisher
ATTORNEY
FOR APPLICANT: Liz Fancher
2465 NW Sacagawea Lane
Bend, OR 97703
SUBJECT: The applicant requests approval of a Comprehensive Plan Amendment
to change the designation of the properties from Agricultural (AG) to
Rural Residential Exception Area (RREA). The applicant also requests
approval of a corresponding Zone Change to rezone the properties
from Exclusive Farm Use - Tumalo/Redmond/Bend subzone (EFU-TRB)
to Multiple Use Agricultural (MUA-10) as the subject property does not
qualify as "Agricultural Land" pursuant to State Law and administrative
rules.
STAFF CONTACT: Kyle Collins, Associate Planner
Phone: 541-383-4427
Email: Kvle.Collins@deschutes.org
11 7 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
Q% (541) 388-6575 @cdd@deschutes.org ®www.deschutes.org/cd
RECORD: Record items can be viewed and downloaded from:
www.buildingpermits.orego`n.gov
APPLICABLE CRITERIA: The Hearings Officer reviewed this application for compliance against
criteria contained in Chapters 18.04, 18.16, 18.32, 18.80, 18.113, and
18.136 in Title 18 of the Deschutes County Code (DCC), the Deschutes
County Zoning Ordinance, the procedural requirements of Title 22 of
the DCC, Chapters 2, 3 and Appendix C of the Deschutes County
Comprehensive Plan, Divisions 6, 12, 15, and 33 of the Oregon
Administrative Rules (OAR) Chapter 660, and Chapter 215.211 of the
Oregon Revised Statutes.
DECISION: The Hearings Officer finds that the application meets applicable criteria, and
recommends approval of the applications.
As a procedural note, the hearing on September 21, 2021, was the first of two required de novo hearings
per DCC 22.28.030(c). The second de novo hearing will be heard in front of the Board of County
Commissioners at a date to be determined.
This decision becomes final twelve (12) days after the date mailed, unless appealed by a party
of interest. To appeal, it is necessary to submit a Notice of Appeal, the base appeal deposit plus
20% of the original application fee(s), and a statement raising any issue relied upon for appeal with
sufficient specificity to afford the Board of County Commissioners an adequate opportunity to
respond to and resolve each issue.
Copies of the decision, application, all documents and evidence submitted by or on behalf of the
applicant and applicable criteria are available for inspection at no cost. Copies can be purchased
for 25 cents per page.
NOTICE TO MORTGAGEE, LIEN HOLDER, VENDOR OR SELLER: ORS CHAPTER 215 REQUIRES THAT IF
YOU RECEIVE THIS NOTICE, IT MUST BE PROMPTLY FORWARDED TO THE PURCHASER.
247-21-000616-PA, 617-ZC Page 2 of 2
Owner
Agent
InCareOf Address
CitystZip
Type
redid
HIGHAM,MICHAEL E&DONNA G
11111 PETERMAN LN
BEND, OR 97701
Hearings Officer NOD
21-616-PA, 21-617-ZC
CONRAD,KURT J & SUSAN L
22250 PARKER LN
BEND, OR 97701
Hearings Officer NOD
21-616-PA, 21-617-ZC
FANCHER, LIZ
2465 SACAGAWEA LN
BEND, OR 97701
Hearings Officer NOD
21-616-PA, 21-617-ZC
Joe Bessman
Transight Consulting
Via Email
Hearings Off i cer NOD
21-616-PA, 21-617ZC
SWISHER, DAVE
250 NW FRANKLIN AVE, STE 401
BEND, OR 97703
Hearings Officer NOD
21-616-PA, 21-617-ZC
Central Oregon Irrigation District
1055 SW Lake Ct
Redmond, OR 97756
Hearings Officer NOD
21-616-PA, 21-617-ZC
Central Oregon LandWa[ch
Carol Macbeth
2843 NW L.I. Drive
Bend, OR 97703
Hearings Officer NOD
21-616PA, 21-617-ZC
1000 Friends of Oregon
Andrew Mulkey
PO Box 40367
Portland, OR 97240
Hearings Officer NO0
21-616-PA, 21-111-ZC
WILCOX,COREY D & JANELLE D
61110 PETERMAN LN
BEND, OR 97701
Hearings Officer NOD
21-G16-PA, 21-617-ZC
CHONG TRUST
LONG, HAD& CHAO, YU PING ADA TTEES
63356 PETERMAN LN
BEND, OR 97701
Hearings Officer NOD
21-616-PA, 21-617-ZC
LAMES A WEEKS REVOCABLE TRUST
WEEKS, JAMES A TTEE
6332S PETERMAN LN
BEND, OR 97701
Hearings Officer NOD
21-616-PA, 21-617-ZC
EMICK,ANTHONY C & BALL,TINA M
63355 PETERMAN LN
BEND, OR 97701
Hearings Officer NOD
21-616-PA, 21-617-ZC
DON SWISHER TRUST ETAL
SUCCESSOR TRUSTEE
C/O DAVE SWISHER 211 NW FRANKLIN AVE IISTE 401
BEND, OR 97703-2814
Hearings Officer NOD
21-616-PA, 21-617-ZC
RICHARD SUTTER LIVING TRUST
SUTTER, RICHARD I TTEE
63488 ABBEY RD
BE ND, OR 97701
Hearings Officer NOD
21-616-PA, 21-617-ZC
SCHRIER LIVINGTRUSTETAL
SCHRIER, MICHAEL -TTEE ETAL
PO BOX 126
HUBBARD, OR 97032
Hearings Officer NOD
21-616-PA, 21-617-ZC
JARVIS,MARK S & CYNTHIA M
61111 SILVIS RD
BEND, OR 17711
Hearings Officer NOD
21-616-PA, 21-617-ZC
FREEMAN, MATTHEW B & JAMIE
22050 NE BUTLER MARKET RD
BEND, OR 97701
Hearings Officer NOD
21-616-PA, 21-617-ZC
MCOMBER HOLDINGS LLC
PO BOX 1851
BEND, OR 97709
Hearings Officer NOD
21-616-PA, 21-617-ZC
TURLEY, BRANDON L
22130 BUTLER MARKET RD
BEND, OR 91701
Hearings Officer NOD
21-616-PA, 21-617-ZC
PALMER,KINGDON P IR&CINDYA
22130 BUTLER MARKET RD
BEND, OR 97701
Hearings Officer NOD
21-616-PA, 21-617-ZC
BARTZ, EDWARD GET AL
221600UTLER MKT RD
BEND, OR 97701
Hearings Officer NOD
21-616-1A, 21-617-ZC
BROW N, JOHN A ET AL
22190RUTLERMKTRD
BE ND, OR 97701
Hearings Officer NOD
21-616-PA, 2L617-ZC
EDWARD & JULIE DENFELD TRUST
DENFELD, EDWARD JAMES TTEE ETAL
63215 PETERMAN LN
BEND, OR 97701
Hearings Officer NOD
21-616-PA,21-617-ZC
BLACKMAN, TERESA ANNE & SCOTT
22249 PARKER LN
BEND, OR 97701
Hearings Officer NOD
21-616-PA, 21-617-ZC
MCCAUL, KEVIN E & JANETTE M
22229 PARKER LN
BEND, OR 97701
Hearings Officer NOD
21-616-PA, 21-617-ZC
SWEEN, TODD A & MELISA V
22240 PARKER LN
BEND, OR 97701-9762
Hearings Officer NOD
21-616-PA, 21-617-ZC
PEVERIERI, LEONARD & ANGELA M
63285 PETERMAN LN
BEND, OR 97701
Hearings Officer NOD
21-616-PA, 21-617-ZC
CITY OF BEND
PO BOX 431
BEND, OR 97709
Hearings Officer NOD
21-616-PA, 21-617-ZC
RINGER, PAUL&LAURA ANN
63311 ABBEY RD
BEND, OR 97701
Hearings Offi[er NOD
21-616-PA, 21-617-ZC
CENTRAL OREGON IRRIGATION LIST.
ELECTRONIC
Hearings Officer NOD
21-611�PA, 21-617-ZC
DEPT. OF LAND CONSERV. & DEVEL
1011 SW EMKAY DR., SUITE 108
Bend, OR 97702
Hearings Officer NOD
21-616-PA, 21-617-ZC
DES CHUTES CO. SR. TRANS. PLANNER
ELECTRONIC
Hearings Officer NOD
21-616-PA, 21-617-ZC
OREGON DEPT. OF AVIATION, PROJ. & PLANNING DIV.
Electronic
Hearings Officer NOD
21-616-PA, 21 617-ZC
WATERMASTER- DISTRICT 11
ELECTRONIC
Hearings Officer NOD
21-616-PA, 21-617-ZC
BEND MUNICIPAL AIRPORT (CITY OF BEND)
AIRPORT MANAGER/ ECONOMIC DEVELOPMENT
P.O. BOX 431
Bend, OR 97709
Hearings Officer NOD
21-616-PA, 21-617-ZC
E S COG�.a
Q �
w A
COMMISSIONERS
MEETING DATE: Wednesday, April 20, 2022
SUBJECT: 2nd Reading: Ordinance 2022-003 and Ordinance 2022-004 - Dave Swisher Plan
Amendment/Zone Change
RECOMMENDED MOTION:
Move to approve 2nd reading of Ordinance 2022-003 and Ordinance 2022-004
BACKGROUND AND POLICY IMPLICATIONS:
The Board of County Commissioners (Board) will consider a second reading of Ordinance 2022-
003 and Ordinance 2022-004 on April 20, 2022 for a request for a Plan Amendment and Zone
Change (file nos. 247-21-000616-PA, 617-ZC) for two (2) 40-acre properties located on Abbey
Road, approximately 1.3 miles east of the City of Bend, submitted by Dave Swisher. The
addresses associated with the subject properties are as follows:
Property 1:
Map and Taxlot: 171318C000100
Account. 1091.58
Situs Address: 63350 ABBEY RD, BEND, OR 97701
Property 2:
Map and Taxlot: 1713180000600
Account. 106933
Situs Address: NO SITUS ADDRESS
BUDGET IMPACTS:
None
ATTENDANCE:
Kyle Collins, Associate Planner
TO: Deschutes County Board of Commissioners (Board)
FROM: Kyle Collins, Associate Planner
Will Groves, Planning Manager
DATE: April 11, 2022
SUBJECT: Consideration of Second Reading of Ordinance 2022-003 and Ordinance 2022-004 -
Dave Swisher Plan Amendment and Zone Change
The Board of County Commissioners (Board) will consider a second reading of Ordinance 2022-003
and Ordinance 2022-004 on April 20, 2022 to consider a request for a Plan Amendment and Zone
Change (file nos. 247-21-000616-PA, 617-ZC) for two (2) 40-acre properties located on Abbey Road,
approximately 1.3 miles east of the City of Bend.
I. BACKGROUND
The Applicant, Dave Swisher, is requesting a Comprehensive Plan Amendment to redesignate the
subject properties from Agriculture to Rural Residential Exception Area and a Zoning Map
Amendment to rezone the properties from Exclusive Farm Use (EFU) to Multiple Use Agricultural
(MUA-10). The Applicant's reasoning for the request is that the properties were mistakenly identified
as farmland, do not contain high -value soils or other characteristics of high value farmland, and
therefore should be redesignated and rezoned for residential use. The Applicant has provided a
supplementary soil study that identifies non -high value soils on a majority (-96%) of the subject
properties. Additionally, the Applicant has provided findings within the burden of proof that
demonstrate compliance with state and local requirements and policies.
A public hearing before a Hearings Officer was conducted on September 21, 2021, with the Hearings
Officer's recommendation of approval issued on November 24, 2021. The Board held a public hearing
on February 2, 2022 and initiated a 21-day open record period, which concluded February 23, 2022
at 4:00pm. On March 16, 2022, the Board deliberated to approve the requests. The Board conducted
first reading of Ordinance 2022-003 and Ordinance 2022-004 on April 6, 2022
II. SECOND READING
The Board is scheduled to conduct the second reading of Ordinance 2022-003 and Ordinance 2022-
004 on April 20, 2022, fourteen (14) days following the first reading.
ATTACHMENTS:
1. Area Map
2. Draft Ordinance 2022-003 and Exhibits
Exhibit A: Legal Description
Exhibit B: Proposed Plan Amendment Map
Exhibit C: Comprehensive Plan Section 23.01.010, Introduction
Exhibit D: Comprehensive Plan Section 5.12, Legislative History
Exhibit E: Hearings Officer Recommendation/Decision
3. Draft Ordinance 2022-004 and Exhibits
Exhibit A: Legal Description
Exhibit B: Proposed Zone Change Map
Exhibit C: Hearings Officer Recommendation/Decision
Page 2 of 2