2022-287-Ordinance Recorded 8/10/2022REVIEWED
ff(A�x 01"
LEGAL COUNSEL
Recorded in Deschutes County
Steve Dennison, County Clerk
Commissioners' Journal
�`tES c0c,
2022-287
CJ2022-287
08/10/2022 11:53:44 AM
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Deschutes County Code
Title 23, the Deschutes County Comprehensive Plan,
to Change the Comprehensive Plan Map Designation
for Certain Property From Agriculture to Rural
Industrial, and Amending Deschutes County Code
Title 18, the Deschutes County Zoning Map, to
Change the Zone Designation for Certain Property
From Exclusive Farm Use to Rural Industrial.
* ORDINANCE NO. 2022-010
WHEREAS, Anthony Aceti, applied for changes to both the Deschutes County Comprehensive Plan Map
(247-20-000438-PA) and the Deschutes County Zoning Map (247-20-000439-ZC), to change comprehensive plan
designation of the subject property from an Agricultural (AG) to Rural Industrial (RI) and a corresponding zone
change from Exclusive Farm Use (EFU) to Rural Industrial (RI); and
WHEREAS, the Board of County Commissioners issued a decision approving the subject application on
January 27, 2021, and the decision was thereby appealed to the Oregon Land Use Board of Appeals and remanded
back to the County for further review; and
WHEREAS, the applicant initiated review of the remand application on April 7, 2022 through file no.
247-22-000287-A; and
WHEREAS, after notice was given in accordance with applicable law, a limited de novo public hearing
was held on May 18, 2022, before the Board of County Commissioners (Board); with oral and written testimony
continued to June 8, 2022; and an open record period ending on June 22, 2022; and
WHEREAS, the Board, after review conducted in accordance with applicable law, approved the
application on remand, both plan amendment to change the Comprehensive Plan Map designation from AG to RI,
and approved the Zoning Map amendment to change from EFU to RI via oral motion and directed staff to prepare
this ordinance consistent with that motion; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. AMENDMENT. DCC Title 23, Deschutes County Comprehensive Plan Map, is
amended to change the plan designation for certain property described in Exhibit "A" and depicted on the map set
forth as Exhibit "B", with both exhibits attached and incorporated by reference herein, from AG to RI.
PAGE 1 OF 2 - ORDINANCE NO. 2022-010
Section 2. AMENDMENT. DCC Title 18, Zoning Map, is amended to change the zone designation
from EFU to RI for certain property described in Exhibit "A" and depicted on the map set forth as Exhibit "C."
Section 3. AMENDMENT. DCC Section 23.01.010, Introduction, is amended to read as described
in Exhibit "D" attached and incorporated by reference herein, with new language underlined.
Section 4. AMENDMENT. Deschutes County Comprehensive Plan Section 5.12, Legislative
History, is amended to read as described in Exhibit "E" attached and incorporated by reference herein, with new
language underlined.
Section 5. FINDINGS. The Board adopts as its findings in support of this Ordinance the Decision
of the Board of County Commissioners as set forth in Exhibit "F" and incorporated by reference herein.
Dated this of , 2022 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
P'Z�' kA , �
PATTI ADAIR, Chair
ANTHONY DEBONE, Vice Chair
ATTEST:
Recording Secretary PHIL CHANG, Commissioner
Date of 1st Reading: day of 22.
Date of 2" `' Reading: day of 2022.
Record of Adoption Vote:
Commissioner Yes No Abstained Excused
Patti Adair
Anthony DeBone
Phil Chang
Effective date: �45 day of D '2022.
PAGE 2 OF 2 - ORDINANCE NO. 2022-010
EXHIBIT A
LEGAL DESCRIPTIONS
TAX LOTS 16-12-26-C-00201 & 16-12-27.1i-00104
A pal cc] of land located in the SOUthwest Otte -quarter of Section 26 and the, Sou I heast otw,-(iuAacr of
Sec tiori 27, Township 16 South, Range 12 East of the Willanictle Meridian, DVFrhUtC5 C .101HIty, Oregon,
njore fully de -scribed is follows:
TAX LOTS 16-12-26-C-00201.
Commcncitig at a brass disk at the 114 comer between said Sections 26 arid '27; thence at(mg, The cast. -west
centerline. ofsaid Section 27, North SV49146" West MOO feet; thence braving said east -west centerline,
South 00'03'15" East, Parallel to and 20 fect westerly of the linecommon to said Sections 26 aM 27,
40,35 feet to a point on the southerly line of the 15"00 foot dedication to the southerly 30,00 foot right-of-
way of Tumato Road per Uced No, 98-29504, and the Mat of Beginning for this description; thence
along said 15-foot dedication line, 67.9i1 feet along the arc of a 12818,89 fbot radius curve right (the long
chord of which bears South 89'35'07" Rast 67.90 fcet�; thence South 89'20'0 1" East 957.75 feet to the
Nvestorly right -of-way of the Ladles-Califonfia Highway per Deed recorded Mat h 22, 1991, in Book 231,
Page 81, Desohutei County Records; thence leaving said I 5-foot dedication, line mid atong said westerly
,p)it-of-way, South 37'03'52':'F4at 23.10 feet, said poitit-being 85.00 feet frona the cetitt-iline, of said
Dal les-Califbrnia Highway, thence continuing along
g said 85-foot right-of-way line, South 26'22'14'
West 1419,88 feet to a point on the south lino of the property described in Deed No. 97-45542; thence
leaving said 85-foot right-of-way tine art"Jong said south line, South 89(56'45" West 447.62 feet to the
southwct comer of said 97-45542 property, said point lying 20,00, feet westerly of the line common to
Sections 26 and 27, thence leaving said souffi title, North 00'03'15" West 1301.34 feet to the point of
beginning;
EXCHPI'ING THM3FROM: the new alignment of Turnalo Road per Deed No. 99-32048, further
Y-nodified for turn Jones per Deed No. 2001-22023, filly described as follows:
Commenting at a byass disk at the- 114 comer between said Sections 26 and 27; thence along the east -west
cepitedinc of said Section 27, North 89a49'46" West 20,00 feet; thence teaving said cast -west centerline,
South OG'03'15" Fast, parallel to and 20 feet westerly of the line c-onvnon to said Sections 26 and 27,
357.34 feet to the rdortherly right-of-way of the new road alignrnent and the Point of Beginning f6t this
description; thence leaving said parallel line and along Uie new right-of-way litre, South 59139'01 "Fast
50.46 feet.; thence South 62'39'40" East 442.65 feet, thence South 63150'22" Last 250.70 feet; thew-e
South 59639'01 " East 95.51 feet to the westerly 85 foot right-of-way line of the Dalles-Califorriia
Highway, tben6e leaving said new r4-,),,4d right -ofway and along said westerly 95 fbot right-of-way tinc,
SOUth 26'22'14" West 170.41 fbet to Uic southcTly right-of-way line of -the now road; thence leaving said
westerly 85 foot right-of-way line. and along said southerly right-of-way line, Noidi 59`39'01" West
107.34 feet, thence North 55"21'40" West 250.70 feet; thelice. North 561138'22" West 447,65 feet, said
point lying, 20-01), feet westerly of the line common to Sections 26and 27; thence North OOD03'1 5" East
99.1, 1 feet to the point of beginning.
Wtt arca for this properly is 20.46 acres.
October 14, 2015 201.5 186-Desc.doc
Piepar-c-(! by Baxltte Ltind Surveying, hici
P.O. Box 702P., lletad, OR 91708 (541)AV.- 1962 ZIN
IV
EXHIBIT A
TAX LOTS 16-12427-D-00104'
That portion ol"DeeJ No. 9740139 described as "Panel 3," further modified by the excepting of Tract I
and Tract 2 of Dced No. 98-12049, and morc rally described as fbflows:�
Beginning at the Point of Beginning for the previous descriptionofTAX LOT 16-12,27-C-00201, said
point being on tile southerly 45 foot right, cif` -way of Turnalo Road and lying 20,00 feet weiterly okhe
line mmmon to Sections 16 and 27; thence. along said 20 foot westerly line, North 00'03'15" West 5,00
Cect to a point on a 40,00 foot right-of-way of Tiomalo Road, per said 98-32049 Deed; thence leaving mid
20 foot line, 3 L74 feet along the arc of a 12823.89 foot radius curve left (the long Chord of which bears
North 894W2V' West 3 134 feet); thence North 89052'44" West 26.42 feet; thence 219,07 feet along, the
arc of a 2 t 0,00 foot radius curve. left (the long chord ofwhich bears South 60' 14'07 "Wes t 209.27 feet),,
thence South .10'20'59" West 40,03 feet; thence 47,12 feet along the are, of a 30. M foot radius curve* ic ft
(the long chord of which bears South 14'39'01" Fast 42,43 feet); thence South 591:13910111 East 145.00
feet, thence South 60'.5 1'23" Fast 142.53 feet to a point lying 20.00 feet westerly of the line common to
said. Sections 26 and 27; thence North 00103'15" West 317.00 feet to the point of beginning for thi s
description;
Contains 130 acre .
Note. All comers are marke.4 with monuments per rcoorricd survey No, CS14491 bY NECIMCI 1301TY,
REGISTERED
PROFESSIONAL
LAND SURVEYOR
� j OREr.4014'
JULYIM, 1"q
J,AMES D, PERRY
----------- 2407 --------
RCNEWS 12-31-2016
OCLOI,kOf 14, 2015
Prepared bye Baxter Land Survcying, Inc.
11,0, Box 7022, Bernd, OR 97708 (541.),-382-1962
2015186-Desc,doe
M-1
EXHIBIT A
EXHIBIT MAP
TAX IOrS 16-IZ-26-C-00201
AND 16-12-27-D-00104
Located in the SWI14 See. 26 and the SA'114 Sec. 27,
r.16S., R.12E., W.M.,
DESCHUTES COUNTY, OREGON
rJ?Acr f— 27"26 BRASS OfSK A T 114 CM
DEED-32�^49 .00 30� RIW CCO47MW 004ALO ROAD (MCRO!,S MAWET ROAD) —
R DMCATM
DEED (ft 96 29504 2110' 1
TAX LOT 104
CI AREA: 0.30 ACRES
"VE TABLE
"VE TABLE
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UWM RAMS
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TAX LOT 20P
CROSS ARIFA. 22.M ACRES .11 1 t
*W ROAD: 2.42 ACRES
TAX for 2OF
AYFAREk- 20,46 ACRES
.42 ACRES MOR711 OF NEW ROAU
9,04 ACRES SOUTH OF WW ROM t
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IN x
Chapter 23.01 COMPREHENSIVE PLAN
Chapter 23.01 COMPREHENSIVE PLAN
23.01.010. Introduction.
A. The Deschutes County Comprehensive Plan, adopted by the Board in Ordinance 2011-003
and found on the Deschutes County Community Development Department website, is incorporated
by reference herein.
B. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2011-027, are incorporated by reference herein.
C. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2012-005, are incorporated by reference herein.
D. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2012-012, are incorporated by reference herein.
E. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2012-016, are incorporated by reference herein.
F. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2013-002, are incorporated by reference herein.
G. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2013-009, are incorporated by reference herein.
H. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2013-012, are incorporated by reference herein.
I. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2013-007, are incorporated by reference herein.
J. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-005, are incorporated by reference herein.
K. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-006, are incorporated by reference herein.
L. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-012, are incorporated by reference herein.
M. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-021, are incorporated by reference herein.
N. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-027, are incorporated by reference herein.
O. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2015-021, are incorporated by reference herein.
P. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2015-029, are incorporated by reference herein.
Q. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2015-018, are incorporated by reference herein.
R. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2015-010, are incorporated by reference herein.
S. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-001, are incorporated by reference herein.
T. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-022, are incorporated by reference herein.
U. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-005, are incorporated by reference herein.
Exhibit D, Ord. 2022-010 Chapter 23.01 7/13/22
V. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-027, are incorporated by reference herein.
W. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-029, are incorporated by reference herein.
X. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2017-007, are incorporated by reference herein.
Y. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2018-002, are incorporated by reference herein.
G. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2018-006, are incorporated by reference herein.
AA. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2018-011, are incorporated by reference herein.
BB. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2018-005, are incorporated by reference herein.
CC. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2018-008, are incorporated by reference herein.
DD. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-002, are incorporated by reference herein.
EE. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-001, are incorporated by reference herein.
FF. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-003, are incorporated by reference herein.
GG. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-004, are incorporated by reference herein.
HH. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-011, are incorporated by reference herein.
II. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-006, are incorporated by reference herein.
JJ. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-016, are incorporated by reference herein.
KK. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-019, are incorporated by reference herein.
LL. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2020-001, are incorporated by reference herein.
MM. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2020-002, are incorporated by reference herein.
NN. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2020-003, are incorporated by reference herein.
00. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2020-008, are incorporated by reference herein.
PP. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2020-007, are incorporated by reference herein.
QQ. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2020-006, are incorporated by reference herein.
RR. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2020-009, are incorporated by reference herein.
SS. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2020-013, are incorporated by reference herein.
Exhibit D, Ord. 2022-010 Chapter 23.01 7/13/22
TT. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2020-02, are incorporated by reference herein.
UU. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2021-005, are incorporated by reference herein.
VV. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2021-008, are incorporated by reference herein.
WW. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2022-001, are incorporated by reference herein.
XX. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2022-003, are incorporated by reference herein.
YY. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2022-006, are incorporated by reference herein.
ZZ The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2022-0010, are incorporated by reference herein.
(Ord. 2022-0010 §2, 2022; Ord. 2022-006 �2, 2022; Ord. 2022-003 §2, 2022; Ord. 2022-001 §1,
2022; Ord. 2021-008 §1; Ord. 2021-005 § 1, 2021; Ord. 2021-002§ 3, 2020; Ord. 2020-013 § 1, 2020;
Ord. 2020-009§ 1, 2020; Ord. 2020-006§ 1, 2020; Ord. 2020-007§ 1, 2020; Ord. 2020-008§ 1, 2020;
Ord. 2020-003 § 1, 2020; Ord. 2020-002 § 1, 2020; Ord. 2020-001 §26, 2020; Ord. 2019-019 §2,
2019; Ord. 2019-016 §3, 2019; Ord. 2019-006 § 1, 2019; Ord. 2019-011 § 1, 2019; Ord. 2019-004
§1, 2019; Ord. 2019-003 §1, 2019; Ord. 2019-001 §1, 2019; Ord. 2019-002 §1, 2019; Ord. 2018-008
§ 1, 2018; Ord. 2018-005 §2, 2018; Ord. 2018-011 § 1, 2018; Ord. 2018-006 § 1, 2018; Ord. 2018-002
§1, 2018; Ord. 2017-007 §1, 2017; Ord. 2016-029 §1, 2016; Ord. 2016-027 §1, 2016; Ord. 2016-005
§ 1, 2016; Ord. 2016-022 § 1, 2016; Ord. 2016-001 § 1, 2016; Ord. 2015-010 § 1, 2015; Ord. 2015-018 §
1, 2015; Ord. 2015-029 § 1, 2015; Ord. 2015-021 § 1, 2015; Ord. 2014-027 § 1, 2014; Ord. 2014-021
§1, 2014; Ord. 2014-12 §1, 2014; Ord. 2014-006 §2, 2014; Ord. 2014-005 §2, 2014; Ord. 2013-012.
§2, 2013; Ord. 2013-009 §2, 2013; Ord. 2013-007 §1, 2013; Ord. 2013-002 §1, 2013; Ord. 2013-001
§ 1, 2013; Ord. 2012-016 § 1, 2012; Ord. 2012-013 § 1, 2012; Ord. 2012-005 § 1, 2012; Ord. 2011-027
§1 through 12, 2011; Ord. 2011-017 repealed; Ord.2011-003 §3, 2011)
Click here to be directed to the Comprehensive Plan (http://www.deschutes.org/compplan)
Exhibit D, Ord. 2022-010 Chapter 23.01 7/13/22
Leoo sLatWe W- storU
Background
This section contains the legislative history of this Comprehensive Plan.
Table S.12.1 Comprehensive Plan Ordinance History
Ordinance
Date Adopted/
Chapter/Section
Amendment
Effective
All, except
Transportation, Tumalo
and Terrebonne
201 1-003
8-10-1 1/ 1 1-9-1 1
Community Plans,
Comprehensive Plan update
Deschutes Junction,
Destination Resorts and
ordinances adopted in
2011
2.5, 2.6, 3.4, 3.10, 3.5,
Housekeeping amendments to
201 1-027
10-31-1 1 / 1 1-9-1 1
4.6, 5.3, 5.8, 5.1 1,
23.40A, 23.40B,
ensure a smooth transition to
23.40.065, 23.01.010
the updated Plan
23.60, 23.64 (repealed),
Updated Transportation
2012-005
8-20-12/ 1 1-19-12
3.7 (revised), Appendix C
System Plan
(added)
La Pine Urban Growth
2012-012
8-20-12/8-20-12
4.1, 4.2
Boundary
Housekeeping amendments to
2012-016
12-3-12/3-4-13
3.9
Destination Resort Chapter
Central Oregon Regional
2013-002
1-7-13/ 1-7-13
4.2
Large -lot Employment Land
Need Analysis
Comprehensive Plan Map
Amendment, changing
designation of certain
2013-009
2-6-13/5-8-13
1.3
property from Agriculture to
Rural Residential Exception
Area
Comprehensive Plan Map
2013-012
5-8-13/8-6-13
23.01.010
Amendment, including certain
property within City of Bend
Urban Growth Boundary
Newberry Country: A Plan
2013-007
5-29-13/8-27-13
3.10, 3.1 1
for Southern Deschutes
Count
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT E, ORD. 2022-010
Comprehensive Plan Map
2013-016
10-21-13/ 10-21-13
23.01.010
Amendment, including certain
property within City of Sisters
Urban Growth Boundary
Comprehensive Plan Map
2014-005
2-26-14/2-26-14
23.01.010
Amendment, including certain
property within City of Bend
Urban Growth Boundary
2014-012
4-2-14/7-1-14
3.10, 3.1 1
Housekeeping amendments to
Title 23.
Comprehensive Plan Map
Amendment, changing
designation of certain
2014-021
8-27-14/ 1 1-25-14
23.01.010, 5.10
property from Sunriver Urban
Unincorporated Community
Forest to Sunriver Urban
Unincorporated Community
Utility
Comprehensive Plan Map
Amendment, changing
designation of certain
2014-021
8-27-14/ 1 1-25-14
23.01.010, 5.10
property from Sunriver Urban
Unincorporated Community
Forest to Sunriver Urban
Unincorporated Community
Utility
Comprehensive Plan Map
Amendment, changing
2014-027
12-15-14/3-31-15
23.01.010, 5.10
designation of certain
property from Agriculture to
Rural Industrial
Comprehensive Plan Map
Amendment, changing
2015-021
1 1-9-15/2-22-16
23.01.010
designation of certain
property from Agriculture to
Surface Mining.
Comprehensive Plan Map
Amendment, changing
2015-029
1 1-23-15/ 1 1-30-15
23.01.010
designation of certain
property from Tumalo
Residential 5-Acre Minimum
to Tumalo Industrial
2015-018
12-9-15/3-27-16
23.01.010, 2.2, 4.3
Housekeeping Amendments
to Title 23.
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT E, ORD. 2022-010
Comprehensive Plan Text and
2015-010
12-2-15/ 12-2-15
2.6
Map Amendment recognizing
Greater Sage -Grouse Habitat
Inventories
Comprehensive Plan Map
Amendment, changing
2016-001
12-21-15/04-5-16
23.01.010; 5.10
designation of certain
property from, Agriculture to
Rural Industrial (exception
area
Comprehensive Plan
Amendment to add an
exception to Statewide
2016-007
2-10-16/5-10-16
23.01.010; 5.10
Planning Goal I I to allow
sewers in unincorporated
lands in Southern Deschutes
Count
Comprehensive Plan
Amendment recognizing non-
2016-005
1 1-28-16/2-16-17
23.01.010, 2.2, 3.3
resource lands process
allowed under State law to
change EFU zoning
Comprehensive plan
2016-022
9-28-16/ 1 1-14-16
23.01.010, 1.3, 4.2
Amendment, including certain
property within City of Bend
Urban Growth Boundary
Comprehensive Plan Map
Amendment, changing
2016-029
12-14-16/ 12/28/ 16
23.01.010
designation of certain
property from, Agriculture to
Rural Industrial
Comprehensive Plan Map
Amendment, changing
2017-007
10-30-17/ 10-30-17
23.01.010
designation of certain
property from Agriculture to
Rural Residential Exception
Area
Comprehensive Plan
2018-002
1-3-18/ 1-25-18
23.01, 2.6
Amendment permitting
churches in the Wildlife Area
Combining Zone
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION S.12 LEGISLATIVE HISTORY
EXHIBIT E, ORD. 2022-010
Housekeeping Amendments
correcting tax lot numbers in
Non -Significant Mining Mineral
2018-006
8-22-18/ 1 1-20-18
23.01.010, 5.8, 5.9
and Aggregate Inventory;
modifying Goal 5 Inventory of
Cultural and Historic
Resources
Comprehensive Plan Map
Amendment, changing
2018-01 1
9-12-18/ 12-1 1-18
23.01.010
designation of certain
property from Agriculture to
Rural Residential Exception
Area
Comprehensive Plan Map
Amendment, removing Flood
23.01.010, 2.5, Tumalo
Plain Comprehensive Plan
2018-005
9-19-18/ 10-10-18
Community Plan,
Designation; Comprehensive
Newberry Country Plan
Plan Amendment adding Flood
Plain Combining Zone
purpose statement.
Comprehensive Plan
Amendment allowing for the
2018-008
9-26-18/ 10-26-18
23.01.010, 3.4
potential of new properties to
be designated as Rural
Commercial or Rural
Industrial
Comprehensive Plan Map
Amendment changing
designation of certain
property from Surface Mining
2019-002
1-2-19/4-2-19
23.01.010, 5.8
to Rural Residential Exception
Area; Modifying Goal 5
Mineral and Aggregate
Inventory; Modifying Non -
Significant Mining Mineral and
Aggregate Inventor
Comprehensive Plan and Text
2019-001
1-16-19/4-16-19
1.3, 3.3, 4.2, 5.10, 23.01
Amendment to add a new
zone to Title 19: Westside
Transect Zone.
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT E, ORD. 2022-010
Comprehensive Plan Map
Amendment changing
designation of certain
2019-003
02-12-19/03-12-19
23.01.010, 4.2
property from Agriculture to
Redmond Urban Growth
Area for the Large Lot
Industrial Program
Comprehensive Plan Map
Amendment changing
designation of certain
property from Agriculture to
2019-004
02-12-19/03-12-19
23.01.010, 4.2
Redmond Urban Growth
Area for the expansion of the
Deschutes County
Fairgrounds and relocation of
Oregon Military Department
National Guard Armory.
Comprehensive Plan Map
Amendment to adjust the
Bend Urban Growth
Boundary to accommodate
the refinement of the Skyline
Ranch Road alignment and the
2019-01 1
05-01-19/05-16/ 19
23.01.010, 4.2
refinement of the West Area
Master Plan Area I boundary.
The ordinance also amends
the Comprehensive Plan
designation of Urban Area
Reserve for those lands
leaving the UGB.
Comprehensive Plan Map
Amendment, changing
2019-006
03-13-19/06-1 1-19
23.01.010,
designation of certain
property from Agriculture to
Rural Residential Exception
Area
Comprehensive Plan and Text
amendments incorporating
language from DLCD's 2014
2019-016
1 1-25-19/02-24-20
23.01.01, 2.5
Model Flood Ordinance and
Establishing a purpose
statement for the Flood Plain
Zone.
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT E, ORD. 2022-010
Comprehensive Plan and Text
amendments to provide
procedures related to the
2019-019
12-1 1-19/ 12-1 1-19
23.01.01, 2.5
division of certain split zoned
properties containing Flood
Plain zoning and involving a
former or piped irrigation
canal.
Comprehensive Plan and Text
amendments to provide
procedures related to the
2020-001
12-1 1-19/ 12-1 1-19
23.01.01, 2.5
division of certain split zoned
properties containing Flood
Plain zoning and involving a
former or piped irrigation
canal.
Comprehensive Plan Map
Amendment to adjust the
Redmond Urban Growth
Boundary through an equal
exchange of land to/from the
Redmond UGB. The exchange
property is being offered to
better achieve land needs that
2020-002
2-26-20/5-26-20
23.01.01, 4.2, 5.2
were detailed in the 2012 SB
1544 by providing more
development ready land
within the Redmond UGB.
The ordinance also amends
the Comprehensive Plan
designation of Urban Area
Reserve for those lands
leaving the UGB.
Comprehensive Plan
Amendment with exception
to Statewide Planning Goal 11
2020-003
02-26-20/05-26-20
23.01.01, 5.10
(Public Facilities and Services)
to allow sewer on rural lands
to serve the City of Bend
Outback Water Facility.
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT E, ORD. 2022-010
Comprehensive Plan
Transportation System Plan
Amendment to add
roundabouts at US 20/Cook-
2020-008
06-24-20/09-22-20
23.01.010, Appendix C
O.B. Riley and US 20/Old
Bend -Redmond Hwy
intersections; amend Tables
5.33 1 and 5.372 and amend
TSP text.
Housekeeping Amendments
2020-007
07-29-20/ 10-27-20
23.01.010, 2.6
correcting references to two
Sage Grouse ordinances.
Comprehensive Plan and Text
amendments to update the
County's Resource List and
2020-006
08-12-20/ 1 1-10-20
23.01.01, 2.1 1, 5.9
Historic Preservation
Ordinance to comply with the
State Historic Preservation
Rule.
Comprehensive Plan
Transportation System Plan
Amendment to add reference
2020-009
08-19-20/ 1 1-17-20
23.01.010, Appendix C
to J turns on US 97 raised
median between Bend and
Redmond; delete language
about disconnecting
Vandevert Road from US 97.
Comprehensive Plan Text
And Map Designation for
Certain Properties from
Surface Mine (SM) and
Agriculture (AG) To Rural
2020-013
08-26-20/ 1 1 /24/20
23.01.01, 5.8
Residential Exception Area
(RREA) and Remove Surface
Mining Site 461 from the
County's Goal 5 Inventory of
Significant Mineral and
Aggregate Resource Sites.
Comprehensive Plan Map
2021-002
01-27-21 /04-27-21
23.01.01
Designation for Certain
Property from Agriculture
AG To Rural Industrial RI
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT E, ORD. 2022-010
Comprehensive Plan Map
Amendment Designation for
Certain Property from
2021-005
06-16-21 /06-16-21
23.01.01, 4.2
Agriculture (AG) To
Redmond Urban Growth
Area (RUGA) and text
amendment
Comprehensive Plan Map
Amendment Designation for
Certain Property Adding
2021-008
06-30-21 /09-28-21
23.01.01
Redmond Urban Growth
Area (RUGA) and Fixing
Scrivener's Error in Ord.
2020-022
Comprehensive Plan Map
Amendment, changing
designation of certain
2022-001
04-13-22/07-12-22
23.01.010
property from Agriculture
(AG) to Rural Residential
Exception Area RREA
Comprehensive Plan Map
Amendment, changing
designation of certain
2022-003
04-20-22/07-19-22
23.01.010
property from Agriculture
(AG) to Rural Residential
Exception Area RREA
Comprehensive Plan Map
Amendment, changing
designation of certain
2022-006
06-22-22/08-19-22
23.01.010
property from Rural
Residential Exception Area
(RREA) to Bend Urban
Growth Area
Comprehensive Plan Map
Designation for Certain
2022-010
07-27-22/ 10-25-22
23.01.010
Property from Agriculture
AG To Rural Industrial RI
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT E, ORD. 2022-010
BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
FINDINGS OF FACT AND CONCLUSIONS OF LAW ON REMAND
FILE NUMBERS: 247-20-000438-PA, 247-20-000439-ZC, 247-22-000287-A
APPLICANT/ Anthony]. Aceti
OWNER: 21235 Tumalo Place
Bend, OR 97703
APPLICANT'S Bill Kloos
ATTORNEY: 375 W 4t" Ave, Suite 204
Eugene, OR 97401
APPLICANT'S Patricia A. Kliewer, MPA
REPRESENTATIVE: 60465 Sunridge Drive
Bend, OR 97702
STAFF PLANNER: Nicole Mardell, Senior Planner - Long Range
Nicole.mardell@deschutes.org, 541-317-3157
REQUEST: The applicant requests proceedings on remand from Central Oregon
Landwatch v. Deschutes County, _ Or LUBA _ (LUBA No 2021-028, June
18, 2021) aff'd 315 Or App 673 (2021) of the Board of County
Commissioner's approval of original application file numbers 247-20-
000438-PA and 247-20-000439-ZC, an -a' original Ordinance No. 2021-
002.
PROPOSAL: Comprehensive Plan Amendment to re -designate the subject property
from Agriculture to Rural Industrial and a corresponding Zone Change
to change the zoning from Exclusive Farm Use -
Tumalo/Redmond/Bend Subzone (EFU-TRB) to Rural Industrial Zone
(RI).
LOCATION: 21235 Tumalo Place, Bend, OR 97703;
Taxlots: 161226C000201 and 161227D000104
1. FINDINGS OF FACT:
A. Incorporated Findings of Fact: The Findings of Fact from the Hearings Officer's
decision dated October 7, 2020, adopted as Exhibit F to Ordinance No. 2021-002, are
hereby incorporated as part of this decision.
Exhibit F to Ordinance 2022-010 1
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
B. Procedural History: The Deschutes County Board of County Commissioners
adopted Ordinance No. 2021-002, approving the requested Comprehensive Plan
Amendment and Zone Change of the subject property to Rural Industrial, on January
27, 2021. Central Oregon Landwatch (COLW) appealed Ordinance No. 2021-002 to
the Land Use Board of Appeals. LUBA remanded the decision on June 18, 2021
denying all of COLW's arguments except for one. COLW appealed to the Court of
Appeals and Applicant filed a cross -petition. The Court of Appeals affirmed on the
petition and cross -petition. The Applicant requested in writing on April 7, 2022 that
the County Board proceed with the application on remand pursuant to ORS
215.435.
The Board of County Commissioners limited the remand proceeding to the issue
remanded by LUBA and permitted new evidence and testimony to address the
remand issue. A public hearing on remand was held on May 18, 2022 following
public notice. At the hearing the applicant and Central Oregon Landwatch
submitted written and oral argument. Because COLW filed a procedural objection
that there had not been 20 days between notice of the public hearing and the public
hearing, the Board of County Commissioners continued the public hearing to June 8,
2022. On May 18, 2022, twenty-one days before the continued hearing date, the
County mailed public notice of the continued hearing. The Board of County
Commissioners held a continued public hearing on June 8, 2022, then closed the
hearing but left the record open until June 15, 2022 for additional written evidence,
a rebuttal period ending June 22, 2022, and applicant's final argument on June 29,
2022. Both parties submitted materials for the June 15 written evidence period.
COLW did not submit rebuttal materials for the period ending June 22, 2022.
Applicant submitted final written argument with his rebuttal on June 22, 2022 and
waived the right to submit additional materials on June 29, 2022. The record closed
on June 22, 2022.
The County Board deliberated and voted unaminously to approve the decision on
July 6, 2022.
C. LUBA Decision and Guidance: LUBA's Final Opinion and Order for LUBA No. 2021-
028, issued on June 18, 2022, provides the basis for the remand. Given that other
components of LUBA's final opinion are relevant to the Board of County
Commissioners' reasoning and decision on remand, these findings quote
extensively from that opinion.
The relevant passage from LUBA's opinion that explains the basis for the remand
states:
"The challenged decision does not establish that the county concluded
that compliance with the use and dimensional standards for the RI
Exhibit F to Ordinance 2022-010
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
zone will obviously or inevitably limit the number of employees
employed by the most intensive potential industrial use of the
property, or that the county relied on the TIA as evidence to support
that conclusion. We decline to reach that conclusion under ORS
197.835(11)(b). It is not obvious to us that the RI zone regulations will
necessarily result in a small number of workers. Accordingly, we
agree with petitioner that remand is required for the county to
explain why it concluded that the potential uses would employ a small
number of workers." Slip Op at 35.
On remand, the Board of County Commissioners must address the last sentence in
the above passage.
The Board of County Commissioners also finds that LUBA's opinion accurately
explained the County's approach to demonstrating compliance with Goals 11 and 14
during the acknowledgment process implemented under Ordinances 2002-126 and
2002-127 and the effect of the acknowledgment of those provisions to this and
similar type decisions. LUBA correctly explained:
"To bring RI zoning into compliance with Goals 11 and 14, instead of
taking exceptions to those goals, the county elected to amend the
DCCP and DCC to limit the uses authorized in the RI zone to rural
uses. * * *. To comply with Work Task 14 and Goal 14, the county
amended the DCCP and DCC to restrict the types and intensity of uses
permitted in the RI zone.
"The county relied on the building size limitation in the
Unincorporated Communities Rule as the primary reasons of ensuring
that industrial uses in the RI zone would remain rural, consistent with
Goal 14. * * *. The 2002 Ordinances restrict new rural industrial uses,
except primary processing of raw materials produced in rural areas to
a maximum of 7,500 square feet of floor space within a building. That
floor area limitation is codified in DCC 18.100.040(H)(1).
"Ordinance 2002-126 adopted what is now DCCP Policy 3.4.23, which
applies to land designated and zoned RI and provides:'To assure that
urban uses are not permitted on rural industrial lands, land use
regulations in the [RI] zones shall ensure that the uses allowed are
less intensive than those allowed for unincorporated communities in
OAR 660-22 or any successor. Ordinance 2002-127 amended DCC
chapter 18.100, the RI zone regulations. On January 23, 2003, DLCD
issued Order No. 001456, acknowledging the 2002 Ordinances as
consistent with Goal 14." Slip Op at 18-19. See also, Slip Op 28
Exhibit F to Ordinance 2022-010 3
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
(repeating DLCD acknowledged the 2002 RI zone regulations as
consistent with Goal 14).
Likewise, LUBA's opinion repeatedly and correctly recognizes that the Board of
County Commissioners' position, as stated in the original adopted findings for this
proceeding, is "that even the most intensive industrial use that could be approved
on the subject property under the RI regulations and use limitations would not
constitute an urban use." Slip Op at 24. LUBA quoted further from the findings that
"found that the RI zone 'effectively prevent[s] urban use of rural land' by subjecting
all development in the RI zone to the requirements of DCC chapter 18.100[.]". Slip
Op at 27. And LUBA correctly noted that "the county agreed with intervenor that
'the policies of the DCCP, implemented by DCC Chapter 18.100, which is an
acknowledged land use regulation, do not allow urban uses on RI designated and
zoned land." Slip Op at 29. LUBA further noted that, "Petitioner does not assign
error to that finding on appeal." Finally on this point, LUBA correctly stated,
"The county determined that the DCCP RI policies and implementing
DCC RI use and dimensional limitations will limit the scope and
intensity of industrial development to rural use. In particular, the
county references limitations on maximum floor area and
requirements for on -site sewage disposal and on -site wells or public
water systems." Slip Op at 31.
Despite that correct understanding of the County's position, LUBA concluded that,
because the findings included the second -step Shaffer v. jackson County analysis, the
County must have concluded that the acknowledged zoning regulations were not
sufficient to ensure only rural uses of the property would take place. As LUBA
framed it,
"Accordingly, we assume for purposes of this decision, as the county did
and the parties do, that the fact that the RI zone regulations have been
acknowledged by DLCD to comply with Goal 14 is not independently
sufficient to demonstrate the challenged post -acknowledgment plan
amendment applying their plan designation and zone to the subject
property also complies with Goal 14." Slip Op 29 (emphasis supplied).
The Board of County Commissioners explicitly disagrees with LUBA's "assumption"
and statement about the position taken. Neither the Board of County
Commissioners nor the Applicant took the position that the acknowledged RI zone
regulations are not independently sufficient to ensure that only rural uses of land
can be approved under those regulations. In fact, LUBA's assumption is contrary to
the explicit position taken by both parties in this proceeding as plainly expressed in
the above -quoted passages from the findings as stated in the LUBA opinion.
Exhibit F to Ordinance 2022-010 4
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
Furthermore, LUBA's "assumption" reverses the reasoning behind why both the
County and the Applicant did not oppose proceeding to the second -step of the
Shaffer analysis. Shaffer expressly states that if a party challenges whether a
proposal would result in an urban use of rural land (which Central Oregon
Landwatch did), the local government is required to ask four initial questions.
Furthermore, if any one or more of those questions is not answered in the
affirmative (i.e., potentially not indicating a rural use), Shaffer states that the decision
maker must proceed to the next step. Shaffer is silent about whether a County with
a comprehensive plan and code acknowledged as consistent with Goal 14 is allowed
to skip that second step if there is even a single non -affirmative response,
nonetheless two as was the case in the initial decision. The Board of County
Commissioners does not have the authority to ignore the express directives of
LUBA's Shaffer opinion, particularly since the other case cited in the findings and by
LUBA, Columbia Riverkeeper v. Columbia County, was decided in 2014, well after most
counties' codes, to include the DCC, have been acknowledged as consistent with
Goal 14. The Board of County Commissioners proceeded to the second step of that
analysis because the case law said the Board of County Commissioners was
required to, not for the reason LUBA assumed.
If, as LUBA suggests in its footnote 9, the Shaffer analysis has been superseded by
the Unincorporated Communities Rule or acknowledgment of a land use code as
consistent with Goal 14, LUBA should expressly state so, because its subsequently -
dated rulings suggest that is not the case.
Furthermore, the Board of County Commissioners now expressly finds that the
policies and provisions of the DCCP and DCC are independently sufficient to both
demonstrate that post -acknowledgment plan amendments that apply the Rural
Industrial (RI) plan designation and zoning to rural land are consistent with Goal 14
and that uses and development permitted pursuant to those acknowledged
provisions constitute rural uses, do not constitute urban uses, and maintain the
land as rural land. Given that finding, any further analysis under Shaffer is
redundant and precautionary only.
However, given that LUBA remanded the decision for us to address our response to
one of the initial Shaffer inquiries, these findings now discuss Shaffer further.
One of the four Shaffer questions is, as the adopted findings explain, whether the
industrial use, "Is significantly dependent on a site -specific resource and there is a
practical necessity to site the use near the resource." Rec-73. As the County Board
of Commissioners understands, under Shaffer, any industrial use that is not a
mining, logging or another use that utilizes an on -site resource would necessarily
result in a non -affirmative answer and would require the decision maker to proceed
Exhibit F to Ordinance 2022-010 5
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
to the second -step, which is to take one of the three options set forth in Shaffer and
subsequent opinions. Under Shaffer, as the Applicant and the County understand it,
that sole non -affirmative answer requires proceeding to the second step of the
analysis. Shaffer doesn't even require a local government to address all 4 first -step
questions at the first step if one of the questions is not answered in the affirmative;
the county is simply required to proceed to the second step, which Deschutes
County then did in the original findings.
Relatedly, any general application for the RI designation and zoning that does not
include a specific development proposal, as is the case here, cannot answer that
"site -specific resource" question in the affirmative because the ultimate use of the
property is unknown. In these situations, under Shaffer, the decisionmaker must
always proceed to the second step. The County's undertaking of that second step in
this proceeding, contrary to LUBA's erroneous assumption, had nothing to do with a
belief that the acknowledged DCC provisions were not independently sufficient to
ensure that development would, in fact, be consistent with Goal 14. The County's
undertaking of the second step analysis had to do with the fact that at least one of
the first -step questions could not be answered in the affirmative and Shaffer
requires proceeding to the second step in such instances. In fact, the Applicant's
answer for the second -step analysis, despite non -affirmative responses to two of
the first -step questions in those findings, was that the DCCP and DCC provisions
were sufficient to ensure that development would be consistent with Goal 14 and
that those provisions, "[I]imit[ed] the allowed uses to effectively prevent urban use
of rural land[]" as stated in the original findings. The Board of County
Commissioners again concurs with that response. That conclusion is reached, in
large part, because DCC chapter 18.100 has been acknowledged by LCDC as
consistent with and fully implementing Goal 14 as LUBA recognized in its final
opinion and order. LUBA misconstrued the Board of County Commissioners'
reasoning. LUBA's "assumption" to the contrary was wrong.
The Board of County Commissioners finds nothing in Shaffer, Columbia Riverkeeper,
or any other case that applies the Shaffer analysis that has been cited by the parties
or LUBA, that requires the second step of the Shaffer analysis to disprove any of the
non -affirmative responses to any of the four first -step Shaffer questions. All a non -
affirmative first -step response requires is that the county proceed to the
requirements stated under Shaffer's second step. Furthermore, the cases state that
none of those first -step questions is dispositive regarding whether a proposal is
consistent with Goal 14. A non -affirmative response simply requires additional
analysis and findings via the second step. The County's obligation in that second -
step response is to do one of the following:
"(1) limit allowed uses to effectively prevent urban use of rural land,
(2) take an exception to Goal 14, or (3) adequately explain why the
Exhibit F to Ordinance 2022-010 6
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
proposed use, notwithstanding the presence of one or more factors
pointing toward an urban nature, should be viewed as a rural use."
Columbia Riverkeeper v. Columbia County, 70 Or LUBA 171 aff'd without
opinion, 267 Or App 673, 342 Pad 181 (2014); See also, Shaffer v.
Jackson County, 17 Or LUBA 922, 925 (1989) (Shaffer 11) (citing Shaffer 1,
16 Or LUBA 871, 875 (1988), using different wording).
The purpose of Shaffer's second step is not to necessarily further analyze the
response(s) to the first -step questions; it is to make the demonstration that a
proposal is consistent with Goal 14 despite the non -affirmative responses or for the
local government to take an exception to Goal 14 or include the property within a
UGB.
In written testimony on remand, COLW suggested that Shaffer stands for the
proposition that a finding only of a lack of need for urban services must lead to a
conclusion that the use is not rural. Shaffer states that such a finding alone, without
further explanation, is insufficient to support a conclusion that a proposed use (in
that case an asphalt batch plant) will be rural. This proceeding is unlike the one in
Shaffer. In this instance, there is more in the original record and on remand to
support the conclusion that there will be a small number of workers and that the
uses permitted by the DCC under the development requirements imposed by the
RI -zone will allow only rural uses to be developed on the property. The supporting
evidence includes the numbers of employees derived from the TIA related
materials, the potential limitations on septic capacity on the property as well as the
application of the acknowledged DCC use and dimensional limitations for the RI
zone.
Also, in written testimony on remand, COLW mischaracterized our original Shaffer
findings and LUBA's resolution of those findings. Namely, COLW contended that our
initial decision found that no findings are possible for two of the four factors and
"the fourth factor indicates the proposal is not for a rural use." The County Board of
Commissioners finds that description to be incorrect. The initial findings concluded
that two of the factors indicated the proposed uses would be rural (the number of
workers and the public facilities and services factors) and that for the other two,
there was insufficient evidence to support an affirmative finding. LUBA Record page
189. LUBA remanded only on the number of workers finding, thereby also affirming
our finding that the proposal does not require public facilities or services.
LUBA correctly noted that the original findings conclude that compliance with the
use limitations, dimensional requirements, parking and loading requirements, site
plan review requirements and review, and additional DCC requirements will limit
permissible RI uses on the property to rural uses and ensure that development is
consistent with Goal 14. Slip Op at 24; see also, Rec-190. The Board of County
Exhibit F to Ordinance 2022-010 7
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
Commissioners finds that COLW failed to successfully challenge that ultimate
conclusion.
LUBA remanded the decision for the Board of County Commissioners to adopt
adequate findings related to one of the Shaffer first -step questions. Those findings
and related conclusions on remand are provided under Section II below.
D. Deschutes County Land Use Regulations: As noted in LUBA's opinion, the
Deschutes County Comprehensive Plan and Title 18 of the Deschutes County Code
have been acknowledged by LCDC as consistent with every statewide planning goal,
to include Goal 14.
The Comprehensive Plan states that the Rural Industrial plan designation and
zoning are applied to specific properties to provide compliance with state rules by
adopting zoning to ensure that those properties remain rural and that the uses
allowed there are less intensive than those allowed in unincorporated communities
as defined in OAR 660-022. Comprehensive Plan, Ch. 3, p. 11 (emphasis supplied).
Specific Comprehensive Plan Policies implement this statement. These include:
Policy 3.4.23 To assure that urban uses are not permitted on rural
industrial lands, land use regulations in the Rural Industrial zones shall
ensure that the uses allowed are less intensive than those allowed for
unincorporated communities in OAR 660-22 or any successor.
Policy 3.4.27 Land use regulations shall ensure that new uses authorized
within the Rural Industrial sites do not adversely affect agricultural and
forest uses in the surrounding area.
Policy 3.4.28 New industrial uses shall be limited in size to a maximum
floor area of 7,500 square feet per use within a building, except for the
primary processing of raw materials produced in rural areas, for which
there is no floor area per use limitation.
Policy 3.4.31 Residential and industrial uses shall be served by DEQ
approved on -site sewage disposal systems.
Policy 3.4.32 Residential and industrial uses shall be served by on -site
wells or public water systems.
Policy 3.4.33 Community sewer systems shall not be allowed in Rural
Industrial zones.
Exhibit F to Ordinance 2022-010 8
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
The Deschutes County Code Chapter 18.100 RURAL INDUSTRIAL ZONE - R-I,
implements the above Comprehensive Plan policies. It limits the types of industrial
uses, whether permitted outright or through conditional approval, to rural industrial
uses at levels less intensive than for those allowed for in unincorporated
communities. DCC 18.100.010 and .020. The DCC further restricts those industrial
uses through use limitations, dimensional standards, off-street parking and loading
standards, site design, additional requirements, and solar setback restrictions. DCC
18.100.030 through .080.
The Board of County Commissioners expressly finds, as did DLCD in its
acknowledgment order, that rural industrial development of uses, permitted
outright by DCC 18.100.010 and conditionally under DCC.100.020, that is consistent
with the development limitations imposed by the DCCP and DCC is consistent with
Goal 14, constitutes rural use of rural land and does not constitute urban uses or
development.
E. Issues on Remand: The issue on remand concerns adequate findings regarding
the Shaffer inquiry whether the uses allowed under the proposal would employ a
small number of workers and, relatedly, how that may affect the second -step Goal
14 analysis and conclusion that the approved comprehensive plan and zone change
to RI will allow only rural use and not urban use of the subject property such that no
Goal 14 exception is required. LUBA succinctly framed the action to be taken on
remand:
"(R)emand is required for the county to explain why it concluded that
the potential uses would employ a small number of workers." Slip Op
at 35.
All other issues in this proceeding have either been resolved by LUBA or are
otherwise precluded because they were waived, not raised or otherwise not
preserved in the appeal to LUBA. These resolved and waived issues include, but are
not limited to:
Whether the applicant's TIA evidence provided the'worst case' development
scenario that assumes the most intensive level of development that could be
allowed under RI zoning on the property given that the uses are subject to
zone, site plan review and conditional use criteria that apply not only as a
result of any specific use, but also as a result of the property's location and
relationships to adjacent residential uses.
Challenges to the accuracy or credibility of the traffic -related evidence and
analysis including but not limited to traffic counts, whether it represents a
reasonable worst -case scenario, or is otherwise valid.
Exhibit F to Ordinance 2022-010 9
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
• Whether the Deschutes County Comprehensive Plan limits the RI plan
designation to existing rural industrial development and cannot be applied to
the subject property.
• That the proposal fails to comply with Goals 6 and/or 11.
• That industrial development is a per se urban use that requires a Goal 14
exception if on rural land.
• That the County misconstrued the Curry County decision as it applies to Goal
14.
• Whether the County deferred its determination of Goal 14 compliance.
• That the County is prohibited as a matter of law from analyzing Goal 14
compliance in the context of RI zoning in the absence of a specific proposed
industrial use.
• Challenges to the finding that the RI zone "effectively prevent[s] urban use of
rural land" by subjecting all development in the RI zone to the requirements
of DCC chapter 18.100, which allow development that is less intense than
that allowed under the Unincorporated Communities Rule."
• Challenges to the finding that "the policies of the DCCP, implemented by DCC
Chapter 18.100, which is an acknowledged land use regulation, do not allow
urban uses on RI designated and zoned land."
• Challenges to the finding that "[t]he property is located about 3.25 miles
north of Bend and 6.5 miles south of Redmond via US 97."
• Challenges to the finding that the subject property is served with existing
private water service.
II. CONCLUSIONS OF LAW:
Summarizing the analysis and conclusions below, the Board of County
Commissioners concludes that the evidence in the record establishes that
development on the subject property under the requested plan designation and
zone change to RI will employ a small number of workers. That conclusion is
consistent with the Board's original decision, which LUBA has otherwise affirmed.
The Board of County Commissioners concludes that approval of the application and
the reasonable worst case scenario of approximately 90 employees, will continue to
allow only rural use of rural land on the subject property. The Board of County
Commissioners again approves the requested plan designation and zone change
applications.
In the alternative and as a precaution only, in the event that LUBA disagrees with
our conclusion that the proposal will only allow development that will employ a
small number of workers, the Board of County Commissioners concludes that, even
if there is the potential that the uses allowed could employ more than a small
number of workers, the RI zone regulations have been acknowledged by DLCD to
comply with Goal 14 and the application of those regulations is independently
Exhibit F to Ordinance 2022-010 10
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
sufficient to demonstrate that this post -acknowledgment plan amendment, which
applies the RI plan designation and zone to the subject property, also complies with
Goal 14. The adopted and acknowledged use limitations, dimensional standards,
off-street parking and loading standards, site design, additional requirements, solar
setbacks, and restrictions imposed under DCC 18.100.030 through .080 and other
invoked DCC provisions so limit the scale, scope and intensity of allowed uses and
development on the subject property to effectively prevent urban use of rural land.
The Board of County Commissioners' conclusion now, as it was originally, is that the
DCC 18.100 provisions that will apply to all development on the property will ensure
that any allowed uses and development will constitute rural use of rural land
consistent with Goal 14 and related comprehensive plan rural and urbanization
policies even if one or more uses does not necessarily employ a small number of
workers. Consequently, an exception to Goal 14 is not required to approve the
applications. Under this precautionary alternative analysis, the Board of County
Commissioners approves the requested plan designation and zone change
applications.
Development allowed under the proposed plan designation and zone change
will employ a small number of workers and constitutes a rural use of rural
land.
Given that there is not a specific development proposal for the subject property, it is
difficult to make a precise determination on the number of employees resulting
from the proposed application. That does not mean, however, that the analysis of
this factor is mere supposition or is not based on evidence a reasonable decision
maker would rely upon. Three pillars underly the Board of County Commissioner's
analysis: (1) the site context; (2) the applicable DCC 18.100 requirements and other
relevant standards; and (3) the evidence and analysis in the record, to include the
Transportation Impact Analysis (TIA) and supplemental analysis provided during the
remand proceedings by Transight Consulting and evidence concerning the
suitability of the site's soils for septic systems. Based upon this evidence in the
record the Board of County Commissioners concludes that approval of the
applications and the development it will permit under a reasonable worst -case
scenario will result in 90 workers, which is thereby recognized as a "small" number
of workers.
As an initial matter, the Board of County Commissioners notes that neither LUBA
nor any party has identified any regulations or case law that establish, as a matter of
law, what constitutes a "small" number of employees. The record shows that
Central Oregon Landwatch has argued that "small" means 1 to 3 workers per
property, but cites to no statute, rule, code provision or case that mandates that as
the standard. The Board of County Commissioners accepts that 1 to 3 workers per
property would be small, but rejects the idea that more than 3 workers per property
Exhibit F to Ordinance 2022-010 11
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
cannot constitute a small number of workers. It is common for commercial and
industrial uses, even in rural areas, to have more than 3 numbers of workers and
still constitute a rural use.
During the remand proceedings, COLW submitted an analysis of the City of Bend's
economy that indicates the average "firm" size had eight employees. Based on that
evidence, COLW asserts that eight (8) workers is an "urban" number of workers.
Applicant responds that the inquiry remanded by LUBA concerns whether the uses
will employ a "small number of workers" not an "urban" or "rural" number of
workers and that in order to characterize the number of workers as "urban" or
"rural" requires the analysis of a number of other factors. The Board of County
Commissioners agrees with Applicant and that the focus of this remand proceeding
is to determine whether the uses allowed will employ a small number of workers.
The Board of County Commissioners finds that the site context limits the
development potential of the subject property. The Applicant's extensive evidence
regarding surrounding land uses establishes that there are adjacent residential
dwellings located to the north, west and south of the subject property. The
proximity of those residential uses trigger RI -zone development limitations that
further restrict the type and intensity of development that can occur on the
property. The adjacent residential dwellings, in addition to the location of major
roads adjacent to and through the subject property, also trigger greater setbacks
than otherwise would be required, which further limits the amount and intensity of
development that can occur on the subject property. That in turn limits the number
of workers that can be employed on the subject property as it is developed with RI
permitted uses under the RI -zone development standards.
Given the location and number of those residential uses, much of the property is
within 600 feet of a residential dwelling and consequently, pursuant to DCC
18.100.010 and 18.100.020(A), all of the uses permitted outright under DCC
18.100.010 in those areas are subject to conditional use review. Given the
property's location adjacent to and bisected by major roadways and residential
uses, the footprint available for development is further reduced pursuant to DCC
18.100.040(C) and (D), which impose greater set -back standards than normally
apply. The TIA provided by the applicant, at Rec-1267 noted by the applicant,
contains a diagram showing the existing parcel sizes, setbacks, and easements on
the subject property. The TIA explains that approximately 15.5 acres of the property
is developable, with one acre presently developed. Within that buildable area, DCC
18.100.040(B) further limits any lot within 600 feet of a residence to 70 or less
percent lot coverage, to include buildings, storage areas or facilities, and required
off-street parking and loading areas. Last, DCC 18.100.040(H)(1) limits the maximum
size of a building anywhere on the RI -zoned site to 7,500 square feet of developed
floor space per lot, whether as a single building or combined buildings per lot.
Exhibit F to Ordinance 2022-010 12
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
While it may seem that none of the above standards expressly speak to the number
of workers that may use a site, the above affects the amount of floor space that can
be reasonably built on the subject property. As Transight Consulting's letter on
remand and the TIA plainly establishes, vehicle trips that include worker trips is
based on the size of the building for permitted uses. Contrary to COLW's assertion
that there is no way to determine the number of workers that might be employed
by an unidentified factory, the ITE Trip Generation manual is based on just that type
of general use analysis and is not dependent on a specific development proposal.
As Transight Consulting explains, the TIA process yields a total daily number of trips
per use category based on building size(s). The evidence submitted on remand
supports that statement. The Goal 12 rule relies on that very ability to estimate the
traffic flow from different possible use scenarios and requires the analysis to use a
reasonable "worst case" development scenario. These ITE-based daily trip counts
incorporate all types of trips, to include worker trips, deliveries, customers and
business clients. Transight Consulting's letter and TIA, and its reliance on ITE best
practices, constitutes credible and reliable evidence that takes into account the
development restrictions the code imposes on the subject property, the maximum
building sizes allowed under the code, and the number of workers associated with
various uses and permitted building sizes.
The Transight Consulting TIA included in the record, as summarized by the Transight
Consulting letter submitted for the remand proceedings, sets forth a reasonable
"worst case" scenario about how the subject property could be developed under the
proposed RI plan designation and zoning at applicant's noted record item Rec-1269
and Table 2. The Board of County Commissioners notes that County Transportation
staff expressly agreed with the assumptions, methodology and conclusion of the
TIA, although staff did not fully agree with its initial proposed mitigation measures.
ODOT likewise did not challenge the TIA's assumptions, methodology or conclusions
other than posing several questions regarding the underlying basis and growth
rates used in the calculations and requesting additional safety analysis not relevant
here. ODOT did not object to or otherwise challenge Transight Consulting's
responses to ODOTs questions.
At the remand public hearing, COLW claimed that the TIA analysis is irrelevant to the
number of workers issue and that the worst -case scenario for Goal 12 purposes is
irrelevant to the number of workers issue. The Board of County Commissioners
disagrees. The TIA analysis methodology takes into consideration the types of uses
the zoning code permits for the property, the size of development that can be
authorized, and the traffic flow that is generated from the number of workers for
those uses in those sized buildings, as well as the traffic volumes that deliveries and
customers to those uses and permitted development world bring under a worst -
case development scenario. In short, embedded in the TIA analysis is the number of
Exhibit F to Ordinance 2022-010 13
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
workers that will result from the most intensive development of the property
permissible under the code.
The Board further notes that COLW did not directly challenge the accuracy or
credibility of the Transight Consulting TIA. Significantly, COLW did not in any way
challenge during the prior local appeal proceeding or at LUBA whether the TIA's
development scenario represented a reasonable "worst case" development scenario
as is required by Goal 12. The Board also notes that COLW made no effort to
submit evidence during the original proceeding or on remand regarding
development of the property consistent with the constraints imposed by the DCC
and the subject property's characteristics. During testimony on remand, COLW
alleged that "thousands" of workers could be employed under RI development of
the subject property, but provided no evidence that would support that claim. That
unsubstantiated claim is contradicted by the daily trip count data provided in the
TIA, which County Transportation Staff concurred and ODOT did not object to. The
Board of County Commissioners find the TIA to be credible and that it provides a
"worst case" development scenario for the subject property.
The Board of County Commissioners note that, as found in the original adopted
findings, the Applicant will be able to partition or subdivide the subject property,
and such subdivision may remove some, but not all, of the limitations on
development imposed by DCC standards. Furthermore, the Board notes that it is
possible to discern from TIA Table 2, in record item Rec-1269 per the applicant,
based on the maximum permitted building size of 7,500 square feet, that the
property could be subdivided into 10 lots in a reasonable "worst case'' scenario. See
also, Transight Consulting remand letter, Table 1 (indicating similar data).
On remand, Transight Consulting submitted a letter that explains what the 63,160
square feet of building uses that could be developed on the property on those 10
lots could represent in terms of the numbers of workers employed by the uses
described in the TIA. The Transight Consulting remand letter states that the "worst
case" scenario would employ 90 workers. Table 2 of the remand letter shows the
breakdown of total employees based upon the various land uses. Transight
Consulting further testified at the hearing and provided additional background
material to substantiate its conclusions. The Board of County Commissioners finds
that evidence credible and agrees that 90 workers is a "worst case" scenario
regarding the potential number of workers for the subject property given the fact
that the ITE use data is based on suburban employment levels and, as the Transight
consulting letter explains, rural uses "tend to result in more land -intensive uses as is
evident by the surrounding development patterns of similarly zoned industrial
lands." Despite that aspect of the ITE data, the Board of County Commissioners
bases its conclusion on the figure shown by the ITE analysis - 90 workers. The
Exhibit F to Ordinance 2022-010 14
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
Board of County Commissioners concludes that for a property of this size, 21.54
acres, 90 workers is a small number of workers.
In addition, Transight Consulting's analysis further explains that this does not mean
that 90 employees will be on the property at any given time. Rather, Transight
Consulting states that approximately half of the employees are likely to be at work
and present on the property at any given time.
An examination of the above evidence is revealing. The most intensive of the
remand letter Table 2 "worst case" scenario listed uses is specialty trade contractor.
With 12,000 square feet of building, under the DCC's development standards the
total employees (34) would be spread over two different lots. That makes 17
workers each for those two lots. At any given time, half, or 9 employees would be
on each lot. The Board of County Commissioners finds that to be a low number of
workers per industrial use - at either the 17 or 9 number of workers. Each of the
other "worst case" scenario uses have an even lower number of workers per lot.
Worth noting is that the mini -storage facility example posited by COLW has among
the lowest number of workers of any permitted use on the subject property as
demonstrated by the Transight Consulting responding evidence.
During the remand hearing, the Board of County Commissioners inquired whether
there were any other site -specific considerations that might limit the number of
workers that could be permitted on the subject property. In response to an inquiry
regarding the septic capacity of the subject property's soils, the Applicant submitted
the detailed soils study for the property ("Borine study") and an email exchange
between the Applicant and Todd Cleveland, the County's Environmental Soils
Supervisor. The analysis and conclusions reached by the County's expert regarding
the number of workers that could be employed on the property are similar to those
noted above.
Mr. Cleveland explained that the soil mapping shows that at least 60% of the subject
property is not suitable for any type of onsite treatment system and that none of
the property is suitable for a standard septic system. Mr. Cleveland further explains
that any system, whether an absorption or holding tank system, will only operate
with constraints that ensure very low total water usage. DEQ's rules will have the
direct effect of limiting the types of industrial uses and the total number of persons
at any of the facilities. Mr. Cleveland concluded that, even with multiple holding
tank facilities, the total number of workers that could be employed on the site
would number in the dozens, not hundreds, because of the site limitations. The
Board of County Commissioners recognizes that this information is preliminary and
serves informational purposes, not providing any specific approvals, and provides
adequate general guidance regarding the impacts of septic feasibility and its
impacts on the potential number of employees. The Board finds the Borine study
Exhibit F to Ordinance 2022-010 15
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
and Mr. Cleveland's analysis and conclusions from that study to be credible, albeit
general in nature. The analysis and conclusions are based on site -specific evidence
and are consistent with what Mr. Cleveland states is typical elsewhere in the county.
COLW argues that Mr. Cleveland's testimony is not probative and should be rejected
because: the soils data does not satisfy all the requirements for a DEQ septic site
evaluation; the evidence does not provide an exact number of workers that could be
employed on the site; and that the analysis fails to consider potential use of a
composting or combustion waste disposal facility or use of surrounding lands for
septic drainfields. The Board of County Commissioners disagrees for the following
reasons.
Whether the soils study Mr. Cleveland bases his opinion on satisfies DEQ septic site
evaluation regulations does not go to the probative value of Mr. Cleveland's
analysis, it goes to the scope of the underlying evidence. The Board of County
Commissioners finds that Mr. Cleveland appropriately qualified his analysis,
indicating both the soil study's value and its limitations and explaining where
additional information would be required in order to make more precise
conclusions. The Board finds the evidence both probative and credible for the
professional opinion being expressed within the limitations explained by Mr.
Cleveland. The Board also notes that this information is solely for the purpose of
anticipating the potential number of employees, and that further analysis would be
required prior to any use operating on the property.
As noted above, although Mr. Cleveland does not offer an exact number of workers
that on -site DEQ approved systems could support, the "dozens and not hundreds"
conclusion is consistent with the Transight Consulting analysis and rebuts COLW's
claim that it could mean 180 or 250 (i.e., hundreds) workers. The lack of exactness
does not make Mr. Cleveland's analysis not probative.
Regarding potential alternative means of disposal, Mr. Cleveland's analysis is
directed to the suitability of the site to on -site septic systems and is probative as to
the suitability of such systems. That Mr. Cleveland's analysis does not consider
other system types or off -site drainfield locations goes to the scope of the analysis,
not its probative value.
With respect to the cited sewage disposal systems, the Board of County
Commissioners notes that COLW submitted no evidence that such systems could be
utilized on the property, which is relevant because neither composting nor
combustion waste facilities is a permitted use in the RI zone. Likewise, COLW's
claims that an "off -site" septic drainfield could be used is contrary to the express
requirements of DCC 18.100.030(K) which requires industrial uses to "be served by
DEQ approved on -site sewage disposal systems."
Exhibit F to Ordinance 2022-010 16
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
Mr. Cleveland's conclusion, that an on -site septic system may act as a further
restriction on the level of development and, consequently, further limit the number
of workers on the property to that less than what could otherwise be permitted
under a DCC worst -case development scenario, is credible and probative to the
issue on remand. COLW's arguments do not demonstrate otherwise.
COLW also contends that the Board of County Commissioners' acceptance of and
reliance on Mr. Cleveland's analysis opens the decision up to charges of prejudice
and prejudgment and claims of bias. The County Commissioners expressly state
that they are not biased or prejudiced in either their review of Mr. Cleveland's
statements or with respect to this proceeding. Mr. Cleveland's review of the study
presented to him is no different than the County or ODOT analysis of the Applicant's
TIA. The Board of County Commissioners reaches this decision on remand by
applying the relevant standards based on the evidence and arguments presented in
this remand proceeding and the original proceeding. The Board of County
Commissioners has not prejudged the evidence or the final decision in this remand
proceeding.
The Board of County Commissioners also notes that sewer services cannot be
provided to the subject property and that any approval for development will require
DEQ approval for the proposed septic system. If a normal on -site septic system is
used, this site -specific soil condition will likely further ensure that employment on
the subject property under RI zoning is limited to a small number of workers.
The Board of County Commissioners concludes that, given the number of lots and
the types of industrial uses that could be developed on the subject property even
under a "worst case" scenario, as well as the limitations on development imposed by
the soil conditions for the property, the industrial uses that could be approved
under the DCC will employ a small number of workers. The Board of County
Commissioners reaches this conclusion whether one looks at the subject property
as a whole, employing 90 workers, or as individual subdivided/partitioned lots with
the smaller numbers of workers per lot that would be permitted under the DCC
restrictions, as explained in the Transight Consulting materials.
During the original local appeal proceedings, COLW argued that the number of
employees "could number into the hundreds per factory." As noted above, at the
hearing on remand COLW raised that generalized amount to "thousands." The
Board of County Commissioners notes that COLW did not submit any evidence to
support such allegations. As the Applicant rightly explained, attorney assertions do
not constitute evidence. The Board further notes that COLW submitted no evidence
regarding the number of workers typically employed by rural industrial uses, nor did
COLW attempt to explain in any way, how the number of workers it claimed could
Exhibit F to Ordinance 2022-010 17
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
be employed on the subject property is possible under the scale of development
consistent with the limitations imposed on uses and development by DCC Chapter
18.100.
It is difficult to imagine "hundreds" of workers in a 7,500 square foot building.
Furthermore, for example, COLW's claim that 300 workers or more could be
employed at a sin le factory would likely result in an average daily trip count
approaching 600 (assuming some workers carpool) for that factory for only the
workers. That trip count would not include deliveries to or from the factory, or visits
by clients. That daily trip count number is refuted by the ITE-based daily trip count
evidence in the record, which COLW made no effort to challenge in the previous
proceeding. Simply put, the claim of hundreds of employees ep r lot or thousands
for the entire site cannot be reconciled with the TIA analysis, to which County
Transportation staff concurred. That analysis establishes much lower daily trip
counts for the entire subject property under a reasonable "worst case" development
scenario than COLW contends could be allowed under the DCC standards for a
single factory. Furthermore, such claims are refuted by the soils evidence and
analysis provided by Todd Cleveland, the County's Environmental Soils Supervisor.
Mr. Cleveland concluded that, given the poor soils on the property and the unusual
septic systems that would be required to serve rural industrial uses, at best "dozens
"of workers could be employed on the subject property not "hundreds." Mr.
Cleveland also indicated that the soils conditions would limit the types of rural
industrial uses to those that produce a low volume of waste water.
Given the above evidence regarding a worst case development scenario under the
DCC and further limitations on development posed by the soil conditions on the
property, the Board of County Commissioners rejects COLW's assertion that the
Applicant must submit evidence or the Board must make findings regarding every
type of possible use or factory - be it a cellophane, cork or feathers factory or a
mini -storage unit. Nothing COLW has entered into the record undermines the
Applicant's evidence. Likewise, none of the potential development scenarios
described by COLW, such as 122 factories each 7,500 square feet in size, could be
developed on the subject property. Approval of such scenarios are not possible
under the DCC. The Board of County Commissioners hereby adopts Applicant's
responses to each of the posited scenarios as to the unfeasibility of those proposals
under the DCC Chapter 18.100 development standards as its own. Consequently,
the Board of County Commissioners finds as not credible COLW's various
unsubstantiated claims regarding possible numbers of workers that could be
employed on the property.
One final comparison is worth noting. The unincorporated communities rule at OAR
660-022-0030(3)(c) limits new industrial uses to "small-scale, low impact uses[.]" As
discussed above, the purpose for RI zoning is to ensure that the uses allowed are
Exhibit F to Ordinance 2022-010 18
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
less intensive than those allowed for unincorporated communities. OAR 660-022-
0030(11) goes on to state that the size of such a "small-scale" industrial building
shall not exceed 40,000 square feet of floor space for unincorporated communities
and 60,000 square feet of floor space for urban unincorporated communities. By
comparison, DCC 18.100.040(H)(1) limits the maximum size of a building in the RI
zone to 7,500 square feet of floor space, which is less than one -fifth the size of a
"small-scale" unincorporated community industrial building. As the Transight
Consulting TIA plainly demonstrates, trip counts, to include employee vehicle trips,
are dependent on building sizes in association with a given use. It is reasonable to
deduce that, at one -fifth the permissible building size of a "small-scale"
unincorporated community industrial use, there will be a corresponding reduction
in vehicle trips, to include numbers of workers and their vehicle trips, under the DCC
RI development limitations. If only "small-scale" industrial uses are permitted in
rural unincorporated communities, it stands to reason that one -fifth of "small-scale"
is even smaller scale, with a correspondingly small number of workers.
For the reasons provided above, the Board of County Commissioners conclude that
the evidence in the record demonstrates that industrial uses and development that
could be approved under the proposed RI plan designation and zone change under
a reasonable worst case scenario would employ a small number of workers.
Because this conclusion is consistent with our previous determination and LUBA
denied each of COLW's other assignments of error regarding all other portions of
the Board of County Commissioners' Goal 14 and the Shaffer analysis in the original
decision, the Board of County Commissioners again approves the requested plan
designation and zone change applications.
Alternatively, even if the plan designation and zone change will employ more
than a small number of workers as a matter of law, the provisions of DCC
Chapter 18.100 will ensure that any allowed uses and development will
constitute rural use of rural land.
In the alternative and as a precaution only, if LUBA concludes that the above
determination that the proposal will employ a small number of workers is in error
the Board of County Commissioners adopts the following findings based on the
presumption that approval of the applications will allow "more" than a "small
number of workers" on the property.
The Board of County Commissioners reiterate, as LUBA's opinion recognizes, that
DLCD's acknowledgment of the DCCP and DCC as consistent with Goal 14 was not
based on measures that limited the number of employees permitted on land zoned
rural industrial. Rather, during acknowledgment the County took a different
approach and adopted DCCP and DCC provisions that operate to limit the types and
intensity of the uses allowed and its related development. Framed differently,
Exhibit F to Ordinance 2022-010 19
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
DLCD's acknowledgement of the DCCP and DCC as consistent with Goal 14 and
allowing only the rural use of rural land is independent of the number of workers
that may be ultimately employed by permitted uses developed consistent with the
DCC limitations. In short, Shaffer's "small number of workers" inquiry has little
significance regarding whether the DCC is consistent with Goal 14 and adequately
imposes limits on allowed uses to ensure they constitute rural use of land. Even if
there may be more than a "small" number of employees, that fact alone does not
categorically mean that the uses allowed under the adopted and acknowledged DCC
standards do not constitute a rural use of rural land. Consequently, the potential
number of workers alone is not a basis to conclude that the DCC limitations do not
ensure that only rural uses are approved on rural land. There is no County or State
standard or approval criteria for this application that make the number of workers a
determining factor for approval of the application.
Nothing in state statutes, administrative rules, Shaffer or any other case law cited to
the Board of County Commissioners stands for the proposition that a use can only
constitute a rural use on rural land if it employs a small number of workers. Such a
contention would be contrary to DLCD's acknowledgment of the DCCP and DCC as
well as with express statements in Shaffer and other caselaw that says the "small
number of workers" and other first -step Shaffer questions are not determinative of
whether rural use of rural land will flow from the decision, they are only indicators
that further inquiry and possible actions are required. In this instance, the evidence
in the record shows what a "worst case" development scenario would look like on
the subject property under the adopted and acknowledged DCC provisions.
Development under the DCC is not unlimited as COLW's testimony suggests. The
evidence in the record establishes that the types of uses and levels of activity
permitted under the DCC are consistent with Goal 14's mandate to allow only rural
use of rural land. Indeed, LUBA affirmed our Goal 14 conclusions, rejecting COLW's
Goal 14 challenges.
As discussed above, the TIA demonstrates that, even if LUBA determines that the
evidence does not support the conclusion that the allowed uses will employ a
"small" number of workers, that number is not substantial, particularly given the
total number of vehicle trips development of the site could produce in a "worst
case" scenario. As discussed above, that relatively low number of vehicle trips is the
direct result of acknowledged DCC standards, such as the DCC 18.100.040(H)(1)
dimensional standard that imposes a 7,500 square foot maximum for a building or
buildings in a single use on an individual lot, and other standards that apply in this
instance such as the applicable 70 percent lot coverage limitation and setback
requirements. Those restrictions limit the scope and intensity of the allowed
development on the property. That analysis is just as valid here as it is above, even
if LUBA reaches a different conclusion regarding whether the possible number of
employees that the daily trip totals suggest is "small." That possible characterization
Exhibit F to Ordinance 2022-010 20
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
for the number of workers does not change the fact that DLCD has acknowledged
that development of the allowed uses under the development restrictions imposed
by the DCC will constitute rural use of rural land consistent with Goal 14.
COLW contends that the issue of whether the RI zone has been determined to be in
compliance with Goal 14 by prior acknowledgement was waived by the Applicant,
claiming that the Court of Appeals so held. The Board of County Commissioners
rejects the argument that the issue of DLCD's acknowledgment of the RI zone's
consistency with the Statewide Planning Goals, to include Goal 14, has been waived.
The Court of Appeals statement quoted by Appellant concerned whether the
argument, "that LUBA should not have applied the Shaffer test at all" had been
waived. Central Oregon Landwatch v. Deschutes County, 315 Or App 673, 680, 501 P3d
1121 (2021). That is not the same as saying that the issue of whether the DCC is
acknowledged as consistent with Goal 14 and the other Statewide Planning Goals
has been waived. The goal compliance issue has not been waived. As quoted
extensively above in Section C of these findings, LUBA recognized that the DCC has
been acknowledged as consistent with Goal 14 and that our original findings
repeatedly asserted that the DCC is consistent with Goal 14 such that "that even the
most intensive industrial use that could be approved on the subject property under
the RI regulations and use limitations would not constitute an urban use." Central
Oregon Landwatch v. Deschutes County, _ Or LUBA _ (LUBA No 2021-028, June 18,
2021) (Slip Op at 24). The Board of County Commissioners also notes, as discussed
in Section C above, that LUBA "assumed" we did not believe the application of our RI
zone regulations was not sufficient to ensure development would comply with Goal
14. id, Slip Op at 29. As explained above, LUBA's "assumption" was incorrect. LUBA
did not conclusively resolve that issue and it has not been waived.
At the remand hearing and in written materials, COLW made various claims about
potential impacts from different development scenarios. The Board of County
Commissioners find none of those scenarios to be credible. The most specific of the
COLW development scenario claims is that 122 buildings, each 7,500 square feet in
size, could be built on the property if the RI plan designation and zoning were
approved. As the Applicant explained, that figure represents 915,000 square feet of
building space, which is equivalent to the entire 21-acre subject property. The
Board of County Commissioners finds that such a development scenario could not
be approved for the subject property because it disregards the limitations imposed
by the DCC setback standards, 70 percent lot coverage on large portions of the
property and all other development standards discussed in these findings. COLW's
claim that a mini -storage facility could be developed on the property that has 18,000
units is not based on any evidence that such a facility could be designed in a
manner that complies with the DCC development standards noted above.
Furthermore, COLW's mini -storage vehicle trip and employee claims are refuted by
Transight Consulting evidence that addresses vehicle trips and numbers of
Exhibit F to Ordinance 2022-010 21
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
employees for mini -storage facility uses. Similarly, COLW's allegations about
cellophane, cork and feather factories are not supported by any evidence in the
record and represent mere allegations. The Board of County Commissioners finds
that such extreme claims so undermine COLW's credibility as to make any
statement or assertion by COLW, not supported by explicit, detailed factual
evidence, highly suspect and not credible. The Applicant carried his burden of proof
with credible evidence. Rejecting arguments and scenarios that are not based on
any evidence in the record or that represents development that cannot be approved
under the acknowledged DCC development standards does not shift the burden of
proof as COLW has argued.
The Board of County Commissioners further note that the original decision that
concluded the proposal will prevent the urban use of rural land was based, in part,
upon transportation considerations. Those considerations necessarily included the
TIA. The Board of County Commissioners' analysis of the TIA and the conclusions
reached were based on the daily trips generated under that "reasonable worst -case"
development scenario and are valid regardless of whether the number of worker
trips within those traffic volumes is properly classified as a "small" or "more than
small" number of workers. The Board of County Commissioner's conclusion is the
same here as with the initial decision - the development of uses represented by a
"worst case" rural industrial development of the site under the DCC maintains the
land as rural land consistent with Goal 14. Whether the 90 workers represents a
"small number or workers" or not, does not change our ultimate Goal 14 conclusion
or the second -step of our Shaffer analysis. Our conclusion remains that the DCCP
and DCC so limit the allowed uses as to effectively prevent urban use of rural land,
and the evidence supports that conclusion. Again, COLW presented no evidence
that challenges, nonetheless refutes, that underlying evidence, nor did COLW
challenge on appeal to LUBA any of the other findings from our original decision
that support the Board's ultimate conclusion.
Other acknowledged DCC standards similarly restrict the scope and intensity of
permissible RI uses such that approval of development proposals under the
acknowledged standards ensure that only rural uses will occur on rural land. For
example, DCC 18.100.030(B) limits uses on lots adjacent to residential dwellings to
no more than 30 truck trailer or other heavy equipment trips per day. That is not an
urban level of activity. More importantly, this is the first time that a vehicle trip cap
by type - to include employee, customer and delivery vehicle trips - has been
assigned to an acknowledged DLCD RI approval standard within the county code to
ensure approved uses remain rural and compatible with surrounding uses. That
standard demonstrates that there exists a relationship between vehicle trips and
the intensity of approved rural industrial uses, to include the number of employees
(who may be driving such vehicles to and from the property during the course of
business). That limitation applies to portions of the subject property given the
Exhibit F to Ordinance 2022-010 22
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
relationship of the property to surrounding residential lots and imposes strict limits
on activities that can be approved for the subject property.
Likewise, DCC 18.100.030(K) and (L) limit industrial uses to those that can be served
by DEQ approved on -site sewage disposal systems and on -site wells or public water
systems respectively. Again, those two provisions operate to ensure only rural uses
are permitted and developed on rural industrial land by greatly limiting the services
that could facilitate larger more intensive services, much like limiting building size.
Such limitations are significant for the subject property. The soil suitability evidence
submitted during the remand proceeding establishes that 60% of the property is not
suitable for any type of onsite treatment system and that none of the property is
suitable for a standard system. The costs of utilizing a holding tank system as well
as the extreme volume limitations of such systems means that uses that involve the
use and disposal or high volumes of water, or that employ a high number of
workers that will have sewer needs will not be able to satisfy the DCC requirements
for DEQ permits and ultimately cannot be approved for the subject property.
Continuing with the DCC's development limitations, other provisions restrict allowed
uses on the subject property due to the fact that most of the property is within 600
feet of a residential dwelling. DCC 18.100.030(D) prohibits uses that emit odors,
dust, fumes, glare, flashing lights, noise or similar disturbances perceptible without
instruments more than 200 feet in the direction of an affected residential use. That
limitation greatly reduces the intensity of permissible development. Also, DCC
18.100.020(A) mandates that even permitted uses within 600 feet of a residential
dwelling be subject to conditional use review. The general standards governing
conditional uses under DCC 18.125.015(A) and (B) require that the site be suitable
for the proposed use, to include the "operating characteristics of the use," and that
the proposed use be compatible with existing and projected uses on surrounding
properties, which are rural uses. An industrial use that has excessive disturbances
or is not consistent with the rural designation and zoning of the subject property or
the surrounding rural designated and zoned properties cannot be approved on the
subject property under the above standards.
While COLW argued during the initial proceedings that giant lumber and pulp mills
or plastic manufacturing factories could be approved on the subject property and
that such uses could employ hundreds of employees, COLW made no effort to
demonstrate through evidence or argument that any such proposal could satisfy
any, nonetheless all, of the limiting standards or physical site conditions discussed
above on the subject property. COLW's evidence and testimony, whether during the
initial proceedings or on remand, totally ignore the DCC use limitations and
dimensional standards that were the basis for LCDC acknowledging the DCC as
consistent with the Statewide Planning Goals, The Board of County Commissioners
find that the purpose of the DCC use limitation and dimensional standards is to
Exhibit F to Ordinance 2022-010 23
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
prevent the very types of intensive industrial development that COLW bases its
arguments upon. Uses of that scale and intensity could never be approved for the
subject property under the DCC restrictions acknowledged by DLCD.
The Board of County Commissioners expressly reiterates the following findings
drawn from the original decision that the DCC so limits allowed uses as to effectively
prevent urban use of rural land and that a Goal 14 exception is not required for
approval of the applications.
• "DCC Chapter 18.100 implements DCCP Policies 3.4.9 and 3.4.23, which
together direct land use regulations for the Rural Commercial and Rural
Industrial zones to'allow uses less intense than those allowed in
unincorporated communities as defined by Oregon Administrative Rule 660-
022 or its successor[.]"'
• "[T]he application of DCC Title 18 to any development proposed on Rural
Commercial or Rural Industrial designated land will ensure that the
development approved is consistent with the requirements set forth in DCCP
Policies 3.4.12 and 3.4.27 to not adversely affect surrounding area
agricultural or forest land, or the development policies limiting building size
(DCCP Policies 3.4.14 and 2.4.28), sewers (DCCP Policies 3.4.18 and 3.4.31)
and water (DCCP Policies 3.4.19 and 3.4.32) intended to limit the scope and
intensity of development on rural land."
COLW did not challenge those findings in its appeal to LUBA.
The analysis and conclusion, that development permitted and authorized consistent
with the applicable DCC RI -zone approval standards will not authorize urban uses
on rural land and will ensure rural use of rural land on the subject property, is based
on the DCC's limitation of uses authorized in the RI zone and imposition of building
size and other development restrictions on permissible development. It is entirely
independent of whether permissible development on the property will employ only
a small number of workers. With acknowledgment, DLCD concluded that the
approach taken by the County and the measures adopted to implement that
approach ensure that industrial uses approved in the RI zone under the
acknowledged standards would remain rural, consistent with Goal 14. Furthermore,
evidence submitted during the remand proceedings demonstrates that the soil
conditions on the property will likely act to further limit the intensity of development
that can be placed on the property. Nothing in the evidence or argument submitted
by COLW demonstrates that to not be the case.
Shaffer expressly allows, in response to a non -affirmative answer to whether a
proposed use will employ a small number of workers, a local government to limit
the allowed uses to effectively prevent urban use of rural land. That is what the
Exhibit F to Ordinance 2022-010 24
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
acknowledged DCC RI Zone standards do. Shaffer does not require a local
government to prove that only a small number of workers could be employed in the
second -step analysis before it approves a proposal as consistent with Goal 14;
Shaffer only requires that a local government explain why allowed uses will
constitute rural use of rural land despite such a finding, or to take an exception or
include the property within a UGB.
The Board of County Commissioners hereby reiterates what must not have been
clear from the original findings. The adopted and acknowledged rural industrial
DCCP policies and DCC development standards for permitted rural industrial uses
operate to ensure that any allowed uses and development on the subject property
that is consistent with the applicable DCC standards will constitute rural use of rural
land as required by Goal 14. That conclusion is valid even if those uses will employ
more than a "small" number of workers because, in part, the County's approach to
acknowledgement was not dependent upon the number of workers employed by
industrial uses, but upon other factors that DLCD acknowledged as consistent with
and that fully implement Goal 14 without the use of limitations on the number of
workers. Furthermore, site limitations may act as a further restrictive measure to
limit the development potential of the subject property so that only rural uses will
be allowed on rural land.
For the above reasons, the Board of County Commissioners approves the requested
plan designation and zone change applications.
Ill. FINDINGS ANALYSIS AND CONCLUSIONS IN RESPONSE TO ARGUMENTS
SUBMITTED ON REMAND
This section addresses some of the issues and arguments raised by parties to the
remand proceeding that are not expressly addressed above. The fact that an issue
or argument is addressed in this section does not mean it necessarily falls within the
scope of the remand proceeding and is not intended to preclude the County or any
other party from arguing on subsequent appeal that the issue lies outside the scope
of the remand or has otherwise been previously resolved or waived.
Scope of the Remand Proceeding
The Board of County Commissioners limited the scope of the remand proceeding to
the issue remanded by LUBA and parties were permitted to submit new evidence
directed towards that issue as part of the de novo hearing on remand. DCC
22.34.040.A directs the Board of County Commissioners to review remanded issues
and provides the Board the discretion to open the record in instance which it deems
it to be appropriate. DCC 22.34.040.0 authorizes the Board of County
Commissioners to limit new testimony to the remanded issues or to issues raised by
Exhibit F to Ordinance 2022-010 25
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
new evidence that was directed towards the issue on remand. That provision also
states that issues resolved by LUBA or that were not appealed to LUBA are deemed
to be waived and may not be reopened. The Board of County Commissioners has
so limited the remand proceeding. Furthermore, the Board of County
Commissioners interprets the above provisions to implicitly mean that only the
standards and criteria that expressly relate to LUBA's remand are live on remand
and that issues related to standards and criteria that were resolved by LUBA or that
could have been resolved by LUBA in an earlier proceeding are deemed resolved or
waived and that compliance of the proposal with those standards and applicable
criteria may not be challenged on remand. The Board of County Commissioners
also notes that caselaw supports the above principles.
In an email submitted before the public hearing, COLW argued that the standards
and applicable criteria for the upcoming hearing are not limited to those that
formed the basis of the LUBA and Court of Appeals remand decisions, but also
include the Standards and Applicable Criteria that formed the basis for the decisions
appealed to LUBA. The Board of County Commissioners disagrees with that broad
statement. The Board of County Commissioners has not exercised its discretion to
expand the scope of the remand hearing, the issues that may be raised or the
standards that may be visited. The only standards and applicable criteria that are
live on remand are those that directly relate to the issue remanded by LUBA.
During the remand proceedings, both parties addressed the Shaffer factors not
remanded by LUBA. COLW at one point argued that because of our resolution of
the other three factors in the original decision, we could not conclude that rural use
of the land would result from approval of the application. The Board of County
Commissioners disagrees with that conclusion, in part because if that were the case,
LUBA would not have remanded for the Board to adopt findings for the remaining
factor. Also, the findings above correct a COLW misstatement regarding our
response to one of the Shaffer factors. In written comments, the Applicant posited
that the Board could now conclude that the Shaffer inquiry regarding whether the
use "is a type of use typically located in rural areas" could now be answered in the
affirmative because of the additional evidence submitted after our initial findings,
particularly that DLCD acknowledged that the RI permitted uses are rural uses. If
that were a live issue on remand, the Board of County Commissioners would
conclude that the uses allowed in the RI zone are types of uses typically located in
rural areas for the reasons provided by the Applicant. However, the Board of
County Commissioners has limited this remand proceeding to the sole issue of
adopting findings regarding the number of workers and whether that alters our
conclusion that approval of the applications will allow only rural use of rural land.
Consequently, Applicant's raising of the "type of use inquiry" plays no part of our
decision on remand.
Exhibit F to Ordinance 2022-010 26
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
Statewide Planning Goals
In written testimony submitted at the public hearing, COLW argued that, under ORS
197.175(2)(a), the proposal must be in compliance with the statewide planning goals
and that the findings cannot rely on a "prior amendment." The main point of
COLW's argument, which refers to an unidentified prior amendment, is not
sufficiently clear for the Board of County Commissioners to directly address and
therefore the Board of County Commissioners finds that whatever issue COLW
sought to present was insufficiently raised.
That said, the Board of County Commissioners notes that the original decision had
findings that concluded the proposal was consistent with each of the statewide
planning goals. On appeal to LUBA, COLW only challenged the findings and
conclusions related to Goals 6, 11 and 14. All of COLW's goal -based arguments were
denied by LUBA. And while LUBA stated that the appeal's first assignment of error
concerned Goal 14, the remand did not concern the challenge to the Goal 14 finding
of consistency, but rather the findings regarding the number of workers under the
Shaffer analysis. Compliance with the Statewide Planning Goals is a resolved issue.
If it is not, at most, the only Goal that may be live, is compliance with Goal 14.
Misstatements About Previous Findings
During the remand proceedings, COLW has made several misstatements about the
findings the Board of County Commissioners adopted in the initial decision to
approve the applications. Those misstatements should not go uncorrected.
First, as discussed above, COLW contended that our initial findings concluded that
the response to the Shaffer "does not require public facilities or services" inquiry
indicated the proposal is not for a rural use. That characterization is incorrect. The
board of County Commissioners, as did the Hearings Officer, concluded that the
response to that inquiry indicated the proposal is a rural use. LUBA did not remand
on that issue.
Second, COLW suggests that it is law of the case that there is insufficient evidence to
base a determination that the type of uses that will occur on the property are of a
type typically located in rural areas. The Board of County Commissioners notes the
previous findings found, as LUBA plainly explained in its decision, that all of the uses
and conditional uses, as limited by the development and other approval standards
contained in the DCC, were acknowledged by DLCD as complying with Goal 14 to
not constitute urban uses.
Exhibit F to Ordinance 2022-010 27
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
Reasonable Worst -Case Scenario
COLW challenged the worst -case scenario approach used in this proceeding arguing
that it provides only an "estimate" of workers, which is inadequate to demonstrate
compliance with Goal 14, and attempted to distinguish between the use of the
terms "reasonable worst -case" and "worst -case."
Applicant addressed the worst -case development scenario analysis process in his
rebuttal material, pointing to recent examples where LUBA used the term
"reasonable worst -case" scenario and explaining when findings using that approach
are inadequate. The Board of County Commissioners finds that when applied
properly, the reasonable worst -case development scenario approach is an
appropriate methodology to evaluate potential impacts for plan designation and
zone change applications that do not propose specific development. In support of
this finding, the Board of County Commissioners adopts Applicant's rebuttal
response as its own.
The Board of County Commissioners also notes that COLW failed to challenge the
use of the reasonable worst -case scenario approach for the Goal 12 findings in the
initial appeal, or to challenge that the development scenario represented in the
original TIA, a scenario approved by County Transportation Staff and ODOT,
represented a worst -case development scenario of the subject property. Last, the
Board of County Commissioners finds, as explained above, that Petitioner failed to
provide any development scenario that could, in fact, be developed on the subject
property. Had COLW done so, these findings would be required to either base its
analysis and conclusions on that development scenario or to provide an adequate
justification as to why that development scenario does not constitute a worst -case
scenario. Nothing requires the County to consider development scenarios that
could not be approved under acknowledged development standards.
IV. DECISION:
Based upon the foregoing Findings of Fact and Conclusions of Law, the Board of County
Commissioners hereby APPROVES on remand the Applicant's applications for a
Comprehensive Plan Map amendment to re -designate the subject property from
Agriculture to Rural Industrial and a corresponding Zone Map Amendment (Zone Change)
to reassign the zoning from Exclusive Farm Use - Tumalo/Redmond/Bend Subzone (EFU-
TRB) to Rural Industrial Zone (RI) subject to the following conditions of approval:
The Applicant shall submit to the Planning division a metes -and -bounds description
of the subject site to be re -designated and rezoned.
Exhibit F to Ordinance 2022-010 28
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
2. The applicant shall submit a certification regarding the purpose of the application,
consistent with DCC 22.20.025(B)(2).
3. The Applicant shall enter into a Voluntary Compliance Agreement ("VCA") with the
Deschutes County Code Enforcement division of the Community Development
Department to resolve alleged code violations in file no. 247-19-00064-CE
4. As part of any development of the subject property, the developer shall be subject
to assessment of transportation system development charges (SDCs) on that
development at the current SDC rate then applicable. Additionally, further traffic
analysis may be required, depending on whether a proposed development triggers
the traffic analysis thresholds of DCC 18.116.310(C)(3). The County may also
consider imposition of non -infrastructure mitigations under OAR 660-012-0060(11).
Dated this / day of July, 2022
Exhibit F to Ordinance 2022-010 29
File Nos. 247-20-000438-PA/439-ZC (247-22-000287-A)
BOARD R
MEETING DATE: Wednesday, July 27, 2022
SUBJECT: Consideration of Second Reading of Ordinance 2022-010: Remand of Deschutes
Junction Plan Amendment and Zone Change application, and Consideration of
Adoption
RECOMMENDED MOTION:
The board conducts second reading by title only moves to adopt Ordinance No. 2022-010
remand of Deschutes junction Plan Amendment and Zone Change application
BACKGROUND AND POLICY IMPLICATIONS:
The Board will conduct second reading of Ordinance 2022-010, approving a decision on remand
from the Land Use Board of Appeals. The application concerns a request to rezone and
redesignate property from Exclusive Farm Use (EFU) /Agriculture (AG) to Rural Industrial (RI). The
entirety of the record can be found on the project website at
https•Ilwww deschutes.orglcd/page/remand-deschutes junction -plan -amendment -zone -change
As stated previously, remand applications are subject to a 120-day review timeline per ORS
227.181. The final day in which a decision must be issued is August 5, 2022.
BUDGET IMPACTS:
None.
ATTENDANCE:
Nicole Mardell, Senior Planner - Long Range
Will Groves, Planning Manager
•
COMMUNITY DEVELOPMENT
MEMORANDUM
TO: Deschutes County Board of Commissioners (Board)
FROM: Nicole Mardell, Senior Planner - Long Range
Will Groves, Planning Manager
DATE: July 27, 2022
SUBJECT: Consideration of Second Reading of Ordinance 2022-010: Remand of Deschutes
Junction Plan Amendment and Zone Change (file nos. 247-20-000438-PA/439-ZC (247-
22-000287-A))
The Board of County Commissioners (Board) will consider second reading of Ordinance 2022-010
on July 27, 2022, approving file nos. 247-20-000438-PA/439-ZC (247-22-000287-A). The application is
requesting approval of Plan Amendment and Zone Change applications remanded by the Oregon
Land Use Board of Appeals.
I. BACKGROUND
The applicant, Tony Aceti, is requesting a Comprehensive Plan Amendment to redesignate the subject
property from Agriculture to Rural Industrial and a Zoning Map Amendment to rezone the property
from Exclusive Farm Use (EFU) to Rural Industrial. The property is 21.59-acres in size and is located
at 21235 Tumalo Place, Bend (Taxlot ID 161226C000201 and 161227D000104).
The application was originally submitted on June 30, 2020 and approved by the Board on January 27,
2021. Following Board approval, the application was appealed to the Oregon Land Use Board of
Appeals (LUBA) and was remanded back to the County for additional review due to insufficient
findings regarding the potential number of workers on site resulting from the requested plan
amendment and zone change. The applicant appealed the remand decision to the Court of Appeals
who affirmed LUBAs decision. The remand was then initiated by the applicant for County review on
April 7, 2022. The final day in which the County must issue a final decision is August 5, 2022.
The board held limited de novo public hearings on May 18, 2022 and June 8, 2022, and the written
record period closed on June 22, 2022. On July 6, 2022, the Board deliberated on the application and
voted unanimously to approve the requests. On July 13, staff returned with a draft decision through
Ordinance 2022-010, and the Board conducted first reading of the ordinance by title only.
11. NEXT STEPS / SECOND READING
The Board will conduct the second reading of Ordinance 2022-010 on July 27, 2022.
ATTACHMENTS:
1. Draft Ordinance 2022-010 and Exhibits
Exhibit A: Legal Description
Exhibit B: Proposed Comprehensive Plan Amendment Map
Exhibit C: Proposed Zone Change Map
Exhibit D: Comprehensive Plan Section 23.01.010, Introduction
Exhibit E: Comprehensive Plan Section 5.12, Legislative History
Exhibit F: Decision of the Board of County Commissioners
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