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2022-321-Minutes for Meeting August 17,2022 Recorded 9/6/2022ZIA
E s-< BOARD OF Recorded in Deschutes County
COMMISSIONERS Steve Dennison, County Clerk CJ2022-321
Commissioners' Journal 09/06/2022 4:54:40 PM
1300 NW Wall Street, Bend, Oregon II�II�I�II'III�II�I�IIIIII�I �I�
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(541) 388-6570`
2022-321
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•
1:30 P.M. WEDNESDAY August 17, 2022
FOR RECORDING STAMP ONLY
Barnes Sawyer Rooms
Live Streamed Video
Present were Commissioners Patti Adair, Anthony DeBone, and Phil Chang. Also present were Nick
Lelack, County Administrator, and David Doyle, County Counsel.
This meeting was audio and video recorded and can be accessed at the Deschutes County
Meeting Portal website www.deschutes.org/meetings
CALL TO ORDER: Chair Adair called the meeting to order at 1:31 p.m.
PLEDGE OF ALLEGIANCE
CONSENT AGENDA: Before the Board was Consideration of the Consent
Agenda.
DEBONE: Move approval of Consent Agenda
CHANG: Second
Discussion: Commissioner DeBone noted that for any citizens having questions
regarding the Domestic Well Assistance funding to email
iohncC@neighborimpact.org. Commissioner DeBone also thanked the two
community members who volunteered to serve on the Dog Board.
BOCC MEETING AUGUST 17, 2022 PAGE 1 OF 10
Commissioner Adair clarified that the funding that was just received by the County
for the Domestic Well Assistance is for citizens that had problems with their wells in
2021. The County is actively pursuing additional funding for 2022 well issues.
VOTE: DEBONE: Yes
CHANG: Yes
ADAIR: Chair votes yes. Motion Carried
1. Consideration of Resolution No. 2022-059 Adopting a Supplemental Budget
and Increasing Appropriations within Non Departmental General Fund and
the 2022-23 Deschutes County Budget
2. Consideration of Board Signature of Letters Appointing Daniel Holland and
Carol Martin to the Deschutes County Dog Board of Supervisors
3. Approval of Minutes of the August 8, 2022 BOCC Meeting
4. Approval of Minutes of the August 10, 2022 BOCC Meeting
OTHER ITEMS:
• Commissioner Chang requested staff to research the possibility of federal
funding through the Community Development Block Grant Program to assist
with these ongoing well issues. Commissioner DeBone asked County
Administrator Nick Lelack to calendar an action item for drafting a letter for
federal funding to address the County's depleting water sources.
RECESS: At the time of 1:36 p.m., the Board recessed and will reconvene for the
public hearing at 2:00 p.m.
EXECUTIVE SESSION: At the time of 1:38 p.m., the Board went into Executive
Session (in the Allen Room) under ORS 192.660 (2) (h) Litigation. The Board came
out of Executive Session at 1:44 p.m. to direct staff to proceed as directed.
BOCC MEETING AUGUST 17, 2022 PAGE 2 OF 10
ACTION ITEMS:
S. PUBLIC HEARING: Eden Properties Plan Amendment and Zone Change
(247-21-001043-PA, 1044-ZC)
Commissioner Adair read a statement regarding the hearing process.
Associate Planner Haleigh King outlined the procedure for the public hearing and
asked the public if there were any objections to the format of the hearing. No
objections were made by the public. The Commissioners were asked if they had any
conflicts of interest or bias to disclose, to which they all responded no. The public
was asked if there were any challenges to any alleged ex pane communications by
any Commission members. No challenges were made by the public. The public
hearing was then opened.
Ms. King presented details about the application filed by 710 Properties LLC/Eden
Central Properties, LLC. The Applicant seeks a Comprehensive Plan Map
Amendment to change the subject property from an agricultural designation to a
rural residential exception area and a Zoning Map Amendment to change the
subject property from EFU to RR-10 for the possible development of approximately
710 acres into 71 ten -acre homes sites. The hearings officer's decision
(recommending approval of the application), concluded that the Applicant met its
burden of proof that the subject property is not agricultural land and cannot be
utilized for agricultural use as defined in state statute.
Ms. King advised that staff has received written comments and documents both in
opposition and support. All written materials that have been received are added to
the record. Commissioner DeBone further noted that emails sent to
Board@deschutes.org have been forwarded to staff to be included in the record.
Ms. King advised that County staff with the Road Department is available regarding
any concerns related to possible traffic increases due to the proposed amendment
change and rezone. The Oregon Department of Water Resources is also available
at today's hearing to answer questions related to possible increases in water usage
if the application is approved.
BOCC MEETING AUGUST 17, 2022 PAGE 3 OF 10
Commissioner DeBone requested clarification regarding notification issues with the
public hearing. Legal Counsel David Doyle is continuing to research procedural
concerns.
Commissioner Chang requested clarification regarding the hearings officer's
reference to one parcel receiving an EFU tax deferral despite the finding that the
subject property is not agricultural land. He asked which parcel received the
deferral and whether there is a process to retroactively reconcile that for the
County. Mr. Doyle advised that the Assessor's Office receives requests annually
regarding tax deferrals, and they are periodically reviewed via on -site inspection by
County assessors.
Dale Stockamp (10325 NW Coyner Avenue, Redmond), one of the owners of the
subject property, began the presentation on behalf of the Applicant. He, along with
his partners, Charles Thomas and Robert Turner, are all Deschutes County
homeowners and have a passion and love for the central Oregon community. They
have consulted technical and environmental experts to determine the best use for
their property. They strive to increase the supply of desperately needed housing in
the area while also balancing nature. They also pledge to contribute a portion of
their proceeds to non -profits that serve the needs of Deschutes County.
Ken Katzaroff, counsel for the Applicant, continued the presentation. He clarified
that none of the parcels on the subject property are in tax deferral. One parcel was
denied tax deferral a couple of years ago. Applicant is seeking to develop low
density housing with 71 homes on 710 acres. Applicant believes this proposal
supports planning goals in that the Applicant can globally develop all 71 properties
rather than 71 individually developed properties. He described the topographical
challenges of the property. The property is a plateau and development of the
plateau would have minimal impact on surrounding properties. The property
contains predominantly Class VII and VIII soils, which essentially renders the
property unsuitable for farming. The amount of inputs necessary to make it
suitable for farm use is unreasonable. Grazing cannot be supported on this
property, as it would be economically unfeasible. Even if the Applicant could obtain
water to utilize the property for farm use, the water usage would be much higher
for farm use than it would be for low -density residential development.
Wendy Wente, a wildlife biologist, with Mason Bruce & Girard, appeared on behalf
of Applicant. She was hired by Applicant to review the habitat that was present on
BOCC MEETING AUGUST 17, 2022 PAGE 4 OF 10
the site and to evaluate the possible impacts that the proposed development may
have on wildlife.
Commissioner Chang questioned how the County's future review of the wildlife
overlays and mule deer winter range may impact future development. He inquired
about the possibility of cluster development if the Applicant is authorized to
proceed with rural residential development.
Mr. Katzaroff responded that the Applicant's proposed development is based on
the WA zone as it stands today. At this time, the Applicant is not looking at cluster
development because it is not currently required. However, the Applicant has been
mindful of wildlife, and if it is overlaid with WA zone, then obviously the Applicant
will comply with whatever is required.
Commissioner Chang stated he would look much more favorably on this
application after the overlay was completed.
Commissioner Chang recognized that the hearings officer could only look at what
was being applied for and was precluded from speculating about the development
that might come out of this amendment and rezone approval. He further noted the
traffic component of the hearings officer was fairly thin. He would like additional
input from the Road Department regarding traffic impacts and possible
comparable neighborhoods in the area.
Mr. Katzaroff recognized the Applicant had to address the traffic impacts for the
proposed 71 homesteads. The Applicant does not believe there will be significant
impacts or changes caused by the proposed development. Also, Mr. Katzaroff
pointed out that the County has the opportunity to make additional modifications
once the Applicant submits the subdivision application.
Chris Cuomo (2237 NW Torrey Pines, Bend) appeared on behalf of Applicant. He
conducted the traffic report. There is only one access for this property, which is
located on the south side. Once the Applicant submits the subdivision application,
there may be additional requirements for access to the property. In his opinion, the
current roadways can accommodate the traffic for this project.
Commissioner Adair called for comments from State agencies.
BOCC MEETING AUGUST 17, 2022 PAGE 5 OF 10
• Kyle Gorman (231 SW Scalehouse Loop, Bend), with the Oregon Department
of Water Resources, opined that the area's aquifer could sustain in -home use
for this development. Studies show that in -home use is substantially less
than outdoor watering and a low -density residential development would
have less impact than utilizing the subject property for agricultural purposes.
Commissioner Adair called for public testimony from those in the meeting room.
• Megan Martin (1961 SW Knoll Avenue, Bend) testified in support of the 710
Properties application. She has worked with the property owners and has
personally visited the site. The property owners are not professional
developers. In her opinion, the subject property is not suitable for
agricultural purposes.
• Kim Campbell (9590 NW Teater Avenue, Terrebonne) has a concern with the
potential increased water usage for this property if the rezone is approved.
His well is currently low.
• Shelli Blais (9590 NW Teater Avenue, Terrebonne) opposes the rezoning of
this property. She is concerned regarding the water usage for the proposed
development. The wells at Big Falls Ranch have dropped 9 - 10 feet. She is
also concerned regarding the increased traffic on Buckhorn Road. She cited
to a hearings officer decision on an unrelated property from a number of
years ago that held Lower Bridge Road could not support a 20-home
subdivision. She finds it highly unlikely that if Lower Bridge Road could not
support a 20-home subdivision then Buckhorn Road could not support a 71-
home subdivision.
• Steve Reiff (70778 Bitter Root, Sisters) supports rezoning of this property. The
evidence shows that it is not feasible for farming, and as such, it should not
continue to be characterized as agricultural land.
• Matt Cyrus (16925 Green Drake Court, Sisters) is supportive of the
application. He is a generational rancher and cited to guidelines utilized by
BLM for its land in the area, wherein 561 acres is needed per cow for grazing
purposes. By applying BLM's numbers to the subject property, the property
could sustain 1 '/4 cattle. It does not appear economically feasible to utilize
this property for livestock grazing.
BOCC MEETING AUGUST 17, 2022 PAGE 6 OF 10
o Commissioner Chang addressed differences between Applicant's AUM
numbers and those cited by Mr. Cyrus. Mr. Cyrus believes the
Applicant's AUM numbers are very generous and that the BLM AUM
numbers are more site specific to the subject property.
• Rob Imhoff (20183 Fire Rock Road, Bend) supports the 710 Properties
application. In his opinion, we need to accommodate our community's
residential growth while balancing conservation. Given this particular
property's limited use for agricultural purposes, he believes it is appropriate
to rezone the property for a more feasible purpose that our community
needs - low -density residential development.
• Brian Rabe (3511 Pacific Boulevard, Albany), with Valley Science &
Engineering, testified regarding the soils report he prepared. He confirmed
that his report does have generous AMU numbers but it is based on soil
classifications across the County and is not site specific.
• Michael Sipe (64708 Alcor Place, Bend) is in support of the application. He is
an environmental advocate. He personally knows the developers and has
visited the property. The prior testimony and evidence presented regarding
the condition of the property is accurate in that farm use is not feasible on
this parcel. In his opinion, the proposed residential development is the
highest and best use for the property.
• Billy Buchanan (10142 NW Coyner Avenue, Redmond) does not agree that
rezoning the property for residential use is more feasible than an agricultural
use. He has looked at the perimeter of the property and saw crested
wheatgrass, which in his opinion could be utilized for grazing cattle.
• Elizabeth Buchanan (10142 NW Coyner Avenue, Redmond) testified that her
and her husband own property that borders the subject property. They own
a ranching business and need more dry land for their herd. She would be
interested in leasing the land. She testified that by maintaining the land as
EFU it would keep the land more affordable for ranchers, such as them.
• Carol McBeth, with Central Oregon Landwatch, testified in opposition to the
application. She emphasized that water rights are available, albeit they may
be expensive to acquire. She testified that absent irrigated farming there are
other farm uses available, such as greenhouses and poultry raising, for land
BOCC MEETING AUGUST 17, 2022 PAGE 7 OF 10
with poor soil content. She also opined that the property requires Goal 3
approval, which it will not be able to obtain.
• Nunzie Gould (19845 JW Brown, Bend) is not supportive of the application.
She testified that in her opinion there are a number of wildlife concerns that
have not been addressed, such as the property's location in eagle territory
and the need to contact NOAA Fisheries regarding the steelhead populations.
• Diane Lozito (PO Box 85, Terrebonne) is a realtor that once represented this
property. She opposes the proposed development of this property and is
concerned about water use.
Commissioner Adair called for public testimony from those attending via Zoom.
• Abby Kellner -Rode (25360 Walker Road, Bend) is not supportive of the
application for rezoning. She opined that the subject property is agricultural
land as a matter of law and is precluded from being rezoned.
• Deren Ash (52765 Howard Lane, La Pine) opposes the plan amendment and
rezoning of this property. He requested the Commission limit urban sprawl
and maintain growth in the UGB.
• Ryder Redfield (8801 NW 93rd Lane, Terrebonne) testified in opposition to the
application. He currently manages 1200 acres along Lower Bridge, and it is
his opinion that Lower Bridge is not suited for more people. The subject
property's zoning needs to stay as EFU.
• Eugene Trahern (PO Box 2242, Sisters) opposes the application for a variety
of reasons. He is concerned about increases in traffic, which he believes will
increase by 4-5 times the current use. He testified regarding the impact on
water use and the solar farm proposed by the development. He is also
concerned about the light pollution caused by the increased population and
the placement of the development at a higher elevation.
• Rima Givot (18557 McSwain Drive, Sisters) opposes the development. She is
concerned about the increased water use if 71 homes were placed on the
property. She further testified there is a possibility that some of these homes
would be used as vacation homes, which would not address the housing
BOCC MEETING AUGUST 17, 2022 PAGE 8 OF 10
shortage. Additionally, in her opinion, increased residential development
should be maintained in the UGB.
• Keenan Ordon-Bakalian (360 SW Bond Street, Suite 510, Bend), with Jordan
Ramis, is the attorney for Redside Restoration Project One, LLC. His client,
who has property near the northern border of the subject property, opposes
this application. He testified that it is his opinion the law requires this land to
stay as agricultural land. He recognizes that it will take work to render this
property usable as farm land, but that is the challenge that other property
owners also face. He also noted concerns with approving the rezone prior to
the completion of the County's WA Zone updates.
Commissioner Chang agrees with the Applicant that the soil conditions and current
water rights for this property are not suitable for irrigated crops, but lands like this
property are utilized as ranches. He does not agree with the hearings officer's
analysis that this land could not be seasonally grazed profitably. In his opinion, the
livestock industry needs land to continue to make it viable.
The Board recessed at 4:46 p.m. and reconvened at 5:30 p.m. to continue the public
hearing.
6. PUBLIC HEARING Continued: Eden Properties Plan Amendment and
Zone Change
At 5:30 p.m. Commissioner Adair re -opened the hearing.
Associate Planner Haleigh King explained the hearing procedures.
Chair Adair called for in -person testimony. There was none.
Chair Adair called for Zoom testimony. There were no raised hands on Zoom.
Attorney Katzaroff presented rebuttal. Noted that issues associated with grazing
and water use are fully addressed in the record, but that his written submission wil
further address same. Katzaroff expressed that COLW Attorney MacBeth's
comments relative to capital assets was inaccurate as all expenses must be
considered. He noted that neighbor Buchanan has had more than 6 years in which
to attempt to purchase the subject site. Stressed that "other farm uses" are not
viable since no ability to generate profit. Finally Katzaroff stated that the
application and record fully address the issues raised in the state agencies written
submission.
BOCC MEETING AUGUST 17, 2022 PAGE 9 OF 10
Commissioner Chang was curious as to tax impacts if the site were to qualify for
farm deferral, and also how deep the 71 wells will need to be drilled.
Chair Adair then closed the oral portion of the hearing. The written record will
remain open to allow for a requested Open Record Period, of 7-7-7. August 24th for
initial period, August 315t for rebuttal period, and September 7th for applicant's final
written argument.
The Board will deliberate at its meeting on September 281n
ADJOURN: Being no further items to come before the Board, the meeting was adjourned at 6:02 p.m.
DATED this Day of 2022 for the Deschutes County Board of Commissioners.
ATTEST:
COMMISSIONER
BOCC MEETING AUGUST 17, 2022 PAGE 10 OF 10
L\\01 E S C0G
2 BOARD OF
COMMISSIONERS
BOARD OF COUNTY COMMISSIONERS
1:30 PM, WEDNESDAY, AUGUST 17, 2022
Barnes Sawyer Rooms - Deschutes Services Bldg - 1300 NW Wall St - Bend
(541) 388-6570 1 www.deschutes.org
AGENDA
MEETING FORMAT: The Oregon legislature passed House Bill (HB) 2560, which requires that
public meetings be accessible remotely, effective on January 1, 2022, with the exception of
executive sessions. Public bodies must provide the public an opportunity to access and attend
public meetings by phone, video, or other virtual means. Additionally, when in -person testimony,
either oral or written is allowed at the meeting, then testimony must also be allowed electronically
via, phone, video, email, or other electronic/virtual means.
Attendance/Participation options are described above. Members of the public may still view the
BOCC meetings/hearings in real time via the Public Meeting Portal at
www.deschutes.org/meetings
Citizen Input: Citizen Input is invited in order to provide the public with an opportunity to
comment on any meeting topic that is not on the current agenda. Citizen Input is provided by
submitting an email to: citizeninput@deschutes.org or by leaving a voice message at 541-385-
1734. Citizen input received by noon on Tuesday will be included in the Citizen Input meeting
record for topics that are not included on the Wednesday agenda.
Zoom Meeting Information: Staff and citizens that are presenting agenda items to the Board for
consideration or who are planning to testify in a scheduled public hearing may participate via
Zoom meeting. The Zoom meeting id and password will be included in either the public hearing
materials or through a meeting invite once your agenda item has been included on the
agenda. Upon entering the Zoom meeting, you will automatically be placed on hold and in the
waiting room. Once you are ready to present your agenda item, you will be unmuted and placed
in the spotlight for your presentation. If you are providing testimony during a hearing, you will be
placed in the waiting room until the time of testimony, staff will announce your name and unmute
your connection to be invited for testimony. Detailed instructions will be included in the public
hearing materials and will be announced at the outset of the public hearing.
For Public Hearings, the link to the Zoom meeting will be posted in the Public Hearing Notice as
well as posted on the Deschutes County website at https://www.deschutes.org/bcc/page/public-
hearing-notices.
CALL TO ORDER
PLEDGE OF ALLEGIANCE
CITIZEN INPUT: Citizen Input may be provided as comment on any topic that is not on the
agenda.
Note: In addition to the option of providing in -person comments at the meeting, citizen input comments
may be emailed to citizeninput@deschutes.org or you may leave a brief voicemail at 541.385.1734. To be
timely, citizen input must be received by noon on Tuesday in order to be included in the meeting record.
CONSENT AGENDA
1. Consideration of Resolution No. 2022-059 Adopting a Supplemental Budget and
Increasing Appropriations within Non Departmental General Fund and the 2022-23
Deschutes County Budget.
2. Consideration of Board Signature of Letters Appointing Daniel Holland and Carol Martin
to the Deschutes County Dog Board of Supervisors
3. Approval of Minutes of the August 8, 2022 BOCC Meeting
4. Approval of Minutes of the August 10, 2022 BOCC Meeting
ACTION ITEMS
S. 2:00 PM PUBLIC HEARING: Eden Properties Plan Amendment and Zone Change (247-
21=001043-PA, 1044-ZC)
LUNCH RECESS
6. 5:30 p.m. Continued Public Hearing: Eden Properties Plan Amendment and Zone
Change
OTHER ITEMS
These can be any items not included on the agenda that the Commissioners wish to discuss as part of
the meeting, pursuant to ORS 192.640.
EXECUTIVE SESSION
At any time during the meeting, an executive session could be called to address issues relating to ORS
192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor
negotiations, ORS 192.660(2)(b), personnel issues, or other executive session categories.
Executive sessions are closed to the public; however, with few exceptions and under specific guidelines,
are open to the media.
August 17, 2022 BOARD OF COUNTY COMMISSIONERS Page 2 of 3
Deschutes County encourages persons with disabilities to participate in all programs
and activities. This event/location is accessible to people with disabilities. If you need
accommodations to make participation possible, please call (541) 617-4747.
August 17, 2022 BOARD OF COUNTY COMMISSIONERS Page 3 of 3
MEETING DATE:
August 17, 2022
SUBJECT: Public Hearing: Eden Properties Plan Amendment and Zone Change (247-21-
001043-PA, 1044-ZC)
RECOMMENDED MOTION:
Hearings Officer recommends approval of file no. 247-21-001043-PA, 1044-ZC pursuant to DCC
22.28.030.
BACKGROUND AND POLICY IMPLICATIONS:
The Board will conduct a public hearing on August 17, 2022 to consider a request for a Plan
Amendment and Zone Change (file nos. 247-21-001043-PA, 1044-ZQ for approximately 710-
acres to the west of Terrebonne and north of Highway 126.
BUDGET IMPACTS:
None
ATTENDANCE:
Haleigh King, Associate Planner
MEMORANDUM
TO: Deschutes County Board of Commissioners
FROM: Haleigh King, AICP, Associate Planner
DATE: August 10, 2022
SUBJECT: Eden Properties Comprehensive Plan Amendment and Zone Change - Public Hearing
The Board of County Commissioners ("Board") is conducting a public hearing on August 17, 2022, to
consider a request for a Comprehensive Plan Amendment and Zone Change (file nos. 247-21-
0001043-PA, 1044-ZC) for nine tax lots totaling approximately 710 acres to the west of Terrebonne
and north of Highway 126. This will be the second of two required public hearings.
I. BACKGROUND
The applicant, 710 Properties, LLC/Eden Central Properties, LLC, is requesting a Comprehensive Plan
Amendment to re -designate the subject properties from Agriculture to Rural Residential Exception
Area and a Zoning Map Amendment to rezone the properties from Exclusive Farm Use (EFU) to Rural
Residential - 10 Acre Minimum (RR-10). The applicant argues the properties were mistakenly
identified as farmland, do not contain high -value soils or other characteristics of high value farmland,
and therefore should be re -designated and rezoned for rural residential use. The applicant provided
a supplementary soil study that identifies non -high value (Class VII and Vill) soils on a majority (--71 %)
of the subject properties. Additionally, the applicant's burden of proof includes findings that
demonstrate compliance with state and local requirements and policies.
Ill. PUBLIC COMMENTS
As of the date of this memo, Staff received 15 public comments in response to the Notice of Public
Hearing for the August 17, 2022, Board hearing. Comments received include 13 in favor of the
application and two in opposition. Comments received after the date of this memo will be included
in their entirety in the application record.
Staff received over 100 public comments from neighbors, stakeholders, local interest groups and
public agencies related to the April 19, 2022, Hearing's Officer hearing and proceedings. Staff received
comments both in favor of the application and those in opposition. Comments received in opposition
expressed concern related to compatibility with nearby agricultural land and potential loss of
agricultural land, availability of groundwater, traffic and emergency access impacts, and impacts to
wildlife. Staff received a joint agency comment from the Oregon Department of Land Conservation
and Development, Oregon Department of Agriculture, and Oregon Fish and Wildlife ("Agencies)
related to a number of items but primarily focused on the criteria related to the definition of
"agricultural land" and "farm use" and how it relates to the subject application. As noted in the joint
agency letter, the Agencies are not supportive of the Comprehensive Plan amendment and zone
change.
Comments received in support referencing the property's lack of productive soils, potential
expansion of rural housing inventory, and potential for vegetation management and wildfire
protection as a basis for support.
III. HEARINGS OFFICER RECOMMENDATION
The Deschutes County Hearings Officer held a public hearing on April 19, 2022. Approximately 14
people, not including the applicant's team, provided testimony during the hearing.
On June 2, 2022, the Hearings Officer issued a recommendation of approval for the proposed Plan
Amendment and Zone Change evaluating compliance with all applicable review criteria.
IV. BOARD CONSIDERATION
As the property includes lands designated for agricultural use, Deschutes County Code 22.28.030(C)
requires the application to be heard de novo before the Board, regardless of the determination of the
Hearings Officer. Per DCC Section 22.20.040(D), the review of the proposed quasi-judicial Plan
Amendment and Zone Change is not subject to the 150-day review period typically associated with
land use decisions. The record is available for inspection at the Planning Division and at the following
website: https•//www deschutes or /g_cd/page/247-21-001043-pa-and-247-21-001044-zc-eden-
central=properties-comprehensive-plan-amendment. Moreover, the complete record will be
available at the public hearing.
V. NEXT STEPS
At the conclusion of the public hearing, the Board can choose one of the following options:
• Continue the hearing to a date and time certain;
• Close the oral portion of the hearing and leave the written record open to a date and time
certain;
• Close the hearing and commence deliberations; or
• Close the hearing and schedule deliberations for a date and time to be determined.
ATTAC H M E NT(S):
1. Area Map
2. Hearings Officer Recommendation
Page 2 of 2
247-21-001043-PA 247-21-001044-ZC
=1 Subject Properties
County Zoning & Comprehensive Plan
EFULB & AG
EFUSC & AG
EFUTE & AG
IM RR10 & RREA
Applicant: 710 Properties, LLC
14-12-28-DO-00101
TaxIot Numbers: 14-12-28-00-00100, 200, 300
1 4- 1 2-21-00-00300, 400, 500, 600, 700
0 350 700 1,400 2,100
August 09, 2022
M
Mailing Date:
Thursday, June 2, 2022
DECISION AND RECOMMENDATION
OF THE DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBER: 247-21-001043-PA, 247-21-001044-ZC
HEARING: April 19, 2022, 6:00 p.m.
Barnes & Sawyer Rooms
Deschutes Services Center
1300 NW Wall Street
Bend, OR 97708
SUBJECT PROPERTY/
OWNER: Mailing Name: EDEN CENTRAL PROPERTIES LLC
Map and Taxlot: 1412280000100
Account: 163 920
Situs Address: 10315 NW COYNER AVE, REDMOND, OR
97756
Mailing Name: EDEN CENTRAL PROPERTIES LLC
Map and Taxlot: 1412280000200
Account: 250543
Situs Address: 10325 NW COYNER AVE, REDMOND, OR
97756
Mailing Name: EDEN CENTRAL PROPERTIES LLC
Map and Taxlot: 1412280000300
Account: 124845
Situs Address: 10311 NW COYNER AVE, REDMOND, OR
97756
Mailing Name: EDEN CENTRAL PROPERTIES LLC
Map and Taxlot: 141228D000101
Account: 273 062
Situs Address: **NO SITUS ADDRESS**
Mailing Name: EDEN CENTRAL PROPERTIES LLC
Map and Taxlot: 1412210000300
Account: 276793
Situs Address: **NO SITUS ADDRESS**
Mailing Name: EDEN CENTRAL PROPERTIES LLC
Map and Taxlot: 1412210000400
Account: 276794
Situs Address: **NO SITUS ADDRESS**
247-21-001043-PA/1044-ZC Page 1 of 74
Mailing Name: EDEN CENTRAL PROPERTIES LLC
Map and Taxlot: 1412210000500
Account: 276791
Situs Address: **NO SITUS ADDRESS**
Mailing Name: EDEN CENTRAL PROPERTIES LLC
Map and Taxlot: 1412210000600
Account: 124846
Situs Address: 70000 BUCKHORN RD, TERREBONNE, OR
97760
Mailing Name: EDEN CENTRAL PROPERTIES LLC
Map and Taxlot: 1412210000700
Account: 276792
Situs Address: **NO SITUS ADDRESS**
APPLICANT: 710 Properties, LLC
PO Box 1345
Sisters, OR 97759
ATTORNEYSFOR
APPLICANT: Liz Fancher
2464 NW Sacagawea Lane
Bend, Oregon 97703
J. Kenneth Katzaroff
Schwabe Williamson & Wyatt
1420 5th Avenue, Suite 3400
Seattle, WA 98101
REQUEST: The Applicant requests approval of a Comprehensive Plan
Amendment to change the designation of the subject property from
Agricultural (AG) to Rural Residential Exception Area (RREA).
The Applicant also requests a corresponding Zone Change to rezone
the subject property from Exclusive Farm Use — Terrebonne
subzone (EFU-TE) to Rural Residential (RR-10).
HEARINGS OFFICER: Stephanie Marshall
STAFF CONTACT: Haleigh King, Associate Planner
Phone: 541-383-6710
Email: Halei h�gkdeschutes.org
RECORD: Record items can be viewed and downloaded from:
https://www.deschutes.or�4/cd/pane/247-21-001043-pa-and-247-
247-21-001043-PA/1044-ZC Page 2 of 74
21-001044-zc-eden-central-properties-comprehensive-plan-
amendment
RECORD CLOSED: May 3, 2022
I. STANDARDS AND APPLICABLE CRITERIA
Title 18 of the Deschutes County Code, the County Zoning Ordinance:
Chapter 18.04, Title, Purpose, and Definitions
Chapter 18.16, Exclusive Farm Use Zones (EFU)
Chapter 18.60, Rural Residential Zone (RR-10)
Chapter 18.113, Destination Resorts Combining Zone (DR)
Chapter 18.136, Amendments
Title 22, Deschutes County Development Procedures Ordinance
Deschutes County Comprehensive Plan
Chapter 2, Resource Management
Chapter 3, Rural Growth Management
Appendix C, Transportation System Plan
Oregon Administrative Rules (OAR), Chapter 660
Division 12, Transportation Planning
Division 15, Statewide Planning Goals and Guidelines
Division 33, Agricultural Land
Oregon Revised Statutes (ORS)
Chapter 215.010, Definitions
Chapter 215.211, Agricultural Land, Detailed Soils Assessment
II. FINDINGS OF FACT
A. LOT OF RECORD: Per DCC 22.04.040 Verifying Lots of Record, lot of record
verification is required for certain permits:
B. Permits Requiring Verification.
1. Unless an exception applies pursuant to subsection (B)(2) below, verifying a lot or
parcel pursuant to subsection (C) shall be required prior to the issuance of the
following permits:
a. Any land use permit for a unit of land in the Exclusive Farm Use Zones
(DCC Chapter 18.16), Forest Use Zone — FI (DCC Chapter 18.36), or
Forest Use Zone — F2 (DCC Chapter 18.40);
b. Any permit for a lot or parcel that includes wetlands as shown on the
Statewide Wetlands Inventory;
c. Any permit for a lot or parcel subject to wildlife habitat special assessment;
247-21-001043-PA/1044-ZC Page 3 of 74
d. In all zones, a land use permit relocating property lines that reduces in size
a lot or parcel;
e. In all zones, a land use, structural, or non -emergency on -site sewage
disposal system permit if the lot or parcel is smaller than the minimum area
required in the applicable zone;
In the Powell/Ramsey (PA-14-2, ZC-14-2) decision, the Hearings Officer held to a prior Zone
Change 247-21-000400-PA, 401-ZC Decision (Belveron ZC-08-04; page 3) that a property's lot
of record status was not required to be verified as part of a plan amendment and zone change
application. Rather, the Applicant would be required to receive lot of record verification prior to
any development on the subject property. The Hearings Officer adheres to this ruling and finds
this criterion does not apply.
B. SITE DESCRIPTION: The subject property encompasses approximately 710.5 acres and
includes nine tax lots described below (together hereafter referred to as the "subject property"):
Map and Tax Lot
Situs Address
Area (acres)
1412280000100
10315 NW COYNER AVE,
REDMOND, OR 97756
±149.78
1412280000200
10325 NW COYNER AVE,
REDMOND, OR 97756
±150.09
1412280000300
10311 NW COYNER AVE,
REDMOND, OR 97756
±120.6
141228D000101
NO SITUS ADDRESS
±8.66
1412210000300
NO SITUS ADDRESS
±101.68
1412210000400
NO SITUS ADDRESS
f9.47
1412210000500
NO SITUS ADDRESS
f4.54
1412210000600
70000 BUCKHORN RD,
TERREBONNE, OR 97760
±163.87
1412210000700
NO SITUS ADDRESS
f1.79
The subject property is undeveloped except for one tax lot (10325 NW Coyner Avenue), which is
developed with a nonfarm dwelling (County Land Use File #CU-05-103). Two other lots of record
have valid nonfarm dwelling approvals. Access to the property is provided at the western terminus
of NW Coyner Avenue, a County -maintained rural local roadway, and the northern terminus of
NW 103`d Street, a County -maintained rural local roadway.
A majority of the property sits on a plateau running from the southwest to the northeast of the
subject property boundary. Topography is varied with portions of lava rimrock present along the
west and northwest edges with steep to very steep slopes below. Vegetation is typical of the high
desert and includes juniper trees, sage brush, rabbit brush, and bunch grasses. The Applicant
emphasizes the steep topographical decline on the property, the fact that there is "lava rock all over
the property," and "sparse ground cover and juniper."
The subject property does not have water rights and is not currently being farmed or irrigated in
conjunction with farm use. There is no known history of the property having had irrigation rights.
There is no known history of agriculture or faun use, as defined in ORS 215.203 on the subject
247-21-001043-PA/1044-ZC Page 4 of 74
property. I According to the Deschutes County Assessor's office, only one tax lot within the project
area, Assessor's Map 14-12-28, Tax Lot 300, is currently receiving farm tax deferral, but does not
appear to be engaged in farm use. The record does not include any evidence the subject property
is engaged, or has ever been engaged, in farm use.
The Natural Resources Conservation Service (MRCS) map shown on the County's GIS mapping
program identifies six soil complex units on the property: 63C, Holmzie-Searles complex, 106E,
Redslide-Lickskillet complex, 101 D, Redcliff-Lickskillet-Rock outcrop complex,106D, Redslide-
Lickskillet complex, 71A, Lafollette sandy loam, and 31B, Deschutes sandy loam. Per DCC 18.04,
Soil complex 3 1 A and 7 1 A are considered high -value soils when irrigated.
As discussed in detail below in the Soils section, there is no irrigation on the subject property,
except for water applied to landscaping associated with the nonfarm dwelling on Tax Lot 301. A
soil study conducted on the property determined the subject property contains approximately 71
percent Land Capability Class 7 and 8 nonirrigated soils, including stony shallow soils over
bedrock, more characteristic of the Lickskillet series, along with significant rock outcrops. Where
surface stoniness was not apparent, the soils were typically moderately deep with sandy loam
textures throughout or with some loam textures in the subsurface, more consistent with the Statz
series.
C. PROPOSAL: The Applicant requests approval of a Comprehensive Plan Map Amendment to
change the designation of the subject property from an Agricultural (AG) designation to a Rural
Residential Exception Area (RREA) designation. The Applicant also requests approval of a
corresponding Zoning Map Amendment to change the zoning of the subject property from Exclusive
Farm Use (EFU) to Rural Residential —10 Acre Minimum (RR10). The subject property is not within
a Wildlife Area (WA) combining zone.
The Applicant requests Deschutes County to change the zoning and the plan designation and does
not request a Statewide Planning Goal 3, Agricultural Land" exception because the Applicant
submits the subject property does not qualify as "agricultural land" under Oregon Revised Statutes
(ORS) or Oregon Administrative Rules (OAR) definitions. The Applicant submitted evidence that
71 % of the property is comprised of Class VII and Class VIII soils and that the property could not
be employed for "farm use," for the primary purpose of obtaining a profit in money.
The Applicant submitted with the application an Order 1 and 2 Soil Survey of the subject property,
titled "Site -Specific Soil Survey of Property Located at or Near 10325 Coyner Avenue, West of
Redmond in Deschutes County, Oregon" dated June 22, 2021, and a supplemental addendum titled
"Response — Eden Soils Report" dated January 13, 2022 (together hereafter referred to as the "Soil
Study") prepared by soil scientist Brian T. Rabe, CPSS, WWSS of Valley Science and Engineering.
The Applicant also submitted a traffic impact analysis prepared by Christopher M. Clemow, PE,
PTOE titled "710 Properties Plan Amendment and Zone Change — Deschutes County, Oregon" dated
November 12, 2021 and revised on January 17, 2022, hereinafter referred to as "Traffic Study."
(Applicant's Exhibit S) Additionally, the Applicant submitted an application form, a burden of proof
' The Hearings Officer finds that growing a lawn and/or watering a lawn with a domestic exempt well on a portion of
the subject property is not "agriculture" and does not constitute "farm use" under the statutory definition in ORS
215.203.
247-21-001043-PA/1044-ZC Page 5 of 74
statement,2 and other supplemental materials, all of which are included in the record for the subject
applications.
D. SOILS: According to Natural Resources Conservation Service (NRCS) maps of the area, the
subject property contain six different soil types including 63C, Holmzie-Searles complex, 106E,
Redslide-Lickskillet complex, 101 D, Redcliff-Lickskillet-Rock outcrop complex, 106D, Redslide-
Lickskillet complex, 71A, Lafollette sandy loam, and 31B, Deschutes sandy loam.
The Applicant submitted a soil study report (Applicant's Exhibit F), which was prepared by a
certified soils scientist and soil classifier that determined the subject property is comprised of soils
that do not qualify as Agricultural Lando. The purpose of this soil study was to inventory and assess
the soils on the subject property and to provide more detailed data on soil classifications and ratings
than is contained in the NRCS soils maps. The NRCS soil map units identified on the properties
are described below.
31B Deschutes Sandy Loam 0 to 8 percent slopes: This soil map unit predominantly consists of
Deschutes soils on lava plains. Deschutes soils are typically moderately deep, well drained, and
formed in volcanic ash. This soil map unit is expected to be composed of 85 percent Deschutes
soils and similar inclusions, and 15 percent contrasting inclusions. This soil type is considered
high -value soil when irrigated. Deschutes Sandy Loam has a rating of 6s when unirrigated.
Approximately 0.01 percent of the subject property is made up of this soil type.
63C Holmzie-Searles complex 0 to 15 percent slopes: This soil map unit predominantly consists
of Holmzie and Searles soils on lava plains and hills. Holmzie soils are typically moderately deep,
well drained, and formed in ash over residuum on hills. Searles soils are typically moderately deep,
well drained, and formed in ash on lava plains and hills. The primary difference between the
Holmzie and Searles soils is depth and texture. This soil map unit represents areas where the soil
characteristics vary in a pattern that was not practical to delineate separately at the scale of the
published survey. This soil map unit is expected to be composed of 50 percent Holmzie soils and
similar inclusions, and 35 percent Searles soils and similar inclusions, and 15 percent contrasting
inclusions. This soil type is not considered high -value soil. The Holmzie and Searles soils have a
rating of 6e when unirrigated. Approximately 74.4 percent of the subject property is made up of
this soil type.
71 A Lafollette sandy loam, 0 to 3 percent slopes: This soil map unit predominantly consists of
Lafollette soils on stream terraces. Lafollette soils are typically moderately deep to very gravelly
old alluvium, well drained and formed in volcanic ash over old alluvium. This soil map unit is
expected to be composed of 85 percent Lafollette soils and similar inclusions, and 15 percent
contrasting inclusions. This soil type is considered high -value soil when irrigated. The Lafollette
sandy loam soil has a rating of 6s when unirrigated. Approximately 1.6 percent of the subject
property is made up of this soil type.
2 The Applicant filed a revised burden of proof statement with its final legal argument on May 11, 2022.
3 As defined in OAR 660-033-0020, 660-033-0030.
4 As defined in OAR 660-033-0020, 660-033-0030.
247-21-001043-PA/1044-ZC Page 6 of 74
1011)Redcliff-Lickskillet-Rock outcrop complex 15 to 30 percent south slopes: This soil map
unit predominantly consists of Redcliff and Lickskillet soils on hills and canyon sides. Redcliff
soils are typically moderately deep, well drained, and formed in ash and colluvium. Lickskillet
soils are typically shallow, well drained, and formed in colluvium. The primary difference between
the Redcliff and Lickskillet soils is depth and coarse fragment content. This soil map unit
represents areas where the soil depth varies in a pattern that was not practical to delineate
separately at the scale of the published survey. This soil map unit is expected to be composed of
60 percent Redcliff soils and similar inclusions, 20 percent Lickskillet soils and similar inclusions,
and 15 percent Rock outcrop, and 5 percent contrasting inclusions. This soil type is not considered
high -value soil. The Redcliff soils have rating of 6e when unirrigated. The Lickskillet soils have
rating of 7e when unirrigated. The rock outcrop has a rating of 8. Approximately 5 percent of the
subject property is made up of this soil type.
106D Redslide-Lickskillet complex 15 to 30 percent north slopes: This soil map unit
predominantly consists of Redslide and Lickskillet soils on hills and canyon sides. Redslide soils
are typically moderately deep, well drained, and formed in ash and colluvium. Lickskillet soils are
typically shallow, well drained, and formed in colluvium. The primary difference between the
Redslide and Lickskillet soils is depth and coarse fragment content. This soil map unit represents
areas where the soil depth varies in a pattern that was not practical to delineate separately at the
scale of the published survey. This soil map unit is expected to be composed of 50 percent Redcliff
soils and similar inclusions, 35 percent Lickskillet soils and similar inclusions, and 15 percent
contrasting inclusions. This soil type is not considered high -value soil. The Redslide soils have
rating of 6e when unirrigated. The Lickskillet soils have rating of 7e when unirrigated.
Approximately 2.18 percent of the subject property is made up of this soil type.
106E Redslide-Lickskillet complex 30 to 50 percent north slopes: This soil map unit is similar to
map unit 106D with steeper slopes. Redslide soils have a soil rating of 6e when unirrigated.
Lickskillet soils have a rating of 7e when unirrigated. Approximately 16.7 percent of the subject
property is made up of this soil type.
E. SURROUNDING LAND USES: The subject property is predominately surrounded by EFU-
zoned lands with large-scale farm/agricultural uses apparent near the northwest boundary of the
subject property. Per Deschutes County Assessor records, many abutting properties, also zoned
EFU, are federally owned and appear to be undeveloped and unirrigated. These surrounding
properties contain vegetation typical of the high desert, including juniper and sagebrush, similar
to the subject property.
There are existing properties developed with residential uses near the southeastern boundary of the
subject property and larger scale farm uses to the east along NW Coyner Avenue. There is property
zoned Rural Residential-10 Acre Minimum (RR-10) to the northeast of the subject property
containing large -lot rural residential uses within the Lower Bridge Estates Subdivision. All
properties on the south side of NW Coyner Avenue have been developed or approved for
development with nonfarm dwellings. Two farm and five nonfarm parcels adjoin the north side of
this part of NW Coyner Avenue.
247-21-001043-PA/1044-ZC Page 7 of 74
The adjacent properties are outlined below in further detail:
North: The northernmost boundary of the subject property abuts land zoned RR-10 and EFU. The
property zoned RR-10 is part of the Lower Bridge Estates residential subdivision platted in 1981.
Abutting property to the northeast is ±80-acre property zoned EFU and appears to be unirrigated
and undeveloped. An EFU-zoned property to the south of the NW Lower Bridge Way and NW
Teater Avenue intersection contains a non -farm dwelling (Assessor's Map 14-12-00, Tax Lot
1506). Nearby property to the north also includes a former surface mine zoned RR-10 on the north
side of NW Lower Bridge Way, west of the Deschutes River. The adjacent property to the
north/northwest is a 193.52-acre EFU-zoned property owned by Volwood Farms, LLC. The
property contains irrigated pivot fields and appears to be part of a larger ±368-acre farm property
also owned by Volwood Farms, LLC. According to the Applicant, the primary farm uses include
alfalfa, orchard grass and hay.
West: Lands to the immediate west of the subject property are zoned EFU. Property to the west
abutting the southern boundary of the project site includes a ±1,588-acre parcel (Assessor's Map
14-12-00, Tax Lot 3200) federally owned and managed by the Bureau of Land Management. This
property appears to be unirrigated, is undeveloped, and contains vegetation similar to the subject
property. Moving north along the subject property's western boundary, there are apparent large-
scale farm uses occurring in the EFU Zone, within the Lower Bridge subzone. As discussed above,
the Volwood Farms property is located to the west and contains larger -scale farm uses. The Lower
Bridge area also includes an alpaca ranch (70397 Buckhom Road) approximately 1.3 miles to the
west. An existing vineyard and winery at 70450 NW Lower Valley Drive is approximately 1.5
miles west of the subject property's western boundary.
East: Tax Lot 700 (Assessors Map 14-12-22B), Tax Lot 500 (Assessor's Map 14-12-22C), and
Tax Lot 200 (Assessors Map 14-12-27), totaling 320 acres are federally owned and abut the eastern
boundary of the subject property. These lots are vacant and are zoned EFU. Property zoned RR-
10 and platted as part of the Lower Bridge Estates is located further east beyond the abutting
federal land along NW 93`d Street. One privately -owned tax lot zoned EFU, Tax Lot 301
(Assessor's Map 14-12-27), abuts the eastern boundary of the subject property and is developed
with a nonfarm dwelling (247-18-000796-CU). There are some larger scale farm uses occurring
further east, on the north side of NW Coyner Avenue at 9805 NW Coyner Avenue (Tax Lot 300,
Assessor's Map 14-12-27) and 9293 NW Coyner Avenue (Tax Lot 400, Assessor's Map 14-12-
27). These farms adjoin other irrigated and non -irrigated lands on their eastern boundary developed
with single-family residences.
South: The land south of the subject property is zoned EFU and incudes undeveloped open space
federally owned and managed by BLM. There are three nonfarm dwellings and parcels zoned EFU
on the north side of NW Coyner Avenue that do not appear to be engaged in farm use, 10305 NW
Coyner Avenue, 10255 NW Coyner Avenue, and 10135 NW Coyner Avenue. These nonfarm
parcels range in size from 19 to 28 acres. A 37.5-acre parcel at the southeast corner of NW Coyner
and NW 103'"d Street (10142 NW Coyner Avenue) is developed with a non -farm dwelling (CU-
90-97) and appears to have portions of the property in agricultural use.
247-21-001043-PA/1044-ZC Page 8 of 74
E. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice of the applications
on December 9, 2021, to several public agencies and received the following comments:
Deschutes County Senior Transportation Planner, Peter Russell
I have reviewed the transmittal materials for 247-21-0001043-PA/1044-ZC to amend the
Comprehensive Plan designation of nine abutting properties totaling approximately 710 acres
from Agriculture (AG) to Rural Residential Exception Area (RREA) and change the zoning for
those same properties from Exclusive Farm Use (EFU) to Rural Residential (RR-10). The
properties are located at 10315, 10325, and 10311 NW Coyner Ave., 7000 Buckhorn Rd., and five
properties with no assigned address. The NW Coyner properties are County Assessors Map 14-
12-28, Tax Lots 100, 200, and 300; the Buckhorn Road property is 14-12-21, Tax Lot 600; and
the properties with no assigned addresses are 14-12-28D, Tax Lot 101, 14-12-21, Tax Lot 300,
14-12-21, Tax Lot 400, 14-12-21, Tax Lot 500, and 14-12-21, Tax Lot 700.
The applicant's traffic study dated November 12, 2021, is problematic in two areas. First, staff
does not agree with the trip distribution. While Redmond is the logical origin/destination, the
applicant's traffic engineer offers no rationale why all trip would only use paved roads. The traffic
study simply sends all traffic down the same route to OR 126. Staff finds this a flawed approach
for several reasons. Rural residents are accustomed to using unpaved roads to reach their
destinations. The traffic study does not offer any time savings of paved vs. unpaved to justify all
traffic using the same route to access OR 126. Finally, the access to OR 126 requires a left turn
onto the highway to continue to Redmond, a move which can have significant delays [due] to
volumes on the highway. Second, the traffic analysis continually states due to the combination of
low existing volumes on the affected roadway and the low traffic generation of the proposal, the
cited intersections will meet relevant Deschutes County and Oregon Department of Transportation
(ODOT) mobility standards. This statement does not indicate if that is for the current year or the
planning horizon. While this is likely true, the traffic study provides no actual calculations to
prove this statement. Thus the traffic study does not meet the requirements of DCC
18.116.310(G)(10). The lack of supporting calculations also means the traffic study does not
comply with the Transportation Planning Rule (TPR) at OAR 660-012-0060(1)(c) to demonstrate
the use will have no significant effect. The applicant's traffic engineer may have this information,
but I did not see it in the application materials.
The property is proposed to directly access NW Coyner Road, a public road maintained by
Deschutes County and functionally classified as a local road. The County [sic] the applicant will
need to either provide a copy of a driveway permit approved by Deschutes County prior to
development or be required obtain one as a condition of approval prior to development occurring
to comply with the access permit requirements of DCC 17.48.210(A).
The County will assess transportation system development charges (SDCs) when development
occurs based on the type of proposed use. However, as a plan amendment or a zone change by
itself does not generate any traffic, no SDCs are triggered at this time.
In response to Mr. Russell's comment above regarding the traffic impact analysis (TIA) dated
November 12, 2021, the Applicant provided an updated traffic study dated January 17, 2022.
247-21-001043-PA/1044-ZC Page 9 of 74
In response to the updated traffic study, Mr. Russell provided the following comment, via email
dated January 18, 2022:
I received an earlier draft of the revised TIA last week and reviewed it. They wanted my two cents
before they submitted. The revised version provided the info I had requested. I've attached my e-
mail from last week back to Chris Clemow, the applicant's traffic engineer.
Deschutes County Building Official, Randy Scheid
The Deschutes County Building Safety Divisions code mandates that Access, Egress, Setbacks,
Fire & Life Safety, Fire Fighting Water Supplies, etc. must be specifically addressed during the
appropriate plan review process with regard to any proposed structures and occupancies.
Accordingly, all Building Code required items will be addressed, when a specific structure,
occupancy, and type of construction is proposed and submitted for plan review.
Department of State Lands, Lynne McAllister
It is unlikely that there are jurisdictional wetlands or waterways on the property based upon a
review of wetland maps, the county soil survey and other available information.
A state permit will not be required for the proposed project because, based on the submitted site
plan, the project avoids impacts to jurisdictional wetlands, waterways or other waters.
A state permit is required for 50 cubic yards or more of fill removal or other ground alteration in
wetlands, below ordinary high water of waterways, within other waters of the state, or below
highest measured tide.
There may be some minor headwater stream drainages on the property. Although jurisdictional
features are unlikely and minor, the reason a permit will not be required for this project is because
it is only an administrative action that does not involve placement offill material or other physical
ground disturbance. Therefore, a land use notice is not necessary.
Department of Land Conservation and Development Agriculture and Fish and Wildlife,
Jon Jinings (Community Services Specialist DLCD) James W. Johnson (Land Use and Water
Planning Coordinator ODA) Corey Heath (Deschutes Watershed District Manager, ODFW)
The Departments of Land Conservation and Development (DLCD), Agriculture (ODA) and Fish
and Wildlife (ODFW) would like to thank Deschutes County for the opportunity to review and
comment on the land use proposal referenced above. Please accept this letter as the joint comments
of our three Agencies. We understand the applicant is requesting the change the designation of
710 acres from Agriculture to Rural Residential Exception Area and change the zoning of the same
property from Exclusive Farm Use Terrebonne Subzone to Rural Residential with a ten -acre
minimum parcel size.
247-21-001043-PA/1044-ZC Page 10 of 74
Most rural residential areas in Oregon have been designated through what is often referred to as
an "exception " or the "exceptions process. " The exceptions process is designed to provide an
opportunity to demonstrate that an existing settlement pattern has irrevocably committed an area
to something other than commercial agriculture or forestry and, therefore, does not qualify for
protection under Statewide Planning Goals 3 (Agricultural Lands) or 4 (Forest Lands). Please see
OAR 660-004-0028. The most common type of exception areas are rural residential
neighborhoods that include both existing residences, as well as the presence of supportive
infrastructure and public services. Lands subject to an acknowledged exception must also show,
among other things, that the subsequent zoning designation will not negatively impact nearby
farming and forestry activities. Please see OAR 660-004-0018.
The applicant is not pursuing an exception. There is no existing settlement pattern on the subject
property. Instead, they are seeking a determination that the property.fails to satisfy the definitions
of "Agricultural Land" and "Forest Land" found in relevant state law. This approach is often
referred to as a "nonresource process " or "nonresource lands determination. "
We have separated our primary comments into three parts. Part I includes our responses to
applicable Oregon Administrative Rules and Oregon Revised Statutes. Part 2 includes
commentary on other issues. These issues may not constitute review criteria in relation to state
law although they may have a bearing on whether local county provisions have been satisfied.
Either way, we believe they are important and have chosen to include them here. Part 3 includes
our recommended outcome.
Please enter these comments into the record for all hearings on the proposal.
Part 1: Oregon Administrative Rules and Oregon Revised Statutes
Definition ofAzricultural Land
The applicant is requesting this change on the basis that the property does not qualify as
"Agricultural Land" as defined in State law and is therefore not resource land. OAR 660-033-
0020 defines Agricultural Land. The specific administrative rule language and our comments are
included below:
(1)(a) "Agricultural Land" as defined in Goal 3 includes:
(A) Lands classified by the U.S. Natural Resources Conservation Service (NRCS) as
predominantly Class I -IV soils in Western Oregon and I- VI soils in Eastern Oregon;
State Agency Comments
The applicant has provided a report indicating that the subject property is predominantly
comprised of Class VII soils. The State Agencies are not challenging this position. However, please
note that "approval" of a soils report by DLCD does not equate to any agreement with the
conclusions of the report.
247-21-001043-PA/1044-ZC Page 11 of 74
We would also like to emphasize that soil type is only one indicator of whether a property qualifies
for protection under Statewide Planning Goal 3. Tracts in Eastern Oregon that are predominantly
Class VII soils may be a candidate for reconsideration, but Goal 3 protection may only be removed
if they fail to satisfy the other important tests in this definition. Put another way, all tracts planned
for Exclusive Farm Use that are determined undeserving of Goal 3 protection must be
predominantly comprised of Class VII-VIII soils. However, not all tracts planned for Exclusive
Farm Use that are predominantly comprised of Class VII-VIII soils are undeserving of Goal 3
protection.
(B) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a),
taking into consideration soil fertility; suitability for grazing, climatic conditions; existing and
future availability of water for farm irrigation purposes; existing land use patterns;
technological and energy inputs required, and accepted farming practices, and
State Agency Comments
This test requires a detailed analysis of many different factors. Failure to satisfy individual factors
does not mean that the subject property fails to qualify as Agricultural Land pursuant to Goal 3
and OAR 660- 0330-0020(1).
We have separated the various factors included in this administrative rule provision and included
our comments below:
Farm use as damned in ORS 215.203(2)(a)
The definition of `farm use" at ORS 215.203(2)(a) is very broad and includes many
different types of pursuits.5 Essentially any type of "agricultural or horticultural use or
animal husbandry or any combination thereof" is included in this definition. Also included
are "stabling and training equines " as well as "...the propagation, cultivation,
maintenance and harvesting of aquatic, bird and animal species that are under the
jurisdiction of the State Fish and Wildlife Commission. " Furthermore, 'farm use " as
defined in this statute includes "the preparation, storage and disposal by marketing or
otherwise of the products or by-products raised on such land for human or animal use "
5 (2)(a) As used in this section, "farm use" means the current employment of land for the primary purpose of
obtaining a profit in money by raising, harvesting and selling crops or the feeding, breeding, management and sale
of, or the produce of, livestock, poultry, fur -bearing animals or honeybees or for dairying and the sale of dairy
products or any other agricultural or horticultural use or animal husbandry or any combination thereof. "Farm use"
includes the preparation, storage and disposal by marketing or otherwise of the products or by-products raised on
such land for human or animal use. "Farm use" also includes the current employment of land for the primary
purpose of obtaining a profit in money by stabling or training equines including but not limited to providing riding
lessons, training clinics and schooling shows.
"Farm use" also includes the propagation, cultivation, maintenance and harvesting of aquatic, bird and animal
species that are under the jurisdiction of the State Fish and Wildlife Commission, to the extent allowed by the rules
adopted by the commission. "Farm use" includes the on -site construction and maintenance of equipment and
facilities used for the activities described in this subsection.
"Farm use" does not include the use of land subject to the provisions of ORS chapter 321, except land used
exclusively for growing cultured Christmas trees or land described in ORS 321.267 (3) or 321.824 (3).
247-21-001043-PA/1044-ZC Page 12 of 74
and "the on -site construction and maintenance of equipment and facilities used for the
activities described in this subsection. "
A determination that lands deserve protection under Goal 3 need not show that all of the
activities described in ORS 215.203(2)(a) are available on a subject tract. A tract that is
not suitedfor one type offarm use may be suited for another type offarm use. For example,
a tract that is not suited for cultivated crop production may be well suited for livestock
production and other aspects of animal husbandry. In addition to seasonal grazing
requirements, commercial livestock operators also need areas for winter activities such as
feeding and hay storage, calving or lambing grounds and locations for males (e.g., bulls
and rams) that need to be separated from the main herd until breeding season occurs. Such
lands may also be sufficiently capable of supporting, among other things, the boarding and
training of horses, raising poultry, honeybees or even ungulate species like elk or raising
game birds such as pheasants, chuckar, or quail.
Having observed the subject property, we believe that it is capable of any number of
activities included in the definition of `farm use" at ORS 215.203(2)(a).
Soil fertility
Soil fertility can be an important factor in commercial agricultural operations. However,
the presence of productive soils is not always necessary. Many types of farm uses are not
dependent on specific soil types and others tend to benefit from less productive soils.
Feedlots, whether commercial or personal, are frequently located on lands with low soil
fertility. Having dryland areas to store and maintain equipment when not in use (also a
farm use under ORS 215.203(2)(a)) can be very important for farming and ranching
operations. Simply stated, having access to areas with low soil fertility can be an advantage
for commercial agriculture operations because it allows for necessary activities that could
otherwise interfere with the management of areas with more productive soils.
Having observed the subject property, we believe that it has soil fertility sufficient to
support any number of activities included in the definition of 'farm use " at ORS
215.203(2)(a).
Suitability for krazin
The application presents information regarding the capacity for grazing on the subject
tract.
The identified number of Animal Unit Months (A UM) are, more or less, in line with our
own assessment and represent average rangeland pastures found in central Oregon.
However, we believe the value of this grazing capacity has been understated. Lands such
as this have been successfully managed for livestock grazing since cattle and sheep were
introduced to the area.
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According to the USDA NRCS Rangeland Analysis Platform and the NRCS Heatmap, F the
subject property appears to be a perfectly average piece of native rangeland for the area.
The NRCS Heatmap provides a spatial map of the biomass production over the entire area
and demonstrates the consistency of the land use,for the surrounding landscape. If the
subject land isn't productive agricultural land, then one would have to believe that no piece
of Deschutes County rangeland in the larger area is. Overall, the subject area is in good
shape, it has a little bit of annual grass but - sub 10% for shrub and annual grass cover. It
looks like over time it averages about a 500lbs/acre in the perennial biomass production,
with it having wet year production of 700lbs/acre and drought years and this year with
several years of drought, it may get as low as 300lbs/acre. Grazing efficiency is generally
around 30%-100-210 ofgrass tonnage is what livestock will actually eat. That means that
its' AUK/acre ranges from 1 AUM to 10 acres in bad years and I to 5 in good years and
in most years it's 1 to 6 or 7. This equates to this area being the productive norm for native
rangeland in the region.
According to the application, the property is capable of supporting between eight (8) and
15 cow/calf pairs for a year (40-75 sheep or goats). While this may not be technically
mistaken, it does not account for customary grazing practices that utilize a five to six month
grazing season. In other words, a better metric would be to recognize that the property
would be capable of supporting 16-30 cow/calf pairs or an equivalent number of sheep or
goats for a typical grazing season, which would be much more worthwhile to a commercial
operation, particularly when managed in conjunction with other lands. Another scenario
would be to graze a much higher number of livestock for a more limited duration of time.
For instance, having a location available between the time cattle are taken off winter
pasture and the time they are hauled to summer range can be an important factor in
commercial livestock operations.
Ranchers commonly transport livestock significant distances to pasture. Assuming that the
property would need to be independently relied on or used by adjacent or nearby
operations is not in keeping with the nature of livestock management largely practiced in
this region.
Having observed the subject property, we believe that it is sufficiently suitable for grazing.
Climatic Conditions
The subject property is in the rain shadow of the Cascade Mountain Range on the edge of
the Oregon High Desert. In other words, the area is dry with cold winters and the potential
for frost nearly every month. These climatic conditions are not ideal for commercial
agriculture. However, commercial agriculture is active in similar settings in the local area
and throughout the mountain and intermountain regions of the United States. For example,
the hay and cattle producing regions of Ft. Rock and Christmas Valley share similar
precipitation constraints and are located at an elevation of 4,699 and 4, 318 feet above sea
level, respectively, compared to an elevation of 2,871 at Terrebonne, Oregon. The hay and
6 https://rangelands.app/
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Page 14 of 74
cattle producing region of the Big Hole basin near Wisdom, Montana sits at an elevation
of over 6, 000 feet above sea level.
Having observed the subject property, we believe the relevant climatic conditions are
suitable to sustain commercial agriculture.
Existing and future availability of water for irrigation purposes
Irrigation water is critical for irrigated agriculture. However, many types of farm uses are
not dependent on irrigation.
Having observed the subject property, we do not believe that water for irrigation purposes
is necessary to conduct many of the activities included in the definition of `farm use" at
ORS 215.203(2)(a).
Existing land use patterns
The existing land use pattern of the area is unmistakably rural and characterized by
farming and ranching activities.
Having observed the subject property, we do not believe that the introduction of rural
residential development would be consistent with the existing land use pattern.
Technology and eneLU inputs required
Every endeavor, agriculture or otherwise, requires technological and energy inputs. As
with anything else, high levels of financial investments for agricultural purposes may not
make economic sense in every instance. Fortunately, investments in farm use activities may
be tailored to fit the circumstances. Lands where installing a series of irrigation pivots
would not lead to a suitable return may be well positioned for the development of an indoor
riding area. Developing a confined animal feeding operation is likely to incur similar
capital costs wherever it is sited.
This proposed application raises several examples of potential costs and asserts that they
would have a prohibitive result. We agree that some investments may not be worthwhile
on the subject property. However, as previously mentioned, many types of farm uses have
similar capital costs wherever they may be established. Furthermore, we believe that many
other aspects of technology and energy inputs may be suitably mitigated. For instance, this
particular tract is not included in a livestock district, so a livestock operator is not legally
required to fence their animals in. Instead, it is incumbent upon other properties to fence
them out. If limiting animal movement to the subject property is desired, completingfencing
around the perimeter of the tract and cross fencing the interior for better forage utilization
can be accomplished using electric fence, or "hot-wire ", which is much more affordable
than traditional fencing products. While the application confirms that power is available
to the subject property, a solar electric charger may also be used for powering miles of
electric fence. Trucking water to livestock in dryland pastures is not uncommon in this part
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of country if a well is not available or convenient and portable panels can be used for
working pens rather than having to construct such facilities if they are not present.
We do not believe the cost of labor to be an impediment. Folding the subject property into
an existing operation is unlikely to require hiring additional help, neither would managing
a grazing operation comprised only of the subject project, unless of course the owner or
lease holder is unable to do the work. Costs of additional labor needed to establish other
types of stand-alone operations, including but not limited to, boarding, or training horses,
raising game birds, or a confined animal feeding operation would be supported by that
use.
Having observed the subject property, we do not believe that technological or energy
inputs present an overwhelming barrier to conducting farm uses described at ORS
215.203(2)(a).
Accepted farming practices
Commercial farming and ranching operations are often not confined to one particular
parcel or tract. Instead, they are regularly comprised of a combination of owned and
leased land. These lands may be in close proximity, or they may be dozens (or more) miles
apart. The fact that a single property may struggle to be managed profitably by itself does
not mean that it does not have important value when managed in conjunction with other
lands.
We believe that all the farm uses described above constitute accepted farming practices,
many which are currently practiced in the surrounding area.
Having observed the subject property, we believe that it is entirely available for accepted
farming practices.
(C) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby
agricultural lands.
State Agency Comments
There is little discussion that we found in the information provided in support of the plan
amendment that adequately discusses impacts to area farm operations. The discussion provided
by the applicant focuses primarily on an assertion that any subsequent development of the subject
property (because of the proposed plan amendment and rezone) would not adversely impact
surrounding farming and ranching operations primarily because the property is separated by
topography that would provide adequate buffers. This conclusion is not supported by any
comprehensive evaluation of the farming and ranching practices that are associated with existing
andpotential future farm uses in the surrounding area. Without an adequate analysis of the impact
on adjacent or nearby agricultural lands, there are many questions that have not been evaluated.
For example, what would the cumulative impacts of additional residential water use be to water
supply for area irrigated agriculture in the region? Unlike applications for irrigation use,
247-21-001043-PA/1044-ZC Page 16 of 74
residential wells are exempt uses and thus there would be no evaluation for injury to other water
users in the area. What would be the traffic implications? What would the siting of more dwellings
do to the ability to utilize certain agricultural practices? Would the expansion of residential
development in the area provide greater opportunities for trespass from adjacent properties onto
area farming operations?
(b) Land in capability classes other than I-IVII-VI that is adjacent to or intermingled with lands
in capability classes I-IVII-VI within a farm unit, shall be inventoried as agricultural lands even
though this land may not be cropped or grazed,
State Agency Comments
It does not appear that the subject property is currently within a farm unit that includes lands in a
capability class I- VI. This observation is not meant to dismiss the fact that the property's status in
this regard could change in the future.
(c) "Agricultural Land" does not include land within acknowledged urban growth boundaries
or land within acknowledged exception areas for Goal 3 or 4.
State Agency Comments
We agree that the subject property is not within an acknowledged urban growth boundary or and
acknowledged exception area for Goal 3 or 4.
State Agency Agricultural Land Definition Conclusion
Agricultural Land includes all three categories of land described above as part of OAR 660-033-
0020(1)(a)(A)-(C). We find that categories (B) and (C) are insufficiently addressed by the burden
of proof included with the application. Based on the current application materials, we disagree
with findings that asserts the property is not Agricultural Land. We find the subject property is
characteristic in soils, terrain, hydrology, and size to many central Oregon properties that have
been historically or are currently used, for livestock and grazing operations. Utilizing several non-
contiguous properties to meet the needs of livestock over the course of a typical year is an accepted
farming practice across much of Oregon. To assume that a property of this nature could not be
used as standalone or as part of a nearby livestock operation by the current or future landowner
or lessee would have significant consequences to existing agriculture operations either by
reducing the amount of land available for legitimate agricultural practices or through the
introduction of conflicting uses.
We also point to Agricultural Land Policy (ORS 215.243) direction provided to the State from the
Legislative Assembly upon passage of Oregon Land Use Bill, Senate Bill 100 and its' companion
Senate Bill 101; as important considerations that must be addressed prior to the redesignation or
rezoning of any Agriculture Land. ORS 215.243 states:
The Legislative Assembly finds and declares that:
247-21-001043-PA/1044-ZC Page 17 of74
(1) Open land used for agricultural use is an efficient means of conserving natural resources that
constitute an important physical, social, aesthetic and economic asset to all of the people of this
state, whether living in rural, urban or metropolitan areas of the state.
(2) The preservation of a maximum amount of the limited supply of agricultural land is necessary
to the conservation of the state's economic resources and the preservation of such land in large
blocks is necessary in maintaining the agricultural economy of the state and for the assurance of
adequate, healthful and nutritious food for the people of this state and nation.
(3) Expansion of urban development into rural areas is a matter of public concern because of the
unnecessary increases in costs of community services, conflicts between farm and urban activities
and the loss of open space and natural beauty around urban centers occurring as the result of
such expansion.
(4) Exclusive farm use zoning as provided by law, substantially limits alternatives to the use of
rural land and, with the importance of rural lands to the public, justifies incentives andprivileges
offered to encourage owners of rural lands to hold such lands in exclusive farm use zones. [1973
c.503 §1]
Finally, we would like to offer a response to this statement included in the application materials:
"Since the property was zoned, it has become evident that farm uses are not viable on the
subject property. The economics of farming have worsened over the decades making it
difficult for most Deschutes County property owners to make money farming good ground
and impossible to earn a profit from attempting to farm Class 7 and 8 farm soils. In 2017,
according to Table 4 of the 2017 US Census ofAgriculture, Exhibit T, only 16.03% of farm
operators achieved a net profit from farming (238 of l 484 farm operations). In 2012, the
percentage was l 6.45% (211 of 1283 farm operations). In 2007, according to the 2012 US
Census of Agriculture, that figure was 17% (239 of 1405 farm operations). Exhibit U. The
vast majority of farms in Deschutes County have soils that are superior to those found on
the subject property. As farming on those soils is typically not profitable, it is reasonable
to conclude that no reasonable farmer would purchase the subject property for the purpose
of attempting to earn a profit in money from agricultural use of the land. "
First, this statement assumes that the subject land would be put into farm use as a single, separate
unit. As previously discussed, it is very common for farming and ranching operations to be
comprised of multiple, constituent parcels that are operated as a single farm/ranch operation.
Second, the Census of Agriculture numbers provided do not provide the entire context and nature
of Deschutes County agriculture. It is important to note that the Census of Agriculture defines a
farm as "any place from which $1, 000 or more of agricultural products were produced and sold,
or normally would have been sold during the census year. "7 Thus, the total number of farms in
any given Census statistic can be skewed by a large number of small farms that might better be
7 2017 Census of Agriculture, Oregon State and County Data, Volume 1, Geographic Area Series 37, USDA National
Agricultural Statistics Service, page VIII Introduction.
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characterized as hobby or lifestyle farms. In the case of Deschutes County, the numbers quoted by
the applicant may be better considered upon recognizing that of the 1484 farms in the county,
92.7% (1376) are less than 100-acres in size. These same farms constitute only 19.59% (26,367
acres) of the total land area of land in farms. Taken further, 92.1 % (1268) of these farms are less
than 50-acres in size and comprise but 13.8% (18,531 acres).' The character of Deschutes County
"commercial" agriculture is perhaps better considered by looking at the larger.footprint of land
in farms which is better described as large operations many of which operate using constituent
parcels, many times not contiguous to each other.
Definition of Forest Land
The Applicant also asserts that the subject property is not Forest Land. OAR 660-06-0005 defines
Forest Lands, it states:
(7) "Forest lands" as defined in Goal 4 are those lands acknowledged as forest lands, or, in the
case of a plan amendment, forest lands shall include:
(a) Lands that are suitable for commercial forest uses, including adjacent or nearby
lands which are necessary to permit forest operations or practices; and
(b) Other forested lands that maintain soil, air, water and fish and wildlife resources.
OAR 660-006-0010(2) states:
(2) Where a plan amendment is proposed.
(a) Lands suitable for commercial forest uses shall be identified using a mapping of average
annual wood production capability by cubic .foot per acre (cf/ac) as reported by the USDA
Natural Resources Conservation Service. Where NRCS data are not available or are shown to
be inaccurate, other site productivity data may be used to identify forest land, in the following
order of priority:
(A) Oregon Department of Revenue western Oregon site class maps;
(B) USDA Forest Service plant association guides; or
(C) Other information determined by the State Forester to be of comparable quality.
(b) Where data of comparable quality under paragraphs (2) (a) (A) through (C) are not available
or are shown to be inaccurate, an alternative method for determining productivity may be used
as described in the Oregon Department of Forestry's Technical Bulletin entitled "Land Use
Planning Notes, Number 3 April 1998, Updated for Clarity April 2010. "
8 2017 Census of Agriculture, Oregon State and County Data, Volume 1, Geographic Area Series 37, USDA
National Agricultural Statistics Service, Table 8.
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(c) Counties shall identify forest lands that maintain soil air, water and fish and wildlife
resources.
State Agency Comments
We find the burden of proof does not satisfactorily address OAR 660-06-0005(7)(a) because it
does not contain the analysis required by OAR 660-06-0010(2) addressing the wood production
capabilities of the property. As a result, it does not verify whether or not it is suitable for
commercial forest uses.
Statewide Planninz Goal 14 (Urbanization)
Goal 14 does not allow urban uses to be placed on rural lands.
State Agency Comments
The application proposes to include the subject property in an RR-10, Rural Residential Zoning
district. It is unclear to us whether such an arrangement is set forth in the County Comprehensive
Plan. If so, the issue is settled in this case and our Goal 14 comments would be addressed.
If not, the applicant must demonstrate that the 10-acre minimum parcel size allowed by the RR-10
Zone is compliant with Goal 14. We have regularly expressed concerns that introducing a 10-acre
settlement pattern into a rural area that is devoid of development is not consistent with thepolicies
of Goal 14.
Part 2: Other Concerns and Observations
Wildlife Habitat Concerns
It is the policy of the state to protect and enhance Oregon's fish and wildlife and their habitats for
use and enjoyment by present and future generations (ORS 496.012).
This proposal is within ODFW designated biological mule deer and elk winter range, 9 which are
considered Habitat Category 2 per the ODFW Fish and Wildlife Habitat Mitigation Policy.10
Habitat Category 2 is essential habitat for a wildlife species, population, or unique assemblage of
species and is limited either on a physiographic province or site -specific basis depending on the
individual species, population or unique assemblage. Winter habitat includes areas identified and
mapped as providing essential and limited function and values (e.g., thermal cover, security from
predation and harassment, forage quantity, adequate nutritional quality, escape from disturbance)
for deer and elk from December through April. Winter survival and subsequent reproduction of
big game is the primary limiting, factor influencing species abundance and distribution in Oregon.
Winter habitats vary in area, elevation, aspect, precipitation, and vegetation association all
https •//nrimp.dfw. state. or.us/DataClearinghouse/default.aspx?p=202&XMLname=885.xml
10 htips://www.dfw.state.or.us/lands/mitigation policy.asp
247-21-001043-PA/1044-ZC Page 20 of 74
influencing the relative quantity and quality of available habitat on both an annual and seasonal
basis.
While this property is not currently designated as an acknowledged Goal S resource for wildlife
habitat in the Deschutes County Comprehensive Plan, it is within the biological big game habitat
areas ODFW recommended be included as part of the proposed Goal S Wildlife Inventory Update
process in 2021.11 ODFW relies on local and state compliance with the land use planning goals
to consider natural resources and protect large parcel sizes necessary for habitat connectivity and
resource land. The relatively open, undeveloped parcel that is often associated with a resource
designated zoning such as Agricultural and EFU, provides valuable habitat for mule deer, elk,
and other wildlife species. The open space inherently provided by the land use protections under
those designations is not only important in maintaining the farming and ranching practices and
rural characteristics of the land, but also preserving the wildlife habitat function and values that
the land is providing.
The proposed plan amendment and zone change would allow for the property to be divided into
10 acre lots. Development, including residential development, within big game habitat can result
in individual and cumulative impacts. Residential development conflicts with wildlife habitat
because it results in the direct loss of habitat at the home site and the fragmentation of the
remaining habitat by the structures and associated roads results in increased disturbance and loss
of habitat function and values necessary for wildlife, such as fawning or calving areas.
Allowing the change in designation of the subject properties and rezoning to Rural Residential
will open the possibility for future parceling and development of the land, resulting in habitat
fragmentation, increased disturbance and a loss of important functions and values for wildlife life
history needs. If that occurs, ODFW will not respond to any wildlife damage complaints within
the development, due to the change in land use.
Water Availability Concerns
The state agencies are concerned with ongoing impacts to surface water and groundwater in the
Deschutes basin. We have several primary concerns regarding potential impairment to fish and
wildlife habitat from a new water use, the first being potential impact to surface flows necessary
for fish and wildlife resources in the Deschutes River system (including a reduction in surface
water quantity from groundwater pumping), and the second being the potential for an increase in
water temperature as a result of flow reductions or impairment to cold water derived from seeps
and springs. Seeps and springs provide unique habitat for a number of plant and animal species,
including fish. Seep and spring flows, especially in the summer and fall, are typically cooler than
the water flowing in the main stream, providing a natural relative constancy of water temperature.
This cooler water provides thermal refuge for salmonids which thrive in cooler water.
We currently do not know if there are existing water rights for the subject property and if so, if
they could be utilized for the proposed 10-acre lots intended for residential use. We recognize that
" https•//www.deschutes.org/cd/page/wildlife-inventory-update
247-21-001043-PA/1044-ZC Page 21 of 74
any new water use, unless exempt, must be appropriately permitted through the Oregon Water
Resources Department (0WRD). However, the state relies on both OWRD and Deschutes County
processes to ensure that new water use is mitigated in a manner that results in no net loss or net
degradation offish and wildlife habitat quantity and quality and potentially provides a net benefit
to the resource. It is becoming increasingly difficult to obtain mitigation to offset impairment to
water quality and quantity in the Deschutes basin, when required, due to ongoing declines in
groundwater and streamflow in the area. Recent studies by the USGS have reported groundwater
levels in the .Redmond Area showing a modest and spatially variable decline in recent decades,
about 25 ft since 1990, and 15 ft between 2000- 2016. Simulation of pumping 20 cfs from a
hypothetical well east-northeast of Sisters and east of the Sisters fault zone shows declines in
groundwater discharge not only in the Deschutes River between Lower Bridge and the gage near
Culver, but also in the lower Crooked River and Opal Springs.12
Therefore, in the face of a changing climate and current and potential human impacts both
regionally and in the vicinity of the proposed change in designation, we recommend any required
mitigation through OWRD and County processes be carefully analyzed to ensure the intended
ecological functions of mitigation are achievable and able to be maintained in perpetuity. We urge
the County to consult with ODFW regarding any mitigation proposals and the likelihood of
achieving mitigation goals, particularly under the framework of ODFW's Fish and Wildlife
Habitat Mitigation Policy and ODFW's Climate and Ocean Change Policy. 13
Wildfire
The existence of structures, particularly dwellings, can significantly alter fire control strategies
and can increase the cost of wildfire protection by 50-95%.14 More than half of wildfires in the
Northwest and more than 80% of wildfires in Northern California are human-caused.15
Additionally, the cost of the State of Oregon's catastrophic fire insurance policy has dramatically
increased in the previous years and future availability is in jeopardy due to the recent escalation
in wildfire fighting costs. Additional landscape fragmentation has the potential to exacerbate the
costs and risks associated with wildfire.16
We appreciate Deschutes County's leadership on this issue and your participation in the
conversations related to SB 762, the omnibus wildfire bill from the 2021 Legislative Session.
Planninm and Zoninz
The County Comprehensive Plan calls for the application of a Rural Residential Exception Area
plan designation for lands successfully converted from an Agricultural plan designation. This is
what the application proposes and we do not object. However, we would like to observe that
12 Gannett, M.W., Lite, K.E., Jr., Risley, J.C., Pischel, E.M., and LaMarche, J.L., 2017, Simulation of groundwater
and surface -water flow in the upper Deschutes Basin, Oregon: U.S. Geological Survey Scientific Investigations
Report 2017-5097, 68 p., https:Hdoi.org/10.3133/sir2Ol75097
13 https://www.dfw.state.or.us/climate ocean chan%g docs/plain english version.ndf
14 http://headwaterseconomics.org/wphw/wp-content/uploads/fire-costs-background-report.pdf
" h!t2://www.fs.fed.us/nn/pubs/rmrs trg_299.pdf
16 https://tools.oregonexplorer.info/OE_HtmlViewer/index.html?viewer=wildfireplanning
247-21-001043-PA/1044-ZC Page 22 of 74
applying this plan designation to lands using the conversion pathway proposed by the application
is confusing. Specifically, these lands are not "exception areas" as that term is commonly
understood.
The same is true of applying an RR-10, Rural Residential Zoning District. We have already
addressed the possibility of Goal 14 implications so we will not repeat them here. Instead, we
would like to reiterate that these types of areas are not subject to an acknowledged exception and
are viewed differently. For example, should the county choose to offer Accessory Dwelling Units
(ADU) in the RR-10 zone pursuant to SB 391, this opportunity may not be extended to lands
converted through a nonresource process.
Part 3: State Agency Recommendation
Thank you again for the opportunity to provide comments. We have concerns regarding the
conversion of open rural lands to housing development. Much of the nonirrigated rural land in
Deschutes County is similar to the subject property. Many of these areas provide essential
functions and values to Deschutes County's citizens which also benefit natural resources, such as
open space, recreation, habitat and other environmental services. In addition, these lands are
critical buffers to protect working farms and forests from conflicting uses. Many of these same
areas are not appropriate for the encouragement of residential development. Remoteness, an
absence of basic services and a susceptibility to natural hazards like wildland fire are all reasons
why rural areas are not well suited to residential settlement even if they have little value for
forestry or agricultural production.
Based on our review of the application material's and for the reasons expressed above, we believe
that the subject property qualifies as resource land. It is our recommendation that the subject
property retain an Exclusive Farm Use designation and not be converted to allow rural residential
development. Please feel free to contact us if you have any questions.
The following agencies did not respond to the notice: Deschutes County Forester, Deschutes
County Property Management, Deschutes County Road Department, Redmond City Planning,
Redmond Fire and Rescue, Redmond School District 2, Redmond Public Works, Redmond Area
Parks and Recreation District, District 11 Watermaster, Bureau of Land Management.
F. PUBLIC COMMENTS: The Planning Division mailed notice of the application to all
property owners within 750 feet of the subject property on December 9, 2021. The Hearings
Officer finds that the Applicant complied with the posted notice requirements of Section
22.24.030(B) of Title 22. The Applicant submitted a Land Use Action Sign Affidavit indicating
the Applicant posted notice of the land use action on December 9, 2021. At the public hearing,
staff testified that Deschutes County received approximately one hundred (100) public comments
on the application. At the public hearing on April 19, 2022, ten (10) members of the public testified
in opposition to the applications.
Comments received in support of the applications reference the Applicant's soil analysis, potential
expansion of rural housing inventory, and protection from wildfire through better access and
vegetation management as a basis for support. Commentators noted the steep cliffs and distance
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from other farms, as well as the lack of irrigation rights and poor soils on the subject property.
Comments received in opposition cite concerns with traffic and emergency access impacts,
availability of groundwater, compatibility with and preservation of agricultural land, and impacts
to wildlife.
At the conclusion of the public hearing, the Hearings Officer left the record open for two (2) seven-
day periods, closing on April 26, 2022 (new evidence) and May 3, 2022 (rebuttal evidence), and
permitted the Applicant until May 10, 2022 to submit closing argument. Staff directed that
submissions during the open record period be transmitted by 4:00 p.m. on the deadlines. Several
submissions, from Nunzie Gould, Andrew Mulkey of 1000 Friends of Oregon and S. Gomes were
submitted after the 4:00 p.m. April 26, 2022 deadline and thus were not timely. The Hearings
Officer does not consider the untimely evidence and arguments in this Decision and
Recommendation.
All public comments timely received are included in the record in their entirety and incorporated
herein by reference.
Applicant Responses:
On April 8, 2022, the Applicant provided the following response to public comments received as
of that date:
Inaccuracies in Opposition Comments
Ed Stabb, 1211312021 Letter
Mr. Stabb claims that his property at 9805 NW Coyner Avenue is contiguous to the subject
property. In one part, it is close but not contiguous. The Stabb property is separated from
the subject property by the 'flagpole " part of a nonfarm parcel and nonfarm dwelling at
9307 NW Coyner Avenue that Mr. Stabb created (Parcel 2 of Partition Plat 2004-85). The
flagpole " part of nonfarm Parcel 2 runs along the west side of the main irrigated farm
field on the Stabb property on land formerly irrigated by the property owner (per page 18,
Decision MP-04-11/CU-04-42). Furthermore, the Stabb property is surrounded by
nonfarm parcels on all sides.
Mr. Stabb's description of properties in the Odin Valley along the west end of NW Coyner
Avenue asserts that area is primarily agricultural. The following facts, however, show that
the predominant parcel type along Coyner Avenue west of 91 st Street (a length of
approximately. 75 miles) are not receiving farm tax deferral and are nonfarm parcels or
parcels that are developed with nonfarm dwellings. Only two parcels are farm parcels
that are farm tax deferred farm properties. In particular beginning at the west end of
Coyner Avenue:
10305 NW Coyner Avenue (Witherill), PP 2015-15 nonfarm parcel created; 247-15-
000107-CUI-000108-CU nonfarm dwelling (28.6 acres)
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10255 NW Coyner Avenue (Bendix), PP 2004-101, nonfarm parcel created; CU-03-55
and CU-03-56 nonfarm dwelling (19.11 acres)
10142 NW Coyner Avenue (Buchanan), CU-95-11 nonfarm dwelling (37.51 acres)
10135 NW Coyner Avenue (Hayes), PP 2004-101, nonfarm parcel created; CU-03-55
and CU-03-56 nonfarm dwelling (19.65 acres)
9307 NW Coyner Avenue (Birklid), PP 2004-85, nonfarm parcel created; 247-18-
000796-CU nonfarm dwelling (17.50 acres)
9600 NW Coyner Avenue (MT Crossing), PP 2006-40 non -irrigated parcel created (80
acres); 247-19-000375-CUnonfarm dwelling (80 acres)
9805 NW Coyner Avenue (Stabb), PP 2004-85, irrigated parcel created (in addition to
nonfarm parcel); receives farm tax deferral (62.58 acres)
9299 NW Coyner Avenue (Nelson), PP 2005-25 nonfarm parcel created (10.21 acres);
nonfarm dwelling approved but not built
9295 NW Coyner Avenue (Grossman), PP 2005-25 nonfarm parcel created (11.08
acres); nonfarm dwelling approved but not built
4691 91" Street (intersection Coyner and 91'9(Omlid), PP 2006-40 non -irrigated land
division/nonfarm parcel (39.20 acres); 247-17-000220-CU nonfarm dwelling approved
9293 NW Coyner Avenue (Grossman), irrigated parcel created by PP-2005-25 (irrigated
land division created two nonfarm parcels and one farm parcel)(185.06 acres)
Jason and Tammy Birklid. 1211312021 Letter
The Birklids refer to their home as a `family farmhouse. " The dwelling was, however,
approved by Deschutes County as a nonfarm dwelling on a non -irrigated parcel of land
that was determined by Deschutes County to be unsuited for the production of farm crops
and livestock.
The Birklids and others repeat the same claim as Mr. Stabb (discussed above) re the
character of the west end of NW Coyner Avenue. The evidence shows, however, that the
primary parcel type and development in this area is a nonfarm dwelling parcel and
nonfarm dwellings.
RR-10 Subdivisions
The Johnson properties, TL 200 and 300, Map 14-12-34D (parcels created in 2022 by PP
2022-10 as a farm and a nonfarm parcel) touch, at one point across a road a large area
of land zoned RR-10 that includes the Kachina Acres and Odin Crest subdivisions where
lots of about 5 acres in size are common. The property owned by opponent Kelsey
Pereboom/Colter Bay Investments, LLC adjoins Kachin acres along the entire southern
boundary of her property. Opponents Steele and the Elliotts live in the RR-10 zoned Odin
Crest subdivision.
Destination Resort Overlay Zoning of Subject Property
Under the current zoning, almost 250 acres of the subject property is zoned as eligible for
development with a destination resort. The development of this area of the property as a
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resort would have far greater impacts on the surrounding area than would development of
the property allowed by the RR-10 zone.17
On May 3, 2022, the Applicant provided the following rebuttal to evidence and arguments
presented during the open record period:
This letter constitutes the Applicant's second post -hearing record submittal (rebuttal
period) and provides evidence to respond to evidence and arguments presented during the
open record period. Unless otherwise denoted herein, previously defined terms have the
same meaning.
L Subject Property Information
Ms. Lozito submitted past photographs of the Property that she claims to have paid for
(presumably when she previously listed the house for sale). Ms. Lozito claims these photos
show the Property can support grass growing. There is no date on these photographs, but
they do show patchy areas of grass with significant yellowing, rocks, and patches.
Importantly, Ms. Lozito's claim that the land can support this growth is easily disproven.
By August of 2020, several months before the Applicant purchased the Property, the grass
was gone and the area had reverted back to dusty and non productive land. Exhibit 84."
Mr. Jim McMullen asserted that the property is not within the Redmond Fire Service
boundaries. That is incorrect; the Property is within the Redmond Fire & Rescue District.
Exhibit 98.
IL Soil Classification and Mapping System; Soil Scientists; and DLCD Administrative
Rules on "Agricultural Land":
Ms. Macbeth claims that DLCD's administrative rules prevent landowners from hiring a
State -approved soil classifier to conduct a more detailed soils analysis ofproperty mapped
by the NRCS and to use the superior property -specific information obtained by such a study
instead of information provided by soils mapping conducted at a landscape scale by the
NRCS. The Agency Letter does not advance this argument in comments on the Application.
In fact, DLCD disagrees with this argument, stating the following on their website:
"NRCS does not have the ability to map each parcel of land, so it looks at larger
areas. This means that the map may miss a pocket of different soils. DLCD has a
process landowners can use to challenge NRCS soils information on a specific
property. Owners who believe soil on their property has been incorrectly mapped
may retain a `professional soil classifier... certified by and in good standing with
the Soil Science Society of America " (ORS 215.211) through a process
" At the public hearing, the Applicant's attorney clarified that, although a portion of the property could be developed
as a destination resort because it meets the criteria, the Applicant is not requesting such approval. The Applicant's
attorney also noted that a rezone to RR-10 precludes future destination resort development in the future.
" Exhibits continue numbering from Applicant's open record submittal.
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administered by DLCD. This soils professional can conduct an assessment that may
result in a change of the allowable uses for a property. "
Source: https:llwww.oregon.govllcdlFFIPages/Soils-Assessment.aspx Exhibit 93. This
process, as DLCD states, requires a site -specific soil assessment by a soil professional
accepted by DLCD. Id. There are only a handful of these professionals, with Applicant's
expert, Mr. Brian Rabe, being one of them. Id.
III. Response to Central Oregon LandWatch and Farm Income Analysis
Central Oregon LandWatch ("COLW'), through its attorney Ms. Carol MacBeth,
advances a number of erroneous arguments. Ms. Macbeth filed information provided by
the 2012 US Census of Agriculture. This information is not the most current. The most
current information is provided by the County Profile 2017 Census ofAgriculture (Exhibit
91).
COLW's letter includes a list of "agricultural commodities" that it claims, according to
the 2012 US Census of Agriculture, are produced in Deschutes County. The 2012 US
Census of Agriculture does not support this assertion. First, contrary to COLW's letter,
the 2012 Census shows that tobacco, cotton and cottonseed are not produced in Deschutes
County. Second, many of the listed commodities are listed by "commodity groups. " The
Census reports income from any one or more of the commodities in the entire group. It
does not indicate whether or not each commodity in a group is produced in Deschutes
County. So, for instance, 'fruits, tree nuts, and berries " are one commodity group. The
group is so small, presumably one, that the Census withholds income information to 6,avoid
disclosing data for individual operations. " Whether this lone producer harvests fruits, tree
nuts or berries is unknown and it cannot be said which crop is harvested.
COLW's claim that "soil capability ** is irrelevant" because some farm uses are
"unrelated to soil type" is erroneous because the definition of "Agricultural Land"
provided by Goal 3 makes soil fertility and the suitability of the soil for grazing the exact
issues that must be considered by the County to determine whether the subject property is
"land in other soil classes that is suitable for farm use. " DLCD, ODFW and ODA make
the same mistake in ignoring the ability of the land itself, rather than imported feed, to
support a farm use. The fact that the suitability test is tied to the specific soil found on a
subject Property by the Goal 3 definition makes it clear that the proper inquiry is whether
the land itself can support a farm use. Otherwise, any land, no matter how barren, would
be classified as farmland — which it is not and should not be. ORS 215.203(2) defines 'farm
use " and it requires that the land be used for "the primary purpose of obtaining a profit
in money[.] "
COLW claims that the $48, 990 gross income estimate contained in the burden of proof
shows that the subject property is suitable for farm use because it would, allegedly,
produce three times as much income as grossed by the average farm in Deschutes County
in 2012. The $48, 990 figure is, however, overstated. It is based on an OSU formula that
assumes that rangeland will support one AUMper acre. The Property will, however, only
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support one AUMper 10 acres in dry years, and one AUM in wet years, a fact established
by DLCD, ODFW, and ODA. This means the $48, 990 gross income figure is overstated by
ten times during the dry years and by five times during wet years.
When the OSUformula is adjusted to reflect the State's AUM:acres ratios, the range of
gross income per year is a mere $4,899 to $9,798 for a 710-acre property. This is lower
than the $16, 033 average gross farm income of the average County farm in 2012 — the
average farm being a 102-acre farm. If the subject Property were as productive as the
average 2012 Deschutes County farm per acre, it would gross $111,602 not $4,899 to
$9, 798 per year. Expenses that would be incurred to raise a gross income of $4,899 to
$9, 798 per year, based on information obtained from ranchers and extension service
publications, include thefollowing:
• Vaccinations, medicine, veterinary services, monitoring pregnancies,
deworming, breeding, calving, soundness exams
• Branding, castrating bull calves
• Purchase and care and feeding of a horse to round up cattle and associated
shoeing and veterinary expenses; horse tack
• Water supply for cattle (trucked or well); water troughs
• Fencing materials, maintenance and repair
• Freight/trucking of cattle between ranch and auction
• Ranch vehicles e.g. 5th Wheel 4WD Pickup, 5th Wheel Stock Trailer and ATV
and maintenance and operating expenses
•Portable cattle workingfacilities (hydraulic or manual squeeze)
• Labor; hired and farm owner/operator, including taxes, payroll, health care,
etc.
• Livestock insurance
•Liability insurance
• Fire insurance
• Office expense
• Cost to service farm loans for the purchase of the subject property, farm
equipment and improvements
• Property taxes
Given the more refined and projected potential income (supported by the Agency Letter),
the property taxes alone for the subject Property would exceed the projected, potential
income. Even if the Property was able to qualify for farm tax deferred status, other
expenses would clearly exceed income. For instance, annual farm loan payments for
purchasing the property (excluding loans for farm equipment and improvements) far
exceed projected gross income. If a person were able to purchase the Property at a cost of
$2.8 million dollars2 , a price well below the fair market value set by the Deschutes County
Tax Assessor, annual payments for a 15 year loan at a USDA loan rate ofjust 3.25% would
be $238, 808.02 per year for a 15 year fixed loan and $147, 508.81 for a 30 year fixed loan
(excluding loan -related costs) from the USDA.3 Interest only on the 15 year fixed rate loan
would be $782,120.35 or an average of $52,141.36 per year. Interest on a 30 year fixed
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rate loan would be $1, 625, 264.22 or an average of $54,175.47 per year. No party has
argued that potential farm revenues on the Property could reach anywhere near the levels
necessary to service this debt; notwithstanding the fact that other farm infrastructure and
startup costs (like the cost of irrigation water) would further add to debt service costs.
If the Property were grazed seasonally (as suggested by the Agency Letter), the operator
would incur costs to lease grazing lands elsewhere or to feed cattle hay grown on other
properties. These costs would not be deducted from the estimated income for the subject
Property because the projected income is based on the productivity of the subject Property
to support grazing — not the ability of other lands to support grazing either by lease or by
the purchase of forage grown on other lands. Conversely, only one-half of the cattle income
derived from an operation that utilizes two properties to raise cattle would be attributable
to the subject property if it were able to support grazing six months of the year. The fact
that twice as many cattle can be grazed on a property for six months compared to year-
round is of no consequence to the property assessment of gross income attributable to the
subject Property.
IV. Additional Responses to Specific Parties
This section provides specific responses to various parties' arguments during the open
record period.
Redside Restoration and Jordan Ramis
Redside Restoration implies that its small vineyard located close to the Deschutes River in
the Deschutes River canyon at an elevation about 400 to 500 feet below the plateau on the
subject Property has similar conditions to those found on the subject Property.
Presumably, Redside wishes the County to conclude that the Property might be suitable for
development as a vineyard. It is not. This is rebutted by:
• E-Mail dated May 2, 2022 from soils scientist Brian Rabe, Exhibit 107
• Certificate 66868 Dunn, Exhibit 87.
• Certificate 66868 map — Dunn (shows that vineyard area of property is
irrigated), Exhibit 88.
• OSU impact of smoke on grapes and wine, Exhibit 97.
The Property also would not meet most of the site selection and climate concerns related
to vineyard selection. Exhibit 90.
Equally important, is the fact that the soil depth is simply not enough to establish
productive grapes. For example, in Mr. Rabe's comprehensive soil analysis, he made 135
test holes. Of those 135 test holes, only 5 (less than 4%) had soil more than 30 inches in
depth. The average (mean) depth was 16.8 inches, the median depth was 16 inches, and
the modal depth (most common) was 14 inches. Grapes typically require 2 to 3 feet of soil
depth. Exhibit 106.
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Richard and Lori Johnson
The Johnsons claim that farms adjacent to the subject property have deepened their wells.
As the Johnsons note based on information provided by Central Oregon LandWatch
regarding a 2008 USGS study, climate change, groundwater pumping and irrigation canal
pumping have been identified as causing declines. The referenced study shows that the
primary cause of groundwater decline is climate change. The study attributes apart of the
decline to increased groundwater pumping in the region. Maps provided by the USGS
report suggests that groundwater use in the Odin Valley area (farm irrigation) and water
use by the Eagle Crest (golf course and other irrigation and domestic use) increased
significantly between 1997 and 2008. Irrigation water use consumes ,far more ground
water than used for domestic use — a fact that supports the conclusions of the GSI water
study that the applicant filed with Deschutes County prior to the land use hearing. This
report is re -filed for convenience as Exhibit 105. We provide the following supporting
documentation:
• Understanding Water Rights, Deschutes River Conservancy, Exhibit 101.
• Analysis of 1997-2008 Groundwater Level Changes in the Upper Deschutes
Basin, Central Oregon (relevant part). Exhibit 104.
The Johnsons express a concern that creating 10-acre parcels will result in a loss of open
space and wildlife habitat. They claim that using the land for low -density housing will
increase the cost of farming for adjacent farms. The Johnsons did not have this concern
earlier this year when they divided their farm property to create a 4.049-acre nonfarm
parcel right next to their irrigated farm fields. See Partition Plat 2022-10. The location of
this new parcel is shown in the aerial photo below (from DIAL): [image omitted]
The following documents are also filed to respond to this argument:
• Land use application filed by the Johnsons to create a nonfarm parcel and dwelling
adjacent to irrigated farm fields (Johnson nonfarm 2021), Exhibit 94.
*AmendedAnnual Report for Horse Guard, Inc., a highly successful horse vitamin/mineral
supplement product with a primary place of business of 3848 NW 91st Street, Redmond,
OR (the Johnson property), Exhibit 99.
• Tax Assessor's Improvement Report for Johnson property. Exhibit 83.
• Recent Google Earth Photograph of Johnson house and outbuildings below:
It appears that the Johnsons keep horses on their property but there is no indication they
are engaged in a commercial horse boarding or training operation. The primary farm use
of the property is growing alfalfa hay which is stored in the farm building shown on the
right in the photo above. [image omitted]
League of Women Voters
The League of Women Voters submitted a comment that the Deschutes River has been
designated by DEQ as having impaired water quality. That is true, but only for a portion
247-21-001043-PA/1044-ZC Page 30 of 74
of South Deschutes County and not this area. Exhibit 92. See also, Testimony of Brian
Rabe, Exhibit 107.
Pant Mayo Phillips
Ms, Mayo Phillips argues that the subject property is in the heart of farm country and that
the Odin Valley consists of parcels that vary in size from 20 to 200 acres in size. While
some agricultural uses are occurring in the Odin Falls area, the area contains a mix of
farm, nonfarm, and rural residential development as documented by the Johnsons' land
division application. Many of the farm properties in the Odin Valley have been divided to
create nonfarm parcels that are smaller than the size stated by Ms. Phillips (size listed
after current owner) that have received approvals to locate dwellings adjacent to irrigated
farm fields: Stabb/Birklid (17.50 acres), Johnson/Nonella (4.05 acres) Grossmann/Nelson
(11.08 and 10.21 acres), Stephan/Bessette (4.36 acres), Thoradarson (3.18 acres) and a
number of non -irrigated properties have been divided and/or developed with nonfarm
dwellings — in particular on the properties closestto the subject property along NW
Coyner. Thus far, the farm practices identified by Ms. Mayo Phillips have not been of
sufficient significance to merit denial of the many nonfarm dwellings in Odin Valley.
Ms. Mayo Phillips expresses concerns about the condition of area roads. The roads,
however, are adequate to handle additional traffic as documented by the applicant's traffic
engineer and Deschutes County will address road improvements, provided the pending
applications are approved, when a subdivision application is filed with and reviewed by
the County.
Ms. Phillips argues that power is not available to serve the subject Property. This is
incorrect. CEC has provided a "will serve " letter and has advised the applicant that it is
able to provide power to the property from Buckhorn Road with upgrades that would be
paid for by the property owner. Exhibit 16.
Ms. Phillips expresses concern that the nearest fire station is too far away and that fires
are a significant concern. The subject property is located in the Redmond Fire & Rescue
service area and the closest fare station in that district is located at 100 NW 71 st Street, a
short distance north of Highway 126 on the west side of Redmond. Highway 126 provides
excellent access to the Odin Valley and the subject property which is approximately six
miles away on paved roads (travel time 9 minutes per Google Maps for vehicles traveling
at or below the speed limit). Additionally, according to opponent Ted Netter a fare
protection association has been formed to provide fare protection to lands that are located
outside of fare districts to the west of the subject property which should serve to lessen fare
risks in the area. The subject Property is not in the fare association area, contrary to Mr.
Netter's assertion, because it is located inside the Redmond Fire district. Exhibit 95.
Nunzie Gould
Ms. Gould's untimely filed post -hearing submittal contains errors of fact. The subject
Property is not located in or close to the Three Sisters Irrigation District ("TSID'). The
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TSID webpage indicates that the District is currently providing spring irrigation water at
30%. Marc Thalacker, TSID's manager, also had a telephone conversation with one of the
principals of the Applicant, Robert Turner. Mr. Thalacker told Mr. Turner that it would
not be feasible for TSID to provide water to the Property, nor would it be feasible for other
irrigations districts to do so. Mr. Thalacker also indicated that, based upon his
conversation with Mr. Turner, placing irrigation water on the Property would be a reckless
and poor use of water.
Ms. Gould's claim that agriculture is occurring on the subject property is simply incorrect.
Ms. Gould's claim that 320 acres of BLM land adjoins the east side of the subject Property
is correct. This area is not, as Ms. Gould's comments reflect however, engaged in farm use
of any kind. It is open space for wildlife use. The Cline Buttes Recreation Area ATV
recreational area adjoins the south and southwest sides of the subject property. One of the
ATV trails is located in close proximity to the south boundary of the subject property. This
large area of public lands, also, is not engaged in farm use.
Andrew Mulkey, 1000 Friends of Oremon
Mr. Mulkey's untimely filed post -hearing submittal claims that the suitability analysis in
the applicant's soils report is "simply speculation " because the soils scientist does not
purport to have experience farming and ranching in Deschutes County. This is an absurd
statement and is contrary to the State's requirements for certified soil scientists (addressed
above). The purpose of soils analysis is to determine its suitability to support farm crops,
livestock and merchantable tree species. Additionally, the Soil Science Society of America
reports that Mr. Rabe has been a member of the American Society of Agronomy for 30
years. The Society describes its membership as follows:
"The American Society of Agronomy is the professional home for scientists
dedicated to advancing the discipline of the agronomic sciences. Agronomy is
highly integrative and employs the disciplines of soil and plant sciences to crop
production, with the wise use of natural resources and conservation practices to
produce food, feed, fuel, fiber, and pharmaceutical crops.for our world's growing
population. A common thread across the programs and services of ASA is the
dissemination and transfer of scientific knowledge to advance the profession. "
Membership I American Society of Agronomy
• Soil Science Society of America report re soil scientist and classifier Brian
Rabe, Exhibit 85.
Mr. Mulkey provides maps and information about wildlife. None of the maps have been
made applicable to the subject Property by land use regulations. The Mule Deer Overlay
map also shows that the subject Property is just inside the area proposed by ODFW as an
addition to the WA zone and that the number of deer using the area is far lower than areas
located closer to the City of Sisters and less populated than areas east of Bend that are not
247-21-001043-PA/1044-ZC Page 32 of 74
proposed for inclusion in the WA zone. But again, these maps simply do not apply nor have
they been adopted by the County.
DLCD Letter
DLCD provided additional comment that Goal 4 had not been adequately addressed.
Forestry expert John Jackson provides additional response (Exhibit 89) to evidence and
analysis previous placed in the record by Ms. Fancher.
V. Additional Evidence for the Record
In further response to COLW's arguments that certain farm uses my profitably occur on
the Property, the Applicant provides the following additional rebuttal evidence.
• Hemp market information, email from hemp farm owner Paul Schutt, Exhibit
100.
• Impacts of grazing and increased desertification, Exhibit 82.
*A ffiaffia production, Exhibit 96.
VI. Conclusion
The evidence we provide in this submittal will be used further in final legal argument
G. NOTICE REQUIREMENT: On March 18, 2022, the Planning Division mailed a Notice
of Public Hearing to all property owners within 750 feet of the subject property, agencies, and
parties of record. A Notice of Public Hearing was published in the Bend Bulletin on Sunday, March
20, 2022. Notice of the first evidentiary hearing was submitted to the Department of Land
Conservation and Development on March 2, 2022.
H. REVIEW PERIOD: The subject applications were submitted on December 2, 2021. The
applications were deemed incomplete by the Planning Division on December 30, 2021 and a letter
detailing the information necessary was mailed on December 30, 2021. The Applicant provided a
response to the incomplete letter and the applications were subsequently deemed complete on
January 17, 2022. According to Deschutes County Code 22.20.040(D), review of the proposed
quasi-judicial plan amendment and zone change application is not subject to the 150-day review
period.
III. FINDINGS & CONCLUSIONS
A. PRELIMINARY FINDINGS AND CONCLUSIONS
1. HEARINGS OFFICER'S FINDINGS AND CONCLUSIONS REGARDING USE
OF ORDER 1 SOILS SURVEY
In 1979, Deschutes County adopted its first comprehensive plan and zoning ordinance that
implemented the Statewide Land Use Planning Goals. The County's comprehensive plan map was
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developed without the benefit of detailed soils mapping information. The map was prepared and
EFU zoning was applied to the subject property prior to the USDA/NRCS's publication of the
"Soil Survey of Upper Deschutes River Area, Oregon." That soil survey provides general soils
information, but not an assessment of soils on each parcel in the study area.
The NRCS soil survey maps are Order 2 soil surveys, which extrapolate data from the Upper
Deschutes River Survey to determine LCC soil classifications at a landscape level. The Applicant's
soil scientist, Mr. Rabe, conducted a more detailed Order 1 survey, which analyzed actual on -the -
ground soil compositions on the subject property. The Hearings Officer finds that it is not "suspect"
that an Order 1 soils survey contradicts NRCS soil classifications performed at a higher, landscape
level.
The argument advanced by COLW, 1000 Friends of Oregon and Redside Restoration that an Order
1 survey cannot contradict NRCS soil survey classifications for a particular property has been
rejected by the Oregon Legislature in ORS 215.211(1) and DLCD in OAR 660-033-0030. It has
also been rejected by Deschutes County Hearings Officers and the Board of County
Commissioners.
In recent years, Deschutes County has recognized the value in rezoning non -productive
agricultural lands and has issued decisions approving plan amendments and zone changes where
the applicant has demonstrated the property is not agricultural land. Deschutes County has
approved the reclassification and rezoning of EFU parcels based on data and conclusions set forth
in Order 1 soils surveys and other evidence that demonstrated a particular property was not
"agricultural land," due to the lack of viability of farm use to make a profit in money and
considering accepted farming practices for soils other than Class 1-VI. See, e.g., Kelly Porter
Burns Landholdings LLC Decision/File Nos. 247-16-000317-ZC/318-PA; Division of State
Lands Decision/File Nos. PA-11-7 and ZC-11-2; Paget Decision/File Nos. PA-07-1, ZC-07-1; The
Daniels Group/File Nos. PA-08-1, ZC-08-1; Swisher Decision/File Nos. 247-21-000616-PA/617-
ZC. The Board of County Commissioners recently affirmed the Hearings Officer's decision in the
Swisher files and adopted Ordinance No. 2022-003.
On the DLCD website, it explains:
NRCS does not have the ability to map each parcel of land, so it looks at larger areas. This
means that the map may miss a pocket of different soils. DLCD has a process landowners
can use to challenge NRCS soils information on a specific property. Owners who believe
soil on their property has been incorrectly mapped may retain a "professional soil classifier
... certified and in good standing with the Soil Science Society of America (ORS 215.211)
through a process administered by DLCD. This soils professional can conduct an
assessment that may result in a change of the allowable uses for a property.
Exhibit 93 (https://www.oregon•gov/lcd/FF/Pages/Soils-Assessment.aspx).
The Hearings Officer agrees with the Applicant's final legal argument, submitted on May 11, 2022
which states on page 3, in relevant part:
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This statutory and regulatory scheme makes sense, as it would have been impracticable for
a county to have conducted an individualized soils analysis on a farm -by -farm basis when
it adopted its original zoning ordinances. Precluding the availability of a property owner to
achieve a new zoning designation based upon a superior, more detailed and site -specific
soils analysis would, to put it mildly, be absurd and cannot be what the legislature
intended.19
The Soil Survey of the Deschutes Area, Oregon20 describes Class VII soils as "not suitable for
cultivation and of severely limited use for pasture or as woodland." It describes Class VIII soils as
"not suitable for growing vegetation for commercial uses." The Soil Survey of Upper Deschutes
River Area, Oregon describes the broad, general level of soil surveying completed by NRCS on
page 16, "At the less detailed level, map units are mainly associations and complexes. The average
size of the delineations for most management purposes was 160 acres. Most of the land mapped at
this level is used as woodland and rangeland. At the more detailed level, map units are mainly
consociations and complexes.... Most of the land mapped at the more detailed level is used as
irrigated and nonirrigated cropland."
As quoted in the Hearings Officer's Decision and Recommendation to the Deschutes County
Board of Commissioners in the Swisher decision, File Nos. 247-21-000616-PA/617-ZC:
The real issue is "map accuracy" which is based upon set standards for maps. National
Map Accuracy Standard (LAMAS) provides insurance that maps conform to established
accuracy specifications, thereby providing consistency and confidence in their use in
geospatial applications. An example of such a standard: "maps on publication scales
larger than 1: 20, 000, not more than 10 percent of the points tested shall be in error by
more than 1130 inch, measured on the publication scale; for maps on publication scales of
1: 20, 000 or smaller, 1150 inch. " The error stated is specific for a percentage of points, and
to suggest that accuracy in maps is the unattainable freedom from error as the COL letter
does, is not a relevant or a serious argument.
When one map shows point data like an Order-1 soil survey the accuracy can be measured,
and when another map does not (like the NRCS soil map) there is a shortage of information,
so the accuracy of the NRCS map cannot be determined for point data. The accuracy of
the NRCS estimate of the percentage of components in the 38B soil complex can be shown
to be very inaccurate in this case, and it clearly underestimates the Class 7 and Class 8.
The Hearings Officer finds that NRCS soil survey maps are not definitive or "binding" with respect
to a determination of whether the subject property is, or is not, agricultural land. This is consistent
with the ruling of the Land Use Board of Appeals (LUBA) in Central Oregon Landwatch v.
Deschutes County (Aceti), Or LUBA (LUBA NO. 2016-012, August 10, 2016 (Aceti I).
There, LUBA confirmed that OAR 660-033-0030(5)(a) and (5)(b) allow the County to rely on
more detailed data on soil capability than provided by NRCS soil maps to define agricultural land,
19 The stated public purpose of the EFU zone is to preserve "Agricultural Lands" (ORS 215.243) but "Agricultural
Lands" are not present on a subject property.
21 https://www.nres.usda.gov/lntemet/FSE_MANUSCRIPTS/oregon/OR620/0/or620_text.pdf
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provided the soils survey has been certified by DLCD, which has occurred here. The Aceti ruling
is summarized as follows:
First, LUBA affirmed the County's determination that the subject property, which had been
irrigated and used to grow hay in 1996 and earlier years, was not agricultural land based on the
Order 1 soils survey which showed that the poor soils on the property are Class VII and VIII soils
when irrigated, as well as when not irrigated.
Second, LUBA determined the applicant had established that the subject property was not
"agricultural lands," as "other than Class I -VI Lands taking into consideration farming practices."
LUBA ruled:
"It is not an accepted farm practice in Central Oregon to irrigate and cultivate poor quality
Class VII and VIII soils — particularly where, as here those soils are adjacent to rural
industrial uses, urban density residential neighborhoods that complain about dust and
chemicals and to high traffic counts on the surrounding roads and highways. Irrigating
rock is not productive. "
The Hearings Officer rejects the argument that NRCS land classifications based on its soil maps
cannot be varied, unless a landowner requests an Order 1 soils study to qualify additional land as
agricultural land. This is directly contrary to LUBA's holding in Central Oregon Landwatch v.
Deschutes County and Aced, LUBA No. 2016-012:
"The Borine Study is evidence a reasonable person would rely on and the county was
entitled to rely on it. As intervenor notes, the NRCS maps are intended for use at a higher
landscape level and include the express statement `Warning: Soil Ratings may not be valid
at this scale. ' Conversely, the Borine Study extensively studied the site with multiple on -
site observations and the study's conclusions are uncontradicted, other than by petitioner's
conclusions based on historical farm use of the property. This study supports the county's
conclusion that the site is not predominantly Class VI soils. "
ORS 215.211(1) specifically allows for the submittal by a certified soil scientist of an assessment
of the capability of the land based on more detailed soils information than that contained in the
Web Soil Survey operated by the NRCS to "assist a county to make a better determination of
whether land qualifies as agricultural land." The Applicant followed this procedure by selecting a
professional soil classifier who is certified by and in good standing with the Soil Science Society
of America to prepare the Order 1 soils report. DLCD reviewed the soils report pursuant to ORS
215.211(2) and determined it could be utilized in this land use proceeding.
The Hearings Officer agrees that soils classifications are not the only determining factor with
respect to whether a parcel is "agricultural land." The Hearings Officer's findings on all relevant
factors to be considered in determining whether the subject property is "agricultural land," are set
forth in detail below.
The Hearings Officer does not accord less weight to the Applicant's soil scientist because he was
"privately commissioned." Brian T. Rabe, CPSS, WWSS of Valley Science and Engineering is a
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listed, accepted soils scientist by DLCD and is certified by and in good standing with the Soil
Science Society of America. He has been a certified soils scientist for 30 years.
Public comments submitted by the Jordan Ramis law firm on behalf of Redside Restoration Project
One, LLC are correct to the extent that DLCD's certification of an Order 1 soils survey is not a
determination of whether a particular property constitutes "agricultural land." The certification
constitutes a determination that the soil study is complete and consistent with reporting
requirements of OAR 660-033-0045. Pursuant to ORS 215.211, the Applicant's soils survey has
been approved for use by Deschutes County by DLCD. If the Applicant's soils survey was
deficient in any manner, DLCD would not have allowed the County to rely on the survey in this
proceeding. Ultimately, the County — not DLCD - must decide whether the Order 1 soils survey,
together with other evidence in the record, supports a determination of whether the subject property
is "agricultural land." See ORS 215.211(5).
For all the foregoing reasons, the Hearings Officer finds that the County is not bound by the
landscape level NRCS Order 2 study on which classification of soils on the subject property is
based. The Hearings Officer finds it is appropriate for the County to consider the Applicant's Order
1 soils survey, certified for the County's consideration by DLCD.
2. HEARINGS OFFICER'S FINDINGS AND CONCLUSIONS REGARDING
WHETHER THE SUBJECT PROPERTY IS "AGRICULTURAL LAND"
For purposes of this Decision and Recommendation, the Hearings Officer considers the definition
of "Agricultural Land," in OAR 660-033-020(I)(a), as defined in Goal 3, which includes:
(A) lands classified by the NRCS as predominantly Class I -VI soils in Eastern Oregon;
(B) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a),
taking into consideration soil fertility; suitability for grazing; climatic conditions; existing
and future availability of water for farm irrigation purposes; existing land use patterns;
technological and energy inputs required; and accepted farming practices; and
(C) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby
agricultural lands.
a. OAR 660-033-0020(1)(a)(A) Findings and Conclusions
As the Hearings Officer found above, the County may rely on the DLCD-certified Order 1 soil
survey submitted by the Applicant. That study shows that the soils on the subject property are not
predominantly Class I -VI soils, as they are comprised of 71 % Class VII-Class VIII soils. The
County is entitled under applicable law to rely on the Order 1 soils survey in these applications in
making a determination that the soils on the Subject Property are not predominantly Class I -VI
soils. The Hearings Officer finds that the more detailed, onsite soil study submitted by the
Applicant provides property -specific information not available from the NRCS mapping.
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There is no evidence in the record to rebut the Applicant's soils study. Therefore, the Hearings
Officer finds that the subject property does not constitute "agricultural land" under OAR 660-033-
0020(1)(a)(A). Specific findings on each applicable criterion are set forth in Section III(B) of this
Decision and Recommendation.
b. OAR 660-033-0020(1)(a)(C) Findings and Conclusions
The Hearings Officer finds there is no evidence in the record that the subject property is "land that
is necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands.
While DLCD, ODA and ODFW question the "impact on adjacent or nearby agricultural lands," at
page 6 of the agencies' comment letter, those questions do not answer the inquiry of whether the
subject property is "necessary to permit farm practices to be undertaken on adjacent or nearby
agricultural lands." OAR 660-033-0020(1)(a)(C). Moreover, the reclassification and rezoning of
the subject property in and of itself will not change the current use (or lack thereof) of the subject
property. Impacts of future development must be reviewed when land use applications are
submitted. Simply put, there is no showing that the subject property is necessary for farming
practices on any surrounding agricultural lands. There is no evidence that the subject property
contributes to any such practices, nor that other lands depend on use of the subject property to
undertake any farm practices.
Therefore, the Hearings Officer finds that the subject property does not constitute "agricultural
land" under OAR 660-033-0020(1)(a)(C). Specific findings on each applicable criterion are set
forth in Section III(B) of this Decision and Recommendation.
C. OAR 660-033-0020(1)(b) Findings and Conclusions
The Hearings Officer finds there is no evidence in the record that the subject property is adjacent
to or intermingled with lands in capability classes I -VI within a farm unit. Therefore, the Hearings
Officer finds that the subject property does not constitute "agricultural land" under OAR 660-033-
0020(1)(b). Specific findings on each applicable criterion are set forth in Section III(B) of this
Decision and Recommendation.
d. OAR 660-033-0020(1)(a)(B) Findings and Conclusions
The Hearings Officer reviews evidence in the record to determine whether the subject property
constitutes "agricultural land" under OAR 660-033-0020(1)(a)(B) as "Land in other soil classes
that is suitable for farm use as defined in ORS 215.203 (2)(a), taking into consideration soil fertility;
suitability for grazing; climatic conditions; existing and future availability of water for farm
irrigation purposes; existing land use patterns; technological and energy inputs required; and
accepted farming practices." Competing evidence was presented by the Applicant, the Department
of Land Conservation and Development, Agriculture and Fish and Wildlife, and numerous
commentators.
OAR 660-033-0020(1)(a)(B) refers to the statutory definition of "farm use" in ORS 215.203(2)(a)
which informs the determination of whether a property is "suitable for farm use." The Hearings
Officer finds that the analysis must begin with a determination of whether the subject property can
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be employed for the "primary purpose of obtaining a profit in money by raising, harvesting and
selling crops or the feeding, breeding, management and sale of, or the produce of livestock, poultry,
fur -bearing animals or honeybees or for dairying and the sale of dairying products or any other
agricultural or horticultural use or animal husbandry or any combination thereof." ORS
215.203(2)(a) (emphasis added).
The state agencies and other commentators left out the highlighted portion of the statutory
language. "Farm use" is not whether a person can engage in any type of agricultural or horticultural
use or animal husbandry on a particular parcel of property. It is informed by whether such use can
be made for the primary purpose of obtaining a profit in money. Therefore, the Hearings Officer
rejects the argument that the subject property is "capable of any number of activities included in
the definition of farm use," because "farm use" as defined by the Oregon Legislature "means the
current employment of land for the primary purpose of obtaining a profit in money." ORS
215.203(2)(a); see also Goal 3. This is a critical omission by the state agencies and other
commentators in their submissions.
The state agencies repeatedly assert that the barriers to farming the subject property set forth by
the Applicant could be alleviated by combining farm operations with other owned and/or leased
land, whether adjacent to the subject property or not. The Hearings Officer finds that the definition
of "farm use" in ORS 215.203(2)(a) refers to "land," - not "lands," - and does not include any
reference to "combination" or requirement to "combine" with other agricultural operations.
Therefore, if the subject property, in and of itself cannot be engaged in farm use for the primary
purpose of obtaining a profit in money, it does not constitute agricultural land. There is no
requirement in ORS 215.203(2)(a) or OAR Chapter 660-033 that a certain property must
"combine" its operations with other properties in order to be employed for the primary purpose of
obtaining a profit in money and thus, engaged in farm use.
What the statutory definition of "farm use" means is that, merely because a parcel of property is
zoned EFU and some type of agricultural activity could take place on it, or whether the property
owner could join forces with another agricultural operations, does not mean that a property owner
is forced to engage in agricultural activity if the property owner cannot use its own property for
farming to obtain a profit in money. This is so, whether the barrier to obtaining a profit in money
is due to soil fertility, suitability for grazing, climactic conditions, existing and future irrigation
rights, existing land use patterns, technology and energy inputs required and accepted farming
practices, any or all of these factors.
The Applicant correctly cited controlling law on page 5 of its final legal argument:
Oregon courts have consistently addressed profitability as an element of the definition of
"agricultural land. " In Wetherell v. Douglas County, 342 Or 666 (2007), the Oregon
Supreme Court held that profitability is a "profit in money" rather than gross income. In
Wetherell, the Court invalidated a rule that precluded a local government from analyzing
profitability in money as part of this consideration. Id. at 683. As may be helpful here, the
Court stated:
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"We further conclude that the meaning of profitability, " as used in OAR 660-033-
0030(5), essentially mirrors that of ` profit. " For the reasons described above, that
rule's prohibition of any consideration of `profitability" in agricultural land use
determination conflicts with the definition of 'farm use " in ORS 215.203(2)(a) and
Goal 3, which permit such consideration. OAR 660-033-0030(5) is therefore
invalid, because it prohibits consideration of "profitability. " The factfinder may
consider `profitability" which includes consideration of the monetary benefits or
advantages that are or may be associated from the farm use of the property and the
costs or expenses associated with those benefits, to the extent such consideration is
consistent with the remainder of the definition of "agricultural land" in Goal 3.
Finally, the prohibition in OAR 660-033-0030(5) of the consideration of "gross
farm income " in determining whether a particular parcel of land is suitable for
.farm use also is invalid. As discussed above, "profit" is the excess or the net of the
returns or receipts over the costs or expenses associated with the activity that
produced the returns. To determine whether there is or can be a "profit in money"
from the "current employment of [the] land * * * by raising, harvesting and selling
crops[] " a factfinder can consider the gross income that is, or could be generated
from the land in question, in addition to other considerations that relate to "profit"
or are relevant under ORS 215.203(a) and Goal 3.
We therefore hold that, because Goal 3 provides that 'farm use " is defined by ORS
215.203, which includes a definition of 'farm use " as "the current employment of
land for the primary purpose of obtaining a profit in moneyb] " LCDC may not
preclude a local government making a land use decision from considering
profitability " or "gross farm income " in determining whether land is
"agricultural land" because it is "suitable for farm use" under Goal 3. Because
OAR 660-033-0030(5) precludes such consideration, it is invalid. Emphasis added.
Id. at 681-683.
Substantial evidence in the record supports a determination that each of the listed factors in OAR
660-033-020(1)(a)(B) preclude "farm use" on the subject property because no reasonable farmer
would expect to make a profit in money by engaging in agricultural activities on the land. as
detailed in the findings on individual criteria below.
Soil Fertility
The lack of soil fertility is not in debate. The Applicant's soils study determined that the soils "are
predominately shallow with sandy textures (low clay content) and low organic matter content.
These conditions result in a low Cation Exchange Capacity (CEC) that limits the ability of these
soils to retain nutrients. Fertilizer must be applied to achieve optimum yields. Proper management
requires fertilizers be applied in small doses on a frequent basis. The revenue from most locally
adapted crops will not cover the costs of inputs and management." Applicant's final legal
argument, Attachment C, p. 7. Moreover, the evidence shows that the shallow nature of the soils
differs from those present at the Redside Restoration property, given that typical wine grapes
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require a "minimum of 2 feet to 3 feet of soil depth" to be successful (Exhibit 106). On the subject
property, the common depth of soils in the 135 test holes made by Mr. Rabe was merely 14 inches.
While several commentators argued that soil fertility is not always necessary for commercial
agricultural operations because farm equipment could be stored on the property, the Hearings
Officer agrees with the Applicant that the subject property's resource capability is the proper
determination. The Applicant is not required to engage in joint management or use with other lands
that do constitute productive farm land. Moreover, storage and maintenance of equipment is not,
in and of itself, a farm use unless such equipment is for the production of crops or a farm use on
the subject property. Therefore, the Hearings Officer rejects the arguments of the state agencies
and COLW that certain uses of the subject property could be made that are not dependent on soil
type because none of the suggested uses constitute "farm use," without any associated cultivation
of crops or livestock. The Applicant has also produced substantial, persuasive evidence that the
property cannot be used for a profit in money for a feedlot considering the limited gross farm
income from cattle grazing, the lack of irrigation water, limited forage and other factors including
the generation of biological waste.
Suitability for Grazing
The lack of suitability for grazing is also established by substantial evidence in the record.
Although the state agencies letter agreed with the Applicant's analysis that a maximum of 15
cow/calf pairs could be supported in a grazing operation, it suggested that an additional up to 15
pairs could be sustained in rotation or if the land was left bare for months at a time. There is no
evidence in the record to rebut the Applicant's conclusion that it could not make a profit in money
from grazing operations on the property, such that grazing would not constitute "farm use" under
the statutory definition. As shown in Exhibit 107 p. 2, "the gross revenue potential for weight gain
associated with the estimated forage available on the 710 acres would range from $7,209 per year
in an unfavorable (dry) year to 414,058 in a favorable (wet) year, or about $10,000 in an average
year. As documented in detail by others, the cost of production and management would exceed the
potential revenue."
Evidence presented by Billy and Elizabeth Buchanan regarding suitability for grazing is
distinguishable and therefore not relevant. The Buchanan property is mapped with productive,
high -value soils, unlike the Applicant's property. It also has a groundwater irrigation right and
may irrigate up to 14.6 acres of their property. Nonetheless, as the Applicant noted, there is no
evidence in the record that the Buchanans make a profit in money by allegedly grazing cattle on
their property. In fact, the evidence does not support a finding that the Buchanans' cattle even
graze on dry -land. As shown on their company website, Keystone Cattle claims its cattle are "grass
fed & grass finished."
Climactic Conditions
There is little debate that climactic conditions contribute to the inability to engage in "farm use"
for the purpose of making a profit in money. Even the state agencies admit that local climactic
conditions "are not ideal for commercial agriculture." Pointing to other properties to show that
climactic conditions should not preclude "farm use," again does not take into consideration
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whether or not agricultural activities can be engaged in for the purpose of making a profit in money.
The limited precipitation, the plateau on which the property sits, plus the fact that the property
lacks irrigation water rights are all unfavorable to a determination the property could be used for
farming to make a profit in money.
Existing and Future Availability of Water for Farm Irrigation Purposes
Regarding existing and future availability for water for farm irrigation purposes, the state agencies
merely state that "we do not believe that water for irrigation purposes is necessary to conduct many
of the activities included in the definition of `farm use."' Again, this does not take into
consideration whether any of such activities could be utilized for the primary purpose of making a
profit in money on the property. There is no evidence that the subject property could be used for
any of the listed activities in ORS 215.203(2)(a) in a profitable manner, particularly given the lack
of irrigation water. The Applicant has presented substantial evidence of the prohibitive costs and
other hurdles that preclude bringing irrigation to the subject property (E.g. Exs. 49, 87, 88, 2, 3
and 76). When such costs are factored in, no reasonable farmer would expect to be able to obtain
farm irrigation water and still obtain a profit in money from agricultural uses on the property.
Existing Land Use Patterns
The Hearings Officer finds the Applicant has established that existing land use patterns are also a
factor in determining the subject property is not "agricultural land" under OAR 660-033-
020(1)(a)(B). The area is characterized by rural uses; approval of the requested plan map
amendment and rezone will not change the use of the property to urban. There are various non-
farm uses in the area, including a number of non -farm dwellings constructed or approved. The
surrounding area has substantial areas of land zoned RR-10 and MUA-10. The Hearings Officer
finds that this determination does not ask whether the proposal is "consistent with existing land
use pattern," but instead asks whether, considering the existing land use pattern, the property is
agricultural land. Given the property's location on the top of a plateau, any uses in conjunction
with surrounding lands are impracticable due to the substantial physical barrier to cross -property
use.
Technological and Energy Inputs Required
Technological and energy inputs required for agricultural use of the subject property also factor
into the fact the property is not suitable for "farm use," because it cannot be so employed for
"primary purpose of obtaining a profit in money." Suggested uses by the state agencies and other
commentators do not address the profitability component of the definition of "farm use," and do
not rebut substantial evidence in the record that shows the subject property cannot be used for
agricultural purposes for the primary purpose of obtaining a profit in money. This is due to the
costs associated with trucking in water, fencing requirements, livestock transportation, winter hay,
fertilizer, attempting to obtain irrigation water rights, labor costs, and energy/power requirements
to pump enough groundwater to support agricultural use.
The Hearings Officer also notes that, as discussed above, certain uses, such as storing equipment
or an indoor riding arena are not, in and of themselves "farm use," as confirmed by LUBA in
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Oregon Natural Desert Association v. Harney County, 42 Or LUBA 149 (2002). The state agencies
and other commentators agree that the cost of technology and energy inputs required for
agricultural use on the subject property can be daunting. No one presented any evidence to rebut
the Applicant's evidence that such costs prohibit the ability to make a profit in money from farming
the subject property (See, e.g. Exhibits 35 and 91).
Accepted Farm Practices
The Applicant submitted evidence regarding accepted farming practices in Deschutes County,
published by the Oregon State University Extension Service (Exhibit 8). The definition of
"accepted farm practice," like that of "farm use," turns on whether or not it is occurring for the
primary purpose of obtaining a profit. The Wetherell court relied on ORS 308A.056 to define
"accepted farm practice" as "a mode of operation that is common to farms of a similar nature,
necessary for the operation of these similar farms to obtain a profit in money and customarily
utilized in conjunction with farm use." Wetherell, supra, 52 Or LUBA at 681. Numerous farmers
and ranchers, including Rand Campbell, Brian Rabe, James Stirewalt, Russell Mattis, Matt Cyrus,
Fran Robertson and Marc Thalacker, testified and presented evidence that the subject property is
not suitable for farm use and that operations required to turn a profit are unrealistic. This evidence
is based on their own analysis of the subject property and understandings and experience as to
what would be required to commence a farm use for profit on the property. Moreover, LUBA
determined in the Aceti I case that it is not an accepted farming practice in Central Oregon to
irrigate and cultivate Class VII and VIII soils.
In summary, the Applicant is not required to show that no agricultural use could ever be made on
the property; only that no reasonable farmer would attempt to engage in "farm use," which is for
the primary purpose of obtaining a profit. As set forth in additional detail in the findings on specific
criteria below, the Hearings Officer finds that substantial evidence in the record supports a
determination that the subject property is not suited to commercial farming because no reasonable
farmer would believe he or she could make a profit in money therefrom, considering all of the
factors listed in OAR 660-033-020(1)(a)(B).
The Hearings Officer finds that the Applicant has met its burden of showing the subject property
cannot be used for agricultural purposes for the primary purpose of obtaining a profit in money
and such is not "agricultural land" under OAR 660-033-020(1)(a)(B). There are various barriers
to the Applicant, or any other person, that preclude using the subject property to engage in farming
activities for a profit. For this reason, and as set forth in more detail below, no exception to
Statewide Planning Goal 3 is required.
B. HEARINGS OFFICER'S FINDINGS AND CONCLUSIONS REGARDING
APPLICABLE CRITERIA
Title 18 of the Deschutes County Code, County Zoning
Chapter 18.136, Amendments
Section 18.136.010, Amendments
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DCC Title 18 may be amended as set forth in DCC 18.136. The procedures for text or
legislative map changes shall be as set forth in DCC 22.12. A request by a property
owner for a quasi-judicial map amendment shall be accomplished by filing an
application on forms provided by the Planning Department and shall be subject to
applicable procedures of DCC Title 22.
FINDING: The Applicant, also the property owner, has requested a quasi-judicial plan
amendment and filed the applications for a plan amendment and zone change. The Applicant has
filed the required land use application forms for the proposal. The application will be reviewed
utilizing the applicable procedures contained in Title 22 of the Deschutes County Code. The
Hearings Officer finds these criteria are met.
Section 18.136.020, Rezoning Standards
The applicant for a quasi-judicial rezoning must establish that the public interest is best
served by rezoning the property. Factors to be demonstrated by the applicant are:
A. That the change conforms with the Comprehensive Plan, and the change is
consistent with the plan's introductory statement and goals.
FINDING: The Applicant provided the following response in its submitted burden of proof
statement21:
The Plan's introductory statement explains that land use must comply with the statewide
planning system and sets out the legal framework set by State law. It summarizes the
Statewide Planning Goals. It also explains the process the County used to adopt the current
comprehensive plan. This application is consistent with this introductory statement
because the requested change has been shown to be consistent with State law and County
plan provisions and zoning code that implement the Statewide Planning Goals.
The following provisions of Deschutes County's amended comprehensive plan set out goals
or text that may be relevant to the County's review of this application. Other provisions of
the plan do not apply.
The Applicant utilizes this analysis, as well as analyses provided in prior Hearings Officers'
decisions to determine and respond to only the Comprehensive Plan Goals and policies that apply,
which are listed in the Comprehensive Plan section of this Decision and Recommendation. The
Hearings Officer's findings addressing compliance with applicable Comprehensive Plan Goals and
policies are set forth in the Comprehensive Plan section of this Decision and Recommendation
below.
B. That the change in classification for the subject property is consistent with the
" As noted above, the Applicant filed a revised burden of proof statement with its final legal argument on May 11,
2022. Both the original and revised burden of proof statements are part of the record.
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purpose and intent of the proposed zone classification.
FINDING: The Applicant provided the following response in its burden of proof statement:
The approval of this application is consistent with the purpose of the RR-10 zoning district
which stated in DCC 18.60.010 as follows:
"The purposes of the Rural Residential Zone are to provide rural residential living
environments; to provide standards for rural land use and development consistent with
desired rural character and the capability of the land and natural resources; to manage
the extension of public services; to provide for public review of nonresidential uses; and
to balance the public's interest in the management of community growth with the protection
of individual property rights through review procedures and standards. "
The approval of the application will allow the property to provide rural residential living
environments in a rural location that is not suitable for farm use and where impacts of the
new use will be minimized by topography and adjoining public lands. The zoning district
and subdivision ordinance provide standards that will control land use to be consistent
with the desired rural character and capability of the land and natural resources. The
zoning district provides for public reviews of nonresidential uses. The approval of this
application will allow the property owner to proceed with a low level of development on
land that will not support farm use. "
The Hearings Officer finds that the proposed change in classification will allow for potential future
development of rural residential living. No application for development is before the County at
this time; future application(s) must be consistent with the standards for rural land use and
development considering desired rural character, the capability of the land and natural resources
and managed extension of public services. Future development will be subject to public review
which will require, among other things, a balancing of the public's interest in the management of
community growth with the protection of individual property rights.
The Hearings Officer finds the Applicant has demonstrated the proposed change in classification
is consistent with the purpose and intent of the RR-10 Zone.
C. That changing the zoning will presently serve the public health, safety and
welfare considering the following factors:
1. The availability and efficiency of providing necessary public services and
facilities.
FINDING: There are no plans to develop the properties in their current state; the above criterion
asks if the proposed zone change will presently serve public health, safety, and welfare. The
Applicant provided the following response in the submitted burden of proof statement:
Necessary public facilities and services are available to serve the subject property. A will -
serve letter from Central Oregon Electric Cooperative, Exhibit G shows that electric power
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is available to serve the property. Well logs, Exhibits H through K, show that wells are a
viable source of water for rural residential development.
The existing road network is adequate to serve the use. This has been confirmed by the
transportation system impact review conducted by Christopher M. Clemow, PE, PTOE of
Clemow Associates LLC, Exhibit S of this application. The property receives police
services from the Deschutes County Sheriff. The property is in the Redmond Fire and
Rescue rural fire protection district.
The closest neighboring properties which contain residential uses are located on the north side of
NW Coyner Avenue, on the south end of the subject property boundary, and nearby RR-10
residential lots along NW 93rd Street. These properties have water service primarily from wells,
on -site sewage disposal systems and electrical service, cellular telephone services, etc.
The Applicant provided a will -serve letter from Central Electric Cooperative indicating that it is
willing and able to serve the specified project location. The Applicant also included well logs from
nearby properties with the application submittal demonstrating water availability in the general
area.
Several commentators raised concerns regarding the general availability of groundwater in the
area. The Applicant stated that rural residential development would use less water than water
required for farming the subject property. There is no evidence that use of groundwater for farm
use would be greater than use of groundwater for rural residential development. The Hearings
Officer notes that there are no irrigation rights on the subject property, which would be required
for most farm operations. The Hearings Officer finds that subjective opinions and anecdotal
testimony regarding availability of groundwater for domestic use is not substantial evidence to
rebut the Applicant's well log evidence in the record.
Any new water use, unless exempt, must be appropriately permitted through the Oregon Water
Resources Department (OWRD). At this time, no development is proposed and no approval for
new water use has been requested. The Hearings Officer finds that water availability concerns of
the state agencies and other commentators will be reviewed at the time of development
applications. Without adequate water availability, future residential development may be limited
or denied
The Hearings Officer finds there are no known deficiencies in public services or facilities that
would negatively impact public health, safety, or welfare as the result of reclassifying the zoning
of the subject property to RR10. Prior to development of the properties, the Applicant will be
required to comply with the applicable requirements of the Deschutes County Code, including land
use permitting, building permits, and sewage disposal permit processes, as well as to obtain a
permit from the OWRD, if necessary, for a new water use unless exempt. The Hearings Officer
finds that, through these development review processes, assurance of adequate public services and
facilities will be verified. This criterion is met.
2. The impacts on surrounding land use will be consistent with the specific
goals and policies contained within the Comprehensive Plan.
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FINDING: The Applicant provided the following response in the submitted burden of proof
statement:
The RR-10 zoning is consistent with the specific goals and policies in the comprehensive
plan as shown by the discussion of plan policies above. The existing EFU zoning and
comprehensive plan already support development of the subject properly with a number of
nonfarm dwellings because the property is generally unsuitable for farm or forest uses.
The property is comprised of nine lots of record that could qualify for development with up
to approximately 24 dwellings including an existing nonfarm dwelling and two approved
nonfarm dwellings. The RR-10 zoning will allow more dwellings to be built on the subject
property but the impacts imposed will be the same as the minimal impacts imposed by a
nonfarm dwelling.
The only adjoining land in farm use is Volwood Farms. It is located to the west of the
subject property. Most of this farm property is located far below the subject property. This
geographical separation will make it unlikely that the rezone will impose new or different
impacts on Volwood Farms than imposed on it by existing farm and nonfarm dwellings.
There are other farms in the surrounding area but all, like the Volwood Farms property,
are functionally separated from the subject property by the steep hillside and rocky ridges
of the subject property. Farm uses in the greater area, also, are occurring on properties
that have been developed with residences. These properties are, however, separated from
the subject property by a sufficient distance that RR-10 development will not adversely
impact area farm uses or lands.
In addition to these comments, the Applicant provided specific findings for each relevant
Comprehensive Plan goal and policy, which are addressed below. The Hearings Officer finds the
impacts of reclassification of the subject property to RR10 on surrounding land use will be
consistent with the specific goals and policies contained within the Comprehensive Plan for the
reasons set forth in the Comprehensive Plan section of this Decision and Recommendation. This
criterion is met.
D. That there has been a change in circumstances since the property was last zoned,
or a mistake was made in the zoning of the property in question.
FINDING: The Applicant proposes to rezone the properties from EFU to RR-10 and re -designate
the properties from Agriculture to Rural Residential Exception Area. The Applicant provided the
following response in the submitted burden of proof statement:
There has been a change in circumstances since the subject property was last zoned and a
mistake in designating the subject property EFU/Agriculture when soils did not merit a
designation and protection as "Agricultural Land. " This zone was applied to the property
in 1979 and 1980 when Deschutes County adopted zones, a zoning ordinance and
comprehensive plan that complied with the Statewide Goals.
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In 1979 and 1980, undeveloped rural lands that contained poor soils but undeveloped were
zoned EFU without regard to the specific soil characteristics of the property. Land owners
were required to apply for a zone change to move their unproductive EFU properties out
of the EFU zone. The County's zoning code allowed these owners a one-year window to
complete the task. This approach recognized that some rural properties were mistakenly
classified EFU because their soils and other conditions did not merit inclusion of the
property in the EFU zone.
Some Deschutes County property owners of lands received approval to rezone properties
but many eligible parcels were not rezoned during this short window of time. The soils on
the subject property are similarly poor and also merit RR-10 Zoning to correct the "broad
brush " mapping done in 1979 and 1980. Also, since 1979 and 1980, there is a change of
circumstances related to this issue. The County's Comprehensive Plan has been amended
to reinstate the right of individual property owners to seek this type of zone change and
plan amendment.
Additionally, the population of Deschutes County has, according to the US Census,
increased by 336% between 1980 when the County's last zoned this property and 2021
from 62,142 persons to 209, 266 persons. The supply of rural residential dwelling lots has
been diminishing in the same time period.
Since the property was zoned, it has become evident that farm uses are not viable on the
property or on other area properties. The economics of farming have worsened over the
decades making it difficult for most Deschutes County property owners to make money
farming good ground and impossible to earn a profit from attempting to farm Class 7 and
8 farm soils. In 2017, according to Table 4 of the 2017 US Census of Agriculture, Exhibit
T, only 16.03% of farm operators achieved a net profit from farming (238 of 1484 farm
operations). In 2012, the percentage was 16.45% (211 of 1283 farm operations). In 2007,
according to the 2012 US Census of Agriculture, that figure was 17% (239 of 1405 farm
operations). Exhibit U. The vast majority offarms in Deschutes County have soils that are
superior to those found on the subject property. As farming on those soils is typically not
profitable, it is reasonable to conclude that no reasonable farmer would purchase the
subject property for the purpose of attempting to earn a profit in money from agricultural
use of the land.
For the reasons set forth above in the Hearings Officer's Preliminary Findings and Conclusions,
incorporated herein by this reference, the Hearings Officer finds a mistake was made by Deschutes
County in zoning the subject property for Exclusive Farm Use given the predominately poor (Class
VII and VIII) soils on the property and the evidence that the property owner cannot engage in
"farm use," with the primary purpose of making a profit in money on the subject property. The
Hearings Officer further finds that there has been a change in circumstances from the time the
property was originally zoned EFU due to a rapid increase in population and a dwindling supply
of rural residential lots to accommodate the added residents in the area. The Hearings Officer finds
this criterion is met.
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Deschutes County Comprehensive Plan
Chapter 2, Resource Management
Section 2.2 Agricultural Lands
Goal 1, Preserve and maintain agricultural lands and the agricultural industry.
FINDING: The Applicant provided the following response in the submitted burden of proof
statement:
The applicant's soils study, Exhibit F, and the findings in this burden of proof demonstrate
that the subject property is not agricultural land. This goal, therefore, does not apply. The
vast majority of the subject property is comprised of Class 7 and 8 nonagricultural soils
and the property has no known history of agricultural use. As noted in the Eastside Bend
decision, Exhibit L, "these [Class 7 and 8] soils [according to soils scientist and soils
classifier Roger Borine] have severe limitations for farm use as well as poor soil fertility,
shallow and very shallow soils, surface stoniness, low available water capacity, and limited
availability of livestock forage. " According to Agricultural Handbook No. 210 published
by the Soil Conservation Service of the USDA, soils in Class 7 "have very severe
limitations that make them unsuited to cultivation and that restrict their use largely to
grazing, woodland, or wildlife. " Class VIII soils "have limitations that preclude their use
for commercial plant production and restrict their use to recreation, wildlife, or water
supply or to esthetic purposes. "
As set forth in the Preliminary Findings and Conclusions above, incorporated herein by this
reference, the Hearings Officer finds substantial evidence in the record supports a finding that the
subject property is not "agricultural land," and is not land that could be used in conjunction with
adjacent property for agricultural uses. There is no evidence that the requested plan amendment
and rezone will contribute to loss of agricultural land in the surrounding vicinity. I find that the
agricultural industry will not be negatively impacted by re -designation and rezoning of the subject
property. Therefore, the Hearings Officer finds the applications are consistent with Section 2.2,
Goal 1, "preserve and maintain agricultural lands and the agricultural industry."
Policy 2.2.2 Exclusive Farm Use sub -zones shall remain as described in the 1992
Farm Study and shown in the table below, unless adequate legal findings for
amending the sub -zones are adopted or an individual parcel is rezoned as allowed
by Policy 2.2.3.
FINDING: The Applicant is not asking to amend the subzone that applies to the subject property;
rather, the Applicant is seeking a change under Policy 2.2.3 and has provided evidence to support
rezoning the subject property to RR10. The Hearings Officer finds this policy is inapplicable to
the subject applications.
Policy 2.2.3 Allow comprehensive plan and zoning map amendments, including
for those that qualify as non -resource land, for individual EFU parcels as
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allowed by State Statute, Oregon Administrative Rules and this Comprehensive
Plan.
FINDING: The Applicant is seeking approval of a plan amendment and zone change to re-
designate and rezone the properties from Agricultural to Rural Residential Exception Area. The
Applicant is not seeking an exception to Goal 3 — Agricultural Lands, but rather seeks to
demonstrate that the subject property does not meet the state definition of "Agricultural Land" as
defined in Statewide Planning Goal 3 (OAR 660-033-0020).
The Applicant provided the following response in the submitted burden of proof statement:
This plan policy has been updated specifically to allow non -resource land plan and zone
change map amendments on land zoned EFU. The applicant is seeking a comprehensive
plan amendment from Agriculture to RREA and a zone change from EFU-TE to RR-10 for
non -resource land. This is essentially the same change approved by Deschutes County in
PA-11-IIZC-11-2 on land owned by the State of Oregon (DSL). In findings attached as
Exhibit N, Deschutes County determined that State law as interpreted in Wetherell v.
Douglas County, 52 Or LUBA 677 (2006) allows this type of amendment. LUBA said, in
Wetherell at pp. 678-679:
"As we explained in DLCD v. Klamath County, 16 Or LUBA 817,820 (1988), there
are two ways a county can justify a decision to allow nonresource use of land
previously designated and zoned for farm use or . forest uses. One is to take an
exception to Goal 3 (Agricultural Lands) and Goal 4 (Forest Lands). The other is
to adopt findings which demonstrate the land does not qualify either as forest lands
or agricultural lands under the statewide planning goals. When a county pursues
the latter option, it must demonstrate that despite the prior resource plan and
zoning designation, neither Goal 3 or Goal 4 applies to the property. Caine v.
Tillamook County, 25 Or LUBA 209, 218 (1993); DLCD v. Josephine County, 18
Or LUBA 798, 802 (1990). "
LUBA's decision in Wetherell was appealed to the Oregon Court of Appeals and the
Oregon Supreme Court but neither court disturbed LUBA's ruling on this point. In fact,
the Oregon Supreme Court used this case as an opportunity to change the test for
determining whether land is agricultural land to make it less stringent. Wetherell v.
Douglas County, 342 Or 666, 160 Pad 614 (2007). In that case, the Supreme Court stated
that:
"Under Goal 3, land must be preserved as agricultural land if it is suitable for
`farm use" as defined in ORS 215.203(2)(a), which means, in part, "the current
employment of land for the primary purpose of obtaining a profit in money "
through specific farming -related endeavors. " Wetherell, 343 Or at 677.
The Wetherell court held that when deciding whether land is agricultural land "a local
government may not be precluded from considering the costs or expenses of engaging in
those activities. " Wetherell, 342 Or at 680. In this case, the applicant has shown that the
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subject property is primarily composed of Class VII and VIII nonagricultural soils making
farm -related endeavors, including livestock grazing, unprofitable. The property is not
currently employed in any type offarm use and exhibits no evidence ofsuch use. It is known
that the property has not been employed in farm use for the past 20 years. Accordingly,
this application complies with Policy 2.2.3.
The facts presented by the Applicant in the burden of proof for the subject application are similar
to those in the Wetherell decisions and in the aforementioned Deschutes County plan amendment
and zone change applications. For the reasons set forth above in the Preliminary Findings and
Conclusions, incorporated herein by this reference, the Hearings Officer finds the subject property
is not agricultural land and does not require an exception to Statewide Planning Goal 3 under state
law. The applications are consistent with this Policy.
Policy 2.2.4 Develop comprehensive policy criteria and code to provide clarity
on when and how EFUparcels can be converted to other designations.
FINDING: This plan policy provides direction to Deschutes County to develop new policies to
provide clarity when EFU parcels can be converted to other designations. The Hearings Officer
adheres to the County's previous determinations in plan amendment and zone change applications
and finds the proposal is consistent with this policy.
Goal 3, Ensure Exclusive Farm Use policies, classifications and codes are consistent
with local and emerging agricultural conditions and markets.
Policy 2.2.13 Identify and retain accurately designated agricultural lands.
FINDING: This plan policy requires the County to identify and retain agricultural lands that are
accurately designated. Substantial evidence in the record supports a finding that the subject
property was not accurately designated as agricultural land as detailed above in the Preliminary
Findings and Conclusions, incorporated herein by this reference. Further discussion on the soil
analysis provided by the Applicant is detailed under the OAR Division 33 criteria below. The
Hearings Officer finds the applications are consistent with this policy.
Section 2.5 Water Resources Policies
Goal 6, Coordinate land use and water policies.
Policy 2.5.24 Ensure water impacts are reviewed and, if necessary, addressed
for significant land uses or developments.
FINDING: The Applicant is not proposing a specific development application at this time.
Therefore, the Applicant is not required to demonstrate the water impacts associated with future
development. Rather, the Applicant will be required to address this criterion during development
of the subject property, which would be reviewed under any required land use process for the site
(e.g. conditional use permit, tentative plat). The Hearings Officer finds this policy does not apply
to the subject applications.
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Section 2.7 Open Spaces, Scenic Views and Sites
Goal 1, Coordinate with property owners to ensure protection of significant open spaces
and scenic view and sites.
Policy 2.7.3 Support efforts to identify and protect significant open spaces and
visually important areas including those that provide a visual separation between
communities such as the open spaces of Bend and Redmond or lands that are visually
prominent.
Policy 2.7.5 Encourage new development to be sensitive to scenic views and sites.
FINDING: These policies are fulfilled by the County's Goal 5 program. The County protects
scenic views and sites along major rivers and roadways by imposing Landscape Management (LM)
Combining Zones to adjacent properties. The Hearings Officer finds that no LM combining zone
applies to the subject property, nor is the subject property identified as a Goal 5 resource.
Furthermore, no new development is proposed under the present application.
The state agencies and several commentators suggested that the subject property should be left "as
is" because it is allegedly being used by wildlife as a "wildlife sanctuary." There is no applicable
statute or regulation that requires the property to be subject to wildlife protections given that there
is no LM combining zone applicable to the subject property and it is not designated as a Goal 5
resource. Nor is there any state law that prohibits redesignation and rezoning of a property in and
of itself on this basis. There is nothing in OAR 660-033-0030, "Identifying Agricultural Land,"
that makes any reference to wildlife or wildlife use.
For these reasons, the Hearings Officer finds that these provisions of the plan are inapplicable to
consideration of the proposed zone change and plan amendment.
Chapter 3, Rural Growth
Section 3.2, Rural Development
Growth Potential
As of 2010, the strong population growth of the last decade in Deschutes County was
thought to have leveled off due to the economic recession. Besides flatter growth
patterns, changes to State regulations opened up additional opportunities for new rural
development. The following list identifies general categories for creating new residential
lots, all of which are subject to specific State regulations.
• 2009 legislation permits a new analysis of agricultural designated lands
• Exceptions can be granted from the Statewide Planning Goals
• Sonze farm lands with poor soils that are adjacent to rural residential uses can be
rezoned as rural residential
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FINDING: This section of the Comprehensive Plan does not contain Goals or Policies, but does
provide the guidance above. In response to this section, the Applicant provided the following
response in the burden of proof:
This part of the comprehensive plan is not a relevant approval criterion for a plan
amendment and zone change application. Instead, it is the County's assessment of the
amount of population growth might occur on rural residential lands in the future based on
its understanding of the types of changes allowed by law. Comprehensive Plan Policy 2.2.3
specifically authorizes rezoning and comprehensive plan map amendments for any
property zoned EFU and is the code section that defines the scope of allowed zone changes.
This section makes it clear, however, that EFU-zoned land with poor soils adjacent to rural
residential development is expected to be rezoned for rural residential development during
the planning period. The subject property has extremely poor soils that do not qualify as
agricultural land that must be protected by Goal 3. The subject property also adjoins EFU
lands developed with rural residential uses (nonfarm dwellings) — Tax Lots 100, 200, 300,
Map 14-12-28D and Tax Lot 301, Map 14-12-27. It is also located in close proximity to a
large area of RR-10 land to the north and northeast that includes the large Lower Bridge
Estates subdivision.
The RR10 Zone is a rural residential zone and as discussed in the Findings of Fact above, and there
are several nearby properties to the north and northeast that are zoned RR10 as well as nearby EFU
zoned property developed with residential uses and others that have been approved for
development of nonfarm dwellings. This policy references the soil quality, which is discussed
above.
The Hearings Officer finds that the County's Comprehensive Plan provisions anticipate the need
for additional rural residential lots as the region continues to grow. This includes providing a
mechanism to rezone farm lands with poor soils to a rural residential zoning designation. The
Hearings Officer notes this policy references the soil quality, which is discussed in detail above.
The Hearings Officer finds that, the rezone application does not include the creation of new
residential lots. However, read in conjunction with Comprehensive Plan Policy 2.2.3, which
specifically authorizes rezoning and comprehensive plan map amendments for any property
zoned EFU that is comprised of poor soils and are in the vicinity of other rural residential uses,
the Hearings Officer finds that rezoning the subject property to RR-10 is consistent with this
policy. The Applicant has demonstrated the Subject Property is comprised of poor soils, cannot
be used for "farm use," as defined in ORS 215.203 and that is in the vicinity of other rural
residential uses.
Section 3.3, Rural Housing
Rural Residential Exception Areas
In Deschutes County most rural lands are designated for farms, forests or other
resources and protected as described in the Resource Management chapter of this Plan.
The majority of the land not recognized as resource lands or Unincorporated Community
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is designated Rural Residential Exception Area. The County had to follow a process
under Statewide Goal 2 to explain why these lands did not warrant farm or forest zoning.
The major determinant was that many of these lands were platted for residential use
before Statewide Planning was adopted.
In 1979 the County assessed that there were over 17,000 undeveloped Rural Residential
Exception Area parcels, enough to meet anticipated demand for new rural housing. As
of 2010 any new Rural Residential Exception Areas need to be justified through
initiating a nonresource plan amendment and zone change by demonstrating the
property does not meet the definition of agricultural or forest land, or taking exceptions
to farm, forest, public facilities and services and urbanization regulations, and follow
guidelines set out in the OAR.
FINDING: The Applicant provided the following response to this provision in the burden of
proof:
The quoted language is a part of the background text of the County's comprehensive plan.
It is not a plan policy or directive and it is not an approval standard for this application.
It does, however, recognize the fact that a Rural Residential Exception Area designation is
an appropriate plan designation to apply to nonresource lands.
As LUBA and the Oregon Supreme Court recognized in the Wetherell decision, there
are two ways a county can justify a decision to allow non -resource use of land
previously designated and zoned for farm or forest uses. The first is to take an exception
to Goal 3 and Goal 4 and the other is to adopt findings that demonstrate the land does
not qualify either as forest lands or agricultural lands under the statewide planning
goals. Here, the applicant is pursuing the latter approach. The quoted plan text
addressed the former. If the quoted plan text were read to require an exception to Goal
3 or 4 where the underlying property does not qualify as either Goal 3 or Goal 4
resource land, such a reading would be in conflict with the rule set forth in Wetherell
and Policy 2.2.3 of the Comprehensive Plan.
The Deschutes County Board of Commissioners has interpreted its RREA plan
designation to be the proper "catchall" designation for non -resource land in its
approval of the Daniels Group plan amendment and zone change by adopting the
following finding by Hearings Officer Ken Helm:
"I find that Deschutes County has interpreted the RREA plan designation as
the property "catchall" designation for non -resource land. "
As a result, the RREA plan designation is the appropriate plan designation for the
subject property.
The Hearings Officer adheres to the past Deschutes County Hearings Officer interpretations and
finds that the above language is not a policy and does not require an exception to Statewide
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Planning Goal 3. The Hearings Officer finds the proposed RREA plan designation is the
appropriate plan designation to apply to the subject property as a "catch-all" rural designation for
the subject property, which is not agricultural land.
Section 3.7, Transportation
Appendix C — Transportation System Plan
ARTERIAL AND COLLECTOR ROAD PLAN
Goal 4. Establish a transportation system, supportive of a geographically distributed and
diversified economic base, while also providing a safe, efficient network for residential
mobility and tourism.
Policy 4.4 Deschutes County shall consider roadway function, classification and
capacity as criteria for plan map anzendHients and zone changes. This shall
assure that proposed land uses do not exceed the planned capacity of the
transportation system.
FINDING: This policy applies to the County and advises it to consider the roadway function,
classification and capacity as criteria for plan amendments and zone changes. The County
complies with this direction by determining compliance with the Transportation Planning Rule
(TPR), also known as OAR 660-012, as set forth below in subsequent findings.
OREGON ADMINISTRATIVE RULES CHAPTER 660, LAND CONSERVATION AND
DEVELOPMENT DEPARTMENT
Division 6, Goal 4 — Forest Lands
OAR 660-006-0005, Definitions
(7) "Forest lands" as defined in Goal 4 are those lands acknowledged as forest
lands, or, in the case of a plan amendment, forest lands shall include:
(a) Lands that are suitable for commercial forest uses, including adjacent or
nearby lands which are necessary to permit forest operations or
practices; and
(b) Other forested lands that maintain soil, air, water and fish and wildlife
resources.
FINDING: The Applicant provided the following in response to Goal 4:
The existing site and surrounding areas do not include any lands that are suited for forestry
operations. Goal 4 says that forest lands "are those lands acknowledged as forest lands as
of the date of adoption of this goal amendment. " The subject property does not include
lands acknowledged as forest lands as of the date of adoption of Goal 4. Goal 4 also says
that "where **a plan amendment involving.forest lands is proposed, forest land shall
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include lands which are suitable for commercial forest uses including adjacent or nearby
lands which are necessary to permit forest operations or practices and other forested lands
that maintain soil, air, water and fish and wildlife resources. " This plan amendment does
not involved any forest land. The subject property does not contain any merchantable
timber and is not located in a forested part of Deschutes County.
The subject property is not zoned for forest lands, nor are any of the properties within a seven -
mile radius. The properties do not contain merchantable tree species and there is no evidence in
the record that the properties have been employed for forestry uses historically. The NRCS has
determined that the soil mapping units on the subject property are not suitable for wood crops and,
therefore, has excluded them from Table 8 of the NRCS Soil Survey of the Upper Deschutes River
Area. The Hearings Officer finds this satisfies OAR 660-06-0005(7)(a) and OAR 660-06-0010(2).
There are no wood production capabilities of the subject property.
For the foregoing reasons, the Hearings Officer finds the subject property does not qualify as forest
land.
Division 33 - Agricultural Lands & Statewide Planning Goal 3 - Agricultural Lands;
OAR 660-015-0000(3)
To preserve and maintain agricultural lands.
Agricultural lands shall be preserved and maintained for farm use, consistent with
existing and future needs for agricultural products, forest and open space and with the
state's agricultural land use policy expressed in ORS 215.243 and 215.700.
FINDING: Goal 3 includes a definition of "Agricultural Land," which is repeated in OAR 660-
033-0020(1). The Hearings Officer has made Preliminary Findings and Conclusions set forth
above, and incorporated herein by this reference, that the subject property does not constitute
"agricultural land."
OAR 660-033-0020, Definitions
For purposes of this division, the definitions in ORS 197.015, the Statewide Planning
Goals, and OAR Chapter 660 shall apply. In addition, the following definitions shall
apply:
(1)(a) "Agricultural Land" as defined in Goal 3 includes:
(A) Lands classified by the U.S. Natural Resources Conservation Service
(NRCS) as predominantly Class MV soils in Western Oregon and I -VI
soils in Eastern Oregon 2a;
22 OAR 660-033-0020(5): 'Eastern Oregon" means that portion of the state lying east of a line beginning at the
intersection of the northern boundary of the State of Oregon and the western boundary of Wasco County, then south
along the western boundaries of the Counties of Wasco, Jefferson, Deschutes and Klamath to the southern boundary
of the State of Oregon.
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FINDING: The Applicant's basis for not requesting an exception to Goal 3 is founded on the
premise that the subject property does not meet the definitions of "Agricultural Land." In support,
the Applicant offered the following response as included in the burden of proof statement:
Statewide Goal 3, above, ORS 215.211 and OAR 660-033-0030(5) allow the County to rely
on the more detailed and accurate information provided by the Exhibit F soil study to
determine whether land is agricultural land. ORS 215.211 give a property owner the right
to rely on more detailed information than is provided by the NRCS Web Soil Survey of the
NRCS to "assist the county to make a better determination of whether land qualifies as
agricultural land. " The more detailed soils survey obtained by the applicant shows that
approximately 71 % of the subject property is composed of Class VII and VIII soils. As a
result, it is clear that the tract is not predominantly composed of Class I - VI soils.
The soil study provided by Mr. Rabe of Valley Science and Engineering (dated June 22, 2021) and
the soil report addendum (dated January 13, 2022) support the Applicant's representation of the
data for the subject property. This data was not rebutted by any party.
As set forth in detail in the Preliminary Findings and Conclusions above, incorporated herein by
this reference, the Hearings Officer finds, based on the submitted soil study and the above OAR
definition, that the subject property is comprised predominantly of Class VII and VIII soils and,
therefore, does not constitute "Agricultural Lands" as defined in OAR 660-033-0020(1)(a)(A).
(B) Land in other soil classes that is suitable for farm use as defined in ORS
215.203(2)(a), taking into consideration soil fertility; suitability for
grazing; climatic conditions; existing and future availability of water for
farm irrigation purposes; existing land use patterns, technological and
energy inputs required; and accepted farming practices; and
FINDING: The Applicant's basis for not requesting an exception to Goal 3 is founded on the
proposal that the subject property are not defined as "Agricultural Land." The Applicant provides
the following analysis in the burden of proof.
This part of the definition of "Agricultural Land" requires the County to consider whether
the Class VII and VIII soils found on the subject property are suitable for farm use despite
their Class VII and VIII classification. The Oregon Supreme Court has determined that the
term 'farm use " as used in this rule and Goal 3 means the current employment of land for
the primary purpose of obtaining a profit in money through specific farming -related
endeavors. The costs of engaging in farm use are relevant to determining whether farm
activities are profitable and this is a factor in determining whether land is agricultural
land. Wetherell v. Douglas County, 342 Or 666, 160 Pad 614 (2007).
The primary agricultural use conducted on properties that lack irrigation water rights and
have poor soils is grazing cattle. The extremely poor soils found on the property, however,
make it a poor candidate for dryland grazing. The dry climate makes it difficult to produce
adequate forage on the property to support a viable or potentially profitable grazing
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operation or other agricultural use of the property. This issue is addressed in greater detail
in the Exhibit F soils study. Photographs of various parts of the subject property provide
a visual depiction of the land in question and its characteristics:
%Please see the burden ofprooLfor photos submitted by the applicantl
Given the high cost of irrigating and maintaining the property as pasture or cropland (high
labor costs, labor-intensive, high cost of irrigation equipment and electricity, high cost of
fertilizer, etc.), dry land grazing is the accepted farm use of poor soils in Deschutes County.
This use can be conducted until the native vegetation is removed by grazing (see the
discussion of the suitability of the property.for grazing, below). The soils study includes an
analysis of the level of cattle grazing that would be able to be conducted on the property,
without overgrazing it. It finds that the entire 710 acres would support from 8 to 15 cow -
calf pairs for a year based on proper management of the land for year-round grazing.
When assessing the potential income from dry land grazing, Deschutes County uses a
formula and assumptions developed by the OSU Extension Service. This formula is used
by the County to decide whether EFU-zoned land is generally unsuitable for farm use. It
assumes that one acre will produce 900 pounds of forage per year.
• One AUM is the equivalent to the forage required for a 1000 lb. cow and calf to
graze for 30 days (900 pounds of forage).
• On good quality forage, an animal unit will gain 2 pounds per day.
• Two animal units will eat as much in one month as one animal unit will eat in
two months.
• Forage production on dry land is not continuous. Once the forage is consumed, it
typically will not grow back until the following spring.
• An average market price for beef is $1.15 per pound.
Based upon these assumptions, the value of beef production on the entire subject property
can be
calculated using the following formula:
30 days x 2#/day/acre = 60.0 lbs. Beef/acre
(I acre per A UM)
60.0 lbs. Beef/acre x 710 acres x $1.15/1b. = $48, 990 per year of gross income
Thus, using the OSU/County formula, the total gross beef production potential for the
subject property if it was comprised of more productive soils than found on the subject
property would be approximately $48,990 annually. This figure represents gross income
and does not take into account real property taxes, fencing costs, land preparation,
purchase costs of livestock, veterinary costs, or any other costs of production which would
exceed income. Property taxes, alone, were $15, 706.62 for the eight tax lots that comprise
the subject property in 2020. The payment of a modest wage of $15.00 per hour to the
rancher and/or employee for only one FTE would cost the ranch operation $31, 200 in
247-21-001043-PA/1044-ZC Page 58 of 74
wages and approximately an additional $7, 800 to $12, 480 (1.25 to 1.4 of salary) for
employment taxes paid by the employer and standard employee benefits. An expired
internet job listing (at least two years old) for a farmer to farm the Volwood Farms
property located to the west of the subject property offered wages of $15 to $25 an hour
and medical insurance. Exhibit V. A wage of $25 per hour provides an annual salary
of $52, 000 and costs the farm approximately $15, 000 to $20, 800 in taxes and benefits.
A review of the seven considerations listed in the administrative rule, below, provided in
the soils survey report, Exhibit F, and in the findings provided below explain why the poor -
quality soils found on the subject property are not suitable for farm use:
Soil Fertility: Class 7 and 8 soils are not fertile soils. They are not suited for the production
offarm crops. This fact has been recognized in numerous County land use cases, including
the zone change and plan amendment applications being filed with this land use
application. Farm use on these soils is limited to rangeland grazing at a level that does not
qualify as 'farm use. " No person would expect to make a profit by grazing livestock on the
subject property.
Suitability for Grazing: The climate is cold and dry. The growing season is very short. The
subject property is located between Redmond and Sisters. According to the OSUExtension
Service the growing season for Redmond is only 80 to 90 days long. Exhibit W. The
growing season for Sisters is shorter. The average annual precipitation for Redmond is
only 8.8 inches. This means that the amount of forage available for dry land grazing is low
and will be slow to regrow. This also means that a farmer has a short period of amount of
time to irrigate pastures, if irrigation water rights can be secured. This makes it difficult
for a farmer to raise sufficient income to offset the high costs of establishing, maintaining
and operating an irrigation system and groundwater well. That cost also would include the
cost of purchasing and retiring water rights from another area farm property to mitigate
for the impacts of pumping groundwater — something that is cost prohibitive for almost
any farm operation. This is clearly the case for irrigating non-agricultural Class VII and
VIII soils.
Existing and Future Availability of Water for Farna Irrigation Purposes: The subject
property is not located in an irrigation district. It is too remote from any irrigation district
in terms of distance and elevation (above) to be able to obtain irrigation water from a
district for farming as shown by Exhibit X. In order to obtain water rights, the applicant
would need to acquire a water right from Oregon Water Resources Department
(OWRD). If such a right were able to be secured, the property owner would need to
purchase and retire water rights from irrigated farm land in Central Oregon that is
surely more productive than the subject property (71 % Class VII and VIII soils). Such
a transaction would run counter to the purpose of Goal 3 to maintain productive
Agricultural Land in farm use. The cost of purchasing water rights, obtaining a
groundwater permit and establishing an irrigation system are significant and would
not be reasonably expected to result in farm income that would offset the cost
incurred for the subject property.
247-21-001043-PA/1044-ZC Page 59 of 74
Existing Land Use Patterns: The applicant's analysis of existing land use patterns
provided earlier in this burden of proof shows that the subject property is located primarily
on a plateau above farm lands. The lands on the plateau are either undeveloped open space
owned by the USA or RR-10 zoned subdivision lots developed with single-family homes.
The addition of RR-10 zoned lots and homes rather than nonfarm dwellings is consistent
with land use of other privately -owned property on the plateau. Below the plateau are
public lands and a small number of farms and farm and nonfarm dwellings on or adjacent
to existing farm operations. The addition of homes here would not impose significant new
impacts on farm operations in the area.
Technological and Energy Inputs Required: Given its poor soils, this parcel would
require technology and energy inputs over and above accepted farming practices.
Excessive fertilization and soil amendments; very frequent irrigation, and marginal
climatic conditions would restrict cropping alternatives. Pumping irrigation water
requires energy inputs. The application of lime and fertilizer typically requires the use of
farm machinery that consumes energy. The irrigation of the property requires the
installation and operation of irrigation systems. All of these factors are why Class 7 and 8
soils are not considered suitable for use as cropland.
Accepted Farming Practices: As determined by the County in the Aceti case, farming lands
comprised of soils that are predominately Class VII and VIII is not an accepted farm
practice in Central Oregon. Dryland grazing, the farm use that can be conducted on the
poorest soils in the County, typically occur on Class VI non -irrigated soils. Crops are
typically grown on soils in soil class III and IV when irrigated that Class VI without
irrigation.
The Hearings Officer incorporates herein by this reference the Preliminary Findings and
Conclusions above and finds that the subject property does not constitute "Agricultural Lands" as
defined in OAR 660-033-0020(1)(a)(B).
(C) Land that is necessary to permit farm practices to be undertaken on
adjacent or nearby agricultural lands.
FINDING: The Applicant offered the following response in the burden of proof statement:
The subject property is not land necessary to permit farm practices to be undertaken on
adjacent or nearby lands. The following facts are shown by the applicant's discussion of
surrounding development in Section E of this application, above and by the additional
information provided below.
West. Properties to the west of the subject property are separated from the subject
property by topography. The dramatic change in topography makes it infeasible to
use the subject property for farm use in conjunction with these properties.
Additionally, the subject property is not necessary to perm it farm practices to be
undertaken on adjacent or nearby lands to the west. Farm practices have been
occurring on these properties for decades without any need to use the subject property
247-21-001043-PA/1044-ZC Page 60 of 74
to conduct farm practices on these properties.
EFU Properties to the West (South to North)
Tax Map, Lot
Farm Use
Potential Farm
Need Subject
and Size
Practices
Pro er ?
14-12-00, 300
Open space; public
Dry land grazing
No, property
1588.55 acres
land
accessi ble from
Buckhorn Road
14-12-21, 200 & 100
Irrigated fields
Irrigation
No, Tax Lot 200 and
3 72. 71 acres
currently growing
Growing/harvesting
100 are below the
Volwood Farms
orchard grass, hay
crops
level of a majority of
and alfalfa
Fertilizing field
subject property.
Baling hay
They are comprised
Herbicide use
of good farm soils
while the subject
property is not.
Separation due to
elevation has
prevented conflicts
between existing
nonfarm dwelling on
subject property and
this farming
operation.
14-12-20, 200
Irrigated field
Irrigation
No, TL 200 is
146.37 acres
suitable for growing
Growing/harvesting
located west of
orchard grass, hay,
crops
Buckhorn Road and
and alfalfa
Fertilizing field
separated from
Baling hay
subject property by
Herbicide use
Volwood Farms
property. Property
also separated from
subject property by
topography.
North: All of the land north of the subject property that might rely on the subject property
for farm practices, other than the Volwood Farms property inventoried above and an
open space tract of land owned by the USA, is zoned RR- 10 and is not in farm use.
Cattle grazing would be able to occur on the USA property at a very limited scale due
to sparse vegetation without need for the subject property to conduct the activity.
247-21-001043-PA/1044-ZC Page 61 of 74
East:
EFU Properties to East (North to South)
Tax Map, Lot
Farm Use
Potential Farm
Need Subject
and Size
Practices
Pro er ?
14-12-22B, 700
Open space public
Livestock grazing
No, grazing can
80 acres
land
occur without
reliance on subject
property.
14-12-22C, 500
Open space public
Livestock grazing
No, grazing can
120 acres
land
occur without
reliance on subject
property.
14-12-27, 200
Open space public
Livestock grazing
No, grazing can
120 acres
land
occur without
reliance on subject
ro er .
14-12-27, 301
None. Nonfarm
None
No, no farm use
17.50 ac
parcel and dwelling
and property not
suitable for farm
use.
14-12-00, 300
Irrigated cropland
Irrigation
No, separated from
62.58 acres
suitable for growing
Growing/harvesting
subject properly by
orchard grass, hay,
crops
Tax Lot 301 and
and alfalfa
Fertilizing field Baling
elevation. Property
hay Herbicide use
created by partition
that found that
nonfarm dwelling
would not interfere
with farm use on
Tax Lot 300 and
other area farms.
14-12-14B, 200
Approved.for
None
No
80 acres
nonfarm dwelling
South: Most of the land to the south of the subject property is open space land
owned by the USA and nonfarm dwelling parcels comprised of land determined by
Deschutes County to be generally unsuitable for the production of farm crops,
livestock and merchantable tree species.
247-21-001043-PA/1044-ZC Page 62 of 74
EFU Properties to South
Tax Map, Lot
Farm Use
Potential Farm
Need Subject
and Size
Practices
Property?
1 4-12-280, 100
None, nonfarm dwelling
None
No
28.60 acres
14-12-280, 200
None, nonfarm dwelling
None
No
19.11 acres
14-12-280, 300
None, nonfarm dwelling
None
No
19.65 acres
14-12-20, 3200
Open space public land
Livestock grazing
No, grazing can
1588.55 acres
occur without
reliance on
subject property.
Accessible from
Buckhorn Road
and Coyner
Avenue.
14-12-00, 1923
Nonfarm dwelling.
Irrigation
No, separated
37.51 acres
Small irrigated pasture
Growing/harvesting
from subject
for horses and small
crops
property by other
pivot suitable for
Fertilizing field
nonfarm
growing hay, grass or
Baling hay
properties.
alfalfa.
Herbicide use
The Applicant provided a detailed analysis of land uses and agricultural operations surrounding
the subject property. The Hearings Officer finds that barriers for the subject property to engage
with in farm use with these properties include: poor quality soils, lack of irrigation, proximity and
significant topography changes.
The Hearings Officer incorporates herein by this reference the Preliminary Findings and
Conclusions above and finds that the subject property does not constitute "Agricultural Lands" as
defined in OAR 660-033-0020(1)(a)(C).
(b) Land in capability classes other than I-IVII-VI that is adjacent to
or intermingled with lands in capability classes I-IVII-VI within
a farm unit, shall be inventoried as agricultural lands even
though this land may not be cropped or grazed,
FINDING: The Applicant provided the following response in the burden of proof statement:
The subject property is not a part of a farm unit. The property is a tract of land that
is generally unsuitable for the production of farm crops and livestock and
247-21-001043-PA/1044-ZC Page 63 of 74
merchantable trees species that is eligible to be developed with nonfarm dwellings.
As a result, this rule does not apply to the County's review of this application.
The apparent purpose of this rule is to prevent the rezoning of portions of a farm
property that function together as a farm. That is not the case here. In this case, the
property in its entirety is not agricultural land and is not a farm unit because it is
not engaged in farm use and has not been engaged in that use for 20 years or more.
The applicant is not seeking to remove unproductive lands from an otherwise
productive farm property.
Even if the subject property is considered to be a ' farm unit" despite the fact it has
never been farmed, Goal 3 applies a predominant soil test to determine if a property
is "agricultural land. " The predominant soils classification of the subject property
is Class VII and VII which provides no basis to inventory the property as agricultural
land u n l e s s the land is shown to be, in fact, productive farmland.
All parts of the subject property were studied by the applicant's soils analysis, Exhibit
F. The analysis shows that the predominant soil type found on the property is Class
VII and VIII, nonagricultural land. Some Class VI soils are intermingled with the
nonagricultural soil not vice versa. As a result, this rule does not require the Class
VII and VIII soils to be classified agricultural land.
The Hearings Officer incorporates by this reference the Preliminary Findings and Conclusions
set forth above and finds that the subject property does not constitute "Agricultural Lands," as
defined in OAR 660-033-0020(l)(b).
(c) "Agricultural Land" does not include land within acknowledged
urban growth boundaries or land within acknowledged exception
areas for Goal 3 or 4.
FINDING: The subject property is not within an acknowledged urban growth boundary or land
within acknowledged exception areas for Goals 3 or 4. The Hearings Officer finds this criterion is
inapplicable.
OAR 660-033-0030 Identifying Agricultural Land
(1) All land defined as "agricultural land" in OAR 660-033-0020(1) shall be
inventoried as agricultural land.
(2) When a jurisdiction determines the predominant soil capability classification of
a lot or parcel it need only look to the land within the lot or parcel being
inventoried. However, whether land is "suitable for farm use" requires an
inquiry into factors beyond the mere identification of scientific soil
classifications. The factors are listed in the definition of agricultural land set
forth at OAR 660-033-0020(1)(a)(B). This inquiry requires the consideration of
247-21-001043-PA/1044-ZC Page 64 of 74
conditions existing outside the lot or parcel being inventoried. Even if a lot or
parcel is not predominantly Class I -IV soils or suitable for farm use, Goal 3
nonetheless defines as agricultural "lands in other classes which are necessary
to permit farm practices to be undertaken on adjacent or nearby lands': A
determination that a lot or parcel is not agricultural land requires findings
supported by substantial evidence that addresses each of the factors set forth in
660-033-0020(1).
FINDING: The Applicant addressed the factors in OAR 660-033-0020(1) above. For the reasons
set forth in the Preliminary Findings and Conclusions above, incorporated herein by this reference.
the Hearings Officer finds the subject property is not "Agricultural Lands," as defined in OAR
660-033-0030(1). The subject property is not necessary to permit farm practices undertaken on
adjacent and nearby lands.
(3) Goal 3 attaches no significance to the ownership of a lot or parcel when
determining whether it is agricultural land. Nearby or adjacent land, regardless
of ownership, shall be examined to the extent that a lot or parcel is either
"suitable for farm use" or "necessary to permit farm practices to be undertaken
on adjacent or nearby lands" outside the lot or parcel.
FINDING: As the Hearings Officer found above, the subject property is not suitable for farm use
and is not necessary to permit farm practices to be undertaken on adjacent or nearby lands,
regardless of ownership of the subject property and ownership of nearby or adjacent land. For the
reasons set forth in the Preliminary Findings and Conclusions above, incorporated herein by this
reference. the Hearings Officer finds the subject property is not "Agricultural lands," and thus that
no exception to Goal 3 is required.
(5)(a) More detailed data on soil capability than is contained in the USDA Natural
Resources Conservation Service (NRCS) soil Wraps and soil surveys may be used
to define agricultural land. However, the "tore detailed soils data shall be
related to the NRCS land capability classification system.
(b) If a person concludes that more detailed soils information than that contained
in the Web Soil Survey operated by the NRCS as of January 2, 2012, would
assist a county to "take a better determination of whether land qualifies as
agricultural land, the person must request that the department arrange for an
assessment of the capability of the land by a professional soil classifier who is
chosen by the person, using the process described in OAR 660-033-0045.
FINDING: The soil study prepared by Mr. Rabe provides more detailed soils information than
contained in the NRCS Web Soil Survey. NRCS sources provide general soils data for large units
of land. The Hearings Officer finds the soil study provides detailed and accurate information about
individual parcels based on numerous soil samples taken from the subject property. The soil study
is related to the NCRS Land Capability Classification (LLC) system that classifies soils class I
through VIII. An LCC rating is assigned to each soil type based on rules provided by the NRCS.
247-21-001043-PA/1044-ZC Page 65 of 74
The NRCS mapping for the subject property is shown below in Figure 1. According to the NRCS
Web Soil Survey tool, the subject property predominantly contains 63C soil (75 percent) and 106E
soil (17 percent) with the remaining property containing smaller amounts of 31 B, 71 A, 101 D, and
106D soils.
Figure 1 - NRCS Soil Map (Subject Property, appx.)
The soil study conducted by Mr. Rabe of Valley Science and Engineering finds the soil types on
the subject property vary from the NRCS identified soil types. The soil types described in the soil
study are described below and the characteristics and LCC rating are shown in Table I below
247-21-001043-PA/1044-ZC Page 66 of 74
Table 1- Summary of Order I and 2 Soil Survey (Subject Property)
36B
Deskamp loamy sand, 0 to 8% slopes
5.05
0.7%
6s
3s
81C
Lickskillet stony sandy loam, 0 to 15% slopes
375.03
52.5%
7e
_.
81 D
Lickskillet stony sandy loam, 15 to 30% slopes
54.03
7.6%
7e
81 E
Lickskillet stony sandy loam, 30 to 50% slopes
64.73
9.1 %
7e
106D(R)
Redslide sandy loam, 15 to 30% slopes
22.88
3.2%
6e
_.
127C
Statz sandy loam, 0 to 15% slopes
178.72
25.0%
6s
4s
109
Rock outcrop
14.16
2.0%
8s
--
Total
714.60
100%
Subtotal Class I - VI
206.65
29%
Subtotal Class VII - V111
507.95
71%
(N V t C J:
Abbreviations: %- no data, e = erosion, MRCS = Natural Resources Conservation Service, s _: shallow.
1 Land Capability Class as published in the Soil Survey of Upper Deschutes River Area, Oregon
(Soil Survey Staff, Natural Resources Conservation Service, 2002).
Mr. Rabe's soil study concludes that the subject property contains 71 percent Class VII and VIII
soils. The submitted soil study prepared by Mr. Rabe is accompanied in the submitted application
materials by correspondence from the Department of Land Conservation and Development
(DLCD) (Applicant's Exhibit F).
The DLCD correspondence confirms that Mr. Rabe's prepared soil study is complete and
consistent with the reporting requirements for agricultural soils capability as dictated by DLCD.
Based on Mr. Rabe's qualifications as a certified Soil Scientist and Soil Classifier, and as set forth
in detail in the Preliminary Findings and Conclusions above, incorporated herein by this reference,
the Hearings Officer finds the submitted soil study to be definitive and accurate in terms of site -
specific soil information for the subject property.
(c) This section and OAR 660-033-0045 apply to:
(A) A change to the designation of land planned and zoned for exclusive farm
use, forest use or mixed farm forest use to a non -resource plan
designation and zone on the basis that such land is not agricultural land;
and
FINDING: The Applicant is seeking approval of a non -resource plan designation on the basis that
the subject property is not defined as agricultural land. Therefore, this section and OAR 660-033-
0045 applies to these applications.
247-21-001043-PA/1044-ZC Page 67 of 74
(d) This section and OAR 660-033-0045 implement ORS 215.211, effective on
October 1, 2011. After this date, only those soils assessments certified by the
department under section (9) of this rule may be considered by local governments
in land use proceedings described in subsection (c) of this section. However, a
local government may consider soils assessments that have been completed and
submitted prior to October 1, 2011.
FINDING: The Applicant submitted a soil study by Mr. Rabe of Valley Science and Engineering
dated June 22, 2021, and an addendum dated January 13, 2022. The soils study was submitted
following the ORS 215.211 effective date. The Applicant's Exhibit F includes acknowledgement
from Hilary Foote, Farm/Forest Specialist with the DLCD, dated September 13, 2021, that the soil
study is complete and consistent with DLCD's reporting requirements. The Hearings Officer finds
this criterion is met.
(e) This section and OAR 660-033-0045 authorize a person to obtain additional
information for use in the determination of whether land qualifies as agricultural
land, but do not otherwise affect the process by which a county determines
whether land qualifies as agricultural land as defined by Goal 3 and OAR 660-
033-0020.
FINDING: The Applicant provided a DLCD certified soil study as well as NRCS soil data. The
Hearings Officer finds this criterion is met.
DIVISION 12, TRANSPORTATION PLANNING
OAR 660-012-0060 Plan and Land use Regulation Amendments
(1) If an amendment to a functional plan, an acknowledged comprehensive plan, or
a land use regulation (including a zoning map) would significantly affect an
existing or planned transportation facility, then the local government must put in
place measures as provided in section (2) of this rule, unless the amendment is
allowed under section (3), (9) or (10) of this rule. A plan or land use regulation
amendment significantly affects a transportation facility if it would. -
(a) Change the functional classification of an existing or planned
transportation facility (exclusive of correction of map errors in an adopted
plan);
(b) Change standards implementing a functional classification system; or
(c) Result in any of the effects listed in paragraphs (A) through (C) of this
subsection based on projected conditions measured at the end of the
planning period identified in the adopted TSP. As part of evaluating
projected conditions, the amount of traffic projected to be generated
within the area of the amendment may be reduced if the amendment
includes an enforceable, ongoing requirement that would demonstrably
limit traffic generation, including, but not limited to, transportation
demand management. This reduction may diminish or completely
eliminate the significant effect of the amendment.
247-21-001043-PA/1044-ZC Page 68 of 74
(A) Types or levels of travel or access that are inconsistent with the
functional classification of an existing or planned transportation
facility;
(B) Degrade the performance of an existing or planned transportation
facility such that it would not meet the performance standards
identified in the TSP or comprehensive plan; or
(C) Degrade the performance of an existing or planned transportation
facility that is otherwise projected to not meet the performance
standards identified in the TSP or comprehensive plan.
FINDING: The Hearings Officer finds this provision is applicable to the proposal because it
involves an amendment to an acknowledged comprehensive plan. The proposed plan amendment
would change the designation of the subject property from AG to RREA and change the zoning
from EFU to RR10. The Applicant is not proposing any land use development of the property at
this time.
As referenced in the agency comments section in the Findings of Fact, above, the Senior
Transportation Planner for Deschutes County requested additional information to clarify the
conclusions provided in the traffic study. The Applicant submitted an updated report from
Christopher M. Clemow, PE, PTOE of Clemow Associates, LLC dated January 17, 2022, to
address trip distribution, traffic volumes, and Transportation Planning Rule (TPR) criteria. The
updates were reviewed by the Senior Transportation Planner who indicated his comments had been
addressed and he was satisfied with the amended report. Mr. Clemow included the following
conclusions in the traffic impact analysis dated January 17, 2022:
The following conclusions are made based on the materials presented in this analysis:
1. The proposed Deschutes County Comprehensive Plan Amendment and Zone Change
from Exclusive Farm Use — Terrebonne Subzone (EFUTE) to Rural Residential — 10 Acre
Minimum (RR-10) will not significantly affect the transportation system.
2. All roadways along the primary travel route tofrom the development are constructed to
an adequate County standard, including paved 12 foot travel lanes.
3. All study intersections will operate well with agency mobility standards/targets in the
plan year and no intersection mitigation is necessary.
4. The proposed site access is in the same location as the existing access and forms the
west intersection leg. There is no horizontal or vertical roadway curvature limiting sight
distance, nor is there any obstructing vegetation. As such, there is adequate sight distance
at the proposed access location.
S. There are no recorded crashes at any of the study intersections or the roadway segments
during the study period. As such, the roadway and intersections are considered relatively
safe, and no further evaluation of safety deficiencies is necessary.
247-21-001043-PA/1044-ZC Page 69 of 74
6. Additional transportation analysis is not necessary to address Deschutes County Code
Transportation Planning Rule criteria outlined in Oregon Administrative Rule 660 012-
0060.
Based on the County Senior Transportation Planner's comments and the traffic study from
Clemow Associates, LLC, the Hearings Officer finds compliance with the Transportation Planning
Rule has been effectively demonstrated. Based on the TIA, the Hearings Officer finds that the
proposed plan amendment and zone change will be consistent with the identified function,
capacity, and performance standards of the County's transportation facilities in the area.
The Hearings Officer notes that, despite the transportation information provided by the Applicant
and via agency comment, public comments received by the County indicate concerns with
potential traffic impacts as a result of the proposed plan amendment and zone change. The
Hearings Officer finds that no development application is before me at this time. At the time of
any land use application(s) for the subject property, analysis and review of transportation and
traffic impacts of any proposed development will be required.
DIVISION 15, STATEWIDE PLANNING GOALS AND GUIDELINES
OAR 660-015 Division 15 Statewide Planning Goals and Guidelines
FINDING: The Statewide Planning Goals are addressed as follows in the Applicant's burden of
proof:
Goal 1, Citizen Involvement. Deschutes County will provide notice of the application to
the public through mailed notice to affected property owners and by requiring the applicant
to post a 'proposed land use action sign " on the subject property. Notice of the public
hearings held regarding this application will be placed in the Bend Bulletin. A minimum
of two public hearings will be held to consider the application.
Goal 2, Land Use Planning. Goals, policies and processes related to zone change
applications are included in the Deschutes County Comprehensive Plan and Titles 18 and
23 of the Deschutes County Code. The outcome of the application will be based on findings
of act and conclusions of law related to the applicable provisions of those laws as required
by Goal 2.
Goal 3, Agricultural Lands. The applicant has shown that the subject property is not
agricultural land so Goal 3 does not apply.
Goal 4, Forest Lands. The existing site and surrounding areas do not include any lands
that are suited for forestry operations. Goal 4 says that forest lands "are those lands
acknowledged as forest lands as of the date of adoption of this goal amendment. " The
subject property does not include lands acknowledged as forest lands as of the date of
adoption of Goal 4. Goal 4 also says that "[wjhere **a plan amendment involving forest
lands is proposed, forest land shall include lands which are suitable for commercial forest
uses including adjacent or nearby lands which are necessary to permit forest operations
247-21-001043-PA/1044-ZC Page 70 of 74
or practices and other forested lands that maintain soil, air, water and fish and wildlife
resources. " This plan amendment does not involve any forest land. The subject property
does not contain any merchantable timber and is not located in a.forested part of Deschutes
County.
Goal S, Natural Resources, Scenic and Historic Areas, and Open Spaces. The subject
property does not contain any inventoried Goal S resources.
Goal 6, Air, Water and Land Resources Quality. The approval of this application will not
cause a measurable impact on Goal 6 resources. Approval will make it more likely that the
irrigation and pond water rights associated with the property will ultimately be returned
to the Deschutes River or used to irrigate productive farm ground found elsewhere in
Deschutes County.
Goal 7, Areas Subject to Natural Disasters and Hazards. This goal is not applicable
because the subject property is not located in an area that is recognized by the
comprehensive plan as a known natural disaster or hazard area.
Goal 8, Recreational Needs. This goal is not applicable because the property is not
planned to meet the recreational needs of Deschutes County residents and does not directly
impact areas that meet Goal 8 needs.
Goal 9, Economy of the State. This goal does not apply to this application because the
subject property is not designated as Goal 9 economic development land. In addition, the
approval of this application will not adversely impact economic activities of the state or
local area.
Goal 10, Housing. The County's comprehensive plan Goal 10 analysis anticipates that
farm properties with poor soils, like the subject property, will be converted from EFU to
MUA-10 or RR-10 zoning and that these lands will help meet the need for rural housing.
Approval of this application, therefore, is consistent with Goal 10 as implemented by the
acknowledged Deschutes County comprehensive plan.
Goal 11, Public Facilities and Services. The approval of this application will have no
adverse impact on the provision of public facilities and services to the subject site. Utility
service providers have confirmed that they have the capacity to serve the maximum level
of residential development allowed by the RR-10 zoning district.
Goal 12, Transportation. This application complies with the Transportation System
Planning Rule, OAR 660-012-0060, the rule that implements Goal 12. Compliance with
that rule also demonstrates compliance with Goal 12.
Goal 13, Energy Conservation. The approval of this application does not impede energy
conservation. The subject property is located in a part of the community that contains a
large amount of rural residential development. Providing homes in this location as
247-21-001043-PA/1044-ZC Page 71 of 74
opposed to more remote rural locations will conserve energy needed for residents to travel
to work, shopping and other essential services.
Goal 14, Urbanization. This goal is not applicable because the applicant's proposal does
not involve property within an urban growth boundary and does not involve the
urbanization of rural land. The RR-10 zone is an acknowledged rural residential zoning
district that limits the intensity and density of developments to rural levels. The compliance
of this zone with Goal 14 was recently acknowledged when the County amended its
comprehensive plan. The plan recognizes the fact that the MUA-10 and RR zones are the
zones that will be applied to lands designated Rural Residential Exception Areas.
Goals 15, Willamette Greenway. This goal does not apply because the subject property is
not located in the Willamette Greenway.
Goals 16 through 19. These goals do not apply to land in Central Oregon.
The Hearings Officer finds consistency with Goal 1 (Citizen Involvement) has been established
with the public notice requirements required by the County for these applications (mailed notice,
posted notice and two public hearings). Similarly, the Hearings Officer finds consistency with
Goal 2 (Land Use Planning) based on the applications' consistency with goals, policies and
processes related to zone change applications as set forth in the Comprehensive Plan and Titles 18
and 23 of the Deschutes County Code.
Based on the findings above, the Hearings Officer finds consistency with Goal 3 (Agricultural
Lands) has been demonstrated because the Subject Property is not Agricultural Land. The property
is not comprised of Forest Lands. Therefore, Goal 4 is inapplicable.
With respect to Goal 5 (Natural Resources, Scenic and Historic Areas, and Open Spaces), the
Hearings Officer finds that the Subject Property does not include any inventoried Goal 5 resources.
While the Subject Property is currently open and undeveloped, the County Goal 5 inventory does
not include the subject property as an "open space" area protected by Goal 5. Members of the
public expressed concern regarding potential impact on wildlife. However, the Hearings Officer
notes that the property does not include a wildlife overlay (WA) designation and, more
importantly, no development is proposed at this time. Rezoning the subject property will not, in
and of itself, impact wildlife on the subject property. Protections for wildlife must be sanctioned
by the County's Goal 5 FESEEs and WA or similar wildlife overlay zoning. The Hearings Officer
finds there are no wildlife protections applicable to these applications.
The Hearings Officer finds consistency with Goal 6 (Air, Water and Land Resources Quality)
because there is no measurable impact of approval of the application to rezone the subject property
from EFU to RR-10. Future development activities will be subject to local, state and federal
regulations that protect these resources.
With respect to Goal 7 (Areas Subject to Natural Disasters and Hazards), the Hearings Officer
finds consistency with this Goal based on the fact that rezoning the subject property to RR-10 does
not change the Wildfire Hazard Area designation that is applicable to the entirety of Deschutes
247-21-001043-PA/1044-ZC Page 72 of 74
County. The subject property is within the Rural Fire Protection District #2. Any application(s) for
future development activities will be required to demonstrate compliance with fire protection
regulations. The subject property is located in Redmond Fire and Rescue jurisdiction. The
Hearings Officer finds that rezoning the properties to RR10 does not change the Wildfire Hazard
Area designation. Any future development of the properties will be required to demonstrate
compliance with any fire protection regulations and requirements of Deschutes County.
The Hearings Officer finds consistency with Goal 8 (Recreational Needs) given the fact that no
development is currently proposed and that rezoning, in and of itself, will not impact recreational
needs of Deschutes County.
The Hearings Officer finds Goal 9 (Economy of the State) is inapplicable because the subject
property is not designated as Goal 9 economic development land and approval of the application
will not adversely impact economic activities of the state or area.
The Hearings Officer finds the applications are consistent with Goal 10 (Housing) because the
Comprehensive Plan Goal 10 chapter anticipates that farm properties with poor soils will be
converted from EFU to MUA-10 or RR-10 zoning, making such properties available to meet the
need for rural housing. Although no development of the subject property is proposed at this time,
rezoning it from EFU to RR-10 will enable consideration of the property for potential rural housing
development in the future.
The Hearings Officer finds the applications are consistent with Goal 11 (Public Facilities and
Services). The record establishes that utility service providers have capacity to serve the subject
property if developed at the maximum level of residential development allowed by the RR-10
zoning district. The proposal will not result in the extension of urban services to rural areas.
Based on the findings above regarding the Transportation System Planning Rule, OAR 660-012-
0060, the Hearings Officer finds the applications are consistent with Goal 12 (Transportation).
The Hearings Officer finds the applications are consistent with Goal 13 (Energy Conservation)
because there is no evidence approval of the applications will impede energy conservation.
The Hearings Officer finds the applications are consistent with Goal 14 (Urbanization). The
subject property is not within an urban growth boundary and does not involve urbanization of rural
land because the RR-10 zone does not include urban uses as permitted outright or conditionally.
The RR-10 zone is an acknowledged rural residential zoning district that limits the intensity and
density of developments to rural levels. The state acknowledged compliance of the RR-10 zone
with Goal 14 when the County amended its comprehensive plan.
The Hearings Officer finds that Goals 15-19 do not apply to land in Central Oregon.
For all the foregoing reasons, the Hearings Officer finds compliance with the applicable Statewide
Planning Goals has been demonstrated.
247-21-001043-PA/1044-ZC Page 73 of 74
IV. DECISION & RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer finds the
Applicant has met the burden of proof necessary to justify the request for a Comprehensive Plan
Map Amendment to re -designate the subject property from Agriculture to Rural Residential
Exception Area and a corresponding request for a Zone Map Amendment (Zone Change) to
reassign the zoning of the subject property from Exclusive Farm Use (EFU) to Rural Residential
(RR-10).
The Deschutes County Board of Commissioners is the final local review body for the applications
before the County. DCC 18.126.030. The Hearings Officer recommends approval of the
applications based on this Decision and Recommendation of the Deschutes County Hearings
Officer.
Stephanie Marshall, Deschutes County Hearings Officer
Dated this 2nd day of June, 2022
Mailed this 2„ d day of June, 2022
247-21-001043-PA/1044-ZC Page 74 of 74
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Are you submitting written documents as part of testimony? ❑ Yes ❑'No
If so, please give a copy to the Recording Secretaryfor the record.
Are you submitting written documents as part of testimony? ❑ Yes No
If so, please give a copy to the Recording Secretary for the record.
Are you submitting written documents as part of testimony? N Yes ❑ No
If so, please give a copy to the Recording Secretary forthe record.
e you submitting written documents as part of testimony? K Yes ❑ No
o, please give a copy to the Recording Secretary for the record.
ease give a copy to the Recording Secretary for the record.'
M/1 NVV I olo Dr., Sic.; 200 1 er d; OR 97703
Phone.: (541) 6472930
www.colw.org
August 17, 2022
Deschutes County Board of Commissioners
1300 NW Wall Street
Bend, OR 97703
Delivered by hand
re: File No: 247-21-001043-PA, 247-21-001044-ZC
Plan amendment to change land designation from Agriculture to Rural Residential
Exception Area, corresponding zone change to rezone from EFU to Rural Residential
Dear Commissioners,
On behalf of Central Oregon LandWatch, thank you for the opportunity to comment on the
above -referenced proposals. We respectfully urge the Commissioners to deny the proposals for the
reasons outlined below.
Iv ONONaI ����07�f�
Deschutes County is in the midst of a severe drought. Given the County's rapidly declining
groundwater levels, it is inadvisable to drill 71 exempt wells on this rural land. Sixty. Deschutes
County residents had to deepen their wells last year. Groundwater pumping in this region leads to an
eventual reduction in surface water and an increase in surface water temperature. The Oregon
Department of Fish and Wildlife (ODFW) commented to the Hearings Officer that the seeps and
springs that could be damaged by the addition of 71 wells are unique habitat for a variety of plant
and animal species. Moreover, ODFW data show the 71 0-acre property is essential mule deer and
elk habitat. The Bend Bulletin reported yesterday that mule deer populations in Deschutes County
are plummeting, and are now only half what they were 20 years ago, due in large part to
development. The County should protect essential mule deer and elk habitat by maintaining the
property's classification as agricultural land zoned for exclusive farm use.
T,v,e"�.� ifC>>ecv! s Nlrilwo! Fmlltonmeni And Wor tit [or Susimnobl C::n7unun�,`,as
2
The property is predominantly land capability Class VI as determined by the U.S. Natural
Resources Conservation Service (NRCS), and is thus agricultural land as a matter of law. The
property qualifies as agricultural land under the plain text of DCC 18.04.030:
"Agricultural Land" means lands classified by the U.S. Natural Resources Conservation
Service (MRCS) as predominantly Class I -VI soils, and other lands in different soil classes
which are suitable for farm use, taking into consideration soil fertility, suitability for grazing
and cropping, climatic conditions, existing and future availability of water for farm irrigation
purposes, existing land use patterns, technological and energy inputs required, and accepted
farming practices. Lands in other classes which are necessary to permit farm practices to be
undertaken on adjacent or nearby lands shall be included as agricultural lands in any event.
Statewide Planning Goal 3 requires the County to preserve agricultural lands for farm use.
Statewide Planning Goal 14 requires urban growth boundaries to separate urban and urbanizable
land from r'aral land. These proposals cannot be approved without exceptions to Goals 3 and 14, but
no exception to Goals 3 or 14 have been sought, and if such exceptions were sought the subject
property would not qualify. Because the applicable law forbids the proposed changes the application
must be denied.
Our specific comments are below.
1. DCC 18.136.020: developer has not shown the public interest is served by developer's
proposal; approval of 71 exempt wells in a drought -stricken county is bad public policy;
mule deer are threatened by the proposed destruction of their habitat
Eden Central has failed to establish that its request to pave over 710 acres of agricultural land
to erect 71 houses with 71 exempt wells is in the public interest. DCC 18.136.020.
A recent article from Oregon Public Broadcasting describes alarming drops in groundwater
level in Deschutes County: Att, L, Dace to the Bottom: How Ventral Oregon Groundwater -Sells to
the Highest Bidders.
Deschutes County is in severe drought. In 2021, 60 Deschutes County residents had to
deepen their wells:
"Oregonians [are] paying the price of declining groundwater in the state's fastest -growing
raainn %1[7Pr t6- /\!1Cf 10 NrParC bQ17. nY /o
wells per year. Last year, that shot up to 60, and so far this year the problem is worse us
ivieanwlille, development is booming, with more than 1,100 new weirs drilled since 2020
alone." Id.
,.
Pi (.iiilg ir(.;ii 0r 11 5 w(,liuIcri r_rlvitonrnen+ AnU 4'vcnxin ; rcr ,)Us ic.nI OPninvnuies
3
State data show Deschutes County groundwater levels in different areas have dropped more
than a foot per year for decades. Id. Oregon Water Resources Department Deputy Director Doug
Woodcock is quoted as saying: "The declines are starting to become significant; and it's not going
away."
According to the three -agency letter in the record from ODA, ODFW, and DLCD,
developer's proposed water use risks severe detriment to fish and wildlife habitat by reducing surface
flows necessary for fish and wildlife through groundwater pumping from 71 additional wells.
ODFW further commented that the property is essential habitat for mule deer and elk that should be
protected from development. The Board of Commissioners should base its decision on the best
scientific data available from ODFW, and not hide behind technicalities about what is or is not a
listed Goal 5 resource.
The Bend Bulletin reported August 16, 2022, that mule deer levels in Deschutes County
continue to plummet.' How much decimation of the County's wildlife must there be before the
Board of Commissioners finally takes action and votes to protect fish and wildlife species and their
habitats?
Fish and wildlife are important contributors to the quality of life in Deschutes County. The
last thing Deschutes County residents need is 71 houses on agricultural land that provides vital
wildlife habitat, or 71 more straws in a fast -declining aquifer. The Board of Commissioners should
deny this proposal as contrary to the public interest. DCC 18.136.020.
2. DCC 18.04.030; OAR 660-033-0020(1)(a); OAR 660-015-0000(3); Goal 3; State rule does
not provide an opportunity to designate lands as nonresource if the land meets the
agricultural capability class thresholds in the state's agricultural lands definition
On May 15, 2019, DLCD wrote to Deschutes County explaining that state rule does not
provide an opportunity to designate land as nonresource if the land meets the agricultural capability
class threshold in the state's agricultural lands definition. Att. 2. Rather, a Goal 3 exception is
required before lands that meet the agricultural capability class threshold can be designated for low
intensity rural development.
' Mule deer numbers continue downward trend in Central Oregon, Bend Bulletin, August 16, 2022.
Ploiccring r.nhui ter gO �; N(Oufo! FnvilWnm( of Ano Workn)ca For Suskm (Jbic, C on Inunilie5
M
DLCD wrote May 15, 2019:
"State rule does not provide an opportunity to designate lands as nonresource if the
land meets the agricultural capability class or forest productivity thresholds in the state's
'agricultural lands' and 'forest lands' definitions. A Goal 3 or 4 exception, rather than
nonprime resource land designation, appears to be required to designate these lands for low
intensity rural development. Dwelling opportunities allowed under current zoning (e.g.
nonfarm dwellings, template dwellings) may also be an option."
Land in Eastern Oregon that is predominantly Class I -VI as classified by the NRCS is
agricultural land per se.
OAR 660-033-0020
(1)(a) "Agricultural Land" as defined in Goal 3 includes:
(A) Lands classified by the U.S. Natural Resources Conservation Service (NRCS) as
predominantly Class I -IV soils in Western Oregon and I -VI soils in Eastern Oregon;
(B) Land in other soil classes that is suitable for farm use as defined in ORS
215.203(2)(a), taking into consideration soil fertility; suitability for grazing; climatic
conditions; existing and future availability of water for farm irrigation purposes;
existing land use patterns; technological and energy inputs required; and accepted
farming practices; and
(C) Land that is necessary to permit farm practices to be undertaken on adjacent or
nearby agricultural lands.
(b) Land in capability classes other than I-IV/I-VI that is adjacent to or intermingled with
lands in capability classes I-IV/IVI within a farm unit, shall be inventoried as agricultural
lands even though this land may not be cropped or grazed.
A,.,.t...��.«....L1,.../��____�.__�,_�_____!'�TC'�_________1 ___mot__ 1____i_.__.- _._._1-__.•_.- .l. non
r» suvwn or, LlIe Courit s own UiS reap and 1ll tlW UCVC1Uper 5 app I I C U Ll 011, the i 10 acres are
classified by the NRCS as predominantly 63C, which is predominantly land capability Class VI. Att.
3-5. The land is agricultural land as a matter of law pursuant to Statewide Planning Goal 3, OAR
660-015-0000(3); OAR 660-033-0020(1)(a); DCC 18.04.030. An exception to Goal 3 is required.
3. OAR 660-033@0020(1)(a)(B): land in outer soil classes that is suitable for farnt use as
defined in ORS 213.2093(2)(a) is also agricultural land.
Pursuant to OAR 660-033-0020(1)(a)(B), supra, agricultural land includes:
Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a),
taking into consideration soil fertility; suitability for grazing; climatic conditions; existing
and future availability of water for farm irrigation purposes; existing land use patterns;
technological and energy inputs required; and accepted farming practices."
r IurCC iui.j ._.;rii7<.ii CIA @yon ti w(.uvwt()vl1OI)RlE11i1 f-VllC7 YVOTKI/7g Of JUitt71no F>iC' C0/11l'ilUlli'ffeS
Goal 3, Oregon Administrative Rule, and the County code broadly define agricultural lands
to include "lands in different soil classes," "lands in other soil classes," or "other lands," to
distinguish them from "lands classified by the U.S. Natural Resources Conservation Service (MRCS)
as predominantly Class I -VI soils," which are agricultural land as a matter of law.
If the property were not agricultural land as a matter of law pursuant to Goal 3, OAR 660-
015-0000(3), OAR 660-033-0020(1)(a), and DCC 18.04.030, the subject property would still meet
the definition of agricultural land because the land is suitable for farm use under the expansive
definition of "farm use" in ORS 215.203(2)(a):
"As used in this section, "farm use" means the current employment of land for the primary
purpose of obtaining a profit in money by raising, harvesting and selling crops or the feeding,
breeding, management and sale of, or the produce of, livestock, poultry, fur -bearing animals
or honeybees or for dairying and the sale of dairy products or any other agricultural or
horticultural use or animal husbandry or any combination thereof."
The developer claims that multiple farm uses, from breeding livestock to lavender to plant
production in greenhouses, cannot be pursued because water is not available. This is directly
contradicted by the developer's own evidence in the form of a letter from Central Oregon water
broker John Short stating that water rights are available in the Lower Bridge area. Att. 6. John
Short's Water Rights Services, LLC helps secure and manage water rights. Att. 7. The company's
website provides "If you need to buy or sell water rights, Water Right Services, LLC can either act
as a water right broker or buy/sell the water rights or mitigation directly."2
The developer incorrectly concluded that the cost of water rights affects farming profits or
losses. Land and water rights are not part of calculations of profit and loss but are capital assets.
The Hearings Officer significantly misinterpreted the phrase "primary purpose of obtaining a
profit in money" in ORS 215.203(2). This phrase was interpreted in Everhart v. Dept. of Rev., 15 Or
Tax 76, 79 (1999) to refer to the intent of the landowner or tenant. A primary purpose of obtaining a
profit in money must be induced from objective observable conduct. Id.:
"The second element of the definition indicates that the use of the land must be "for the
primary purpose of obtaining a profit in money." This phrase looks to the intent of the user of
the land. Inasmuch as intent is a subjective state of mind, it must be induced from objective
observable conduct."
2 https.//ore og nwater.us/fa /, last accessed August 16, 2022.
Prof ctinq onholOieg wl s,NcrII011PI tnvitomnent Amy Workin(c horWsioinoble Communilie;
31
The court determined that farm use is not required by ORS 215.203(2) to actually result in a
money profit. This is a crucial point given that a recent USDA study shows that over half of U.S.
farms report losses each year. Att. 8, Of roughly 2 million U.S. farm households, slightly more than
half report negative income from their farming operations each year, though many earn positive farm
income in certain years. Id.
The court in Everhart observed that for a use to qualify as a farm use in ORS 215.203(2) a
land user need not make a profit but must "engage in farm activities with the primary purpose of
obtaining a profit." Id.:
"Third, the definition defines or describes the type of activities that qualify as 'farming.'
Farm use is not required to actually result in a money profit. Undoubtedly, the legislature
recognize.ci the. ricks of fnr9-nino, Tt hnc not imnncari nnv .ene.r^iisn inrnmP rPrniire.mantc fnr lnnil
in an EFU zone. It merely requires that the person engage in farm activities with the primary
purpose of obtaining a profit. It is also clear that the legislature viewed bona fide farms as
those farms that produced products or crops sold in the open market. Small operations such
as raising chickens for family use or a few pigs to trade with a neighbor for some other
product or service do not qualify. The legislature's intent is to grant the special assessment to
farmers who exchange their crops for money."
The Everhart opinion is from the tax court and is not binding on Deschutes County, but
provides a useful interpretation of the applicable statutory phrase "primary purpose of obtaining a
profit in money."
The Deschutes County definition of agricultural use is unrelated to profit. DCC 18.04.030:
"Agricultural use" means any use of land, whether for profit or not, related to raising,
harvesting and selling crops or by the feeding, breeding, management and sale of, or the
produce of, livestock, poultry, fur -bearing animals or honeybees or for dairying and the sale
of dairy products or any other agricultural or horticultural use or animal husbandry or any
combination thereof not specifically covered elsewhere in the applicable zone. Agricultural
use includes the preparation and storage of the products raised on such land for human and
animal use and disposal by marketing or otherwise. Agricultural use also includes the
propagation, cultivation, maintenance and harvesting of aquatic species. Agricultural use
does not include the use of land subject to the provisions of ORS chapter 321, except land
used exclusively for growing cultured Christmas trees."
The developer's maior argument is inapplicable in Deschutes County, because whether or not
a landowner or tenant can make a profit from the above activities, land that can be used for those
activities is correctly designated as agricultural land in Deschutes County.
Ptoru>crinq C'enooi utecior;'s luaru(01 i_nV1 OMY)ent Ancl WOfking I of ,)ustc,u totJ C omro�irofies
7
Multiple uses, for example poultry or fur -bearing animal production, do not require any
particular type of soil yet are specifically mentioned as examples of farm use under ORS
215.203(2)(a) and of agricultural use under DCC 18.04.030. The evidence in the record does not
support a conclusion that the 710 acres cannot be used for "the feeding, breeding, management and
sale of, or the produce of poultry or fur -bearing animals, or for the production of game birds, or for
the production of plants in greenhouses. These are farm uses and accepted farming practices under
the definition of "farm use" in ORS 215.203(2)(a).
The evidence in the record regarding dozens of farm uses is based on an erroneous
interpretation of the phrase "primary purpose of obtaining a profit in money." The developer
submitted evidence that water is available to the subject property. The 710 acres could produce
dozens of agricultural products including the raising, harvesting, selling, feeding, breeding,
management, or sale of, or the produce of, cattle, calves, layers, horses, ponies, goats, sheep, lambs,
forage -land used for all hay, forage -land used for all haylage, grass silage, greenchop, wheat for
grain, winter wheat for grain, austrian winter peas, dry edible beans, grains, oilseeds, dry beans, dry
peas, tobacco, cotton, cottonseed, vegetables, melons, potatoes, sweet potatoes, fruits, apples, pears,
plums, tree nuts, berries, marionberries, blackberries, raspberries, nursery, greenhouse, floriculture,
sod, short rotation woody crops, other crops and hay, poultry, eggs, hogs, pigs, wool, mohair, goat
milk, mules, burros, donkeys, livestock, poultry, fur -bearing animals or honeybees or for dairying
and the sale of dairy products or any other agricultural or horticultural use, or animal husbandry, or
any combination thereof. All that is required is that the land can be put to these uses, and that in
undertaking these activity the farmer have the primary object of obtaining money in exchange for
farm products, and not have a primary object of producing agricultural goods for some other reason,
like to give as gifts. The subject property qualifies as agricultural land and an exception to Goal 3 is
required.
4. ORS 215.211 does not affect the process by which a county determines whether land
qualifies as agricultural land through application of OAR 660-015-0000(3); OAR 660-
033-0020(1)(a); and DCC 18.04.030.
The Hearings Officer's decision interprets ORS 215.211 to affect the process of determining
whether land qualifies as agricultural land. This interpretation is directly contradicted by the text of
ORS 215.211(5), which provides:
Pro] :1ii�c r ,. ,huf OlegoWs NICItura( FnvlitoiuneiO Aml Wof;kin,c) For iosiomaNe Communities
"This section authorizes a person to obtain additional information for use in the
determination of whether land qualifies as agricultural land, but this section does not
otherwise affect the process by which a county determines whether land qualifies as
agricultural land." Att. 9. Emphasis added.
The statute governs a person who concludes more detailed soils information would assist a
county in determining whether land meets the definition of agricultural land. It imposes an
obligation on such persons to request that the Department of Land Conservation and Development
(DLCD) to arrange for an assessment of the capability of the land by a professional soil classifier.
The Hearings Officer misconstrued the statute by finding that the statute affects the definition
of agricultural land in OAR 660-015-0000(3), OAR 660-033-0020(1)(a), or DCC 18.04.030. The
statute itself explicitly states that the statute does not affect the process by which a county
determines whether land qualities as agricultural land.
The subject property is agricultural land per se because it is classified by the MRCS as
predominantly Class I -VI. All parties agree the NRCS classifies the land as predominantly Class VI.
No further information is needed to identify the land as agricultural land. Pursuant to OAR 660-033-
0030(1), "All land defined as'agricultural land' in OAR 660-033-0020(1) shall be inventoried as
agricultural land."
The developer conflates two separate inquiries. The developer's submission of a report
expressing the opinion that the soil is not suited for agriculture does not mean the USDA NRCS
Upper Deschutes River Area Soil Survey is incorrect. There is no evidence of any kind that the
USDA NRCS Upper Deschutes River Area Soil Survey is incorrect. The developer conducted an
Order 1 Survey. The terms "land capability class" and "Order 1 " survey are terms of art from the
NRCS, which invented both terms. According to the NRCS Technical Soil Services Handbook 629,
an "Order i" survey does not replace or change the results of the official soil survey:
"Order 1 soil surveys and site -specific data collected are supplements to the official soil
survey, but they do not replace or change the official soil survey." Att. 10
The developer's Order 1 survey does not replace or change the official soil survey. The
NRCS handbook further states that more detailed soil maps for more intensive investigations are
likewise "not considered changes to the Official Soil Survey Information." Id.
r ivie;t,1ii)q e:nii',.ii ri I Nt_IIt) r .0 t-itvuOrIf) e,ru Hnta 'v'vurkit g rur iusiciMC) r.Ae C,Vnununiu-1>
X
The Upper Deschutes River Area Soil Survey, which is part of the record for this proceeding,
was mapped at two levels of intensity. The Eden Central property was mapped by the NRCS at the
detailed level, as shown in Attachments 5 and 11. According to Eden Central's application the
following soils were identified by the NRCS on'the subject property: Holmzie Searles complex;
LaFollete sandy loam; Redcliff-Lickskillet rock outcrop complex; and Redslide-Lickskillet complex
5-30 and 30-50% slopes. Att. 5. These are detailed soil map units in the NRCS Upper Deschutes
River Area Soil Survey. Att. 11. The average size of delineations for purposes of management at this
level is 40 acres, and the minimum size is 5 acres. Id. The Eden Central property is 710 acres. It is
legally irrelevant and factually false to assert the NRCS soil survey was not conducted at a sufficient
level of detail to classify the agricultural land capability of the 710-acre property. As the NRCS
explains in the survey, Att. 11:
"The survey area was mapped at two levels of intensity. At the less detailed level, map units
are mainly associations and complexes. The average size of the delineations for most
management purposes was 160 acres. Most of the land mapped at this level is used as
woodland and rangeland. At the more detailed level, map units are mainly consociations and
complexes. The average size of the delineations for purposes of management was 40 acres,
and the minimum size was 5 acres. Most of the land mapped at the more detailed level is
used as irrigated and nonirrigated cropland. Spot symbols were used for contrasting soil types
the
an11 u miscellaneous areas tuat are wv sma11 11-11 w vc, iiiappeu aL u1.,tbe smile 1intensity1L,ly as L11
surrounding land. Inclusions of contrasting soils or miscellaneous areas are described in the
map unit if they are a significant component of the unit."
Where NRCS land capability classifications are available they determine whether land meets
the definition of agricultural land. The Hearings Officer's decision misconstrues ORS 215.211,
which explicitly does not "affect the process by which a county determines whether land qualifies as
agricultural land." Att. 9. The Eden Central property is agricultural land. An exception to Goal 3 is
required.
5. ORS 197.835(6); Goal 14, OAR 660-015-0000(14): exception to Goal 14 is required.
The evidence in the record is insufficient to support a finding that the proposal does not
violate Goal 14. Goal 14 establishes urban growth boundaries "to provide land for urban
development needs and to identify and separate urban and urbanizable land from rural land." OAR
660-015-0000(14).
P!o'tc:C71tlq ( Qlmol Oncc qol (\I(7tmol k'nvjicmmei n1 And Woiki t ! Fuf (."Q(Yill1i)niNes
10
LUBA has explained that a Goal 14 exception may be required to designate rural land for
residential use depending on the factors discussed in 1000 Friends of Oregon v. LCDC, 301 Or 447,
498-511, 724 P2d 268 (1986) that may make such an exception necessary. 1000 Friends of Oregon
v. Josephine County, _ Or LUBA , LUBA No. 2021-116 (2022); Columbia Riverkeeper v.
Clatsop County, 61 Or LUBA 240, 244 (2010).
Currently the subject property is unirrigated rural land with a minimum lot size of 80 acres.
DCC 18.16.050(C)(1) ("Nonirrigated land division: The minimum lot or parcel size for a
nonirrigated land division is 80 acres.") One dwelling per 80 acres is a rural density for the subject
property.
Out of the 710 acres on the subject property a density of one dwelling per 80 acres would
permit 8 houses: The proposed 71 houses and 10-acre lot size is not a r�pral density:
There are only three categories of land in Oregon land use law: urban, urbanizable, and rural.
OAR 660-015-0000(14). Goal 14 states that urban growth boundaries separate the three categories of
land: rural, urbanizable and urban. Given there are no other land categories and land in this area is
currently rural with a minimum lot size of 80 unirrigated acres fixed by law, lowering the minimum
lot size from this rural level must mean the land has been determined to be "urbanizable," that is,
currently rural but authorized for more intensive development. Before approving conversion of this
EFU property to a lower minimum lot size and thus declaring the property urbanizable, the County
would have to bring the property inside an urban growth boundary or take an exception to Goal 14.
The Hearings Officer's decision misplaces its reliance on prior acknowledgement of the
County's RR-10 Zone to mean the current application is in compliance with Goal 14. Every plan
amendment is required to compl-Y with the applicable statewide planning gnalc nt the time of itv
adoption. ORS 197.835(6) (explaining LUBA "shall reverse or remand an amendment to a
comprehensive plan if the amendment is not in compliance with the goals.") There is no evidence in
the record to support a finding that a 10-acre lot size is rural and not urban. Note DCCP 3.3.1
imposes a minimum lot size of 10 acres on rural residential development. DCCP 3.3.1 does not
allow for clustering, and the minimum lot size cannot be reduced.
6. DCc, 18.136.020(D)r no change in circumstances since the property was last zoned; no
mistake was made in zoning
i roic"Cnny Ciie> )01)'S ivaiuroi Ellvilomf)r rir And VVrrkin(, i or Sosicm bicn � Coni+ni niii<�s
11
The subject property does not qualify for an amendment because there is no evidence the
subject property was mischaracterized by Deschutes County as agricultural land reserved for
exclusive farm use at the time of acknowledgement. In 2014-2015 Deschutes County considered the
County's agricultural land designations, preparing the Agricultural Lands Program Community
Involvement Report, June 18, 2014. Deschutes County found no errors in its designation of EFU or
forest lands.
In 2015, in a response to the County's proposal to rezone EFU lands to MUA-10, DLCD
wrote to the County that there is no evidence that either the County's EFU lands or forest lands were
incorrectly zoned at acknowledgement. Att. 12:
"[The] department has been unable to determine the nature and scope of the mapping error
the county intends to address. It is not apparent why the areas the county has shared with the
department were incorrectly zoned at acknowledgment."
The property was rural land surrounded by farmland when zoned for exclusive farm use and
remains rural land surrounded by farmland today. There is no evidence to support a finding that
there has been any change in circumstances since the property was last zoned. Therefore the
application must be denied. DCC 18.136.020(D).
t uaun youlvl your 0.LLl 1111V11 lv luw� dievJa.
Best regards,
Carol Macbeth
Staff Attorney
Central Oregon LandWatch
Nrol� (-hncj ()!egon's I oluf ' Fnviiown-w And WoikingI For Sustainuble Communities
Oregon governor's race Public defense woes Portland government
Emily Cureton Cook / OP13
In Oregon's fastest -growing region, more residents are struggling to reach an
affordable water supply. A developer's quest to keep pumping tests what state
officials are willing to do about it.
Editor's note: This is the third story, in a series about how Oregon officials managing
groundwater supplies have fueled crises and inequities, leaving the state ill prepared to meet the
growing challenges of drought and eliynate change.
When Susan Burdick hunted for a Central Oregon home to buy in 2006, she looked at
dozens of listings without landing any of them. Then one night, the realtor called about
a property around 5 miles southwest of Redmond. Burdick hopped in the car.
"I think [Thornburgh] is probably using North Unit as a pawn in the process," Britton
told OPB several weeks after the proposal surfaced.
"Somebody figured out that North Unit is in a dire situation, and people are grabbing
at everything they can to save their livelihoods and be able to farm," he said.
A wheel line irrigation system crosses a field in Jefferson County, near Madras, Ore., in May 2022. Years of water
shortages have challenged farmers in the North Unit Irrigation District.
Emily Cureton Cook / OPB
DeLashmutt denied any attempt at a quid pro quo with state officials.
"I suppose you could try to turn me into a bad guy, but given the facts, I've got water,
it's worth a lot of money and I'm willinz, to let people that really need it, use it," he
said.
On June 27, more than a month after lawmakers became involved, Thornburgh
lobbyist Dallum assured Britton in an email that the resort "is not seeking
compensation, consideration or any position on the development."
At this point, the irrigation district signaled it would accept a one-time water donation,
with some caveats.
"We've made it clear we want no association with Thornburgh," Britton said in an
email.
He was also doubtful the state's administrative process would move fast enough to see
any additionai water this summer, which marks a third consecutive year of severe
drought.
I,r
North Unit Farmer Cate Haystad-Casad sees Thornburgh as emblematic of deeper
injustices embedded in state water law, and the regulations enforcing it.
Her family grows organic crops and raises animals near Madras. This season they're
expecting a 75% reduction in the amount of water their properties are entitled to on
Attachment 2
Department of Land Conservation and Development
Ur6gon
•"k 635 Capitol Street NE, Suite 150
Kate Brown, Govener r
Salem, Oregon 97301-2540
RE: Comprehensive plan amendments for nonprime resource lands
County # 247-19-000265-PA, DLCD # 003-19
Dear Peter:
Thank you for the opportunity to review the proposed amendments to the Deschutes County
Comprehensive Plan. The proposal would allow for lands currently designated as agricultural or
forest lands to be redesignated as nonprime resource lands, provided they do not meet the
definitions of "agricultural lands" or "forest lands" in the Statewide Planning Goals and Oregon
Administrative Rules (OAR). We understand this proposal will be followed by future
amendments to the county's zoning code.
The Department of Land Conservation and Development (DLCD or the department) recognizes
the thoughtful approach the county took when developing these amendments and the county's
efforts to promote public participation. The majority of the amendments appear to be consistent
with the requirements in state rules. However, there are a few issues of concern to the
department, as follows:
1. Policy 3.11.3.
Agricultural lands
The "agricultural lands" definition in OAR 660-033-0020(1) provides additional suitability
considerations (e.g. climactic conditions, technological and energy inputs required,
accepted farming practices) that are not addressed in the proposed amendments. Also
for consistency with state rule, Policy 3.11.3.a.ii.4. should address land that is adjacent
to or intermingled with Class I -VI soils within a farm unit.
ForPgt lands
The proposed amendments do not address how forest productivity should be evaluated.
We assume this will be addressed in future amendments. OAR 660-006-0010 provides a
methodology for evaluating forest productivity and nonprime resource designations
should be evaluated in accordance with that rule. DLCD has data available that may be
helpful.
The "forest lands" definition in OAR 660-006-0005(7) includes lands that are suitable for
commercial forest uses, including adjacent or nearby lands which are necessary to
permit forest operations or practices. Whether or not land is necessary for conducting
forest operations or practices should be considered before it is designated nonprime
resource.
Deschutes 247-19-000265-PA
May 15, 2019
Page 2of2
OAR 660-006-0005(7) also includes "Other forested lands that maintain soil, air, water
and fish and wildlife resources." it appears the county has opted to address this portion
of the definition by requiring that land is only eligible for nonprime resource designation if
it does not contain Goal 5 resources. The county may want to consider additional data
sources (e.g. ODFW data) where Goal 5 inventories have not been recently updated.
DLCD is more than willing to facilitate the acquisition of data from state agencies upon
request.
2. Policies 3.11.13 and 14. State rule does not provide an opportunity to designate lands
as nonresource if the land meets the agricultural capability class or forest productivity
thresholds in the state's "agricultural lands" and "forest lands" definitions. A Goal 3 or 4
exception, rather than nonprime resource land designation, appears to be required to
designate these lands for low intensity rural development. Dwelling opportunities allowed
under current zoning (e.g. nonfarm dwellings, template dwellings) may also be an option.
DLCD is available to assist the county in exploring options.
Conclusion
We request that the county consider the comments above and amend the proposal accordingly
for consistency with the Statewide Planning Goals and rules. Please enter this letter into the
record of these proceedings and provide DLCD with a copy of any further amendments and the
decision.
Thank you again for the opportunity to comment. We do apologize for not providing these
comments sooner. Please let us know if you have any questions.
Respectfully_ ,
0 -;,,-
Tim Murphy, Farm and Forest Lands Specialist
503-934-0048 / timothy.murphy@state.or.us
Cc: Zechariah Heck, Associate Planner
Scott Edelman
Jon Jinings
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Map Unit Description: Holmzie-Searles complex, 0 to 15 percent slopes ---Upper Deschutes
River Area, Oregon, Parts of Deschutes, Jefferson, and Klamath Counties
Upper Deschutes River Area, Oregon, Parts of
Deschutes, Jefferson, and Klamath Counties
63C—Holmzie-Searles complex, 0 to 15 percent slopes
Map Unit Setting
National map unit symbol: 247
Elevation: 2,500 to 3,500 feet
Mean annual precipitation: 9 to 11 inches
Mean annual air temperature: 47 to 52 degrees F
Frost -free period: 70 to 90 days
Farmland classification: Farmland of statewide importance
Map Unit Composition
Holmzie and similar soils: 50 percent
Searles and similar soils: 35 percent
Estimates are based on observations, descriptions, and transects of
the mapunit.
Description of Holmzie
Setting
Landform: Hillslopes
Landform position (two-dimensional): Shoulder, summit
I annlrnr— nno;}inn r'roct inforfli ivo nnee elnne
�wui vi uNvvniv�nvv v.nvw+..�. .... , w... , ..... ... f,..
Down -slope shape: Linear
Across -slope shape: Linear
Parent material: Volcanic ash over residuum weathered from tuff
Typical profile
H1 - 0 to 7 inches: loam
H2 - 7 to 19 inches: clay loam
H3 - 19 to 29 inches: gravelly clay
H4 - 29 to 39 inches: weathered bedrock
Properties and qualities
Slope: 0 to 15 percent
Depth to restrictive feature: 20 to 40 inches to paralithic bedrock
Drainage class: Well drained
Capacity of the most limiting layer to transmit water
(Ksat): Moderately low to moderately high (0.06 to 0.20 in/hr)
Depth to water table: More than 80 inches
Frequency of flooding: None
Frequency of ponding: None
Available water supply, 0 to 60 inches: Low (about 4.4 inches)
Interpretive groups
Land capability classification (irrigated): None specified
Land capability classification (nonirrigated): 6e
Hydrologic Soil Group: D
Ecological site: R01OXA009OR -JUNIPER SHRUBBY PUMICE
FLAT 10-12 PZ
USDA Natural Resources Web Soil Survey 8/17/2021
NQ Conservation Service National Cooperative Soil Survey Page 1 of 2
Map Unit Description: Holmzie-Searles complex, 0 to 15 percent slopes ---Upper Deschutes
River Area, Oregon, Parts of Deschutes, Jefferson, and Klamath Counties
Hydric soil rating: No
Description of Searles
Setting
Landform: Hiilslopes
Landform position (two-dimensional): Shoulder, summit
Landform position (three-dimensional): Crest, interfluve, nose slope
Down -slope shape: Linear
Across -slope shape: Linear
Parent material: Volcanic ash over residuum weathered from basalt
Typical profile
H1 - 0 to 7 inches: sandy loam
H2 - 7 to 13 inches: loam
H3 - 13 to 15 inches: very gravelly loam
H4 - 15 to 24 inches: very aravelly clay loam
H5 - 24 to 34 inches: unweathered bedrock
Properties and qualities
Slope: 0 to 15 percent
Depth to restrictive feature: 20 to 40 inches to lithic bedrock
Drainage class: Well drained
Capacity of the most limiting layer to transmit water
(Ksat): Moderately high (0.20 to 0.57 in/hr)
Depth to water table: More than 60 inches
Frequency of flooding: None
Frequency of ponding: None
Available water supply, 0 to 60 inches: Very low (about 2.7 inches)
IntPrnrptiva nrnunc
Land capability classification (irrigated): None specified
Land capability classification (nonirrigated): 6e
Hydrologic Soil Group: C
Ecological site: R01OXA019OR -SHRUBBY LOAM 6-12 PZ
Hydric soil rating: No
Soil Survey Area: Upper Deschutes River Area, Oregon, Parts of Deschutes,
Jefferson, and Klamath Counties
Survey Area Data: Version 17, Sep 14, 2020
USDA Natural Resources Web Soil Survey 8/17/2021
Conservation Service National Cooperative Soil Survey Page 2 of 2
Attachment!)
EXHIBIT F
How Soil Surveys Are Made
Soil surveys are made to provide information about the soils and miscellaneous
areas in a specific area. They include a description of the soils and miscellaneous
areas and their location on the landscape and tables that show soil properties and
limitations affecting various uses. Soil scientists observed the steepness, length;
and shape of the slopes; the general pattern of drainage; the kinds of crops and
native plants; and the kinds of bedrock. They observed and described many soil
profiles. A soil profile is the sequence of natural layers, or horizons, in a soil. The
profile extends from the surface down into the unconsolidated material in which the
soil formed or from the surface down to bedrock. The unconsolidated material is
devoid of roots and other living organisms and has not been changed by other
biological activity.
Currently, soils are mapped according to the boundaries of major land resource
areas (MLRAs). MLRAs are geographically associated land resource units that
share common characteristics related to physiography, geology, climate, water
resources, soils, biological resources, and land uses (USDA, 2006). Soil survey
areas typically consist of parts of one or more MLRA.
The soils and miscellaneous areas in a survey area occur in an orderly pattern that
is related to the geology, landforms, relief, climate, and natural vegetation of the
area. Each kind of soil and miscellaneous area is associated with a particular kind
of landform or with a segment of the landform. By observing the soils and
miscellaneous areas in the survey area and relating their position to specific
segments of the landform, a soil scientist develops a concept, or model, of how they
were formed. Thus, during mapping. this model enables the soil scientist to predict
with a considerable degree of accuracy the kind of soil or miscellaneous area at a
specific location on the landscape.
Commonly, individual soils on the landscape merge into one another as their
characteristics gradually change. To construct an accurate soil map, however, soil
scientists must determine the boundaries between the soils. They can observe only
a limited number of soil profiles. Nevertheless, these observations, supplemented
by an understanding of the soil -vegetation -landscape relationship, are sufficient to
verify predictions of the kinds of soil in an area and to determine the boundaries.
Soil scientists recorded the characteristics of the soil profiles that they studied. They
noted soil color, texture, size and shape of soil aggregates, kind and amount of rock
fragments, distribution of plant roots, reaction, and other features that enable them
to identify soils. After describing the soils in the survey area and determining their
properties, the soil scientists assigned the soils to taxonomic classes (units).
Taxonomic classes are concepts. Each taxonomic class has a set of soil
characteristics with precisely defined limits. The classes are used as a basis for
comparison to classify soils systematically. Soil taxonomy, the system of taxonomic
classification used in the United States, is based mainly on the kind and character
of soil properties and the arrangement of horizons within the profile. After the soil
EXHIBIT F
Custom Soil Resource Report
scientists classified and named the soils in the survey area, they compared the
individual soils with similar soils in the same taxonomic class in other areas so that
they could confirm data and assemble additional data based on experience and
research.
The objective of soil mapping is not to delineate pure map unit components; the
objective is to separate the landscape into landforms or landform segments that
have similar use and management requirements. Each map unit is defined by a
unique combination of soil components and/or miscellaneous areas in predictable
proportions. Some components may be highly contrasting to the other components
of the map unit. The presence of minor components in a map unit in no way
diminishes the usefulness or accuracy of the data. The delineation of such
landforms and landform segments on the map provides sufficient information for the
development of resource plans. If intensive use of small areas is planned, onsite
investigation is needed to define and locate the soils and miscellaneous areas.
Soil scientists make many field observations in the process of producing a soil map.
The frequency of observation is dependent upon several factors, including scale of
intensity of mapping de.�y�i sigof min i1 nif� "Mniexih] of fhe 1nnri,ranr�
ii�apping, iimapping�, n
and experience of the soil scientist. Observations are made to test and refine the
soil -landscape model and predictions and to verify the classification of the soils at
specific locations. Once the soil -landscape model is refined, a significantly smaller
number of measurements of individual soil properties are made and recorded.
These measurements may include field measurements, such as those for color,
depth to bedrock, and texture, and laboratory measurements, such as those for
content of sand, silt, clay, salt; and other components. Properties of each soil
typically vary from one point to another across the landscape.
Observations for map unit components are aggregated to develop ranges of
characteristics for the components. The aggregated values are presented. Direct
rneasureinents do not exist for every properly presented for every map unit
component. Values for some properties are estimated from combinations of other
1,d
prop��� r+�..s.
While a soil survey is in progress, samples of some of the soils in the area generally
are collected for laboratory analyses and for engineering tests. Soil scientists
interpret the data from these analyses and tests as well as the field -observed
characteristics and the soil properties to determine the expected behavior of the
soils under different uses. Interpretations for all of the soils are field tested through
observation of rile soils In different uses and under different levels of management.
Some interpretations are modified to fit local conditions, and some new
Interpretations are developed to meet local needs. Data are assembled from other
sources, such as research information, production records. and field experience of
specialists, For example, data on crop yields under defined levels of management
are assembled from farm records and from field or plot experiments on the same
kinds of soil.
Predictions about soil behavior are based not only on soil properties but also on
such variables as climate and biological activity. boil conditions are predictable over
long periods of time, but they are not predictable from year to year. For example,
soil scientists can predict with a fairly high degree of accuracy that a given soil will
have a high water table within certain depths in most years, but they cannot predict
that a high water table will always be at a specific level in the soil on a specific date.
After soil scientists located and identified the significant natural bodies of soil in the
survey area, they drew the boundaries of these bodies on aerial photographs and
EXHIBIT F
Custom Soil Resource Report
identified each as a specific map unit. Aerial photographs show trees, buildings,
fields, roads, and rivers, all of which help in locating boundaries accurately.
The soil map section includes the soil map for the defined area of interest, a list of
soil map units on the map and extent of each map unit, and cartographic symbols
displayed on the map. Also presented are various metadata about data used to
produce the map, and a description of each soil map unit.
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9
Area eF Interest (A(A)
soils
Arco of Inlemst tA(A)
Sr;:1 Ml-'.p U:1
Sall P,',.p UM Lz-,'
53.4 M."j, 11'.r p'-11
Speolal
Point Features
Bio—t
610" P'!
(Mly Spat
G,—d Flu
Gravelly Sip.(
ad
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I Fin,
::aline Spot
S-.dy Spot
S",rely Eyed' d spat
e)
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Slide or Sh"
S—h' Spot
CLISton-, Sol] Resource Report
MAP INFORMATION
Spo,I Area
The soil surveys that :ooruprise your A01 were mapped at
1:24 000.
Very fltupy S')'t
St-
Reaso,rnly on the Oct, scalc on nach map sheet for mat
Scmvce of Map Natural Resources Couservation Service
V`k'b Soil Survey URI
Spacial L, i,
Coordinate System: Web Me.iccitor (EPSG 3n57)
wzter Features
Maps from the Web Soil Survey are based on the, V%k:b Mercator
Projection, w1blich preserves direction end qt)app but distorts
Transponetion
distance and area. A projection that preserves area, such as the
Albers eClUal-al'02 conic projection, should be used if more
eCCLICate calculalions of distance or area are requited.
this product is generated from the USDA-NRCS certified anoi cis
of the version dates) listed below.
Lora ldasus
Soil Survey Area: Uppet Deschutes River Area, Oregon, Paris Of
Deschutes Jefferson, and Klaincilh Counties
Background
Suivev Area Data: Version 16 Jun 11. 2020
8011 Map units are labeled (as space allows) for turip scales
1 50 000 or Niger.
Dal,gs) aerial images weie photographed Jun 21. 2013--Sep 7
2016
The. orilholphoto or Other has(,, map on which the soil lines ware
compiled and digitized probably diffeis. from the background
imagery displayed on these. maps. As a result, some Ofluor
Mliftilly Of HuNp Miff boundaries- May he evident.
10
EXHIBIT F
Custom Soil Resource Report
63C
Holmzie-Searles complex, 0 to
534.6 .
76.0%
15 percent slopes
71 A
LaFollette sandy loam, 0 to 3
8.9
1.3%
percent slopes
101D
Redcliff-Lickskillet-Rock outcrop
?_4.3
3.5%
complex, 15 to 30 percent
south slopes
106D
Redslide-Lickskillet complex, 15
17.1
2 4%
to 30 percent north slopes
106E
Redslide-Lickskillet complex, 30 __.
118.4
16.8%
to 50 percent north slopes
Totals for Area of Interest
703.3
100.0%0
Map Unit Descriptions (Eden Enterprises
cyner Avenue)
The map units delineated on the detailed soil maps in a soil survey represent the
soils or miscellaneous areas in the survey area. The map unit descriptions, along
with the maps, can be used to determine the composition and properties of a unit.
A map unit delineation on a soil map represents an area dominated by one or more
major kinds of soil or miscellaneous areas. A map unit is identified and named
according to the taxonomic classification of the dominant soils. Within a taxonomic
class there are precisely defined limits for the properties of the soils. On the
landscape, however, the soils are natural phenomena; and they have the
characteristic variability of all natural phenomena. Thus, the range of some
observed properties may extend beyond the limits defined for a taxonomic class.
Areas of soils of a single taxonomic class rarely, if ever, can be mapped without
including areas of other taxonomic classes. Consequently, every map unit is made
up of the soils or miscellaneous areas for which it is named and some minor
components that belong to taxonomic classes other than those of the major soils.
Most minor soils have properties similar to those of the dominant soil or soils in the
map unit, and thus they do not affect use and management. These are called
noncontrasting, or similar, components. They may or may not be mentioned in a
particular map unit description. Other minor components, however, have properties
and behavioral characteristics divergent enough to affect use or to require different
management. These are called contrasting, or dissimilar, components. They
generally are in small areas and could not be mapped separately because of the
scale used. Some small areas of strongly contrasting soils or miscellaneous areas
are identified by a special symbol on the maps. If included in the database for a
given area, the contrasting minor components are identified in the map unit
11
`/X"'v" `t'' Attachment 6
Page 1 of 2
From: John Short <iohnshort(@usa.com>
Sent: Friday, April 22, 2022 10:05 AM
To: Mark Stockamp <mark.stockampP710.properties>
Subject: Re: 710 Properties - Water Rights Questions
Hello Mark,
Water rights (or mitigation credits) for irrigation in the Lower Bridge area currently sell for $21,000
per acre. A buyer today competes with several destination resorts and deep pocket hobby farmers.
Purchasing water rights (or mitigation credits) typically doesn't pencil for true agriculture like cattle
grazing or hay farming. For clarity, someone wishing to irrigate an acre of land can either purchase a
one acre water right from nearby or purchase mitigation credits for the same price. Mitigation
credits currently sell for $11,667 each with an acre of irrigation requiring 1.8 credits, hence $21,000
per acre. You can go either way. A 125 acre pivot requires over $2.6 million in water rights.
Hope this helps.
Sincerely,
John
John A. Short CCB# 197121
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TALK IN MARKETING
"ight old crop supplies or hoarding?
.ocal coop unit train bid was $7.41, same as o
to of the area ethanol plants. Savage beans sti
I over $15....[More]
author: rsbs Posted: 08-16-2022
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nteresting numbers on the fuels portion of th
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mayB - ? ?
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Home > News
OVER HALF OF U.S. wz FARMS
LOSE
PROFIT-LOSSMONEY, USDA STUDY SHOWS
SMALLER FARMS DOMINATE THE PICTURE.
By Mike McGinnis
8/1/2018
Listen to article 5 minutes
U.S. farmers who are losing money are
not alone, according to data collected by
the USDA released Wednesday.
The study analyzed data from 2015.
Over half of U.S. farm households report
losses from their farm businesses each
year, the USDA's Economic Research
Service reported in a press release.
There is a caveat. Because net farm
income isn't the total contributor to the
financial well-being of farm families,
tax-loss benefits and asset appreciation
push the share of households with positive annual farm returns rises from 43% to
70%, according to the release.
"Of the roughly 2 million U.S. farm households, slightly more than half report
negative income from their farming operations each year. The proportion
incurring farm losses is higher for households operating smaller farms, where
most or all of their income is typically derived from off -farm activities," the ERS
release stated. "However, many of these farm households do earn positive farm
income in certain years; also, measures of farm income alone may understate the
income isn't the total contributor to the
financial well-being of farm families,
tax-loss benefits and asset appreciation
push the share of households with positive annual farm
returns rises from 43% to
70%, according to the release.
"Of the roughly 2 million U.S. farm households, slightly
more than half report
negative income from their farming operations each year.
The proportion
incurring farm losses is higher for households operating
smaller farms, where
most or all of their income is typically derived from off -farm
activities," the ERS
release stated. "However, many of these farm households do
earn positive farn
income in certain years; also, measures of farm income alone
may understate the
full economic value of owning the farm," ERS release stated.
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ERS stated that `this report includes the returns that farmers
— as small business
owners and landholders — receive from tax law and land
ownership.'
Here is what the ERS study discovered:
The ERS release stated that this study is based primarily on
data from the 2015
Agricultural Resource Management Survey (ARMS), a
cross -sectional sample of
U.S. farm operations.
"Conducted annually by USDA's National Agricultural
Statistics Service (MASS)
and Economic Research Service (ERS), the survey is
representative of the 2
million farins and farm households in the 48 contiguous
states. The tax analysis
comes from a model developed by ERS that uses applicable
2015 federal tax
provisions and 2015 ARMS data to estimate federal income,
Social Security, and
self-employment taxes," the ERS stated.
Read more about News
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Home ' News ' "Three Big Things
215.211. Soils assessments, OR ST § 215.211
Attachment 9
West's Oregon Revised Statutes Annotated
Title 20. Counties and County Officers
Chapter 215. County Planning; Zoning; Housing Codes (Refs & Annos)
Agricultural Land Use (Refs & Annos)
(Exclusive Farm Use Zones) (Refs & Annos)
O.R.S. § 215.211
215.211. Soils assessments
Currentness
(1) If a person concludes that more detailed soils infonnation than that contained in the Web
Soil Survey operated by the United States Natural Resources Conservation Service would assist
a county to snake a better determination of whether land qualifies as agricultural land, the
person must request that the Department of Land Conservation and Development arrange for an
assessment of the capability of the land by a professional soil classifier who is:
(a) Certified by and in good standing with the Soil Science Society of America; and
(b) Chosen by the person.
(2) A soils assessment produced under this section is not a public record, as defined in ORS
192.311, unless the person requesting the assessment utilizes the assessment in a land use
proceeding. If the person decides to utilize a soils assessment produced under this section in a land
use proceeding, the person shall inform the Department of Land Conservation and Development
and consent to the release by the department of certified copies of all assessments produced under
this section regarding the land to the local government conducting the land use proceeding. The
department:
(a) Shall review soils assessments prepared under this section.
v� �Ti AVV @ 2022 Thomson Reuters. claim to original Li,S. Government Works.
215.211. Soils assessments, OR ST § 215.211
(b) May not disclose a soils assessment prior to its utilization in a land use proceeding as
described in this subsection without written consent of the person paying the fee for the
assessment.
(c) Shall release to the local government conducting a land use proceeding all soils assessments
produced under this section regarding land to which the land use proceeding applies.
(3) Before arranging for a soils assessment under this section, the department shall charge and
collect from the person requesting the assessment a fee in an amount intended to meet the costs of
the department to assess the soils and administer this section.
(4) The department shall deposit fees collected under this section in the Soils Assessment Fund
established under ORS 215.212.
(5) This section authorizes a person to obtain additional information for use in the determination
of whether land qualifies as agricultural land, but this section does not otherwise affect the process
by which a county determines whether land qualifies as agricultural land.
Credits
Added by Laws 2010, c. 44 (lst Sp. Sess.), § 1, eff. March 10, 2010, operative Oct. 1, 2011.
Amended by Laws 2013, c. 1, § 22, eff. Jan. 1, 2014.
O.R.S. § 215.211, OR ST § 215.211
Current through laws enacted in the 2022 Regular Session of the 81 st Legislative Assembly, which
convened February 1, 2022 and adjourned sine die March 4, 2022, in effect through June 2, 2022,
pending classification of undesignated material and text revision by the Oregon Reviser. See ORS
173.160. Some statute sections may be more current, see credits for details.
End of Document
© 2022 Thomson Reuters. No claim to original U.S.
Government Works.
VVESTt.AW O 2022 "If iornsoi i Reuters. I'o claim to original IJ.S. Government odor!;;;. 2
1,UA Natural idesources Lonservation "9e1'1t $be
About Us
I ' Soil Survey Releases =1 ' National Centers I State Websites
SOIIS
C A
cited States Department of Agriculture
Browse By Audience I A-Z Index
Help
62
ou are Here: Home / Technical References / TSSH Part 629
Connected
(«-
J
Stay
l
rSSH Part 629
Attachment 10
:)nsite Soil Investigations
3ackground (629.00)
-he National Soil Survey Handbook, Part 655.01(c), provides the following description:
Site -specific soil investigations, testing, interpretation, and evaluations are services that support the
design and installation of works and structures or the implementation of agricultural practices, or that
test and evaluate research predictions. These technical soil services are part of NRCS technical
assistance to individual cooperators or units of government that have signed agreements specifying
the services. The intention of services to individual cooperators is usually to help apply a conservation
plan. These are described in general terms in district agreements with NRCS. These services are very
site specific and often result in design and practice specifications.
)nsite investigations are not intended to provide information for program eligibility (see site -specific evaluation,
JFSAM 512.03).
Nhen site -specific investigations are appropriate (629.01)
JRCS technical soil services for site -specific investigations are done:
> on agricultural lands for USDA program purposes when requested by USDA program participants; or
> through Federal, State, or local forms of government where there is a memorandum of understanding or a
cooperative agreement that lists the services to be provided. For more information, see the National Soil Survey
Handbook, Part 655.
;M_430 - Title 430 - Soil Survey
102.6 Limitations on Use and Distribution of Soil Survey Information
t,. Soil surveys seldom contain detailed site -specific information and are not designed for use as
)rimary regulatory tools in site -specific permitting decisions, but are useful for broad regulatory
Manning and application. Official Soil Survey Information is public information and may be interpreted
)y organizations, agencies, units of government, or others based on their own needs; however, users
ire responsible for the appropriate application of soil survey information. NRCS will not accept
•eassignment of authority for decisions made by other Federal, State, or local regulatory bodies. NRCS
will not make changes to Official Soil Survey Information, or of any supplemental soil mapping, for
)urposes related solely to State or local regulatory programs.
-he General Manual, Title 430, Section 402.51' states
Supplemental mapping provides more detailed soil maps and information for areas of limited extent as
a result of more intensive onsite investigations. It is considered a separate soil map developed for
specific needs and is maintained for improved documentation of the reliability of the delineations and
attribute data of the Official Soil Survey Information. More detailed supplemental soil maps are not
considered changes to the Official Soil Survey Information.
supplemental mapping should only be done to support official NRCS activities, including the implementation of Farm
Sill programs and/or Conservation Technical Assistance. It should not be done simply because a cooperator (who
ias a conservation plan) has a personal need, such as hoping for a better soil potential rating for purposes of selling
>roperty.
iow site -specific investigations are done (629.02)
3enerally, soil survey information is not adequate for site -specific investigations, and point sampling must be done
o collect data for a specific use at a specific location. For example, for a manure storage facility, information on
iepth to the water table and restrictive layers is very important at the location of the proposed facility. Therefore,
;oil descriptions and interpretations are needed only at the location of the proposed facility.
Exhibit D
>efore conducting site -specific investigations. I his knowledge can facilitate sampling design and ensure that the
appropriate data are collected. For information on the characteristics that are important for a conservation practice,
efer to the conservation practice standards in the Field Office Technical Guide.
Nhen assisting other units of government with site -specific soils information, consult with the agency to see
vhether guidelines and criteria are in place. Make any recommendations regarding the soil characteristics that may
)e important for interpretation for the proposed use if there are no guidelines or criteria or if they are incomplete.
)rder 1 soil surveys and site -specific data collected are supplements to the official soil survey, but they do not
eplace or change the "official" soil survey. In many cases, mapping at an order 1 level or collecting point data may
'eveal inclusions within map units of soils that were not named in the official soil survey as well as use -dependent
;oil properties that are different from the typical soil properties listed for map units in the "official" soil survey.
\ny change to the official and published soil survey can be made only when the survey area is designated as being
in MLRA soil survey update (NSSH Part 610). The resource soil scientist provides documented evidence of the soil
:haracteristics, including pedon descriptions and any transect notes (geospatially located), to the MLRA Project
)ffice Leader. If the onsite investigation is conducted in a non-MLRA project area (e.g., for conservation planning),
he findings are also provided to the State Soil Scientist and can then be used to document the need for a future
;oil survey update. The field determination of HEL orNHEL is provided to the DC and SC.
t is important that any data collected during site -specific investigations be properly captured for multiple and future
ises through Pedon PC and uploaded into NASIS where appropriate. Copies of reports should go to the State Soil
>cientist.
Attachment 11
IU,A United States
of
In cooperation with
United States Department
Ss
Soil Sulaff
reDepartment of
Agriculture
of Agriculture, Forest
Service; United States
Y
Koft
U iff
r Deschutes
Natural
Department of the Interior,
Resources
Conservation
Service
Bureau of Land
Management; and Oregon
Agricultural Experiment
■
RiverArea,
Station
lawa
reon, including parts
of Deschutes, Jefferson, and
Klamath Counties
3
How to Use This Soil Survey
General Soil Map
The general soil map, which is a color map, shows the survey area divided into groups of associated soils called
general soil map units. This map is useful in planning the use and management of large areas.
To find information about your area of interest, locate that area on the map, identify the name of the map unit in the
area on the color -coded map legend, then refer to the section General Soil Map Units for a general description of
the soils III your area.
Detailed Soil Maps
The detailed soil maps can be useful i
management of small areas.
To find information about your area
of interest, locate that area on the
Index to Map Sheets. Note the
number of the map sheet and turn
to that sheet.
Locate your area of interest on
the map sheet. Note the map unit
symbols that are in that area. Turn
to the Contents, which lists the
map units by symbol and name
and shows the page where each
map unit is described.
The Contents shows which table
has data on a specific land use for
each detailed soil map unit. Also
see the Contents for sections of
this publication that may address
your specific needs.
MAP SHEET
WaF IV
\Fa Bac
ass
Bac
AREA OF INTEREST
NOTE: Map unit symbols in a soil
survey may consist only of numbers or
letters, or they may be a combination
of numbers and letters.
Cover.........................................
How to Use This Soil Survey ....
Contents ....................................
Foreword ...................................
General Nature of the County ......
History and Development .......
Physiography and Drainage ....
Climate...................................
How This Survey Was Made ........
Survey Procedures .................
General Soil Map Units .............
1. Tutni-Sunriver-Cryaquolls ..
2. Shanahan -Steiger .............
3. Lapine......................................................
4. Simas-Ruckles-Lickskillet ........................
5. Desch utes-Stukel-Rock outcrop ...............
6. Gosnev-Deskamp-Rock outcrop ...............
7. Madras-Agency-Cullius .................. I..........
8. Holmzie-Searles.......................................
9. Caphealy-Reuter.......................................
10. Licks killet-Redcliff-Schrier ......................
11. Dester-Gardone-Borobey ........................
12. Beden-Ninemile......................................
13. Stookmoor-Menbo..................................
14. Wanoga-Fremkle-Rock outcrop ...............
15. Linksterly-Belrick-Douthit ........................
16. Lundgren-Allingham-Circle ......................
17. Tumalo-Plainview....................................
18. Sisters-Yapoah.......................................
19. Smiling-Windego-Parrego ........................
20. Gap -Prairie .............................................
Detailed Soil Map Units ....................................
1A—Agency sandy loam, 0 to 3 percent
slopes......................................................
2A—Agency loam, 0 to 3 percent slopes ........
213—Agency loam, 3 to 8 percent slopes ........
2C—Agency loam, 8 to 15 percent slopes ......
3B—Agency-Madras complex, 0 to 8 percent
slopes......................................................
3C—Agency-Madras complex, 8 to
15 percent slopes .....................................
4C—Allingham-Circle complex, 0 to 15 percen
slopes......................................................
4D—Allingham-Circle complex, 15 to
30 percent slopes .....................................
...... 1
5A—Aquolls, 0 to 1 percent slopes .....................
36
......
3
6A—Bakeoven very cobbly loam, 0 to
......
5
3 percent slopes ...........................................
36
....
11
7A—Bakeoven-Agency-Madras complex, 0 to
....
13
3 percent slopes ...........................................
37
....
13
8B—Beden sandy loam, dry, 1 to 8 percent
....
15
slopes..........................................................
38
15
9C—Beden sandy loam, moist, 3 to
....
15
15 percent slopes .........................................
38
....
16
10E—Beden sandy loam, 30 to 50 percent
....
19
north slopes .................................................
39
....
19
11 B—Beden stony sandy loam, 0 to
....
20
10 percent slopes .........................................
39
....
20
12B—Beden-Ninemile complex, 0 to
....
20
10 percent slopes .........................................
40
....
21
13C—Belrick fine sandy loam, 0 to
....
21
15 percent slopes .........................................
41
....
22
13D—Belrick fine sandy loam, 15 to
....
22
30 percent slopes .........................................
41
....
23
14C—Belrick fine sandy loam, cool, 0 to
....
23
15 percent slopes .........................................
42
....
24
15C—Belrick fine sandy loam, dry, 0 to
....
24
15 percent slopes .........................................
43
....
24
16E—Belrick-Douthit complex, 30 to
....
25
50 percent slopes .........................................
43
....
25
17A—Blayden loamy sand, 0 to 3 percent
....
26
slopes..........................................................
44
....
26
18D—Bluesters gravelly sandy loam, 15 to
....
26
50 percent slopes .........................................
45
....
27
19A—Borobey sandy loam, 0 to 5 percent
....
27
slopes..........................................................
46
....
29
20A—Borobey gravelly sandy loam, hardpan
substratum, 0 to 5 percent slopes ................
46
....
30
21 C—Bott-Douthit complex, 0 to 15 percent
....
31
slopes..........................................................
47
....
32
21 D—Bott-Douthit complex, 15 to 30 percent
....
33
slopes..........................................................
47
22E—Bott-Kweo complex, 30 to 50 percent
....
33
slopes..........................................................
48
23A—Buckbert sandy loam, 0 to 3 percent
....
34
slopes..........................................................
49
t
24A—Caphealy-Reuter complex, 0 to
....
34
3 percent slopes ...........................................
50
24B—Caphealy-Reuter complex, 3 to
....
35
8 percent slopes ...........................................
50
0
Soil Survey
24C—Caphealy-Reuter complex, e to
46B—Era-Haystack complex, 0 to 8 percent
15 percent slopes .........................................
51
slopes..........,...............................................
72
24D—Caphealy-Reuter complex, 15 to
47A—Ermabell loamy fine sand, 0 to
30 percent slopes .........................................
52
3 percent slopes ........................................... 72
25C—Choptie-Westbutte complex, 5 to
48C—Fiarm-Smiling complex, u to 15 percent
20 percent slopes .........................................
53
slopes.......................................................... 73
26A—Clinefalls sandy loam, 0 to 3 percent
49A—Fluvents, 0 to 1 percent slopes .................
74
slopes..........................................................
53
50C—Gap sandy loam, 0 to 15 percent
27A—Clovkamp loamy sand, 0 to 3 percent
slopes..........................................................
74
slopes..........................................................
54
51 D—Gap-Glaze complex, 15 to 30 percent
28A—Clovkamp loamy sand, bedrock
slopes..........................................................
75
substratum, 0 to 3 percent slopes ................
55
52B—Gardone sand, 3 to 10 percent slopes .......
76
29A—Cryaquolls, 0 to 3 percent slopes ..............
55
53C—Gardone sand, hummocky, 3 to
30A—Cullius loam, 0 to 3 percent slopes ...........
56
15 percent slopes ......................................... 76
30B—Cullius loam, 3 to 8 percent slopes ...........
57
54C—Gardone sand, moist, 3 to 20 percent
30C—Cullius loam, 8 to 15 percent slopes .........
57
slopes.......................................................... 77
31A—Deschutes sandy loam, 0 to 3 percent
55A—Gardone-Borobev complex, 0 to
slopes..........................................................
58
5 percent slopes ...........................................
77
31 B—Deschutes sandy loam, 3 to 8 percent
56E—Glaze-Prairie-Rock outcrop complex,
slopes..........................................................
59
30 to 50 percent slopes ................................ 78
32A—Deschutes sandy loam, dry, 0 to
57B—Gosney stony loamy sand, 3 to
3 percent slopes ...........................................
59
8 percent slopes ...........................................
79
3313—Deschutes-Houstake complex, 0 to
58C—Gosney-Rock outcrop-Deskamp
8 percent slopes ...........................................
60
complex, 0 to 15 percent slopes ........,..,,.,,,,,
79
34C—Deschutes-Stukel complex, 0 to
59C—Gosney-Rock outcrop-Deskamp
15 percent slopes .........................................
61
complex, dry, 0 to 15 percent slopes ............
80
35B—Deschutes-Stukel complex, dry, 0 to
60C—Haynap very gravelly loamy coarse
8 percent slopes ...........................................
62
sand, 0 to 15 percent slopes ........................
81
36A—Deskamp loamy sand, 0 to 3 percent
60D—Haynap very gravelly loamy coarse
slopes .............. .----------------------------------- •-------
63
sand, 15 to 30 nPrr_ent slnnPg =
82
36B—Deskamp loamy sand, 3 to 8 percent
60E—Haynap very gravelly loamy coarse
slopes..........................................................
63
sand, 30 to 70 percent slopes ......................
82
3713—Deskamp sandy loam, 3 to 8 percent
61 C—Henkle-Fryrear-Lava flows complex,
slopes..........................................................
64
0 to 15 percent slopes ..................................
83
38B—Deskamp-Gosney complex, 0 to
62D—Henkle-Lava flows-Fryrear complex,
8 percent slopes ...........................................
65
15 to 50 percent slopes ................................
84
39A—Dester gravelly loamy sand, 0 to
63C—Holmzie-Searles complex, 0 to
3 nerrent clones ...........................................
66
15 rngrrent slopes .........................................
85
40B—Dester sandy loam, 0 to 8 percent
64C—Holmzie-Searles complex, moist,
slopes..........................................................
66
0 to 15 percent slopes ..................................
86
41 C—Douthit sandy loam, 0 to 15 percent
65A—Houstake sandy loam, 0 to 3 percent
slopes..........................................................
67
slopes...................,......................................
87
41 D—Douthit sandy loam, 15 to 30 percent
66A—Houstake sandy loam, dry, 0 to
�Innes
RR
3 nPrranf cinnac
-,-------------------------------------------
R7
--
41 E—Douthit sandy loam, 30 to 50 percent
67A—Houstake sandy loam, very gravelly
slopes ------------------------------------- --------------
68
sijhstratiim; 0 to 3 nPrr_.ent Slone- ,-_-- _=
88
42C—Douthit sandy loam, cool, 0 to
68A—Iris silt loam, 0 to 1 percent slopes ........... 88
15 percent slopes .........................................
69
69D—Kweo gravelly sandy loam, 8 to
43A—Embal sandy loam, 0 to 3 percent
50 percent slopes .........................................
89
slopes..........................................................
70
70D—Kweo-Smiling complex, 8 to 50 percent
4413—Era sandy loam, 3 to 8 percent slopes ......
70
slopes..........................................................
90
45A—Era sandy loam, cobbly substratum,
71A—Lafollette sandy loam, 0 to 3 percent
0 to 3 percent slopes ....................................
71
slopes..........................................................
91
Upper Deschutes River Area, Oregon
71 B—Lafollette sandy loam, 3 to 8 percent
slopes..........................................................
91
72C—Laidlaw sandy loam, 0 to 15 percent
slopes..........................................................
92
73C—Lapine gravelly loamy coarse sand,
0 to 15 percent slopes ..................................
92
73D—Lapine gravelly loamy coarse sand, 15
to 30 percent slopes .....................................
93
73E—Lapine gravelly loamy coarse sand, 30
to 50 percent slopes .....................................
94
74C—Lapine gravelly loamy coarse sand, high
elevation, 0 to 15 percent slopes ..................
95
74D—Lapine gravelly loamy coarse sand, high
elevation 15 to 30 percent slopes ................
95
74E—Lapine gravelly loamy coarse sand, high
elevation, 30 to 60 percent slopes ............
75A—Lapine gravelly loamy coarse sand, low,
0 to 3 percent slopes ................................
76F—Lapine-Rock outcrop complex, high
elevation, 50 to 70 percent slopes ............
77—Lava flows ...............................................
78C—Lickskillet-Deschutes complex, 0 to 15
percent slopes ...........................................
79C—Lickskillet-Redcliff very gravelly loams,
0 to 15 percent slopes ..............................
80D—Lickskillet-Redcliff very gravelly loams,
15 to 30 percent south slopes ..................
80E—Lickskillet-Redcliff very gravelly loams,
30 to 60 percent south slopes ..................
81 F—Lickskillet-Rock outcrop complex, 45
to 80 percent slopes ..................................
82C—Linksterly sandy loam, 0 to 15 percent
slopes......................................................
82D—Linksterly sandy loam, 15 to 30 percent
slopes.......................................................
82E—Linksterly sandy loam, 30 to 50 percent
slopes.......................................................
83C—Linksterly sandy loam, cool, 0 to
15 percent slopes ......................................
83D—Linksterly sandy loam, cool, 15 to
30 percent slopes ......................................
84C—Linksterly-Blowout complex, 0 to
15 percent slopes ......................................
85A—Lundgren sandy loam, 0 to 3 percent
slopes.......................................................
86A—Madras sandy loam, 0 to 3 percent
slopes.......................................................
86B—Madras sandy loam, 3 to 8 percent
.96
.97
.97
.98
.98
.99
100
89A—Milcan gravelly sandy loam, 0 to
5 percent slopes ......................................... 110
90C—Minkwell sandy loam, 0 to 15 percent
slopes........................................................ 110
90D—Minkwell sandy loam, 15 to 30 percent
slopes........................................................ 111
90E—Minkwell sandy loam, 30 to 50 percent
slopes........................................................
112
91 B—Ninemile sandy loam, 0 to 10 percent
slopes........................................................
112
926—Ninemile very cobbly loam, 0 to
10 percent slopes .......................................
113
9313—Ninemile-Dester complex, 1 to
8 percent slopes .........................................
113
94A—Omahaling fine sandy loam, 0 to
5 percent slopes .........................................
114
95E—Parrego-Rock outcrop-Windego
complex, 30 to 50 percent slopes ...............
115
96D—Parrego-Thorn-Rock outcrop complex,
15 to 50 percent slopes ..............................
116
97—Pits...........................................................
117
98A—Plainview sandy loam, 0 to 3 percent
slopes........................................................
117
98B—Plainview sandy loam, 3 to 8 percent
slopes........................................................
118
99C—Prairie-Gap complex, 0 to 15 percent
slopes........................................................
A
1A A 18
99D—Prairie-Gap complex, 15 to 30 percent
101
slopes........................................................
119
100C—Redcliff-Lickskillet complex, 0 to
101
15 percent slopes .......................................
120
101 D—Redcliff-Lickskillet-Rock outcrop
102
complex, 15 to 30 percent south slopes .....
120
101 E—Redcliff-Lickskillet-Rock outcrop
102
complex, 30 to 50 percent south slopes .....
121
102D—Redcliff-Rock outcrop complex, 5 to
103
30 percent slopes .......................................
122
103E—Redcliff-Rock outcrop complex, 30 to
104
65 percent south slopes .............................
122
104A—Redmond sandy loam, 0 to 3 percent
104
slopes........................................................
123
105C—Redmond-Deschutes-Stukel complex,
105
0 to 15 percent slopes ................................
124
106D—Redslide-Lickskillet complex, 15 to
105
30 percent north slopes ..............................
124
106E—Redslide-Lickskillet complex, 30 to
106
50 percent north slopes ..............................
125
107B—Reluctan sandy loam, 1 to 8 percent
slopes........................................................ 107
87A—Madras loam, 0 to 3 percent slopes ........ 107
87B—Madras loam, 3 to 8 percent slopes ........ 108
87C—Madras loam, 8 to 15 percent slopes ...... 109
88D—Menbo stony loam, 5 to 25 percent
slopes........................................................ 109
slopes........................................................ 126
108C—Reluctan loam, 2 to 20 percent
slopes........................................................ 126
109—Rock outcrop ........................................... 127
110D—Schrier-Tub complex, 15 to 30 percent
north slopes ....................................:.......... 127
110E—Schrier-Tub complex, 30 to 60 percent
north slopes ............................................... 128
111 D—Searles-Holmzie complex, 15 to
30 percent slopes ....................................... 129
112D—Searies-Hoimzie complex, moist, 15
to 30 percent slopes .................................
113C—Searles-Statz complex, 0 to
15 percent slopes .....................................
114C—Shanahan loamy coarse sand, 0 to
15 percent slopes .....................................
114D—Shanahan loamy coarse sand, 15 to
30 percent slopes .....................................
115A—Shanahan loamy coarse sand, low,
0 to 3 percent slopes ................................
116E—Shroyton loamy sand, 30 to 50
percent slopes ..........................................
117C—Simas silt loam, 0 to 15 percent
slopes......................................................
118D—Simas-Ruckles complex, 15 to
40 percent north slopes ............................
119D—Simas-Ruckles complex, 15 to
40 percent south slopes ...........................
120E—Simas-Ruckles-Rock outcrop complex,
40 to 80 percent north slopes ...................
121 F—Simas-Ruckles-Rock outcrop complex,
40 to 80 percent south slopes ..................
122C—Sisters loamy sand, 0 to 15 percent
slopes......................................................
123C—Sisters-Yapoah complex, 0 to
15 percent slopes -------------------------------------
123D—Sisters-Yapoah complex, 15 to
30 percent slopes .....................................
123E—Sisters-Yapoah complex, 30 to
50 percent slopes .....................................
124C—Smiling sandy loam, 0 to 15 percent
slopes......................................................
125D—Smiling-Windego complex, 15 to
30 percent clones .....................................
126C—Smiling-Windego complex, cool, 0 to
15 percent slopes .....................................
126D—Smiling-Windego complex, cool, 15 to
30 percent slopes .....................................
127A—Statz sandy loam, 0 to 3 percent
sloops
128C—Statz-Deschutes complex, 0 to
15 percent slopes , ,-_-_,_
128D—Statz-Deschutes complex, 15 to
30 percent slopes .....................................
129C—Steiger loamy coarse sand, 0 to
15 percent slopes .....................................
130C—Steiger loamy coarse sand, high
elevation, 3 to 15 percent slopes ..............
130D—Steiger loamy coarse sand, high
elevation, 15 to 30 percent slopes ............
129
130
131
131
132
133
133
134
135
135
136
137
137
138
139
140
141
Soil Survey
130E—Steiger loamy coarse sand, high
elevation, 30 to 50 percent slopes ..............
147
131A—Steiger loamy coarse sand, low, 0 to
3 percent slopes .........................................
148
132A—Stookmoor loamy sand, 1 to 3 percent
slopes........................................................
148
133A—Stookmoor gravelly loamy sand,
1 to 3 percent slopes ..................................
149
134D—Stookmoor gravelly loamy sand, 20
to 50 percent north slopes ..........................
150
135C—Stookmoor-Beden complex, 1 to
20 percent slopes .......................................
150
136C—Stookmoor-Gardone-Rock outcrop
complex, 1 to 15 percent slopes .................
151
137E—Stookmoor-Westbutte complex, 25 to
50 percent north slopes ..............................
152
138A—Stukel sandv loam, 0 to 3 percent
slopes........................................................
153
138B—Stuke► sandy loam, 3 to 8 percent
slopes........................................................
153
139A—Stukel sandy loam, dry, 0 to 3 percent
slopes........................................................
154
139B—Stukel sandy loam, dry, 3 to 8 percent
slopes,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
154
140B—Stukel-Deschutes complex, dry, 0 to
8 percent slopes .........................................
155
141 C—Stukel-Deschutes-Rock outcrop
complex, 0 to 15 percent slopes .................
156
142B—Stukel-Rock outcrop -Deschutes
mrnnlPx dry 0 to 8 nnrr_-ent ginneg ...__._...-_
1.56
143B—Suilotem-Circle complex, 0 to
8 percent slopes .........................................
157
144A—Sunriver sandy loam, 0 to 3 percent
slopes........................................................
158
145C—Suttle very gravelly loamy sand, 0 to
15 percent slopes .......................................
158
146C—Suttle very gravelly loamy sand, dry,
0 to 15 percent clones
ram, r
159
147A—Swaler gravelly coarse sand, 0 to
141
2 percent slopes .........................................
160
148A—Swaler silt loam, 0 to 2 percent
142
slopes........................................................
160
149A—Swalesilver loam, 0 to 1 percent
1d3
clones........................................................
161
150A—Tetherow sandy loam, 0 to 3 percent
144
glnnas
--
161
150B—Tetherow sandy loam, 3 to 8 percent
144
slopes........................................................
162
151 D—Tetherow-Clovkamp complex, 8 to
145
50 percent slopes .......................................
163
152A—Tumalo sandy loam, 0 to 3 percent
146
slopes........................................................
164
15213—Tumalo sandy loam, 3 to 8 percent
146
slopes........................................................
164
Upper Deschutes River Area, Oregon
153A—Tutni loamy coarse sand, 0 to 3 percent
slopes........................................................
154A—Vergas loam, 0 to 3 percent slopes .......
155C—Wanoga sandy loam, 0 to 15 percent
slopes........................................................
155D—Wanoga sandy loam, 15 to 30 percent
slopes........................................................
155E—Wanoga sandy loam, 30 to 50 percent
slopes........................................................
156C—Wanoga-Fremkle-Henkle complex, 0
to 15 percent slopes ...................................
156D—Wanoga-Fremkle-Henkle complex, 15
to 30 percent slopes ...................................
157C—Wanoga-Fremkle-Rock outcrop
complex, 0 to 15 percent slopes .................
158A—Wickiup loamy sand, 0 to 3 percent
slopes........................................................
159C—Wilt sandy loam, 0 to 15 percent
slopes........................................................
160C—Windego-Parrego complex, 0 to
15 percent slopes .......................................
160D—Windego-Parrego complex, 15 to
30 percent slopes .......................................
161 E—Windego-Smiling complex, 30 to
50 percent slopes .......................................
162E—Windego-Smiling complex, cool, 30
to 50 percent slopes ...................................
163D—Windego-Smiling-Rock outcrop
complex, 0 to 30 percent slopes .................
163E—Windego-Smiling-Rock outcrop
complex, 30 to 70 percent slopes ...............
164A—Wizard sandy loam, 0 to 3 percent
slopes...............................................
165C—Wizard-Allingham complex, 0 to
15 percent slopes ..............................
166D—Xerolls, 5 to 50 percent slopes .....
167E—Xerolls-Rock outcrop complex, 30
to 65 percent north slopes .................
168E—Xerolls-Rock outcrop complex, 30
to 65 percent south slopes ................
169C—Yapoah-Rock outcrop complex, 0
to 15 percent slopes ..........................
169E—Yapoah-Rock outcrop complex, 15
to 75 percent slopes ..........................
Use and Management of the Soils ............
Crops and Pasture ...................................
Yields per Acre ....................................
Land Capability Classification ..............
Prime Farmland ...................................
Rangeland................................................
Importance and Uses of Rangeland .....
Broad Vegetative Zones .......................
Grazing Management ..........................
Limitations for Use ..............................
165
166
166
167
168
169
170
171
172
173
173
174
175
176
176
177
178
179
180
.... 180
181
181
Woodland Management and Productivity
Woodland Understory Vegetation ............
Windbreaks and Environmental Plantings
Recreation ..............................................
Wildlife Habitat ........................................
Habitat Types ......................................
Fish and Wildlife Species ...................
Engineering .............................................
Building Site Development ..................
Sanitary Facilities ...............................
Construction Materials ........................
Water Management .............................
Soil Properties ..........................................
Engineering Index Properties ..................
Physical and Chemical Properties ..........
Soil and Water Features ..........................
Classification of the Soils .........................
Soil Series and Their Morphology ............
Agency Series ....................................
Allingham Series ................................
Aquolls...............................................
Bakeoven Series ................................
Beden Series ......................................
Belrick Series .....................................
Blayden Series ...................................
Bluesters Series .................................
DUIUUCy JCIICJ...................................
Bott Series .........................................
Buckbert Series .................................
Caphealy Series .................................
Choptie Series ....................................
Circle Series .......................................
Clinefalls Series .................................
Clovkamp Series ................................
Cryaquolls..........................................
Cullius Series .....................................
Deschutes Series ...............................
Deskamp Series .................................
Dester Series .....................................
Douthit Series .....................................
Embal Series ......................................
Era Series ..........................................
Ermabell Series ..................................
Flarm Series .......................................
Fluvents..............................................
Fremkle Series ...................................
Fryrear Series .....................................
GapSeries .........................................
Gardone Series ..................................
Glaze Series ......................................
Gosney Series ....................................
Haynap Series ....................................
Haystack Series ..................................
Henkle Series .....................................
�7
.. 201
.. 201
.. 202
.. 203
.. 204
.. 207
.. 208
.. 209
.. 211
.. 211
.. 211
.. 212
.. 213
.. 213
.. 214
.. 214
.. 215
.. 216
V
.. LIV
.. 216
.. 217
.. 218
.. 223
.. 223
.. 224
.. 224
.. 225
.. 225
.. 226
.. 227
.. 227
.. 227
.. 228
.. 229
.. 229
.. 230
.. 230
.. 231
.. 232
Holmzie Series. . ........................................... 232
Houstake Series ...........................................
233
Iris Series .....................................................
233
KweoSeries .................................................
234
Lalollette Series ...........................................
234
Laidlaw Series ..............................................
235
Lapine Series ...............................................
235
Lickskillet Series ..........................................
236
Linksterly Series ...........................................
237
Lundgren Series ...........................................
237
Madras Series ..............................................
238
Menbo Series ...............................................
238
Milcan Series ...............................................
239
Minkwell Series ............................................
239
Ninemile Series ............................................
240
Omahaling Series .........................................
241
Parrego Series ..............................................
241
Plainview iaii iJicW eries...........................................
242
Prairie Series ................................................
243
Redcliff Series ..............................................
243
Redmond Series ........................................... 244
Redslide Series ............................................
244
Reluctan Series ............................................
245
Reuter Series ...............................................
245
Ruckles Series .............................................
246
Schrier Series ...............................................
246
Searles Series .,,.•..,...,•,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
247
Shanahan Series ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
248
Shroyton Series ............................................
249
Simas Series ................................................ 249
Sisters Series ...............................................
250
Smiling Series ..............................................
251
Statz Series .................................................
251
Steiger Series ...............................................
252
Stookmoor Series.. .............
................ ........ 253
Stukel Series ................................................
253
Suilotem Series ............................................
254
Sunriver Series
-_ --- _ _ _ _ _ _____ 254
Suttle Series ................................................
255
Swaler Series ...............................................
256
Swalesilver Series ........................................
257
Tetherow Series ............................................
257
Thorn Series ................................................. 258
Tub Series --------------------- ---
--- -- - -- - - 958
Soil Survey
umalo penes ............................................... 259
Tutni Series ..................................................
26C
Vergas Series ...............................................
26C
Wanoga Series ............................................. 261
Westbutte Series ..........................................
261
Wickiup Series .............................................
262
Wilt Series ....................................................
262
Windego Series ............................................
263
Wizard Series ...............................................
264
Xerolls..........................................................
264
Yapoah Series ..............................................
265
Formation of the Soils ........................................
267
Parent Material ..................................................
267
Climate.............................................................
269
Time.................................................................
269
Relief................................................................ 27C
Plant and Animal Life ........................................
270
References ...........................................................
273
Glossary..............................................................
275
Tables..................................................................
287
Table 1.—Temperature and Precipitation ................
288
Table 2.—Freeze Dates in Spring and Fall .............
290
Table 3.—Growing Season ....................................
292
Table 4.—Acreage and Proportionate Extent
ofthe Soils .......................................................
293
Table 5.—Land Capability Classes and Yields
per Acre of Crops and Pasture ,,,,,,,,,,,,,,,,,,,,,,,,,,
298
Table 6.—Rangeland Productivity and
Characteristic Plant Communities .....................
309
Table 7.—Woodland Manaaement .........................
332
Table 8.—Woodland Productivity ...........................
339
Table 9.—Windbreaks and Environmental
Plantings..........................................................
346
Table 10.—Recreational Development ...................
350
Table 11.—Building Site Development ...................
371
Table 12.—Sanitary Facilities ................................
391
Table 13.—Construction Materials .........................
412
Table 14_—Water Management .... __............. ____.... __,
432
Table 15.—Engineering Index Properties ...............
452
Table 16.—Physical and Chemical Properties
of the Soils .......................................................
487
Table 17.—Soil and Water Features .......................
504
Table 18.—Classification of the Soils ....................
514
Issued 1999
11
F910T,- ,� 0 i'
This soil survey contains information that affects land use planning in this survey
area. It contains predictions of soil behavior for selected land uses. The survey also
highlights soil limitations, improvements needed to overcome the limitations, and the
impact of selected land uses on the environment.
This soil survey is designed for many different users. Farmers, ranchers, foresters,
and agronomists can use it to evaluate the potential of the soil and the management
needed for maximum food and fiber production. Planners, community officials,
engineers, developers, builders, and home buyers can use the survey to plan land use,
select sites for construction, and identify special practices needed to ensure proper
performance. Conservationists, teachers, students, and specialists in recreation, wildlife
management, waste disposal, and pollution control can use the survey to help them
understand, protect, and enhance the environment.
Various land use regulations of Federal, State, and local governments may impose
special restrictions on land use or land treatment. The information in this report is
intended to identify soil properties that are used in making various land use or land
treatment decisions. Statements made in this report are intended to help the land users
identify and reduce the effects of soil limitations that affect various land uses. The
1lonrdn�ninar nr i scar ie rnennneihla fnr irJanfif�Ann nnrl nmmnlxiinn Xniith avietinn Inwe nnrt
a d--vV �.,r yr ..1se is I „�po ............. .... I �.. y . y , y . „.,,.....y ..,... ,, .,.�.
regulations.
Great differences in soil properties can occur within short distances. Some soils are
seasonally wet or subject to flooding. Some are shallow to bedrock. Some are too
unstable to be used as a foundation for buildings or roads. Clayey or wet soils are poorly
suited to use as septic tank absorption fields. A high water table makes a soil poorly
suited to basements or underground installations.
These and many other soil properties that affect land use are described in this soil
survey. Broad areas of soils are shown on the general soil map. The location of each soil
is shown on the detailed soil maps. Each soil in the survey area is described.
Information on specific uses is given for each soil. Help in using this publication and
additional information are available at the local office of the Natural Resources
Conservation Service or the Cooperative Extension Service.
Bob Graham
State Conservationist
Natural Resources Conservation Service
16
segments of the landform, a soil scientist develops a
concept or model of how they were formed. Thus,
during mapping, this model enables the soil scientist to
predict with a considerable degree of accuracy the kind
of soil or miscellaneous area at a specific location on
the landscape.
Commonly, individual soils on the landscape merge
into one another as their characteristics gradually
change. To construct an accurate soil map, however,
soil scientists must determine the boundaries between
the soils. They can observe only a limited number of
soil profiles. Nevertheless, these observations,
supplemented by an understanding of the soil -
vegetation -landscape relationship, are sufficient to
verify predictions of the kinds of soil in an area and to
determine the boundaries.
Soil scientists recorded the characteristics of the
soil profiles that they studied. T hey noted color,
texture, size and shape of soil aggregates, kind and
amount of rock fragments, distribution of plant roots,
reaction, and other features that enable them to
identify soils. After describing the soils in the survey
area and determining their properties, the soil
scientists assigned the soils to taxonomic classes
(units). Taxonomic classes are concepts. Each
taxonomic class has a set of soil characteristics with
precisely defined limits. The classes are used as a
basis for comparison to classify soils systematically.
Soil taxonomy, the system of taxonomic classification
used in the United States_ is based mainly on the kind
and character of soil properties and the arrangement of
horizons within the profile. After the soil scientists
classified and named the soils in the survey area, they
compared the individual soils with similar soils in the
same taxonomic class in other areas so that they
could confirm data and assemble additional data based
on experience and research.
While a soil -irvey is in progress,Samples of Some
of the soils in the area generally are collected for
laboratory analyses. Soil scientists interpret the data
from these analyses and tests as well as the field -
observed characteristics and the soil properties to
determine the expected behavior of the soils under
riiffPrent iiePs InternrPtatinnc for all of the soils PrP
field tested through observation of the soils in different
uses and under different levels of management. Data
are assembled from other sources, such as research
information, production records, and field experience of
specialists.
Predictions about soil behavior are based not only
on soil properties but also on such variables as climate
and biological activity. Soil conditions are predictable
over long periods of time, but they are not predictable
from year to year. For example, soil scientists can
Soil Survey
predict with a fairly high degree of accuracy that a
given soil will have a high water table within certain
depths in most years, but they cannot predict that a
high water table will always be at a specific level in the
soil on a specific date.
After soil scientists located and identified the
significant natural bodies of soil in the survey area,
they drew the boundaries of these bodies on aerial
photographs and identified each as a specific map unit.
Aerial photographs show trees, buildings, fields, roads,
and rivers, all of which help in locating boundaries
accurately.
Survey Procedures
The general procedures followed in making this
survey are described in the National Soil Survey
Handbook of the Natural Resources Conservation
Service. Source material used in the development of
the survey includes the soil survey of the Deschutes
Area, Oregon, published in 1958 (23); the interim soil
survey of the Brothers Area published in 1983 (28);
U.S. Geological Survey geologic maps; and the
National Cooperative Soil Survey memorandum of
understanding between the Natural Resources
Conservation Service, the Forest Service, the Bureau
of Land Management, and the Oregon Agricultural
Experiment Station.
By separating the landscapes into discrete
landforms and identifying the dominant soil -forming
properties on each landform, predictable soil-landform
models became apparent and were the basis for the
soil maps and the development of the soil series and
map unit descriptions. The soil-landform relationships
for this survey area are discussed under the heading
"Formation of the Soils."
The survey area was mapped at two levels of
intensity. At the less detailed level man iinits are
mainly associations and complexes. The average size
of the delineations for most management purposes
was 160 acres. Most of the land mapped at this level is
used as woodland and rangeland. At the more detailed
level, map units are mainly consociations and
rmmnlPxes The avPranP si7P of the delineatinns for
purposes of management was 40 acres, and the
minimum size was 5 acres. Most of the land manned
at the more detailed level is used as irrigated and
nonirrigated cropland. Spot symbols were used for
contrasting soil types and miscellaneous areas that are
too small to be mapped at the same intensity as the
surrounding land. Inclusions of contrasting soils or
miscellaneous areas are described in the map unit if
they are a significant component of the unit.
Soil mapping in the high desert of eastern
Httacnrnent 1/-
"ru
John A. Kitzhaber, M.D., Governor
January 8, 2015
Department of Land Conservation and Development
Deschutes County Planning Commission
c/o Nick Lelack, Community Development Director
117 NW Lafayette Avenue
Bend, Oregon 97701
RE: HB 2229 question regarding scope of review
635 Capitol Street NE, Suite 150
Salem, Oregon 97301-2540
Phone: (503) 373-0050
Fax: (503) 378-5518
www.oregon.gov/LCD
SENT VIA E-MAIL
Deschutes County planning staff has requested the opinion of the Department of Land
Conservation and Development (the department) on whether HB 2229 requires all, or most,
farm- or forest -zoned lands in a county to be considered in a "reacknowledgment" process, or
whether smaller, non-contiguous tracts could be considered as the first phase of a multi -phase
reacknowledgment process.
County staff described several non-contiguous problem areas. The county stated that its goal was
"for partially platted subdivisions zoned for EFU or Forest to be legislatively rezoned to MUA-
10," Department staff consulted with county staff on these areas, and studied mans of five of the
areas and past county attempts to find solutions. The total acreage of these areas equals about
840 acres.
Analysis
HB 2229 is memorialized at Chapter 873 Oregon Laws 2009. The relating clause "Relating to
recommendations of the Oregon Task Force on Land Use Planning..." gives an indication that
certain themes in the bill originated with "The Big Look." A theme that wound through the Big
Look was that land use laws should treat different regions of the state fairly, recognizing the
geographical, ecological and cultural aspects of each region. Section 2(B) of HB 2229, for
example, directs that the Land Conservation and Development Commission to "consider the
variation in conditions and needs in different regions of the state and encourage regional
approaches to resolve land use problems."
For this discussion, section 5 of HB 2229 is applicable. A portion of section 5 is provided below.
SECTION 5. (1) For the purposes of correcting mapping errors made in the
acknowledgment process and updating the designation of farmlands and
forestlands for land use planning, a county may conduct a legislative review of
lands in the county to determine whether the lands planned and zoned for farm
use, forest use or mixed farm and forest use are consistent with the definitions of
"agricultural lands" or "forest lands" in goals relating to agricultural lands or
forestlands.
Deschutes County Planning Commission Page 2 of 3
January 8, 2015
(2) A county may undertake the reacknowledgment process authorized by
this section only if the Department of Land Conservation and Development
approves a work plan, from the county, describing the expected scope of
reacknowledgment. The department may condition approval of a work plan for
reacknowledgment under this section to reflect the resources needed to complete
the review required by sections 7 and 13 of this 2009 Act. The work plan of the
county and the approval of the department are not final orders for purposes of
review.
(3) A county that undertakes the reacknowledgment process authorized by
this section shall provide an opportunity for all lands planned for farm use, forest
use or mixed farm and forest use and all lands subject to an exception under ORS
197.732 to a goal relating to agricultural lands or forestlands to be included in the
review.
This states tiiat the comity may undertake a "'ieacknovv'ledgement" process by conducting a
legislative review for the purpose of correcting mapping errors made during its original
acknowledgment. Determining whether a proposal is a "legislative review" requires
consideration of three questions:
1. Is the process bound to result in a decision?
2. Is the decision bound to apply preexisting criteria to concrete facts?
3. Is the action directed at a closely circumscribed factual situation or a relatively small
number of persons?
This is not a "bright line" test. The more definitively these questions are answered in the
negative- the more likelv the nrocess is legislntive. Tn this cnse- the answer to question 1 is
clearly no. Regarding question 2, the project would be subject to existing criteria in (at least)
Goals 3 and 4 and HB 2229; it is typical for goals and statutes to apply to local legislative
decisions, however, so this is not determinative but it does lend additional weight to question 3.
Regarding question 3, the department is uncomfortable determining that the county is proposing
a legislative review when it includes only 840 acres in five areas. We don't know the number of
"persons" it would be directed at, but the number can't be very large.
Section 5 states the review is of "lands in the county" and that the county must provide an
opportunity for all lands in a resource zone to be provided an opportunity for consideration.
While the phrase "lands in the county" is not entirely clear, the department's understanding of
the legislative intent is that the reference to "lands in the county," when combined with the
"legislative review" lan2ua2e, is that counties are not authorized to (1) set up a framework in the
comprehensive plan and then require individual applications for re -designation of land or (2)
nirlr nnrl rhnneP email nrPac to rPlApw AV 11P [E7P rin not -Find that the ! n71ntV m11Ct rPV1 P\E7 / II lanfl
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in the county, we would be most inclined to approve a work program that includes some major
region defined by geographic characteristics rather than by property or subdivision boundaries.
Additionally, the county may not pre -determine specific areas for review, as subsection 5(3)
requires the county to provide an opportunity for all farm and forest land to be considered. If the
Deschutes County Planning Commission
January 8, 2015
Page 3 of 3
county receives a request to review an area that is not included in the original proposal, the
county must review it. As explained above, we believe that this area must be a geographic area
of the county and not individual properties or subdivisions.
Regarding phasing of review, the department would entertain a work program that lays out the
project in pieces, but those pieces should each address a substantial part of the county and
address all the other requirements of HB 2229.
Additional Consideration
Considering other aspects of HB 2229 not related to your question, the department has been
unable to determine the nature and scope of the mapping error the county intends to address. It is
not apparent why the areas the county has shared with the department were incorrectly zoned at
acknowledgment, and this is a fundamental aspect of the bill. If the county chooses to move
forward with a work program, the county will need to demonstrate that the HB 2229 process is
an appropriate vehicle for addressing the county's needs.
Summary
The department does not read HB 2229 to require the county review all farm and forest lands in
the county under the provisions of section 5 of the law. On the other hand, we do not find that it
permits the county to look only at small areas defined by existing subdivisions, but instead
requires a review of a substantial part of the county.
We look forward to working with Deschutes County as it considers whether to submit a work
program for a project to correct mapping errors in its rural zones under HB 2229. We hope this
adequately answers your question, but we are available for further consultation if it does not.
Sincerely,
Rob Hallyburton
Community Services Division Manager
cc: Scott Edelman, Regional Representative
Jon Jinings, Community Services Specialist
Michael Morrissey, Rural Policy Analyst
