2023-60-Minutes for Meeting January 18,2023 Recorded 2/27/2023BOARD OF
COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541) 388-6570
Steve Dennison, County Clerk
Commissioners' Journal 02/27/2023 9:37:42 AM
Recorded in Deschutes County CJ2023-60
IIIIIIIIIIIIImiimmm
FOR RECORDING STAMP ONLY
BOCC MEETING MINUTES
9:a4 aM
WEDNESDAY January 18, 2023
games Saw,jer MGM
Live Streamed Video
Present were Commissioners Anthony DeBone, Patti Adair, and Phil Chang, Also present were Nick
Lelack, County Administrator; Dave Doyle, County Counsel; and Brenda Fritsvold, BOCC Executive
Assistant.
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 DeBone called the meeting to order at 9:00 a.m.
PLEDGE OF ALLEGIANCE
CITIZEN INPUT:
• Keith Harliss objected that two of the sites under consideration to locate a new
landfill are directly adjacent to 20+ year -old residential communities. He listed
documented adverse health risks from these facilities and said in addition to real
health hazards, landfills also pose substantial environmental concerns. He urged
that the Rickard Road and Bear Creek Road sites be removed from consideration.
Commissioner DeBone thanked Dr. Harliss for his engagement and noted this is a
significant issue to decide. He said only one site is needed for this 100-year landfill, and
the list of 12 potential sites will be narrowed to 3-5 in the next phase.
BOCC MEETING
JANUARY 18, 2023 PAGE 1 OF 7
Commissioner Chang expressed interest in the studies mentioned by Dr. Harliss, noting
that technology has advanced over the last 50 years and landfills are constructed
differently nowadays. Dr. Harliss emphasized that the studies are of sites containing non-
hazardous waste. He said even if minor, health hazards are real to those who experience
them.
Responding to Commissioner Adair, County Administrator Nick Lelack said all of the
comments being submitted on this subject are being gathered up and will be presented to
the Board in one packet.
Chair DeBone acknowledged the receipt of emails from:
• Janet White, opposing the Thornburgh Resort project;
• Eight persons supporting an update of the wildlife inventory; and
• Three persons supporting granting Tumalo specific representation on the Planning
Commission.
CONSENT AGENDA: Before the Board was Consideration of the Consent Agenda.
Commissioner Adair thanked Jim Morrell and acknowledged Carrie Novick and Wendie
Every regarding their service on and appointments to the Fair Board.
ADAIR: Move Board approval of Consent Agenda
CHANG: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
1. Consideration of Resolution No. 2023-002 increasing program appropriations
within the Campus Improvement Fund and Transfer Out appropriations within
the Adult Parole & Probation Fund, Health Services Fund, Veterans' Services Fund,
Information Technology Fund and the 2022-23 Deschutes County Budget
2. Consideration of Board Signature on letters of appointment, reappointment and
thanks for various Special Road Districts
3. Consideration of Board Signature on a letter reappointing Carrie Novick to the
Deschutes County Fair Board for a term commencing January 1, 2023 through
December 31, 2025
4. Consideration of Board Signature on a letter appointing Wendie Every to the
Deschutes County Fair Board for a term commencing January 1, 2023 through
December 31, 2025
BOCC MEETING JANUARY 18, 2023 PAGE 2 OF 7
5. Consideration of Board Signature on a letter thanking Jim Morell for serving on
the Fair Board
6. Consideration of Resolution No. 2023-005, as the governing body of the 9-1-1
Service District, transferring appropriations between Program Expense and
Transfers Out within the 9-1-1 Service District Fund and the 2022-23 Deschutes
County Budget
ACTION ITEMS:
7. 2023 Legislative Session Update
Doug Riggs from Northwest Policy Associates said a record number of bills are
expected to be introduced this legislative session on various topics such as
tolling, housing, homelessness, wildfire mapping, and behavioral and public
health, among many others.
Deputy County Administrator Whitney Hale shared that the Board's first
standalone legislative update of 2023 will be next Friday, January 27`h
Commissioner DeBone noted the County plans to ask the State for funding for
the planned courthouse expansion. Commissioner Adair asked that the total
square footage be verified and said some have suggested the County request
$25 million. Deputy County Administrator Whitney Hale said the square footage
is 58,300, although this may change slightly until the plans are finalized.
Commissioner Chang asked where any funds allocated would come from, and
who would be involved in processing the County's funding request. Riggs
explained that requests are made through appropriate legislators, then
forwarded to the Ways & Means Committee. He said much will depend on the
forthcoming revenue forecast which will be shared in May, and did not expect to
know the outcome of the County's request until late May/early June although the
legislature has demonstrated strong support for courthouse projects in the past
few sessions.
Commissioner Adair asked to know how much Clackamas County requested.
Hale said that request was $94.5 million.
Riggs stated that $25 million would be a reasonable request, especially as the
project will generate capital investment and job creation, and courthouse work
solves problems. He said these factors can be put together to make a fiscal case
for consideration by Ways & Means.
BOCC MEETING JANUARY 18, 2023 PAGE 3 OF 7
Commissioner DeBone suggested including a paragraph explaining that the
deputy district attorneys will gain a whole new floor for expansion of their office.
Commissioner Chang advised that the letter also compare Deschutes County's
growth with that of Clackamas County's to also position Deschutes County as a
growing area.
Commissioner DeBone said this project will implement a plan that has been in place
for many years. It will result in the build -out of an integrated campus and provide for
future growth in the way of one or two additional judges, as and when needed.
At 9:44 am, the Board moved to Other Items in advance of the public hearing
starting at 10 am.
OTHER ITEMS (continued on page 7):
• Commissioner DeBone noted the Board will hold the first part of its annual
retreat this afternoon, part of which will be spent on setting goals and
objectives for the year.
• Commissioner Chang reported that the recent meeting of the Cannabis
Advisory Panel included a presentation from Jessica Jacks regarding
prevention of substance abuse by youth as well as a discussion of how
cannabis tax revenue is being used and the possibility of directing resources
to juvenile justice to help curb long-term problems.
• Commissioner Chang spoke to a local government grant program to build
and operate parks and suggested that the County consider applying next
year for campgrounds to anchor a new park.
• Commissioner Adair reported on a well -attended event hosted by the
Chamber on missing middle housing by Nathan Wildfire and said KOR Land
Trust was also there.
• Commissioner DeBone met with Kyle Hensley and Amanda Roberts from the
Bureau of Land Management's Prineville District Office regarding dispersed
camping in the Redmond Airport's runway protection zone.
• Commissioner DeBone shared that the annual Point in Time count is next
Wednesday, and Redmond's community discussion on homelessness is
tomorrow night.
• County Administrator Nick Lelack conveyed a request to use the Justice
Building for a mock trial competition on Saturday, February 11 to
Commissioners DeBone and Chang favored granting the request.
At 9:55 am, a short break was announced.
Chair DeBone reconvened the meeting at 10:01 am.
BOCC MEETING JANUARY 18, 2023 PAGE 4 OF 7
8. Public Hearing on a request to change the Comprehensive Plan designation
of 59 acres in the 21400 block of Bear Creek Road from Agricultural to Rural
Residential Exception Area with a corresponding Zone change from
Exclusive Farm Use to Multiple Use Agricultural (Marken)
Audrey Stuart, Associate Planner, summarized the request and the procedure for
the public hearing.
Responding to a question from Commissioner DeBone, Stephanie Marshall,
Assistant Legal Counsel, said the Hearings Officer's issued a recommendation; it is
not a decision. Rather, the Board is the decision -making body and will decide
whether or not to accept the recommendation of the Hearings Officer.
Stuart reviewed the four options for proceeding after the conclusion of the public
hearing, as follows:
• 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.
Commissioner Chang appreciated staff providing a zoning and vicinity map that
shows the zoning of nearby properties.
The public hearing was opened at 10:15 am.
Liz Fancher, representing the applicant Harold Marken, said Marken has owned this
property for decades. Fancher described the property and the surrounding area and
said it is good long-term planning to classify this property as nonagricultural land.
She presented results of the soils test and explained why the property it is not
suitable for profitable grazing as well as why irrigation would not make it suitable for
farm use. The applicant believes this change would serve the public health, safety
and welfare and requests approval.
Rory Isbell from Central Oregon Landwatch communicated that organization's
opposition to the requested rezone. Isbell noted previous agricultural use of this
land, which was mostly irrigated back to 2005, and said the property used to have 36
acres of water rights until some of those were sold. He asked that the soils report be
carefully read as it demonstrates that most of the land contains soils between Class
I -VI, which is suitable for farming. He concluded that the courts have determined
profitability to be a minor consideration and said COLW believes this to be clearly
agricultural land protected by Goal 3.
BOCC MEETING JANUARY 18, 2023 PAGE 5 OF 7
Commissioner DeBone noted the court case cited by Isbell pertained to land in
Douglas County, which is on the west side of the mountains and thus experiences
far different conditions than land in Deschutes County.
Fancher provided the applicant's rebuttal to Isbell's remarks, saying that the
property is in fact extremely poor quality as documented in the soils report. She
explained how soils testing is done and said the property owner made extreme
efforts to turn a profit from farming but was unable to. She concluded that the
expert evidence in the record supports the rezone.
Responding to Commissioner Chang, Fancher said the property owner farmed the
land for about 40 years, stopping in 2016. Since 2018, water rights to all but nine
acres have been relinquished.
The public hearing was closed at 11:00 am.
Chair DeBone said the County will accept written comments on this matter until 4
pm on Wednesday, January 25th with a rebuttal until 4 pm on Wednesday, February
1st. Final argument from the applicant must be submitted by 4 pm on February 8th
The Board will take up final deliberations on March 1st
OTHER ITEMS (continued from page 5):
• Commissioner Chang noted the many requests for Comprehensive Plan
amendments and rezones coming forward, expressed concern about supporting
reasonable urban expansion for the City of Bend, and said the County should
coordinate with the City on changes being made to land within Bend's Urban
Growth Boundary. He was concerned with developing property in the UGB at a
lower density than may be wanted or needed later and suggested exploring the
formation of an Urban Reserve area.
County Administrator Nick Lelack offered to work with Bend City Manager Eric
King on these efforts. Commissioner DeBone commented that many people
want a home with some acreage, and he supported that these, too, be available.
• Commissioner DeBone announced the Board's annual retreat today and Friday.
• Commissioner DeBone shared a brochure for Core 3, a mufti -agency
coordination center and training facility to prepare for emergency responses to
natural disasters such as wildfire and flooding.
EXECUTIVE SESSION: None
ADJOURN:
BOCC MEETING JANUARY 18, 2023 PAGE 6 OF 7
Being no further items to come before the Board, the meeting was adjourned at 11:19 a.m.
DATED this v Day of
ATTEST:
RECORDING SECRETARY
2023 for the Deschutes County Board of Commissioners.
ANTHONY DEBONE, CHAIR
PATTI ADAIR,'1l10E CHAIR
PHIL CHANG, COMMISSIONER
BOCC MEETING JANUARY 18, 2023 PAGE 7 OF 7
Subject:
Name
Address
Phone #s
BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
Citizen Input or Testimony
(2.,;71-4
E-mail address
In Favor
4,/- 4--(qs 3 pi
Neutral/Undecided
;/
e:
Submitting written documents as part of testimony? )1 Yes
If so, please give a copy to the Recording Secretary for the record.
Opposed
No
SUBMIT COMPLETED REQUEST TO
RECORDING SECRETARY BEFORE MEETING BEGINS
January 18, 2023
Board of County Commissioners
Deschutes County
Commissioners,
My name is Dr. Keith Harless. I am a retired pulmonary disease specialist having
practiced in Bend for 35 years.
I am also a resident whose home is within a 1 mile radius of a proposed site for
the 100 year replacement of the Knott Landfill.
I wanted to speak to you today in follow up of my email letter to you on January
14th and I appreciate this time with you.
Excuse me if you believe my comments are premature because I do not.
Currently, the Solid Waste Advisory Committee, under your direction, is
evaluating 12 proposed sites within the county for the replacement landfill.
Notably, two of these sites, the Rickard Road and Bear Creek sites are directly
adjacent to established 20 year+ residential communities. Both are high on the
list to be the recommended new site.
I find this unconscionable.
There is a growing amount of medical literature documenting the adverse health
effects of persons living within a 1-3 mile distance from a landfill. These health
risks include various forms of cancer, most notably lung cancer. Respiratory
diseases (particularly in children) are also documented as well as other health
conditions. The documentation of these risks and concerns are published in
refereed reputable established medical journals.
In addition, there are substantial concerns about air, water, noise and light
pollution from such sites. Notably, the aquifer flows north from both these
proposed sites. Thus, any leak from the sites could potentially contaminate
domestic water in Bend, Redmond, Culver and Madras.
When the Knott Landfill was planned and developed in 1972, there was little out
in that area of SE Bend. On a lighter note, you may recall how far out the St
Charles Medical Center seemed to be when it was built in 1975. Oh my, Bend has
indeed grown.
How far out is not true of the two sites near Bear Creek Road and Rickard Road.
They are not way out there or unpopulated. Currently, within a one mile radius of
the Rickard Road site are 100+ homes and multiple domestic wells.
Accompanying this presentation print out is a map of the Rickard Road site and
the multiple adjacent home sites.
Additionally, as you are well aware, Bend and Deschutes County is growing. Bend
will largely grow to the east towards the proposed Bear Creek and Rickard Road
sites exposing more persons to the very real health hazards of a landfill.
I realize that the SWAC has not communicated to you because their work is not
finished and how much of the information I have shared with you are aware of, I
have no idea.
That said, it is true that the proposed Rickard Road and Bear Creek Road sites are
residential and have many homes within a one mile radius of the proposed sites.
It is true that both areas will grow as Bend and Deschutes County grows. It is true
that there are real health and environmental concerns surrounding landfills. It is
true that the SWAC will be spending a lot of money, resources and time to
evaluate further the proposed sites.
To consider placing a 100 year landfill adjacent to recognized growing residential
communities should be a non -starter.
You could save a significant amount of taxpayer's money and SWAC time to direct
them now to take out of consideration these two, or any, other residential
communities.
Thank you
Keith Harless, MD, FACP, FCCP
WARD RD
RICKARD RD
CONESTOGA HILLS
HOUSE
1-MILE RADIUS AROUND LANDFILLL SITE
IRRIGATION CANAL
ROADS
Angie Powers
From: Janet White <jlmwhite@bendbroadband.com>
Sent: Saturday, January 14, 2023 9:43 PM
To: citizeninput
Subject: Controversial. Thornburgh Resort
Some people who received this message don't often get email fron
[EXTERNAL EMAIL]
jlmwhite@bendbroadband,com. Learn why this is important
Why on God's green earth is this silly, unnecessary, time -wasting, and naturally destructive potential mess STILL being
given any attention or consideration ongoing since 2005? This is quite possibly one of the most ridiculous appeals l have
ever heard about in my 85 years! How many damned resorts for the wealthy do we need? There are plenty
enough. We have resources we need to take care of which negates any more of these.
Please shut this down once and for all!
Sincerely,
Janet. White
Redmond, OR
Angie Powers
From: ; mailagent@thesoftedge.com on behalf of mjdoden@bendcable.com
Sent: Wednesday, January 11, 2023.8:18 AM
To: citizeninput
Subject; We Need Updated Wildlife Inventory Maps
[Some people who received this message don't often get email from mjdoden@bendcable.com. Learn why this is.
important at https://aka.ms/LearnAboutSenderldentification]
[EXTERNAL EMAIL]
Dear Commissioners:
We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for
county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county.
Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development,
recreation, or other anthropomorphic causes: We will continue to create land use conflicts unless this new available
data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly
two years ago.
Mike Doden
18875 Ridgeline Dr
Bend, OR 97703
Angie Powers
From: rickmorgan82 <rickmorgan82@gmail.com>
Sent Wednesday, January 11, 2023 9:39 AM
To: citizeninput
Subject Wildlife Inventory
Some people who received this message don't often get>email from rickmorgan82@gmail.com Learn why this is important
[EXTERNAL EMAIL]
Please proceed with this wildlife inventory. We have already lost way to much habitat for the mule deer
especially:
Sent from my Verizon, Samsung. Galaxy smartphone
Angie Powers
From:
Sent:
To:
Cc:
Subject:
Attachments:
Weidner, Emily C <emily_weidner@fws.gov>
Wednesday, January 11, 2023 10:07 AM
Board; citizeninput
Peter Gutowsky; William Groves; BOWLES Jamie L ODFW; Monty Gregg; Ashton,
Lawrence W; steve.d.hagan@gmail.com; landavidisaacson@gmail.com,
Tristanjhenry@gmail.com; Karl@oregonpackworks.com
USFWS Comment for Wildlife Inventory
2023_0111 _DeshutesCountyCommission_Comment_FI NAL.pdf
Some people who received this message don't often get, email from emily_weidner@fws,gov. Learn -why this is important
[EXTERNAL EMAIL]
Hello. Board of County Commissioners,
In addition to our comment at today's (01/11/23) hearing, please see attached for a more detailed comment on
the proposed Goal 5 wildlife inventory update and its incorporation into the 22-23 Long Range Work Plan:
Please let us know if you have any questions and thank you for your consideration of our comment.
Emily Weidner
Emily Weidner 1 Fish & Wildlife Biologist
U.S. Fish & Wildlife Service- Bend Field Office
Bend, Oregon 97701
Direct: 541.312.6423 (Cel l 971.334.1822.
United States Department of the Interior
FISH AND WILDLIFE SERVICE
Bend Field Office
63095 Deschutes Market Road
Bend, Oregon 97701
In Reply Refer To:
TS# 23-97
January 11, 2023
Deschutes County
Board of County Commissioners
1300 NW Wall Street
Bend, Oregon 97701
Subject: Deschutes County Goal 5 Wildlife Inventory. Update —Comment
Dear Commissioners Adair, Chang, and DeBone:
Thank you for providing U.SFish and Wildlife Service's (Service) Bend Field Office the
opportunity to comment on Deschutes County's Goal 5 Wildlife Inventory update process. We
appreciate your consideration of our comments and concerns,
Deschutes County wildlife inventories were last updated in the early 1990s. In the more than
three decades since, wildlife habitat in Deschutes County has changed as a result of land use,
drought, fire, and various other factors. Wildlife movement and habitat use change, in part, as a
response to habitat modification. Additionally, numerous improvements in wildlife research and
data collection allow wildlife management agencies to better understand where wildlife persist
and how they utilize the landscape. The information currently in use no longer reflects the best
available data for wildlife habitat in Deschutes County, leading to inefficiencies in development
and potential harm to our local wildlife populations, We understand the complex nature of
updating the inventory and concerns related to this process and wanted to provide additional
information to inform this decision to ensure a sustainable future for Deschutes County.
Bald and Golden Eagles
Central Oregon is important habitat for bald and golden eagles. There are approximately 116
bald eagle and 108 golden eagle nest locations in Deschutes County. Although this value doesn't
represent the number of bald and golden eagles in the County' and is only the number of known
nests, it indicates that Central Oregon provides important habitat for these birds. Golden eagles,
in general, are declining throughout their range and we are increasingly concerned that habitat
alteration, land -use changes, increases in baseline human presence, and nest disturbance are
exacerbating those declines. Thus, we have different and project -specific guidance for activities
that might disturb golden eagles.
' Eagles often have more than one nest associated with their territory.
INTERIOR REGION 9
COLUMBIA-PACIFIC NORTHWEST
IDAHO, MONTANA*, OREGON*, WASHINGTON
"PARTIAL
Deschutes County - Board of County Commissioners
Goal 5 Wildlife Inventory Update
TS# 23-97
While bald and golden eagles are not currently listed as threatened or endangered under the
Endangered Species Act (ESA), they are sensitive species protected under the Bald and Golden
Eagle Protection Act (16 U.S.C. 668-668d) (BGEPA), which is also administered by the Service.
While the Bald and Golden Eagle Protection Act is not currently referenced in the existing
County Comprehensive Plan, its protections prohibit anyone without a permit from taking2 bald
or golden eagles, including their parts (including feathers), nests, or eggs.
After the bald eagle's delisting in 2007, the Service published National Bald Eagle Management
Guidelines3. These guidelines offer clear directions on how to avoid or minimize disturbing bald
eagles and under what circumstances the protective provisions of the BGEPA may apply to their
activities. While a useful tool for activities around, bald eagle nests, the provisions in the
management guidelines do not specifically address golden eagles, and golden eagles have.
fundamentally different behaviors and reactions to disturbance.
Almost all threats to golden eagles are attributable, directly or indirectly, to human activities.
Human -related threats include habitat modification (e.g., renewable energy, urban and exurban
development), recreation and other forms of disturbance, persecution, lead poisoning, rodenticide
poisoning, and collisions with man-made objects such as vehicles, wind turbines, and utility
poles. However, the most widespread and unintentional threat to golden eagles by humans is land
use change that results in habitat modification or fragmentation. Encroaching development has
made areas historically used by eagles unsuitable both in terms of habitat and prey availability
and increase baseline levels of disturbance. In addition to habitat conversion, high levels of
nesting failures have been attributed directly to disturbance such as increased tourism/recreation,
surface mining, wind and solar development, and human intrusion into a nesting area. When
disturbed by humans at the nest, adult golden eagles will leave their nest for extended periods of
time. The adult's absence from the nest can expose eggs or young to predation and the elements,
and increase times between feedings, which puts young at a disadvantage. These additive
stressors increase the probability that young golden eagles do not survive to reproduce.
Although we have a high level of coordination with Deschutes County staff, the data County
staff use to evaluate whether there is a bald or golden eagle present on a parcel under review is
significantly dated - it was last updated in the early 1990s. The Service is concerned that the
current development process could be authorizing people to build in an area that might require
Federal permitting. Finding or learning about an eagle territory late in the permitting process
tends to slow things down. Knowing where nests are ahead of time allows the Service, Deschutes
County, and the applicant to coordinate early to ensure the landowner is aware of the protected
species and can work with the Service to review/design the proposal in a manner that meets
2 The BGEPA defines "take" as "pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or
disturb." Regulations further define "disturb" as "to agitate or bother a bald or golden eagle to a degree that causes,
or is likely to cause, based on the best scientific information available, 1) injury to an eagle; 2) a decrease in its
productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior; or 3) nest
abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior" (50 CFR 22.6). In
addition to immediate impacts, this definition also covers effects that result from human -induced alterations initiated
around a previously used nest site during a time when eagles are not present, if, upon the eagle's return, such
alterations agitate or bother an eagle to a degree that interferes with or interrupts normal breeding, feeding, or
sheltering habits, and causes injury, death, or nest abandonment.
3 https://fws.gov/media/national-bald-eagle-management-guidelines
Page 2 of 4
Deschutes County - Board of County Commissioners
Goal 5 Wildlife Inventory Update
TS# 23-97
wildlife and development needs. It is important to note, identification of a bald or golden eagle
nest on a parcel is not intended to preclude development. Instead, it serves as a starting reference
point for activities around eagle nests, and we then assess each project on a case -by -case basis.
Our goal is to help inform a more deliberate development process, particularly in areas that are
currently undeveloped and/or have a low level of baseline disturbance.
Elk and Mule Deer
Though elk and mule deer are State -managed species, the Service funds and supports habitat
conservation related to these species. Secretarial Order 33624, Improving Habitat Quality in
Western Big -Game Winter Range and Migration. Corridors, focuses on conserving, enhancing,
restoring, and improving the condition of priority big game winter range and migration corridor
habitat. Most of Central Oregon is winter range for both species as well as a major mule deer
migratory corridor. Like golden eagles, mule deer are in decline throughout their range. Causes
of mule deer declines are a complex interaction of many factors, but development (rural,
exurban, and urban) that continues to accelerate habitat loss plays a disproportionate role.
Important foraging areas and migratory corridors are shrinking across elk and mule deer range as
sprawl on the fringes of cities, particularly in scenic rural areas, continues to further fragment
their habitat,
A substantial portion of the proposed wildlife inventory update includes lands managed by the
Bureau of Land Management and the U.S Forest Service. Where possible, both agencies
endeavor to improve the quality and quantity of winter and migratory corridor habitats.
However, habitat improvements and connectivity don't end at the public -private land interface
and have limited effectiveness in the absence of land -use planning and conservation strategies
across both public and private land.
Neither elk nor mule deer are listed under the Federal ESA. Typically, species are evaluated for
protection under the ESA when their numbers decline and/or their habitats are impacted to such
an extent that they cannot feed, breed, and/or provide shelter. Continued long-term declines and
habitat impacts to mule deer could trigger an ESA -listing decision. When a species is listed,
there are far more requirements for species and habitat protections than when they are not listed.
We encourage Deschutes County to do all that it can to help preclude the need to list mule deer
or any other native wildlife residing in the County.
Conclusion
Conservation and development are often presented as two separate issues, but they are not
mutually exclusive and updated wildlife inventories, do not equate to a land -use decision. Instead,
incorporating updated information into Deschutes County -level planning will improve decision
making and conservation, efforts. Integrating wildlife conservation with informed landscape
planning would result in a more efficient and streamlined process approach for development.
4 https://www.doi.gov/sites/doi.gov/files/uploads/so_3362_migration.pdf
Page 3 of 4
Deschutes County - Board of County Commissioners TS# 23-97
Goal 5 Wildlife Inventory Update
The Service understands that the current Comprehensive Plan covers Deschutes County from
2010 to 2030. However, given the current update related to demographic changes, the Service
strongly encourages the County include updated wildlife inventory data.
Accounting for the time since the last update and new information, we strongly encourage
Deschutes County to adopt the updated bald and golden eagle nest information we provided in
February of 2021 or coordinate with us further to find a mutually agreeable outcome.
Additionally, we concur with and strongly support Oregon Department of Fish and Wildlife's
and other conservation organization's5 concerns related to elk and mule deer. We urge Deschutes
County to continue coordination with wildlife management agencies and to incorporate updates
for elk and mule deer.
Thank you again for providing the Service an opportunity to comment on this process and for
your continued support in the conservation of wildlife in Central Oregon. If you have any
questions regarding this comment, please contact me or my staff, Emily Weidner at
emily_weidner@fws.gov.
Sincerely,
Digitally signed by BRIDGET
BRIDGET MORAN MORAN
Date: 2023.01.10.18:03:37-08'00'
Bridget Moran
Field Supervisor, Bend Field Office
5 Including but not limited to Backcountry Hunters and Anglers, Oregon Hunters Association, Theodore Roosevelt
Conservation Partnership.
Page 4 of 4
Angie Powers
From: Jon Nelson <jdnelson995@gmail.com>
Sent: Wednesday, January 11, 2023 10:32 AM
To: citizeninput
Subject: Wildlife Inventory Updates
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[EXTERNAL EMAIL]
Good morning,
I would like to strongly urge Deschutes. County Commissioners to move forward with
wildlife inventory updates as recommended by ODFW, USFWS, and the majority of people residing in
our area. Wildlife and wild places are a key component of what makes Deschutes County a desirable
place to live, and is in large part what drives home and land values, and our local economy. Decisions
are only as good as the information used to make them, and the only way to reasonably serve
your constituents is to gather the best and most recent information possible to help inform your
guidance of our counties growth and prosperity. Please move forward with the wildlife
inventory updates.
Sincerely,
Jon David Nelson
2312 NW 12th Street
Redmond, OR 97756
Angie Powers
From: Ben Shirley <bnshirley@gmail.com>
Sent Wednesday, January 11, 2023 10:49 AM
To: citizeninput
Subject: Deschutes County Wildlife Inventory Update - ArcGIS StoryMaps
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[EXTERNAL EMAIL]
Hello,
Please PROCEED with the project to update the maps showing wildlife movement of mule deer and eagles at the next
County Commissioners meeting. I believe it is very important to have timely data on this topic, given the rapid expansion
of human population and growth in Central Oregon recently,
Thanks,
Ben Shirley
17035 Milky Way
Bend, OR 97707
Angie Powers
From: mariespreston <mariespreston@yahoo.com>
Sent: Wednesday, January 11, 2023 2:20 PM
To: citizeninput
Subject: Postpone
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[EXTERNAL EMAIL]
Sent from Samsung tablet
Currently mule deer and elk migration information is outdated. Each year have seen the 30-40 elk herd move
through area on Vandervert Rd and Century Dr.
Angie Powers.
From: Dori Kite <dorikite@gmail.com>
Sent: Wednesday, January 11, 2023 4:54 PM
To: citizeninput
Subject: Wildlife Inventory Report
Some people who received this message don't often getemail from dorikite@gmail.com. Learn why this is important
[EXTERNAL EMAIL]
I say proceed with updating the wildlife inventory in Deschutes County.
Dori Kite
56244 Black Duck Rd, Bend; OR 97707
Dori Kite
From:
Sent:
To:
Subject:
[EXTERNAL EMAIL].
Hello
We missed the deadline; however, we needed time to access the feeling of our 1000+ donor/member base here
in Sisters.
Scott Penzarella <scott@sisterstrails.org>
Thursday, January 12, 2023 8:00 AM
citizeninput
Support wildlife inventory in DC
We have overwhelming support for supporting Wildlife inventory here in Sisters Country.
Best
Scott
Scott Penzarella
Executive Director
415.407.0793
Sisters Trails Alliance.
www.sisterstrails.org
Angie Powers
From: Tammy Harty <tammyharty@msn.com>
Sent Monday, January 9, 2023 11:01 PM
To: Tony DeBone; Patti Adair; Phil Chang; citizeninput
Subject: Public comments -Meeting 1-11-2023
Attachments: Public Comment Meeting Action 1-11-2023 Action Item 9 Work plan.pdf Public
comment. Agenda item 8 - 1-11-2022 Meeting.pdf
[EXTERNAL EMAIL]
Please see attached public comment on agenda items 8 and 9 for the meeting on 1-11-2023
Thanks for your consideration !!
Tammy Harty
541-815-0203
tammvharty@msn.com
1
January 9,2013
Public comment regarding
Action Item 8. Planning Commission Representation / Geographic Area
Dear County Commissioners,
The code is pretty clear that there is to be one representative member of the commission from each
geographic area (two from Bend) and ONE at large position. I would contend that the Board of
Commissioners erred when they appointed a second At Large position instead of the requisite Tumalo
position and that the Tumalo position is currently vacant. l would recommend declaring the Tumalo
position vacant and filling it as soon as possible, As to the "extra" At Large position, l see two options;
the first would be to recognize the mistake and allow that position to continue as a voting member until
it can be eliminated in June, or consider that current at large position to be an "ex-officio" non -voting
member until the correction can be made in June. The bottom line is that the Tumalo position is
currently vacant and should be filled immediately.
I also suggest the following edits to the Deschutes County Planning Commission 2.52.
2.52.020 Membership - Qualifications
A. The commission shall be composed of seven members, appointed by the Board of County
Commissioners, who (Add) reside within the County and outside the jurisdiction of any other municipal
Planning Commission:
B. No more than two members may be engaged in the same kind of occupation, business, trade or
profession, or be employees of anynon-profit, partnership, or corporation that engages principally in
buying, selling or developing of real estate for profit ( ADD) or is engaged in land use lobbying or
advocacy.
D. The membership of the commission shall, (REMOVE) as much as possible, be representative of the
various geographic areas of the county. This should generally consist of the following: One member from
the South County area of LaPine and Sunriver (Townships 19-22)two members from the Bend area
(Townships 17 and 18); one member from theTumalo area (Township 16, Ranges 11 or 12); one from
the Sisters area (Township 14 or 15, Ranges 9, 10, and 11); one from the Redmond area (Townships 14
or 15, Ranges 12 or 13); and one member at large. Failure to achieve such geographic representation
shall not affect the validity of any action taken by the Planning Commission. (Add) If no-one applies for a
specific geographic region after two attempts, an extra at large position may be filled for a single term.
Thanks for your consideration.
Sincerely,
Tammy Harty
Tumalo area resident and landowner
Angie Powers
From: Jim Dunn <jdunn115@gmail.com>
Sent: Tuesday, January 10, 2023 7:15 AM
To Tony DeBone; Patti Adair; Phil Chang; citizeninput
Subject: Tumalo Representation
Some people who received this message don't often get email from jdunn115@gmail.com. Learn why this is important
[EXTERNAL EMAIL]
As you are aware, Tumalo's 2040 Plan will be shaped in the coming months. The work that has already been
completed by the county echoes that of the 2030 plan, whereas the Tumalo residents wish to ..."Retain the
livability of Tumalo as =a rural small town .... "'
To assure the desires of the Tumalo community are met, I reiterate the overwhelming request from Tumalo
residents that the County Commissioners appoint a Tumalo Representative to the Planning Commission as
outlined in the county code. As we all have heard over the past few months, that this was possible and it is still
possible.
Thank you;
Jim Dunn
Angie, Powers
From: Jeannine Fraley <jeanninefraley@gmail.com>
Sent: Tuesday, January 10, 2023 11:24 AM
To: citizeninput
Subject: Tumalo planner
Attachments: Tumalo planner:pdf
[EXTERNAL EMAIL]
Public, input for1-11-23
Sent from my iPhone
January 10, 2023
Jeannie Fraley
64790 Bruce and
65465 Highway 20
Public, comment
Action Item 8
Planning Commission .Representation / Geographic Area
Dear County Commissioners,
Due to a family emergency I am unable to attend today. Please put this on the record.
The code clearly states that there is to be one representative member of the commission from
each geographic area (two from Bend) and ONE at large position.
It is unclear as to why a second At Large position was appointed. I was told that this part of the
code requiring representation for Tumalo was changed years ago. Today still with no proof of
such change. Deschutes County has been in continuous code violation.
The Tumalo position is currently vacant. I would recommend declaring the Tumalo position
vacant and filling it as soon as possible. As to the "extra" At Large position, I see two options;
the first would be to recognize the mistake and allow that position to continue as a voting
member until it can be eliminated in June, or consider that current at large position to be an
"ex-officio" non -voting member until the correction can be made in June. The bottom line is that
the Tumalo position is currently vacant and should be filled immediately.
approve of the idea to add two seats to the planning commission. This would allow for a
representative in both Tumalo and Terrebonne. Our population has more than quadrupled in the
last 50 years meaning we obviously need more representation in Deschutes County.
also suggest the following edits to the current code for the Deschutes County Planning
Commission 2.52.
2.52.020 Membership— Qualifications
A. The commission shall be composed of seven members, appointed by the Board of. County
Commissioners, who (Add reside within the County and outside the jurisdiction of any other
municipal Planning Commission.)
B. No more than two members may be engaged in the same kind of occupation, business, trade
or profession, or be employees of any non-profit, partnership, or corporation that engages
principally in buying, selling or developing of real estate for profit
(ADD - or is engaged in land use lobbying; or advocacy)
D, The membership of the commission shall, (REMOVE- as much as possible), be
representative of the various geographic areas of the county. This should generally consist of.
the following: One member from the South County area of LaPine and Sunriver (Townships
19-22); two members from the Bend area (Townships 17 and 18); one member from the Turnalo
area (Township 16, Ranges 11 or 12); one from the Sisters area (Township 14 or 15, Ranges 9,
10, and 11); one from the Redmond area (Townships 14 or 15, Ranges 12 or 13); and one
member at large. Failure to achieve such geographic representation shall not affect the validity
of any action taken by the Planning Commission. (Add- if no-one applies for a specific
geographic region after two attempts, an extra at large; position may be filled for a single `term.)
Thanks for your time,
Sincerely,
Jeannie Fraley
Tumalo area resident and landowner
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: January 18, 2023
SUBJECT: Consideration of Board Signature on letters of appointment, reappointment and
thanks for various Special Road Districts
RECOMMENDED MOTION:
Move approval of Board signature on the following:
• Letter appointing Donald "Ole" Olsen to the Cascade View Estates Special Road
District Board for a term commencing January 1, 2023 through December 31, 2025;
• Letter appointing Deanna Jolly to the Panoramic Access Special Road District Board
for a term commencing January 10, 2023 through December 31, 2023;
• Letter appointing Sheila Kelley to the Panoramic Access Special Road District Board
for a term commencing January 10, 2023 through December 31, 2025;
Letter reappointing Ellen Adams Lewisto the Sun Mou intain Ranches Special Roarl
• cc��ci reappointing iui �b Ellen � ��.vv�.� the �.�...,� �.....�� � Ranches �..., ...i......�.a� �......,
District Board fora term commending January 1, 2023 through December 31, 2025;
• Letter thanking Jim Becker for serving on the Panoramic Access Special Road District
Board.
BACKGROUND AND POLICY IMPLICATIONS:
N/A
BUDGET IMPACTS:
None.
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: January 18, 2023
SUBJECT: 2023 Legislative Session Update
BACKGROUND AND POLICY IMPLICATIONS:
NW Policy Advocates will provide an update on the 2023 legislative session and County
legislative priorities.
ATTENDANCE:
Doug Riggs, NW Policy Advocates (virtual)
Whitney Hale, Deputy County Administrator
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: January 18, 2023
SUBJECT: Public Hearing on a request to change the Comprehensive Plan designation of
two parcels in the 21400 block of Bear Creek Road from Agricultural to Rural
Residential Exception Area with a corresponding Zone change from Exclusive
Farm Use to Multiple Use Agricultural (Marken)
RECOMMENDED MOTION:
The Hearings Officer recommends approval of the requested Comprehensive Plan
designation changes and corresponding Zone changes.
BACKGROUND AND POLICY IMPLICATIONS:
The Board will conduct a public hearing to consider a request for a Comprehensive Plan
Amendment and Zone Change for approximately 59 acres to the east of Bend and south of
Highway 20.
BUDGET IMPACTS:
None
ATTENDANCE:
Audrey Stuart, Associate Planner
TES
COMMUNITY EVELOPMENT
MEMORANDUM
TO: Board of County Commissioners
FROM: Audrey Stuart, Associate Planner
DATE: January 9, 2023
SUBJECT: January 18th Public Hearing for Marken Plan Amendment and Zone Change
The Board of County Commissioners ("Board") is conducting a public hearing on January 18, 2023,
to consider a request for a Comprehensive Plan Amendment and Zone Change (file nos. 247-22-
000353-PA, 354-ZC) for two tax Tots totaling approximately 59 acres, to the east of Bend and south
of Highway 20. This will be the second of two required public hearings, the first required hearing
was held before a Hearings Officer on September 6, 2022.
I. BACKGROUND
The applicant and property owner, Harold Marken, is requesting a Comprehensive Plan
Amendment to re -designate the subject property from Agriculture to Rural Residential Exception
Area, and a Zoning Map Amendment to rezone the property from Exclusive Farm Use - Tumalo-
Redmond-Bend subzone (EFU-TRB) to Multiple Use Agricultural (MUA-10). The applicant argues that
the subject property does not meet the definition of "agricultural land" due to its poor soil quality,
and previous attempts to engage in farm use on the property were unsuccessful. For these reasons,
the applicant states a mistake was made when the property was originally zoned and MUA-10
zoning is more appropriate.
The applicant has provided a supplementary soil study that identifies non -high value (Class VII and
VIII) soils on a majority (61.2%) of the subject properties. Additionally, the applicant has provided a
traffic study, and findings within the burden of proof that demonstrate compliance with state and
local requirements and policies.
II. PUBLIC COMMENTS
Seven written comments were submitted in advance of the September 6, 2022, hearing before the
Hearings Officer; of these, five were in opposition to the applications, one was neutral, and one was
in support. Two members of the public testified in opposition to the applications at the public
hearing. During the subsequent open record period, one written comment was submitted by a
117 NW Lafayette Avenue, Bend, Oregon 97703 P.O. Box 6005, Bend, OR 97708-6005
(541) 388-6575 @cdd@deschutes.org www.deschutes.org/cd
surrounding property owner and additional materials were submitted by Central Oregon
LandWatch.
Comments in opposition to the applications expressed concerns regarding impacts to wildlife,
increased housing density, preservation of agricultural properties, loss of neighborhood character,
inconsistencies with local Code and state law, and efforts to put the subject property to farm use.
The one neutral written comment inquired about adding additional land to the subject applications.
The comment received in support of the applications addressed the minimal impacts to nearby
agriculture, and poor soil quality of both the subject property and surrounding area.
III. HEARINGS OFFICER RECOMMENDATION
The Deschutes County Hearings Officer held a public hearing on September 6, 2022. Two people,
not including the applicant's team, provided testimony during the public testimony portion of the
hearing.
On November 7, 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 27 2n 040(n\ the review of the proposed quasi-judicial Plan
the Hearings II ISJ Per DCC Section I c_.�..v-rv�, the review i...vv of the proposed �. �.n a..��+u...oi �uui�,�ui 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 following link:
https://www.deschutes.org/cd/page/247-22-000353-pa-a nd-247-22-000354-zc-ma rken-
comprehensive-plan-amendment-and-zone-change
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.
Enclosures: Area Map
Hearings Officer Recommendation
Page 2 of 2
247-22-000353-PA, 247-22-000354-ZC
HEARING OFFICER FINDINGS AND RECOMMENDATIONS
FILE NUMBERS:
HEARING:
SUBJECT PROPERTIES/
OWNER:
APPLICANT:
ATTORNEY
FOR APPLICANT:
TRANSPORTATION
ENGINEER:
REQUEST:
247-22-000353-PA, 354-ZC
September 6, 2022, 6:00 p.m.
Virtual (Zoom), and
In Person @ Barnes & Sawyer Rooms
Deschutes Services Center
1300 NW Wall Street
Bend, OR 97708
Property 1:
Mailing Name: HAROLD K MARKEN REV TRUST ETAL
Map and Tax Lot: 1812020000201
Account: 119057
Situs Address: 21495 BEAR CREEK RD, BEND, OR 97701
Property 2:
Mailing Name: HAROLD K MARKEN REV TRUST ETAL
Map and Tax Lot: 1812020000203
Account: 265281
Situs Address: 21493 BEAR CREEK RD, BEND, OR 97701
(Property 1 and 2 collectively referred to as the "Subject Property")
Harold Marken
Liz Fancher
2465 NW Sacagawea Lane
Bend, OR 97703
Joe Bessman, PE
Transight Consulting, LLC
The Applicant requested 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 requested a corresponding Zone Change to rezone the
STAFF CONTACT:
RECORD:
Subject Property from Exclusive Farm Use - Tumalo-Redmond-Bend
subzone ("EFU-TRB") to Multiple Use Agricultural ("MUA10").
Audrey Stuart, Associate Planner
Phone: 541-388-6679
Email: Audrey.Stuart@deschutes.org
Record items can be viewed and downloaded from:
https://www.deschutes.org/cd/page/247-22-000353-pa-a nd-247-22-
000354-zc-marken-comprehensive-plan-amendment-and-zone-
change
I. APPLICABLE CRITERIA
Title 18 of the Deschutes County Code, the County Zoning Ordinance:
Chapter 18.04, Title, Purpose, and Definitions
Chapter 18.16, Exclusive Farm Use Zones (EFU)
Chapter 18.32, Multiple Use Agricultural (MUA10).
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 diI iUf Iauoiii System i i 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. BASIC FINDINGS
LOT OF RECORD: Property 1 described above is a legal lot of record because it is Parcel 1 of Partition
Plat 2009-36. Property 2 described above is a legal lot of record because it is Parcel 2 of Partition
Plat 2009-36.
SITE DESCRIPTION: The Subject Property consists of two tax lots. Tax Lot 201 is 53.3 acres in size
and Tax Lot 203 is 5.74 acres in size. Both tax Tots contain frontage on Bear Creek Road to the north
and Modoc Lane to the south. Bear Creek Road is designated as a County -maintained Rural
Collector and Modoc Lane is designated as a privately -maintained Rural Local Road.
The grade of the Subject Property slopes up gently from the north to the southwest, with areas of
more pronounced slopes and rock outcrops. A significant portion of the Subject Property was
2
247-22-000353-PA, 354-ZC
previously cleared and used as pasture and to grow hay. A portion of the Subject Property was
previously irrigated. Vegetation on the Subject Property differs between areas that were previously
irrigated and areas that were retained as native vegetation, including juniper trees, sagebrush,
rabbit brush and bunch grasses. Vegetation in areas that were formerly irrigated consists of sparse
grasses.
Property 1 is developed with a dwelling and agricultural accessory structure, which are both located
in the southeast portion of the Subject Property. Property 2 is developed with a manufactured
home. Both residences take access from Bear Creek Road via a shared driveway that extends south
along the west boundary of Property 1.
The Subject Property has 9.49 acres of water rights with Central Oregon Irrigation District ("COID").
The Subject Property has previously been in farm use with Property 1 currently receiving special tax
assessment for farm use. The Applicant indicated that he intends to relinquish the farm tax status.
The submitted Burden of Proof includes the following background on the Subject Property's current
water rights:
"Given continued financial losses over approximately four decades, the applicant relinquished
most of his Central Oregon Irrigation District water rights so that they could be applied on
properties better suited for irrigated farm use. A part of the subject property is irrigated to
maintain a lawn for the Marken residence on TL 201. There is also an irrigation pond on this tax
lot."
The t portion of the Bend's Urban Growth Boundary ("UGB") is located approximately
1 I IC I ICdI CJl'.JVI IIVI I VI the City of Bend's � Urban i Growth i Boundary y � V ciu � i� located apNi vnn i ia�ciy
0.13 miles to the east of the Subject Property, to the north of Bear Creek Road. Two parcels located
to the north of the Subject Property, across Bear Creek Road, are pending a Comprehensive Plan
Amendment and Zone Change for inclusion in the City of Bend's UGB. These properties are
identified on Assessor's Map 17-12-35D, as Tax Lots 100 and 200. Assuming this UGB expansion
receives all final approvals, the Subject Property will only be separated from the UGB by 90 feet of
Bear Creek Road right-of-way. The south portion of the Subject Property is located approximately
0.25 miles from the City of Bend's UGB.
PROPOSAL: The Applicant requested 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 requested approval of a corresponding
Zoning Map Amendment to change the zoning of the Subject Property from Exclusive Farm Use
("EFU") to Multiple Use Agricultural ("MUA10"). The Applicant requested a Deschutes County plan and
zone change for the Subject Property because the Subject Property does not qualify as "agricultural
land" under Oregon Revised Statutes ("ORS") or Oregon Administrative Rules ("OAR") definitions. The
Applicant proposed that no exception to Statewide Planning Goal 3, Agricultural Land, is required
because the Subject Property is not 'Agricultural Land."
Submitted with the application was an Order 1 Soil Survey of the Subject Property, titled Site -Specific
Soil Survey of Property Located at 21493 and 21495 Bear Creek Road, also known as T18S, R12E, Section 2,
Tax Lots 203 and 201 (total of 59.04 acres), East of Bend in Deschutes County, Oregon (hereafter referred
3
247-22-000353-PA, 354-ZC
to as the "Applicant Soil Study") prepared by soil scientist Brian T. Rabe, CPSS, WWSS of Valley Science
and Engineering (hereafter collectively referred to as "RabeNalley"). The Applicant also submitted a
traffic analysis prepared by Transight Consulting, LLC titled Marken Property Rezone (hereafter referred
to as "Traffic Study"). Additionally, the Applicant submitted an application form, a burden of proof
statement ("Burden of Proof"), and other supplemental materials, all of which are included in the
record for the subject applications.
SOILS: The composition/characterization of the soils at the Subject Property is in dispute in this
case. Central Oregon LandWatch ("COLW") argued that the Subject Property soil
composition/characterization should be based upon the Natural Resources Conservation Service
("NRCS") maps of the area. Based upon the NRCS maps, the Subject Property contains two different
soil types as described below. The Subject Property, per the NCRS maps, contains 58C - Gosney-
Rock Outcrop-Deskamp complex, and 36A - Deskamp loamy sand. The 36A soil unit, per the NRCS
maps/descriptions, is defined as high -value soil by DCC 18.04 when it is irrigated. The 58C soils
complex is not defined as high -value farmland, regardless of irrigation. Using the NCRS maps, COLW
argued that the Subject Property is comprised of soils that do qualify as Agricultural Land'.
The Applicant Soil Study was prepared by Rabe/Valley. The purpose of the Applicant 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 Applicant Soil Study
determined the Subject Property contained approximately 61 percent Land Capability Class 7 and
8 non -irrigated soils, which was primarily observed as shallow, sandy Gosney soils and smaller rock
outcroppings. The Land Capability Class 6 soil identified by the Applicant Soil Study was entirely
classified
Deskamp oils VI.IILI1 step with th NRCS oils- nit The /'U.-.-.,.y and
(.IdJJIIICU as UCJKdIII'J soils, which Is consistent Il VVlll I the IVlVI.J �V11� unit map. The Gosney al IU
Deskamp soils are interspersed throughout the Subject Property in pockets that range in size from
6.9 acres to less than one acre. The rock outcroppings were primarily observed in the southeast
portion of the Subject Property. Based upon the Applicant Soil Study the Subject Property is
comprised of soils that do not qualify as Agricultural Land.
The NRCS soil map units identified on the Subject Property is described below.
36A, Deskamp loamy sand, 0 to 3 percent slopes: This soil complex is composed of 85 percent
Deskamp soil and similar inclusions, and 15 percent contrasting inclusions. The Deskamp soils
are somewhat excessively drained with a rapid over moderate permeability, and about 5 inches
of available water capacity. Major uses of this soil type are irrigated cropland and livestock
grazing. The agricultural capability rating for 36A soils are 3S when irrigated and 6S when not
irrigated. This soil is high -value when irrigated.
58C, Gosney-Rock Outcrop-Deskamp complex, 0 to 15 percent slopes: This soil type is comprised
of 50 percent Gosney soil and similar inclusions, 25 percent rock outcrop, 20 percent Deskamp
soil and similar inclusions, and 5 percent contrasting inclusions. Gosney soils are somewhat
excessively drained with rapid permeability. The available water capacity is about 1 inch.
Deskamp soils are somewhat excessively drained with rapid permeability. Available water
1 As defined in OAR 660-033-0020, 660-033-0030
4
247-22-000353-PA, 354-ZC
capacity is about 3 inches. The major use for this soil type is livestock grazing. The Gosney soils
have ratings of 7e when unirrigated, and 7e when irrigated. The rock outcrop has a rating of 8,
with or without irrigation. The Deskamp soils have ratings of 6e when unirrigated, and 4e when
irrigated. Approximately 3.7 percent of the subject properties is made up of this soil type, all
located within the northern parcel.
Further discussion regarding soils is found in the relevant findings below.
UTILITY SERVICES, PUBLIC SERVICES AND COUNTY ZONING AND COMPREHENSIVE PLAN
HISTORY: Applicant, in its Burden of Proof (pages 12 - 14), provided a summary of utility services,
public services and the county zoning and comprehensive plan history.
SURROUNDING LAND USES: The general surrounding area of the Subject Property is defined by
the City of Bend's UGB to the west and then a mix of residential and agricultural uses spreading out
to the east. The Subject Property is surrounded on three sides by lands zoned MUA10, including a
35.32-acre parcel located to the north of Bear Creek Road which is pending annexation into the City
of Bend for development with affordable housing. Other surrounding MUA10 properties are
developed with dwellings, and hobby farming primarily consisting of stables and fenced pastures.
The northwest corner of the Subject Property adjoins land zoned UAR10, which is developed with
dwellings and hobby farming consisting of irrigated fields. Adjoining properties to the west and
northwest are zoned EFU and located immediately between the Subject Property and the City of
Bend's UGB.
vim: ueiC F. .-4-h.. .-J..t-.;I.
1 I IC dUJdL I R. propel ueJ di e VI. uii iCu uCIUVV in 1 I111 a ICI uCwtu.
North: The property immediately north of the Subject Property (Tax Lots 100 and 200 on
Assessor's Map 17-12-35D) is zoned MUAIO and is pending an application for inclusion in the City of
Bend's UGB. In 2017, Deschutes County previously approved a Comprehensive Plan Amendment
from Agriculture to Rural Residential Exception Area and Zone Change from EFU to MUA10 through
file numbers 247-16-000317-ZC, 247-16-000318-PA for this property. The current application with
City of Bend (file number PLUGB20220115) is for a Comprehensive Plan designation change to
Residential Medium Density and a concurrent Zone Change to Urbanizable Area. If approved, the
Subject Property will be located across Bear Creek Road from the City of Bend UGB. To the northeast
of the Subject Property are three other MUA10 zoned parcels, two of which are developed with
single-family dwellings (Tax Lots 1601 and 1600 on Assessor's Map 17-12-35). Farther north are
properties zoned UAR10 (Urban Area Reserve) and EFU, none of which appear to be engaged in
farm use. Overall, surrounding properties to the north appear to be undeveloped or developed with
single-family dwellings.
West: Adjacent properties to the west of the Subject Property are all zoned EFU. Beyond that,
the City of Bend UGB is located 0.25 miles from the western boundary of the Subject Property. These
adjacent EFU parcels (Tax Lots 200, 1003, and 1001 on Assessor's Map 18-12-2) are 16.99 acres,
27.19, and 12.45 acres in size and all appear to contain some type of farm use. Tax Lot 1003 contains
pivot irrigation system and no structures, but was recently approved for a Lot of Record Dwelling
through Deschutes County file 247-21-000018-CU. Tax Lot 1001 contains a nonfarm dwelling
5
247-22-000353-PA, 354-ZC
approved through Deschutes County file CU-01-75 and Tax Lot 200 contains a 1969 dwelling that
predates the EFU Zone. The property northwest of the Subject Property is comprised of urban area
reserve and urban lands. One UAR10 property grows hay and the remainder of the UARIO lands are
either developed with single-family homes or vacant.
East: All properties due east of the Subject Property for a distance of one mile are zoned
MUA10 and developed with single-family dwellings. The Dobbin Acres subdivision is located to the
east of Ward Road, approximately 0.25 miles from the Subject Property. Lots within the Dobbin
Acres subdivision generally range in size from one to two acres. Surrounding MUA10 properties to
the east that are not within the Dobbin Acres subdivision range in size from approximately one acre
to 19.52 acres (Tax Lot 1312 on Assessor's Map 18-12-2) and are developed with single-family
dwellings in addition to small-scale hobby farming. Properties to the northeast of the Subject
Property primarily consist of large, undeveloped lots that are zoned MUA10 and EFU. These larger
properties do not appear to be in active farm use and contain two churches, a Pacific Power
substation, and two commercial -scale solar farms. The remainder of this area to the northeast
includes vacant, non -irrigated lands with the exception of a few small EFU-zoned properties north
of Highway 97 that have irrigated fields. These smaller, irrigated properties are almost one-half mile
away from the Subject Property and separated by Bear Creek Road, Highway 20, and large
undeveloped tracts.
South: Immediately south of the Subject Property are four MUA10-zoned parcels that are
approximately five acres each in size. Tax Lots 1102, 1105, 1104, and 1100 (Assessor's Map 18-12-2)
are each developed with a dwelling, residential and agricultural accessory structures, and irrigated
and � This �_.._�_��__� � farther i.., StevensRoad,
,.i
non -irrigated pasture. development pattern continues south to Stevens Road, and
properties to the east and west of Thunder Road are also approximately five acres each in size and
are developed with single-family dwellings, with several appearing to contain small-scale agriculture
uses. Tax Lot 1208 on Assessor's Map 18-12-2 is 36.65 acres in size and consists of undeveloped
land with native vegetation. This parcel is owned by Central Oregon Irrigation District and the
Central Oregon canal passes through this property and runs from southwest to northeast. The
majority of land to the south of the Subject Property is zoned MUA10; only two parcels located to
the south of the Subject Property and to the west of Ward Road are zoned EFU. These parcels, Tax
Lot 1005 and Tax Lot 1308 on Assessor's Map 18-12-2, are 3.34 and 39.18 acres in size, respectively.
Both parcels contain a dwelling, and Tax Lot 1308 is currently receiving special tax assessment for
farm use and appears to contain some pasture or hay production.
The Applicant, in its Burden of Proof (pages 8 - 12), provided a detailed inventory of nearby
properties setting forth the specific tax lot, size, physical improvements, tax status and comments
related to the use (I.e., "farm use") of each property.
PUBLIC AGENCY COMMENTS: The Planning Division mailed notice on May 12, 2022, to several
public agencies and received the following comments:
Deschutes County Senior Transportation Planner, Peter Russell, May 20, 2022, Comments
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247-22-000353-PA, 354-ZC
"I have reviewed the transmittal materials for 247-22-000353-PA/354-ZC to amend the
Comprehensive Plan designation of two abutting properties totaling approximately 59 acres from
Agriculture (AG) to Rural Residential Exception Area (RREA) and change the zoning for those same
properties from Exclusive Farm Use (EFU) to Multiple Use Agriculture (MUA-10). The properties are
located at 21493 and 21495 Bear Creek Rd., aka County Assessors Map 18-12-02, Tax Lots 203
and 18-12-02, Tax Lot 201, respectively. For reasons discussed below, staff finds more information
is needed to address the Transportation Planning Rule (TPR) and County code.
The applicant's traffic study dated April 22, 2022, is incomplete for two reasons. The TPR at Oregon
Administrative Rule (OAR) 660-012-0060 requires the demonstration of whether a plan
amendment/zone change will have a significant effect or not. To determine that, the traffic study
must include the operational analysis of the affected intersections pre -development and post -
development. The traffic study lacks this information and thus does not comply with the TPR.
Second, Deschutes County Code (DCC) 18.116.310(G)(4) requires zone changes to include a 20-
year analysis. DCC 18.116.310(G)(10) requires existing and future years levels of service (LOS),
average vehicle delay, and volume/capacity (V/C) ratios both with and without the project. (The
V/C ratios are only applicable if ODOT facilities are analyzed.) The TIA lacks this feature and thus
does not comply with County code. Further, the combination of the TPR and County code helps
identify whether the transportation system has adequate capacity to serve the plan
amendment/zone change or if the system is already overcapacity regardless of the proposed plan
amendment/zone change. By contrast, the applicant has submitted what is in essence a trip
generation memo.
The property ucce5.5e.5 Beur Green Road, a public road maintained by Deschutes Loudly and
functionally classified as a collector. The property has a driveway permit approved by Deschutes
County (#247-SW8923) and thus complies 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 comments, above, the Applicant made two subsequent revisions to their
traffic study. Updated traffic information was submitted on June 23, 2022, and June 29, 2022.
Deschutes County Senior Transportation Planner, Peter Russell, June 29, 2022, Comments
"I have reviewed the June 23, 2022, revised traffic analysis for 22-353-PA/354-ZC. While it is better,
it still does not provide the information requested in my original comments on April 22, which is
attached. Specifically, the revised traffic impact analysis still lacks any data on Level of Service
(LOS) of affected County roads pre- and post -plan amendment. Similarly, if there are affected
State highways, there is no pre- and post -plan amendment Volume to Capacity (V/C) ratios. The
traffic analysis needs to provide that information for the 20-year horizon year. A traffic analysis
has two major components: 1) the trip generation from the proposed use and 2) the current and
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247-22-000353-PA, 354-ZC
projected traffic volumes from the affected facilities. The combination of information from #1
and #2 then informs how the affected intersections perform now and in 20 years."
Deschutes County Senior Transportation Planner, Peter Russell, June 30, 2022, Comments
This is exactly what I needed. The information demonstrates the project complies with the
Transportation Planning Rule (TPR) and Deschutes County Code (DCC) 18.116.310. Appreciate the
fast response.
Central Oregon Irrigation District
"Please be advised that Central Oregon Irrigation District (COID) has reviewed the application
received on May 13, 2022 for the above referenced project located 21495 BEAR CREEK RD, BEND,
OR 97701/tax lot: 1812020000201 and 21493 BEAR CREEK RD, BEND, OR 97701/ tax lot:
1812020000203. 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 - Tumalo-Redmond-Bend subzone (EFU-TRB) to Multiple Use Agricultural
(MUA 10).
Tax lot 1812020000201 has 9.49 acres of mapped water rights appurtenant COID irrigation water.
COID has facilities (point of delivery) adjacent to the southern boundary of tax lot 1812020000201.
There appears to be a private irrigation ditch adjacent to the eastern boundary of tax lot
181zuzuuuUZUi.
Listed below are COIDs initial comments to the provided pre -application site plan. All development
affecting irrigation facilities shall be in accordance with COID's Development Handbook and/or as
otherwise approved by the District.
• Map and Tax lot: 1812020000201 has 9.49 acres of appurtenant COID irrigation water.
Historically there were 36.0 acres of irrigation appurtenant to this tax map. Since 2018,
26.51 acres of irrigation were voluntarily removed by the property owner. Prior to removal,
the 36.0 acres was under active irrigation and producing crop.
• Map and Tax lot: 1812020000203: There are no COID water rights appurtenant to this
parcel.
• Irrigation infrastructure and rights -of -way are required to be identified on all maps and
plans
• Any irrigation conveyance, District or private, which passes through the subject property
shall not be encroached upon without written permission from this office.
• No structures of any kind, including fence, are permitted within COID
property/easement/right of way without written permission from this office.
• Policies, standards and requirements set forth in the COID Developer Handbook must be
complied with.
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247-22-000353-PA, 354-ZC
Our comments are based on the information provided, which we understand to be preliminary
nature at this time. Our comments are subject to change and additional requirements may be
made as site planning progresses and additional information becomes available. Please provide
updated documents to COID for review as they become available."
The following agencies did not respond to the notice: Bend Fire Department, City of Bend Planning
Department, Oregon Department of Agriculture, Oregon Department of Land Conservation and
Development, Deschutes County Assessor, Deschutes County Building Division, Deschutes County
Road Department, and District 11 Watermaster.
PUBLIC COMMENTS: The Planning Division mailed notice of the application to all property owners
within 750 feet of the Subject Property on May 12, 2022. The Applicant also complied with the posted
notice requirements of Section 22.24.030(B) of Title 22. The Applicant submitted a Land Use Action
Sign Affidavit indicating the Applicant posted notice of the land use action on May 12, 2022.
Prior to the public hearing, four public comments were received into the record. Courtney Eastwood
("Eastwood") requested the application in this case be denied because approval would impact
wildlife and increase density in the general area. Julia and Justin Geraghty ("Geraghty") (May 23,
2022), as neighboring property owners, requested the application be denied. Drew Mills (May 23,
2022) also requested the application be denied. Kristy Sabo, on behalf of COLW (May 27, 2022),
indicated that COLW was reviewing the application but indicated that it appeared that all relevant
approval criteria were not met by the application.
At the September 6, 2022, hearing (the "Public Hearing") JoIeyne Brown ("Brown") and Geraghty
testified in opposition to the application's approval. Brown testified that she is concerned with how
an approval of the application would impact her adjacent property. In addition, Brown stated that
the Applicant had removed rocks on the Subject Property and that Applicant had grown hay for
many years. Brown stated that she believed the Subject Property could be successfully farmed with
the application of water (irrigation) and fertilizer. Geraghty questioned whether or not the Applicant
had made beneficial use of irrigation water within the last five years. Geraghty also questioned
whether the application in this case was attempting to circumnavigate urban growth boundary
rules.
COLW, through attorney Rory Isbell, submitted a document on the date of the hearing (September
6, 2022) setting forth its evidence/arguments related to the application. In summary, the 9/6/22
COLW submission argued that the application did not meet the Goal 3 agricultural land
requirements, did not meet the requirements of Goal 14 and did not satisfy the change/mistake
requirements of DCC 18.136.020(D). After the public hearing, and during the open -record period,
COLW submitted two additional documents into the record (September 13, 2022 and September
20, 2022). These two COLW documents expanded upon the COLW 9/6/22 submission arguments;
excepting that the 9/13/2022 submission also argued that the County had "previously rejected a
similar application."
Brown submitted a post -hearing document (September 11, 2022) indicating that she and her
husband had grown hay on their property suggesting that hay could be successfully grown on the
9
247-22-000353-PA, 354-ZC
Subject Property. Brown also (9/11/2022) expressed her belief that additional traffic that would
result if the application in this case is approved.
Tamara Sullivan Holcomb submitted a document (September 6, 2022) indicating she was neutral
related to approval/denial of this application in this case. 143 Investments LLC submitted a
document on September 2, 2022, indicating general support for approval of the application. The
143 Investments LLC document also indicated that it owns property adjacent to the Subject Property
and that the 143 Investment property has poor soil (rocky and unproductive) similar to the Subject
Property.
The Hearings Officer addressed relevant public comments in the findings below.
NOTICE REQUIREMENT: On August 9, 2022, the Planning Division mailed a Notice of Public Hearing
to all property owners within 750 feet of the Subject Property and public agencies. A Notice of Public
Hearing was published in the Bend Bulletin on Sunday, August 14, 2022. Notice of the first
evidentiary hearing was submitted to the Department of Land Conservation and Development on
July 26, 2022.
REVIEW PERIOD: According to Deschutes County Code 22.20.040(D), the review of the proposed
quasi-judicial plan amendment and zone change application is not subject to the 150-day review
period.
III. FINDINGS & CONCLUSIONS
Preliminary Findings:
Central Oregon LandWatch raised an issue that did not neatly fit into the relevant approval criteria
discussed below. The Hearings Officer addresses that issue in this Preliminary Findings section.
COLW's Argument: Similar Application Rejected.
COLW, in its 9/13/2022 record submission (page 2), stated the following:
"In 1980, a previous owner of the subject property applied to allow non farm uses, similar to what
is proposed in the current application, arguing that the property is not properly agricultural land.
The County squarely denied that application, finding that "[s]ome type of farming and/ or grazing
can [be] put to use on this property." Exhibit 1 (Deschutes County File No. TP-596). The application
in that file also included a soil study, which concluded that the property is predominantly Class I -
VI soils and suitable for farm use."
Applicant responded to COLW's similar application rejected argument (Final Argument, page 18) as
follows:
"COLW claims that a similar application was previously denied by the County. The application,
however, was not similar. It was an application that sought approval of the Moore View Acres
10
247-22-000353-PA, 354-ZC
subdivision. The subdivision proposed lot sizes smaller than allowed by the then -applicable EFU-
20 zoning district. As stated by Planning Director John Anderson, 'evidence regarding low soil
capability might justify a change to a non-EFU zone but would not permit residential subdivision
in a farm use district. x-** A zone change to a Multiple Use Agricultural Zone to be followed by a
conditional use for a cluster development would appear to be more productive for the applicant
and more consistent with the Plan.'
The finding quoted by COLW that 'some type of farming and/or grazing' may occur on the property
is correct but those activities are not 'farm use' as defined by ORS 215.203. COLW's claim that a
soils study concluded in 1980 that the Marken property is predominantly Class I -VI soils is correct
but the 'study' is not one of the quality and detail provided by Mr. Rabe.
No formal, scientific soils study was conducted. The applicant's engineer, William Tye, PE provided
soils information based on an aerial photograph, visual observations and the application of
general soils maps from three different sources (Deschutes Irrigation Project maps circa 1945,
1958 Soil Survey Deschutes Area based on 1945 mapping and Assessor's tax lot maps with soils
information. Mr. Tye was not a soils scientist and did not conduct an Order 1 soil survey. The
Supplemental Report provided by Mr. Tye says that he subject property 'has limited farm
capabilities and has been farmed very little due to location of the formable land use to rock
outcropping and Class VII type soils.'
COLW claims, without citing any specific document, that the soils study found that the subject
property was suitable for farm use. We have searched the materials filed by COLW and have been
unable tofind
any statement in a document that iig4t be considered a soil study that concludes
that the subject property is suitable for farm use."
The Hearings Officer concurs with Applicant's above -quoted comments. The Hearings Officer
reviewed the Moore Acres 1980 land use documents included in the record of this case. The
Hearings Officer notes (Applicant Rebuttal, 9/20/2022, Exhibit R-3) that County Staff indicated that
the Subject Property (at the time of Moore Acres land use decision) was "not in agricultural use."
(Staff Conclusion D.) The Moore Acres application was not a comprehensive plan or zone change
application; rather it was requesting a variance. The Hearings Officer also notes that the Moore
Acres application (see Burden of Proof, Applicant Rebuttal, 9/20/2022 Exhibit R-3) did not directly
and/or comprehensively address the applicability of Goal 3 or whether the Subject Property was
Goal 3 "agricultural land."
The Hearings Officer finds COLW's "similar application" argument to have little applicability or
relevance, if any, to this case.
Title 18 of the Deschutes County Code, County Zoning
Chapter 18.136, Amendments
Section 18.136.010, Amendments
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247-22-000353-PA, 354-ZC
DCC Title 18 may be amended as set forth in DCC 18.136. The procedures for text or
legislative map changes shall be as set forth in DCC 22.12. A request by a property owner
for a quasi-judicial map amendment shall be accomplished by filing an application on
forms provided by the Planning Department and shall be subject to applicable procedures
of DCC Title 22.
FINDING: The Applicant, also the property owner, requested a quasi-judicial plan amendment and
filed the applications for a plan amendment and zone change. The Applicant filed the required
Planning Division's land use application forms for the proposal. The application will be reviewed
utilizing the applicable procedures contained in Title 22 of the Deschutes County Code.
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 (Burden of Proof, pages 19 & 20) related
to this standard:
"The Plan's introductory statement explains that land use must comply with the statewide planning
system and
_� sets out the legal t.. _..___..._.'I" set L.., State 1.,.... summarizes
the ra...I-.....:.J., Planning
.�
and the iegai f amevvo k by /avv. it 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 utilized 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/recommendation. The Hearings Officer
agrees with the Applicant's Burden of Proof analysis. The Hearings Officer finds, as demonstrated
in subsequent findings, that this provision is met.
B. That the change in classification for the subject property is consistent with the
purpose and intent of the proposed zone classification.
FINDING: The Applicant provided the following response (Burden of Proof, pages 14 & 15) related
to this criterion:
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247-22-000353-PA, 354-ZC
"The approval of this application is consistent with the purpose of the MUA-10 zoning district which
[is] stated in DCC 18.32.010 as follows:
The purposes of the Multiple Use Agricultural Zone are to preserve the rural character of
various areas of the County while permitting development consistent with that character
and with the capacity of the natural resources of the area; to preserve and maintain
agricultural lands not suited to full-time commercial farming for diversified or part-time
agricultural uses; to conserve forest lands for forest uses; to conserve open spaces and
protect natural and scenic resources; to maintain and improve the quality of the air, water
and land resources of the county; to establish standards and procedures for the use of
those lands designated unsuitable for intense development by the Comprehensive Plan,
and to provide for an orderly and efficient transition from rural to urban land use.'
The approval of the application will allow the property to provide rural residential living on land
that is not suited to full-time commercial farming without eliminating part-time, non-commercial
agricultural use of the land. The large lot size of the MUA-10 zone and planned development rules
both help conserve open spaces and protect scenic resources. The location of the property near
the City of Bend will help maintain air quality by reducing vehicle trip lengths by future residents
of the property and provide an orderly and efficient transition from rural to urban land use."
The Hearings Officer concurs with the above -quoted Applicant comments. The Hearings Officer
finds the Applicant has demonstrated the change in classification is consistent with the purpose and
intent of the MUA1 0 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: Although there are no disclosed plans to develop the Subject Property, the above
criterion specifically asks if the proposed zone exchange will presently serve public health, safety,
and welfare. The Applicant provided the following response (Burden of Proof, page 20) related to
this criterion:
"Necessary public facilities and services are available to serve the subject property. Will -serve
letters from Pacific Power, Exhibit C and Avion Water Company, Exhibit D show that electric
power is available to serve the property.
The existing road network is adequate to serve the use. This has been confirmed by the
transportation system impact review conducted byJoe Bessman, PE of Transight Consulting, LLC,
Exhibit L of this application. The property receives police services from the Deschutes County
Sheriff The Marken property is within the boundaries of a rural fire protection district and is close
to the City of Bend."
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247-22-000353-PA, 354-ZC
Adjacent properties on all sides contain dwellings, with the exception of one property that has
received approval for a dwelling which has not been constructed yet. Neighboring properties are
served by wells, on -site sewage disposal systems, electrical service, and telephone service. No issues
have been identified in the record regarding service provision to the surrounding area.
The northwest corner of the Subject Property is located 0.13 miles from the City of Bend UGB. This
close proximity to urban development will allow for, in the future, efficient service provision. The
application materials include will -serve letters indicating electrical service and water service are
available to the Subject Property.
There are no known deficiencies in public services or facilities that would negatively impact public
health, safety, or welfare. Prior to development of the Subject Property, the Applicant would be
required to comply with the applicable requirements of the Deschutes County Code, including
possible land use permits, building permits, and sewage disposal permits processes. Assurance of
adequate public services and facilities will be verified in future land use permitting processes. The
Hearings Officer finds this provision is met.
2. The impacts on surrounding land use will be consistent with the specific goals
and policies contained within the Comprehensive Plan.
FINDING: The Applicant provided the following response (Burden of Proof, pages 20 & 21) related
to this criterion:
f _ I
"The application of MUA-10 zoning to the subject property is consistent with the specific goals and
policies in the comprehensive plan as shown by the discussion of non -resource land plan policies
above.
Four EFU-zoned properties lie between the City of Bend and the Marken property. These properties
will remain protected for farm use by the EFU zoning district as intended by the goals and policies
of the comprehensive plan, including Policy 2.2.1. None of the four properties is, however, engaged
in commercial farm use and they, also, appear to be good candidates to be rezoned MUA-10 and
designated RREA so that they are positioned to be considered for annexation into the City of Bend...
All other surrounding properties for a distance of .25 miles and more are zoned MUA- 10 and
developed with single-family homes on lots that are predominantly much smaller than 10 acres
in size. The rezoning of the Marken property will not have impacts that are inconsistent with any
specific comprehensive plan goal or policy."
In addition to these comments, the Applicant provided specific findings for each relevant
Comprehensive Plan goal and policy, which are addressed below the Burden of Proof (pages 15 -
20). These findings are included later in this recommendation in the Findings section titled: DIVISION
15, STATEWIDE PLANNING GOALS AND GUIDELINES, OAR 660-015, Division 15, Statewide Planning
Goals and Guidelines. The Hearings Officer incorporates the findings for DIVISION 15, STATEWIDE
PLANNING GOALS AND GUIDELINES, OAR 660-015, Division 15, Statewide Planning Goals and
Guidelines as additional findings for this criterion.
14
247-22-000353-PA, 354-ZC
The Hearings Officer finds Applicant's Comprehensive Plan goal/policy specific findings (Burden of
Proof, pages 15 - 20) are reasonable and appropriate, and constitute substantial evidence that this
criterion has been met. The Hearings Officer finds the Applicant demonstrated the impacts on
surrounding land use will be consistent with the specific goals and policies contained within the
Comprehensive Plan.
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 proposed to rezone the Subject Property from EFU to MUA10 and re-
designate the properties from Agriculture to Rural Residential Exception Area. COLW argued that
the Applicant had failed to provide substantial evidence in the record that this criterion had been
met. COLW (September 6, 2022, page 3) stated the following:
"There has been no change in circumstances since the property was last zoned. The soils and
agricultural suitability of the subject property have also not changed since it was planned and
zoned for agricultural use by the County. There has further been no mistake in the current EFU
zoning of the subject property. The County embarked on legislative efforts in both 2014 and 2019
to establish whether errors exist in its EFU zoning designations, but concluded both times that no
such errors exist. In 2015, the County consulted with Jon Andersen, who was a Senior Planner, and
later became the Community Development Department Director, when the County developed its
first comprehensive plan. Mr. Andersen confirmed that none of the County's agricultural land
designations were made in error. Exhibit 1 (January- 15, 2015 Deschutes County Community
Development Department notes from phone conversation with John Andersen). DLCD also
commented to the County at the time that it was 'unable to determine the nature and scope of the
mapping error' of agricultural land designations. Exhibit 2 (January 8, 2015 DLCD letter)."
The Hearings Officer notes that "DLCD" refers to the Oregon Department of Land Conservation and
Development. Applicant provided the following responsive comments to COLW's above -quoted
evidence and argument (Final Argument, 9/26/2022, pages 12 -14):
"There are numerous changes in circumstance that merit approval of a zone change and plan
amendment for the Marken property. Zoning the Marken property EFU in 1979/1980 was also a
mistake because its soils were far less productive than believed at the time. Additionally, zoning
Marginal Land believed to be unprofitable to farm was a mistake as shown by the Supreme Court's
Wetherell decision. The following are some of the many changes that have occurred since the
Marken property was zoned EFU and mistakes that support approval of the Markens' applications:
A. Since the time the property was zoned EFU, a large tract of land zoned EFU has been
rezoned MUA-10 (Porter Kelly Burns and Eastside Bend) and annexed to the City of Bend.
The residential development area of the Porter Kelly Burns property will be developed at
an urban density of 11 units per acre.
15
247-22-000353-PA, 354-ZC
B. In 2022, the COID property that adjoins the SE corner of the Marken property was
rezoned from EFU to MUA-10. Its plan designation was changed from Agriculture to RREA,
Rural Residential Exception Area.
C. The State of Oregon located a short distance due south of the Marken and COID
properties obtained County approval to rezone and redesignate 640 acres of land from
Agricultural Land and EFU to RREA and MUA-10 by ordinances approved in 2013 and
2018. The land rezoned in 2013 has been annexed to the City of Bend.
D. The adjoining 143 Investments, LLC property (TL 1003, Map 18-12-02) recently received
approval of a lot of record dwelling after demonstrating that approximately 86.5% of the
soils on that property are LCC VII (Gosney) and Vlll (Rock outcrop) nonagricultural soils.
NRCS mapping was mistaken in mapping the majority of the 143 Investments property
Class 36A, Deskamp loamy sand - the same soil the NRCS erred in mapping as being
found on more than 50% of the Marken property.
E. US Census data shows that the population of Deschutes County has increased by at least
336% since the time the County last zoned the Marken property.
F. The potential viability of farming has decreased since 1979/1980 when the Marken
property was zoned for farm use. Even when the plan was adopted, it was recognized
that farming the area that includes the Marken property was marginal and not likely to
produce a profit in money.
G. The Oregon Supreme Court decided the Wetherell case and struck LCDC's administrative
rule that defined 'farm use" as any agricultural activity that generates gross income.
H. The applicant obtained a more -detailed soils survey that shows that NRCS mapping was
in error. This is both a change of circumstances and an error that justify rezoning and
redesignating the Marken property.
COLW argues no that no mistake or change in circumstances exist to support approval of the
Marken applications. This argument is based on the following representation that is not correct
'The County embarked on legislative efforts in both 2014 and 2019 to establish whether
errors exist in its EFU zoning designations, but concluded both times that no such errors
exist.'
The County did not conclude that mapping errors do not exist and the legislative efforts were not
designed to establish whether error exist in its EFU zoning designations.
COLW offered two documents to support its erroneous assertions -notes of a phone conversation
with former CDD Director John Andersen ("Anderson Notes") and aJanuary 8, 2015 letter written
by Rob Hallyburton, Community Services Division Manager for DLCD (DLCD letter).
The Anderson Notes do not, however, "confirm that none of the County's agricultural land
designations were made in error" as is claimed by COLW. The Anderson Notes indicate only that
the County relied on what was the best available information available in 1979/1980 - historic soil
maps no longer in use that were general and incomplete and information regarding irrigated
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247-22-000353-PA, 354-ZC
lands provided by irrigation districts. The Anderson Notes do not say that the County mapping
efforts were conducted without error or that soils information was such that it was infallible. The
County's 1979 comprehensive plan's Resource Element explains that a "general soil study" was
completed in 1973 and that detailed mapping was done only for land north of Bend (not the
Marken property). The 1979 plan relied on this general information; not property specific Order 1
soils surveys. Exhibit PH-6. The very general nature of the soils mapping information relied on to
apply EFU zoning to the Marken property is evident on the Soils Associations map included in the
Resource Element, Exhibit PH-6.
Furthermore, as documented by our Post -Hearing Evidence, the County's 2014 and 2019 legislative
efforts were not undertaken to determine whether errors exist in its EFU zoning designation. In
fact, Deschutes County believed that it was not necessary for it to make such a determination.
Exhibit PH-12. The County's 2014 legislative effort was confined to 840 acres of the County. DLCD
questioned whether the County would be able to establish that an error in mapping had occurred
for the 840 acres but the claim that the County concluded no errors existed is not correct. The
2014 effort was paused by the Board of Commissioners in 2015 with a request for LCDC
rulemaking because DLCD and the County held differing views of whether HB 2229 is limited to
properties with mapping errors or may be applied more broadly to any resource property based
on changed circumstances. Exhibit PH-12, PH-7 (Applicant's PostHearing Evidence).
Likewise, the DLCD Letter says that the County's 2014 HB 2229 "re -acknowledgment" effort relates
to "several non-contiguous problem areas" - not to the entire County. The letter notes that it was
unable to determine the nature and scope of the mapping error the county intends to address in
rezoning"the areas the countyhas shared with the department" number of areas totaling
N (a� small �
840 acres). The DLCD Letter clearly does not support COLW's claim that no errors were made by
Deschutes County in mapping resource lands.
The County's 2019 legislative review revitalized efforts to rezone the 840 acres and to create a
zoning district to apply to non -resource lands. The County did not seek to determine whether
mapping errors exist in designating resource lands. See, Exhibits PH-3 and PH-6Considering the
Applicant's above response, staff requests the Hearings Officer make specific findings on this
issue."
The Hearings Officer finds the above -quoted Applicant's Final Argument comments, along with the
accompanying referenced exhibits, represent credible substantial evidence. The Hearings Officer
adopts the above -quoted Applicant comments as the Hearings Officer's findings for this criterion.
The Hearings Officer finds, based upon the Applicant's above -quoted comments, that there have
been changes in circumstances since the Subject Property was last zoned. Further, the Hearings
Officer finds, based upon the Applicant's above -quoted comments and the record as a whole, that
the NRCS soil classifications were imprecise (mistaken) and that the Applicant's site -specific soil
study accurately represents the correct soil classifications.
Deschutes County Comprehensive Plan
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Chapter 2, Resource Management
Section 2.2 Agricultural Lands
Goal 9, Preserve and maintain agricultural lands and the agricultural industry.
FINDING: COLW and Applicant disagree as to whether the Subject Property is Goal 3-defined
"Agricultural Land" (see, COLW's 9/6/2022, 9/13/2022 and 9/2022 record submissions and
Applicant's Burden of Proof plus Applicant's 9/6/2022, 9/20/2022 and 9/26/2022 record
submissions). The "Agricultural Land" issue is closely related to the Applicant and COLW
disagreement with respect to whether the Subject Property is "Non -resource Land." The
"Agricultural Land" issue is relevant to a number of approval criteria in this case. The Hearings
Officer, in these findings for Section 2.2 Agricultural Lands, Goal 1, provides general findings related
to the "Agricultural Land" issue.
The Hearings Officer finds that COLW most concisely set forth its "Agricultural Land" evidence and
arguments in its 9/6/2022 record submission. The Hearings Officer quotes the relevant COLW
comments below:
"The subject property is agricultural land and protected for exclusive farm use by statewide land
use planning Goal 3 because it is predominantly comprised of Class I -VI soils as determined by the
NRCS. Goal 3, OAR 660-033-0020(1)(a), DCC 18.040.030. According to the NRCS, the soils of the
subject property are predominantly Class 111 irrigated and Class VI unirrigated, as documented in
the application. Application at Exhibit A, Appendix A (NRCS Web Soil Survey).
It is also well documented in the application that the property has a long history of farm use, and
that the primary purpose of that use has been to obtain a profit. The application readily admits
that the applicants obtained the property in 1981 and since then 'grew hay and occasionally
raised cattle." The application explains that while the profit from those agricultural activities has
varied, the applicants made "efforts to make a profit in money by farming the property."
Application at 24. The purpose of those agricultural activities was to obtain a profit from raising
crops. The property is agricultural land because it has been in farm use for over 30 years.
Further, the County's definition of "agricultural use" specifically excludes considerations of profit.
DCC 18.04.030 ("Agricultural use' means any use of land, whether for profit or not, related to
raising, harvesting and selling crops(.]')
The property is additionally in farm use because it contains an impoundment of water. ORS
215.203(2)(b)(G).
The applicant's hired soil scientist's study is deficient for excluding "water" and "developed land"
from its analysis. Application Exhibit A Figure 4.
The soil study further finds that 29 of its observation sites found "conditions most closely matching
Deskamp soils" which are Class 111 irrigated and Class VI unirrigated; and finds that only 24 of its
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observation sites found "conditions mostly closely matching Gosney soils" which are Class VII.
Application ExhibitA at page 4. Despite this majority of the soil study's observations showing Class
111/VI soils, the soil study finds a majority of the property as Class Vll-Vlll. This conclusion cannot
be squared with the reported results of the 58 observation locations, which show a majority of
Class Ill/VI Deskamp soils.
The property currently has 9.49 acres of water rights. The application explains that it used to have
36 acres of water rights, but the applicant chose to sell the majority of those water rights.
Application at 26. That choice is now being used to argue that the property's limited water rights
detract from its suitability for agriculture. This applicant's own willful choice to reduce water
availability on the property should not now be considered as a reason the property's agricultural
land status. The applicant could buy back water rights just as readily as they sold them."
Applicant, through its Burden of Proof, hearing testimony of attorney Fancher, and its record
submissions, addressed each of the "Agricultural Land" issues raised above by COLW. Applicant also
provided a Subject Property site -specific soil study/survey (the "Applicant Soil Study") and
supplemental comments provided by RabeNalley. The Hearings Officer finds that Applicant's Final
Argument (September 26, 2022 submission), while lengthy, provides a credible and persuasive
analysis of the "Agricultural Land" issue. The Hearings Officer includes Applicant's Final Argument
"Agricultural Land" comments below:
"l. Central Oregon LandWatch's Claim that Marken Property is Goal 3 "Agricultural
Land" based on its NRCS Soils Mapping (COLW Letters of September 6, 2022 and
September zu, 2022)
Summary of Response: The text of Statewide Goal 3 allows counties to rely on soil surveys that
are more detailed than soil surveys prepared by the NRCS. ORS 215.211 allows property owners
to obtain and submit soil surveys to a county to determine whether land is "Agricultural Land."
DLCD reviews all such surveys. It requires that the surveys be prepared by soils classifiers and that
the NRCS (SCS) land capability classification system (LCC Classes I through VIII) be used in the
survey. This process provides an exception to LCDC's rule that says that soils classified LCC I -VI in
Eastern Oregon by the NRCS are agricultural land. DLCD's program and website recognize this fact.
Detailed Response: COLW repeats an argument that it has made without success before - that
the County must rely on NRCS soils mapping work to determine whether land is "Agricultural Land"
and that it must disregard the more -detailed soil survey results presented by DLCD approved soils
classifier, Brian Rabe. COLW's argument was presented and rejected by LUBA Page 2 - Applicant's
Final Argument (Marken) in Central Oregon LandWatch v. Deschutes County (Aceti), 74 Or LUBA
156 (2016). It was also presented and rejected in the Swisher plan amendment and zone change
application by the County's hearings officer and Board of Commissioners at pages 28-43 of Exhibit
E to Ordinance 2022-003 (decision filed 9/6/2022 by Liz Fancher). PH-10 and PH-11 (Applicant's
Post -Hearing Evidence).
In Aceti, COLW argued that the results of an Order 1 soil survey were not supported by substantial
evidence because the data in the Order 1 soil survey and the NRCS soil survey conflict. LUBA found
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that OAR 660-033-00030 allows the county to rely on more detailed data on soil capability than
provided by NRCS soil maps to define agricultural land provided the soils survey has been certified
for use by Deschutes County by DLCD. LUBA also noted that "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." The Order 1 survey prepared by Mr. Rabe for the Markens is a higher order survey
than the NRCS survey. This fact was confirmed by DLCD's review of the soil survey, Exhibit A
(Applicant's Burden of Proof). The Rabe soil survey was approved by DLCD for use by the County
to determine whether the Marken Property is 'Agricultural Land" as defined by Statewide Goal 3.
As a result, COLW's argument lacks merit.
The following is a step-by-step analysis of the applicable law. It shows that LUBA's decision is
correct and should be followed by Deschutes County:
1. Goal 3's definition of 'agricultural land' does not say that counties must rely on the soils
maps and ratings provided by NRCS soil surveys. Instead, it says that the determination of
whether land is agricultural land is based on the soil classes (1-Vlll) described in the Soil
Capability Classification System of the US Soil Conservation Service.
The following is the relevant part of the Goal 3 definition:
"Agricultural Land - *** in eastern Oregon is land predominantly Class 1, II, Ill, IV, V
and VI soils as identified in the Soil Capability Classification System of the United
States Soil Conservation Service ***"
The Soil Capability Classification System of the US Soil Conservation Service (now NRCS) is
the NRCS Land Capability Classification (LCC) system used to rate soils in classes from Class
I to VIII based on soil characteristics. It is described on page 187 of the Soil Survey of Upper
Deschutes River Area, Oregon (hereinafter "NRCS Soil Survey'). It is not an NRCS soil survey
or survey maps that show the approximate locations of soil mapping units based on the
NRCS's "landscape level" soils work. The NRCS mapping is less detailed than Mr. Rabe's
Order 1 soil survey.
2. Goal 3 specifically allows local governments to rely on more detailed soils data than
provided by the NRCS. It says:
'More detailed soil data to define agricultural land may be utilized by local
governments if such data permits achievement of this goal.'
The purpose of Goal 3 is to preserve agricultural land. It is not intended to preserve land
that does not meet the definition of "agricultural land."
3. LCDC administrative rule OAR 660-033-0020(1)(a)(A), Definitions, says that "agricultural
land" includes "lands classified (mapped) by the US Natural Resources Conservation
Service (NRCS) as predominantly *** Class I -VI soils in Eastern Oregon." The rule
broadens the definition of Agricultural Land provided by Statewide Goal 3 to rely on
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NRCS mapping. This is permissible, however, only if the rule is consistent with Goal 3.
Wetherell v. Douglas County, 342 Or 666, 160 P3d 614 (2007) (administrative rule that
conflicts with definition of Agricultural Land in Goal 3 is invalid). The rule is consistent
with Statewide Goal 3 only if it respects the plain language of the Goal and State law that
allows counties to rely on more detailed soils data to determine whether land is
"Agricultural Land" in lieu of the less accurate NRCS soils maps.
4. The Oregon Legislature adopted ORS 215.211(1) to regulate the more -detailed soil
surveys allowed by Goal 3. The statute also assures property owners the right to provide
local governments with more detailed soils information than provided by the NRCS's Web
Soil Survey to "assist a county to make a better determination of whether land qualifies
as agricultural land." ORS 215.211 requires that the soil scientists who conduct the more -
detailed assessment be soils classifiers who are certified in good standing with the Soil
Science Society of America and who have received approval from DLCD to conduct more -
detailed soil surveys. ORS 215.211 also requires that soils reports be reviewed and
approved for use by counties by DLCD. Mr. Marken obtained DLCD's permission to rely on
the Valley/Rabe soils study to address the question whether his property is "agricultural
land."
ORS 215.211(5) recognizes the fact that this "additional information" may be used "in the
determination of whether land qualifies as agricultural land" and explains that the soils
report information does not "otherwise affect the process by which a county determines
�� - -., �_.._ _i The ofam,__word "otherwise" makes:t
whether land qualifies as agricultural land. use the i
clear that more -detailed soils information does affect the process of determining whether
land is agricultural land.
5. LCDC's Goal 3 rules plainly state that property owners may rely on more detailed data to
define "agricultural land." The rules require that the more detailed data be related to the
NRCS land capability classification system (LCC) which places soils in LCC 1-VIII based on
their suitability for agricultural use. OAR 660-033-0030(5)(a) states:
'(5)(a) More detailed data on soil capability than is contained in the USDA Natural
Resources Conservation Service (NRCS) soil maps and soil surveys may be used to
define agricultural land. However, the more detailed soils data shall be related
to the NRCS land capability classification system.' (emphasis added by
Applicant)
The fact that this LCDC rule requires that the soils survey report results be based on the
NRCS soil classification system (LCC I through VIII) makes it clear that the classifications
determined by the survey are intended to be considered by counties when they determine
whether land is 'Agricultural Land."
6. Subsection (5)(b) of OAR 660-033-0030, Identifying Agricultural Land, says:
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'If a person concludes that more detailed soils information than that
contained in the Web Soil Survey operated by the NRCS, would assist a county
to make a better determination of whether land qualifies as agricultural land,
the person must request that the department arrange for an assessment of the
capability of the land by a professional soil classifier who is chosen by the person
using the process in OAR 660-033- 0045."(emphasis added by Applicant)
Mr. Marken followed the process in OAR 660-033-0045 to obtain permission to provide
the County with more detailed soils information about the subject property. He hired a
soil scientist certified by DLCD to conduct a more detailed soils study. The Order 1 soils
detailed study prepared by soils classifier Brian Rabe relates to the soil classification
system of the NRCS as required by OAR 660-033-0030(5)(a). Exhibit A, Burden of Proof.
The more -detailed Order 1 soil study prepared by soil classifier Brian Rabe was then
reviewed and approved for use by Deschutes County by DLCD for the purpose of
determining whether the Marken property "qualifies as agricultural land" protected by
Statewide Goal 3. Exhibit A, Burden of Proof.
7. LCDC rules explain that the more -detailed soils study may be used during the review of a
zone change and plan amendment application. OAR 660-033- 0030(5)(c)(A) says that its
soils study rules apply to:
'A change to the designation of a lot or parcel planned and zoned for exclusive
farm use to a non -resource plan designation and zone on the basis that such
land is not agricultural land.'
8. DLCD understands that the more detailed soils surveys allowed by Statewide Goal 3 and
ORS 197.211 may be used in lieu of NRCS soils surveys. On its website, DLCD explains:
'Soil mapping done by the USDA Natural Resources Conservation Service (NRCS) is
the most common tool used for identifying the types of soils in an area. The NRCS
provides a rating for each soil type that indicates how suited the soil is for
agriculture. ***
NRCS does not have the ability to map each parcel of land, so it looks to 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 Page 5 - Applicant's Final
Argument (Marken) 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' *** through a process administered by DLCD. This soils professional can
conduct an assessment that may result in a change of the allowable uses for the
property.'
Exhibit PH-2, pp. 1-2 (Applicant's Post -Hearing Comments).
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9. The NRCS states, in the Web Soil Survey report provided with the Rabe soils survey,
Exhibit A of the Burden of Proof (Appendix A), that:
'Although soil survey information can be used for general farm, local, and wider
area planning, onsite investigation is needed to supplement this information in
some cases. ** Great differences in soil properties can occur within short
distances.'
**
'The objective of mapping is not to delineate pure taxonomic classes but rather to
separate the landscape into landforms or landform segments that have similar
use and management requirements. The delineation of such segments on the
map provides sufficient information for the development of resource plans. If
intensive use of small areas is planned, however, onsite investigation is needed to
define and locate the soils and miscellaneous areas.' Page 13, Appendix A, Exhibit
A (Applicant's Burden of Proof).
In the Soil Survey of Upper Deschutes River Area, the NRCS explains on page 16 that the
average size of the delineations of soils for the typical higher -level survey (Order 2)
provided by NRCS maps is 40 acres and the smallest mapped delineation is five acres.
Exhibit PH-1. Mr. Rabe's Order 1 soil survey surveyed the entire Marken property in far
greater detail. DLCD's review of the Rabe soil survey confirms that the survey is an Order
1 survey and that it is more detailed than the NRCS soil survey. Exhibit A, Burden of
Proof, pdf page 2.
10. State law, including DLCD's rules and Goal 3, would not allow use of a more -detailed soils
survey based on the NRCS soil classification system if the soils classifications provided by
NRCS soils studies that utilize the same system at a less detailed less were intended to be
unassailable.
ll. COLW's Challenge to Expert Evidence Provided by Order 1 Soils Survey (COLW
Letters of September 6, 2022 and September 20, 2022)
Summary of Response: Brian Rabe's soil survey for the Marken property provides substantial
evidence upon which the county may rely on to determine whether the Marken property is
'Agricultural Land' as defined by Statewide Goal 3. It has been approved by DLCD for this
purpose. It is more -detailed than the NRCS soils survey and it utilizes the NRCS soil classification
system as required by OAR 660-033-0030(5)(a).
COLW's criticism of Mr. Rabe's professional and expert assessment of soils reflects a lack of
understanding of the fundamentals of the soil classification system. COLW's attempt to equate
the percentage of observation points documented in the soils report with the percentage of land
in each soil classification presents an illogical argument that is thoroughly disproven by the
detailed soils map provided with the Rabe study and the text of the Rabe report.
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Detailed Response: Mr. Rabe is an expert soil scientist and soils classifier. He has been qualified
by the Department of Land Conservation to conduct more detailed soils surveys for use by the
County in determining whether the Marken property is Statewide Goal 3 "Agricultural Land." Mr.
Isbell is a lawyer. He has no known expertise or training in soils science. His comments should be
considered in that light. Oregon Coast Alliance v. City of Brookings, 72 Or LUBA 222 (2015)(the
nature of certain issues may be such that some technical expertise is necessary to provide
substantial evidence to support required findings; attorney's opinion that stormwater runoff will
not adversely impact salmon is not substantial evidence).
Mr. Isbell claims that Mr. Rabe erred by "excluding" water and developed land from his soils
survey. Mr. Rabe did not, however, exclude water and developed land from his survey. Instead,
Mr. Rabe correctly classified these areas according to the NRCS land capability classification
system. This is what he is required to do by OAR 660-033-0030(5)(a), quoted in Section 1, Number
5, above.
The NRCS soil classification system classifies miscellaneous areas including ponds and urban/
developed land Class Vill and this is the classification applied by Mr. Rabe. Mr Rabe explained in
his post -hearing comments, Exhibit PH-8 (Applicant's Post -Hearing Evidence):
'Miscellaneous areas are addressed in the Soil Survey Manual (USDA/NRCS Soil Survey
Staff, 1993). "Miscellaneous areas have essentially no soil and support little or no
vegetation ... Map units are designed to accommodate miscellaneous areas, and most
map units named for miscellaneous areas have inclusions of son. Specifically listed and
defined miscellaneous areas include "Urban land (identified as Developed Land in my
report) is land mostly covered by streets, parking lots, buildings, and other structures of
urban areas." The roadways on this property are mostly paved and, together with the
structures and other developed elements, meet the definition of this miscellaneous area.
Another applicable miscellaneous area is water. "Water includes streams, lakes, ponds,
and estuaries that in most years are covered with water at least during the period warm
enough for plants to grow ..." Rock outcrop is another miscellaneous area. All
miscellaneous areas are considered Class VIII.
The areas identified and delineated as Water and Developed Land in the sitespecific soil
survey are consistent with the definitions in the Soil Survey Manual. Even if, for the sake
of argument, the acreage represented by these two map units were excluded from the
analysis, the property would still predominantly consist of Class VII and Vlll soils. The
Water and Developed Page 7 - Applicant's Final Argument (Marken) Land represent 5.19
acres, or 8.67% of the property. Gosney and Rock outcrop represent 52.51% of the
remaining acreage.'
Mr. Isbell's September 6, 2022 letter then makes the illogical claim that the Rabe soil survey
cannot be correct because more of the observation sites listed in the survey reported Class 111 or
VI soils than reported Class VII and Vlll soils. Mr. Rabe responded:
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'The analysis by Central Oregon Land Watch misrepresents what was presented in the soil
report. "Conditions most closely matching Gosney soils were observed at 24 grid
locations and at least 21 additional locations along boundaries between grid points. "1
The additional locations were used to refine the boundary conditions between differing
grid points (e.g. between 36 and 53, 39 and 42, 43 and 44, etc.). Although the additional
locations were not shown on the map or tabulated, they were identified and noted
nonetheless. In addition, there are 55 spot symbols (R) for Rock outcrops too small to
delineate. The number of observation points identifying Class VII and Class VII conditions
were more than 3 times the number of observation points identifying Class VI conditions
and fully support the delineated boundaries and associated acreages.
Gosney is only given a better rating for irrigation when mapped as a minor component in
a complex, such as with Deskamp (Map Unit 38B, Deskamp-Gosney complex, 0 to 8%
slopes). In this example, the incidental production from the Gosney acreage is expected
to be only 1/3 to % that of the Deskamp. That equates to 1/3 to % the gross revenue but
with the same expenses for fertilizer, water, power, equipment, and labor. When mapped
alone or as the major component of a complex, Gosney is not rated when irrigated.
Irrigation of Gosney soils would not change the NRCS rating of this soil and irrigation is
an inefficient and inappropriate use of a scarce resource.'
On September 20, 2022, Mr. Isbell responded to Mr. Rabe's comments by claiming that the table
of test hole location in the Marken soils survey is "the only substantial evidence in the soil
scientist report." This claim is not correct. The soils survey sets out Mr. Rabe's expert opinion
about the son types found on the Marken property and the land capability classifications for
each soil found. Mr. Rabe's determinations are based on all information gathered during his
survey of the Marken property. The results of the survey are reported on a Site Specific Soils Map
that delineates the areas of land of each identified soil type. This map is Figure 4 of Exhibit A of
the Applicant's Burden of Proof.
The NRCS reports soil mapping units using a similar but less detailed map than provided by Mr.
Rabe. The NRCS soils survey (included in Rabe report) provides no observation point information
whatever. Despite the complete lack of observation point information, COLW argues that the
information presented by the NRCS map is reliable and that Mr. Rabe's map is not substantial
evidence. It only follows that if the NRCS map is substantial evidence of the information it
provides, the same must be true for the more -detailed Rabe soils survey map. It, together with
the rest of the Rabe soil survey document, is substantial evidence upon which to find that 61.2%
of the subject property is comprised of Class VII and VIII soils classified according to the NRCS
soil classification system.
Ill. COLW Argument that the Marken Pond is a Farm Use
COLW argues that the Marken pond is a farm use due to the provisions of ORS 215.203(2)(b)(G).
This argument is not correct as applied to the Marken property. Furthermore, even if it were
correct, this argument has no bearing on the results of the Rabe soils survey which must be
based on the NRCS land capability classification system.
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No agriculture use has been occurring on the Marken property for many years. The use of the
property is residential. Ponds are in 'farm use" only when "lying in or adjacent to and in
common ownership with farm use land." Farm use is defined in ORS 215.203(1) as 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 and similar activities not occurring on the Marken property. As explained further
below, the Markens have never engaged in 'farm use." They have never believed they would
make a profit in money by using their land for agricultural purposes. They hoped they would
break even but ended up losing money.
IV. COLW re County Definition of Agricultural Use'
The County Code definition of the term "Agriculture Use" is not relevant to a resolution of the
issues presented by this application. The issue presented is whether the Marken property is
"Agricultural Land" as defined by Statewide Goal 3; not whether the property is suitable for
"agricultural use" as the term is defined by the County. Goal 3 asks whether the Marken property
is suitable for 'farm use" as defined by ORS 215.203(1) - a use conducted with an intention of
making a profit in money.
V. Repurchase of Water Rights
The applicant is not arguing that the limited water rights appurtenant to the Marken property
detract from its suitability: or farm use. instead, as explained in the Rabe sons survey and post -
hearing comments, irrigating Class VII and VIII soils will not increase their soil classification and
will not make them suitable for farm use. In this case, irrigating more of the property would be a
waste of water that is a precious resource in the Deschutes Basin.
VI. COLW's Claim of Long History of Farm Use (September 6, 2022 Letter)
COLW's claim that the Markens' evidence shows that primary purpose of engaging in agricultural
activities was to obtain a profit. This claim is, however, erroneous. The burden of proof does not
say, as COLW alleges, that "profit has varied." Instead, it says that unsuccessful efforts were
made to make a profit in money by farming the property. This statement was made by the
Markens' attorney based on an unwitting and erroneous assumption.
In discussing this specific issue with Mr. Marken, the applicant's attorney learned that the
Markens purchased their property hoping to break even on their agricultural activities. They
purchased the subject property but did not expect to make a profit. Given the poor soil
conditions of the property and the fact that the property was considered marginal farmland by
the County's 1979 comprehensive plan, the Markens hope to break even was overly optimistic -
hope that quickly evaporated due to an unbroken string of farm losses.
Any reasonable farmer would, like the Markens, consider it unlikely that they would make a
profit farming the Marken property due to its extremely poor soils, high cost of inputs and
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247-22-000353-PA, 354-ZC
extensive amount of rock existing on the property when purchased (rocks have been removed
from some areas of the property but it remains unsuitable for 'farm use). The County's 1979
comprehensive plan (see Exhibit R-3, Applicant's Rebuttal) classified the subject property
Marginal Farm Land which it describes as "land [that] will support agricultural production only if
subsidized to some extent." In other words, it is land that is not suitable for 'farm use' as defined
by ORS 215.213(1), the Supreme Court's Wetherell decision and Statewide Goal 3.
The 1979 Deschutes County Comprehensive Plan's Resource Element (Exhibit PH-6) noted that
many farmers could only hope to make a profit when selling their property. This situation has
not improved over time. The 2017 Census of Agriculture shows that 83.96% of farm operators
report significant farm losses that average $12,866 per year per farm and that a similar
situation existed in 2012. This issue is discussed further in Section IX, below.
The Markens' experience is mirrored by that of their former neighbor[s], Dick Springer. The
Springer family, until recently, owned the 143 Investments, LLC property (TL 1003, Map 18-12-
02) that adjoins the west boundary of the Marken property for decades. Mr. Springer explained
in comments filed with Deschutes County that Tax Lot 1003 "is too rocky to farm and too small
for major, profitable grazing,""barren, rock bound" and "anything but farmland."According to
Mr. Springer, due to zone changes "(w]e have become an island with Harold Marken directly to
the east of us, between/among the City/UGB and County five acre parcels." Mr. Springer
explained that his family typically lost $8,000 to $10,000 per year to obtain gross farm income of
$3,000. His effort to grow grass hay resulted in a loss of $35,000 over a period of two years
despite Mr. Springer's reliance on expert advice and his installation of an irrigation pivot system.
The prior owner of the property; 6m Tye, also attempted to farm the property and gave up due to
the rocky soil conditions. Exhibit PH-6, Applicant's Post -Hearing Evidence"
The Hearings Officer, after considering the COLW and Applicant evidence and arguments, addresses
COLW's specific "Agricultural Land" arguments in the following findings.
COLW ARGUMENT: NCRS soil mapping designations (COLW 9/6/2022
submission - page 1)
The Hearings Officer finds that the essence of this COLW argument is whether or not the NRCS soil
mapping designations constitute the only or the persuasive authority when determining, for Oregon
land use planning purposes, the soil classifications of a discrete parcel of real property (such as the
Subject Property). The Hearings Officer finds Applicant's above -quoted discussion related to NCRS
mapping and site -specific soils study mapping accurately reflects Oregon law. The Hearings Officer
finds that the clear and unequivocal language of Goal 3 and OAR 660-033-0030(5) allows Deschutes
County and the Applicant to use more detailed soil capability studies, than the NCRS, to determine
if a specific parcel/property is "Agricultural Land." (See also, Wetherell v. Douglas County, 342 Or 666
(2007) and Central Oregon Landwatch v. Deschutes County (Aceti) (2016)).
Applicant employed Rabe/Valley to conduct a site -specific soil study/survey of the Subject Property
(the "Applicant Soil Study" - Burden of Proof, Exhibit A). Based upon the review of the record, the
Hearings Officer finds RabeNalley is a currently certified soil classifier and recognized as such by
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DLCD (Burden of Proof, Exhibit A - DLCD Soil Assessment Completeness Review). The Hearings
Officer finds that DLCD reviewed the Applicant Soil Study and found that it met all OAR 660-033-
0030 requirements (Burden of Proof, Exhibit A). The Hearings Officer finds that the Applicant Soil
Study utilized the required NCRS land capability system ("LCC"). The Hearings Officer finds that the
Applicant Soil Study is a more detailed site -specific analysis of the soil conditions and classifications
at the Subject Property than the NRCS soil survey. The Hearings Officer finds the County may rely
upon the detailed site -specific Applicant Soil Study in determining whether or not the Subject
Property is "Agricultural Land."
COLW ARGUMENTS: History of Farm Use & Impoundment of Water
(COLW 9/6/2022 submission, pages 1 and 2)
COLW, in its 9/6/2022 submission, stated the following:
"It is also well documented in the application that the property has a long history of farm use, and
that the primary purpose of that use has been to obtain a profit. The application readily admits
that the applicants obtained the property in 1981 and since then "grew hay and occasionally
raised cattle." The application explains that while the profit from those agricultural activities has
varied, the applicants made "efforts to make a profit in money by farming the property."
Application at 24. The purpose of those agricultural activities was to obtain a profit from raising
crops. The property is agricultural land because it has been in farm use for over 30 years."
The Hearings Officer finds COLW did not reference any legal authority that would empower the
f __ 1. _I_ the I_:__�1"1.__.__._� "Agricultural
..__1Land" the 1_ basis that .a. 1___
Hearings Officer to conclude Subject Property is Agr icultural on sole it has
a long history of "farm use." The Hearings Officer finds that COLW's historical use argument could
possibly be relevant to the COLW "primary purpose is profit" or Goal 3; OAR 660-033-0020(1)(b)
arguments. The Hearings Officer discusses those arguments in findings below.
The Hearings Officer takes notice of the ORS 215.203 (2)(a) definition of "farm use" which, in part,
states the following:
"As used in this section, 'farm use' means the current employment of land for the primary
purpose of obtaining a profit in money by...harvesting and selling crops..." (bolding emphasis
added by the Hearings Officer)
The Hearings Officer finds that "farm use," as defined by ORS 215.203(2)(a), means the current
employment of land not the historical employment of land. "Current employment" is defined in
ORS 215.203(2)(b) by a listing of very specific activities (or, non -activities). The Hearings Officer finds
that COLW did argue that the Subject Property is being used for a specific activity that meets the
current employment of land requirement of ORS 215.203(2)(a). Specifically, COLW argued that the
existence of a water impoundment on the Subject Property is a ORS 215.203(2)(b)(G) current use of
Iand.2
2 COLW, in its 9/6/2022 submission, made the following statement: "The property is additionally in farm use because it
contains an impoundment of water. ORS 215.203(2)(b)(G)."
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Applicant responded with the following comments related to COLW's ORS 215.203(2)(b)(G) water
impoundment argument as follows:
"COLW argues that the Marken pond is a farm use due to the provisions of ORS 215.203(2)(b)(G).
This argument is not correct as applied to the Marken property. Furthermore, even if it were
correct, this argument has no bearing on the results of the Rabe soils survey which must be
based on the NRCS land capability classification system.
No agriculture use has been occurring on the Marken property for many years. The use of the
property is residential. Ponds are in 'farm use" only when "lying in or adjacent to and in
common ownership with farm use land." Farm use is defined in ORS 215.203(1) as 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 and similar activities not occurring on the Marken property. As explained further
below, the Markens have never engaged in 'farm use." They have never believed they would
make a profit in money by using their land for agricultural purposes. They hoped they would
break even but ended up losing money."
The Hearings Officer concurs with Applicant's above -quoted comments and incorporates them as
findings for this COLW Argument. In addition, the Hearings Officer finds that the plain language of
ORS 215.203(2)(b)(G) refutes the COLW "water impoundment" argument. ORS 215.203(2)(b)(G) says
that "current employment" of land for farm use includes:
'Water impoundments lying in or adjacent to and in common ownership with farm use land."
The Hearings Officer finds that Applicant does not dispute there is a pond on the Subject Property
and does not dispute that the pond is a water impoundment as described in ORS 215(2)(b)(G). The
Hearings Officer finds the Subject Property is not "farm use" land, per ORS 215.203 (2)(a), because
the Subject Property is not currently being employed for the primary purpose of obtaining a profit
from engaging in farm related activities. The Hearings Officer incorporates, as additional findings
for this COLW argument, the findings for COLW Argument: Primary Purpose is Profit. The Hearings
Officer finds that that the Subject Property water impoundment (pond) does not lay in or adjacent
to and in common ownership with "farm use" land. The Hearings Officer finds that the COLW water
impoundment argument is not persuasive.
The Hearings Officer finds COLW's only reference to the pond (water impoundment) and ORS
215.203(2)(b)(G) is the quoted statement above (COLW, 9/6/2022, page 2 - see footnote 2 above).
Therefore, as alternative findings, the Hearings Officer notes that COLW did not provide the
Hearings Officer, Applicant or any participant in this case even a basic analysis of ORS
215.203(2)(b)(G) in the context of the Subject Property. Therefore, the Hearings Officer finds that
COLW failed to present any persuasive legal support for its Impoundment of Water (ORS
215(2)(b)(G)) argument. The Hearings Officer finds that COLW's Impoundment of Water argument
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was not sufficiently developed and supported to allow the Hearings Officer to authoritatively make
a decision. The Hearings Officer finds COLW's Impoundment of Water argument is not persuasive.
COLW ARGUMENT: Primary Purpose is Profit (COLW 9/6/2022 submission,
pages 1 and 2)
The Hearings Officer incorporates the findings for the preceding section (COLW ARGUMENTS:
History of Farm Use & Impoundment of Water) as additional findings for this COLW Argument.
As noted above, ORS 215.203(2)(a), includes the following language:
"As used in this section, farm use' means the current employment of land for the primary purpose
of obtaining a profit in money by...harvesting and selling crops..."
The Hearings Officer finds the current employment of the Subject Property is not for the primary
purpose of growing/harvesting any crop or any other activity described in ORS 215.203(2)(a).
The Hearings Officer incorporates as additional findings for this COLW Final Argument the quoted
sections of the above -quoted Applicant's Burden of Proof statements related to soil fertility,
suitability for grazing, climate, and existing and future availability of water for farm irrigation
purposes (Burden of Proof, pages 24 - 26). The Hearings Officer interprets Applicant's Burden of
Proof statements as credible and substantial evidence that the Applicant did not farm the Subject
Property for the primary purpose of making a profit. The Hearings Officer finds, based upon the
evidence in the record, that Applicant's intent or purpose of farming the Subject Property, in the
past, was to break even financially. The Hearings Officer also finds no persuasive evidence in the
record that either the Subject Property or any adjacent or nearby parcel of real property is being
farmed for the primary purpose of making a net profit.
The Hearings Officer finds, based upon the record of this case, that the Subject Property is not
currently employed for the primary purpose of obtaining a profit from raising, harvesting and selling
crops or the feeding, breeding, management and sale of, or the production of livestock, poultry, fur -
bearing animals or honeybees or for dairying and the sale of dairy products or any other agricultural
or horticultural use.
COLW Argument: DCC 18.04.030 (COLW 9/6/2022 submission, page 2)
COLW, in its 9/6/2022 submission, made the following statement:
".. the County's definition of 'agricultural use' specifically excludes considerations of profit. DCC
18.04.030 ('Agricultural use' means any use of land, whether for profit or not, related to raising,
harvesting and selling crops(.])"
Applicant, in its Final Argument quoted above (section VI. COLW re County Definition of 'Agricultural
Use'), asserted that the County definition of "Agricultural Use" is not relevant to this case/application.
The Hearings Officer agrees with Applicant's statement that the issue in this case is whether or not
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the Subject Property is "Agricultural Land" under Goal 3. Determining if a Goal 3 exception is
required is the issue to be decided; not whether DCC 18.04.030 is satisfied.
The Hearings Officer finds the Oregon Supreme Court's Wetherell analysis clearly pointed out that if
there is a conflict between the language of the statute (ORS 215.203) and enabling regulation (OAR
660-033-030(5)), the statute prevails. In this instance a relevant statute (ORS 215.203) includes
reference to obtaining a profit and a County Code section (DCC 18.04.030) states "agricultural use"
means "any use of land, whether for profit or not..." The Hearings Officer finds that the "Agricultural
Land" or "agricultural use" issue must be decided consistent with the relevant ORS 213.203 statutory
language and not by a contrary/conflicting DCC 18.04.030 provision.
The Hearings Officer concurs with and adopts as the Hearings Officer findings the Applicant's
analysis quoted above (section VI. COLW re County Definition of 'Agricultural Use'). The Hearings
Officer finds COLW's DCC 18.04.030 argument is not persuasive.
COLW Argument: Soil Study Excluded "Water" and "Developed Land."
(COLW 9/6/2022 submission, page 2)
COLW, in its 9/6/2022 submission, made the following statement:
"The applicant's hired soil scientist's study is deficient for excluding "water" and "developed land"
from its analysis. Application ExhibitA Figure 4."
The Hearings Officer incorporates as findings for this COLW argument the Applicants above -quoted
comments related to "water" and "developed land" (Section II. COLW's Challenge to Expert Evidence
Provided by Order 1 Soils Survey). Applicant also provided a post hearing record submission
(Applicant's Post -Hearing Evidence, Exhibit PH-8) addressing this COLW assertion.
"Miscellaneous areas are addressed in the Soil Survey Manual (USDA/NRCS Soil Survey Staff, 1993).
'Miscellaneous areas have essentially no soil and support little or no vegetation ... Map units are
designed to accommodate miscellaneous areas, and most map units named for miscellaneous
areas have inclusions of soil.' Specifically listed and defined miscellaneous areas include 'Urban
land (identified as Developed Land in my report) is land mostly covered by streets, parking lots,
buildings, and other structures of urban areas.' The roadways on this property are mostly paved
and, together with the structures and other developed elements, meet the definition of this
miscellaneous area. Another applicable miscellaneous area is water. "Water includes streams,
lakes, ponds, and estuaries that in most years are covered with water at least during the period
warm enough for plants to grow . . ." Rock outcrop is another miscellaneous area. All
miscellaneous areas are considered Class VIII.
The areas identified and delineated as Water and Developed Land in the site -specific soil survey
are consistent with the definitions in the Soil Survey Manual. Even if, for the sake of argument,
the acreage represented by these two map units were excluded from the analysis, the property
would still predominantly consist of Class VII and Vlll soils. The Water and Developed Land
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represent 5.19 acres, or 8.67% of the property. Gosney and Rock outcrop represent 52.51% of
the remaining acreage."
The Hearings Officer finds COLW's assertion that Applicant excluded "water" and "developed land"
from the Applicant Soil Study is a mere allegation unsupported by substantial evidence or
persuasive legal argument. The Hearings Officer finds Applicant's above -quoted Final Argument
comments and the Rabe/Valley post hearing comments to be credible and persuasive. The Hearings
Officer finds that RabeNalley did consider "water" and "developed land" in the Applicant Soil Study.
The Hearings Officer finds COLW's Soil Study Excluded "Water" and "Developed Land" argument is
not persuasive.
COLW ARGUMENT: Predominant Soils (COLW 9/6/2022 submission, page 2)
COLW, in its 9/6/2022 submission, made the following statement:
"The soil study further finds that 29 of its observation sites found 'conditions most closely matching
Deskamp soils' which are Class 111 irrigated and Class VI unirrigated; and finds that only 24 of its
observation sites found 'conditions mostly closely matching Gosney soils' which are Class VII.
Application ExhibitA at page 4. Despite this majority of the soil study's observations showing Class
111/VI soils, the soil study finds a majority of the property as. Class VII-VIII. This conclusion cannot
be squared with the reported results of the 58 observation locations, which show a majority of
Class 111/VI Deskamp soils."
COLW also addressed the issue of "predominant soils in a 9/20/2022 record submission. The
Hearings Officer considered both the COLW 9/6/2022 statements quoted above and the COLW
9/20/2022 submission in making these findings.
Applicant, in its above -quoted comments (Section II. COLW's Challenge to Expert Evidence Provided
by Order 1 Soils Survey - pages 5 to 8 of the Final Argument), responded to COLW's Predominant
Soils arguments. Rabe/Valley responded to COLW's Predominant Soils arguments in a September
12, 2022, email (Applicant's Post -Hearing Evidence, Exhibit PH-8). In relevant part, Rabe/Valley
stated, in Exhibit PH-8, the following:
"The analysis by Central Oregon Land Watch misrepresents what was presented in the soil report.
'Conditions most closely matching Gosney soils were observed at 24 grid locations and at least 21
additional locations along boundaries between grid points.' The additional locations were used to
refine the boundary conditions between differing grid points (e.g. between 36 and 53, 39 and 42,
43 and 44, etc.). Although the additional locations were not shown on the map or tabulated, they
were identified and noted nonetheless. In addition, there are 55 spot symbols (R) for Rock outcrops
too small to delineate. The number of observation points identifying Class VII and Class VII
conditions were more than 3 times the number of observation points identifying Class VI
conditions and fully support the delineated boundaries and associated acreages.
Gosney is only given a better rating for irrigation when mapped as a minor component in a
complex, such as with Deskamp (Map Unit 388, Deskamp-Gosney complex, 0 to 8% slopes). In this
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example, the incidental production from the Gosney acreage is expected to be only 1/3 to %2 that
of the Deskamp. That equates to 1/3 to % the gross revenue but with the same expenses for
fertilizer, water, power, equipment, and labor. When mapped alone or as the major component
of a complex, Gosney is not rated when irrigated. Irrigation of Gosney soils would not change the
NRCS rating of this soil and irrigation is an inefficient and inappropriate use of a scarce resource."
The Hearings Officer reviewed the RabeNalley Applicant Soil Study (Application Materials, Exhibit
A). The Hearings Officer finds that DLCD conducted a Soil Assessment Completeness Review and
concluded that the Applicant Soil Study was "complete and consistent with reporting requirements."
The Hearings Officer finds the Applicant Soil Study was conducted by RabeNalley; a currently
certified soil scientist/classifier. The Hearings Officer finds the opinions and conclusions of
RabeNalley should be considered as opinions and conclusions of an expert soil scientist/classifier.
Isbell, an attorney representing COLW and the person making the above -quoted COLW comments,
objected to "predominant soils" conclusions made by Rabe/Valley. Isbell argued that the percentage
of soils (I.e., LLC Class IV, V, VI or VII, etc.) should be based on data points used by RabeNalley.
Specifically, Isbell argued that the RabeNalley general characterization of soil types as either
Deskamp or Gosney provided the correct basis to determine which LLC soil class or classes were
predominant. Isbell also argued that the Rabe/Valley comments contained in Exhibit PH-8 related
to "additional locations" did not constitute "substantial evidence." Isbell argued that the "additional
locations" were not shown on the Applicant Soil Study map and therefore not "actually analyzed for
their capability."
Applicant argued that the Isbell comments were made by a lawyer who had not provided, into the
record, any evidence that he (Isbell) was also trained or had special expertise in the preparation,
interpretation or technically critiquing soil studies. Citing Oregon Coast Alliance v. City of Brookings,
72 Or LUBA 222 (2015) Applicant included the following statement:
"The nature of certain issues may be such that some technical expertise is necessary to provide
substantial evidence to support required findings; attorney's opinion that stormwater runoff will
not adversely impact salmon is not substantial evidence."
The Hearings Officer finds Isbell provided no evidence in the record that he is qualified in the science
of soil analysis and classification. The Hearings Officer finds that Isbell provided no persuasive
evidence to support his statement that the utilization of only the raw number of data points is a
justified technique (I.e., by reference to recognized soil scientist industry conventions or standards).
The Hearings Officer finds that Isbell's opinion related to the use of the raw number of data points
as the appropriate technique/method in determining soil classifications, in this case, is not
substantial evidence of the actual soil classifications at the Subject Property.
The Hearings Officer finds that Rabe/Valley is a qualified soil classifier. The Hearings Officer finds,
following review of the Applicant Soil Study and the September 12, 2022 supplemental submission
(Exhibit PH-8), that the methods used by RabeNalley are reasonable and appropriate. The Hearings
Officer finds that the Rabe/Valley soil classification conclusions reached in the Applicant Soil Study
constitute credible and substantial evidence in this case. The Hearings Officer finds the Rabe/Valley
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September 12, 2022 supplemental submission (Exhibit PH-8) provided a rational and plausible
response to Isbell's Predominant Soils arguments. The Hearings Officer finds the Rabe/Valley
conclusion (Application Materials, Exhibit A, page 7) that "36.62 acres, or 61.2%, of the Site consists
of Class VII and Class VIII soils" is supported by substantial evidence in the record.
COLW ARGUMENT: Water Rights (COLW 9/6/2022 submission, page 2)
COLW, in its 9/6/2022 submission, made the following statement:
"The property currently has 9.49 acres of water rights. The application explains that it used to
have 36 acres of water rights, but the applicant chose to sell the majority of those water rights.
Application at 26. That choice is now being used to argue that the property's limited water rights
detract from its suitability for agriculture. This applicant's own willful choice to reduce water
availability on the property should not now be considered as a reason the property's agricultural
land status. The applicant could buy back water rights just as readily as they sold them."
The Hearings Officer is uncertain as to what, if any, relevant approval criterion is being addressed
by COLW in the above -quoted comments. The Hearings Officer finds that COLW failed to provide
into the record, with sufficient specificity, evidence or legal argument related to the COLW Water
Rights issue.
In the alternative, the Hearings Officer finds that the current status at the Subject Property is that it
owns 9.49 acres of water rights. The Hearings Officer finds that evidence of water rights held by the
Subject Property, in the past, is not relevant to making the ci irrent decision as to whether the Subject
Property is "Agricultural Land."
COLW ARGUMENT: Goal 3; OAR 660-033-0020(1)(b) (COLW 9/13/2022 submission,
page 1)
COLW, in its 9/13/2022 submission, made the following statement:
"In addition to the reasons we explained in our September 6, 2022 submittal, the subject
property is also "agricultural land" and protected by Goal 3 because it is a farm unit. The
definition of "agricultural land" at OAR 660-033-0020(1)(b) includes land that may include some
soils Class VI-VIII when that land is intermingled with soils Class I -VI in a farm unit:
'(b) Land in capability classes other than l-IV/l-Vl that is adjacent to or intermingled with
lands in capability classes l-IV/l-VI within a farm unit, shall be inventoried as agricultural
lands even though this land may not be cropped or grazed;' (OAR 660-033- 0020(1)(b))
Oregon courts have interpreted the meaning of this rule, finding that the history of farm
operations on a parcel and whether there is a significant obstacle to resuming farm operations
are key factors in determining whether land is a 'farm unit" for purposes of OAR 660-033-
0020(1)(b):
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'[W]hen farm operations have recently ceased on a parcel that historically has been used
for farming operations with other lands as part of a single 'farm unit,' the parcel is within
the unit unless the applicant can demonstrate circumstances —the most important of 2
which is whether there is a significant obstacle to resumed joint operation —that dictate a
contrary result.' (Wetherell v. Douglas County., 235 Or App 246, 260, 230 P3d 976, 984
(2010), rev den, 349 Or 57 (2010))
Here, the subject property was historically used for farm operations for decades as one single
farm unit operation, as documented in the application, and only recently ceased. Now, the
applicant argues that because its hired soil scientist found portions of the subject property as
having Class V/I-Vlll soils, which are intermingled with Class I -VI soils, those portions of the
subject property cannot be cropped or grazed and should not be identified as agricultural land.
The 'farm unit" rule at OAR 660-033-0020(1)(b) specifically precludes that conclusion.
Further, the application's response to this criterion fails to identify any significant obstacle that
would prevent resumed operation of the farming operation on the subject property. Instead, the
application argues this rule does not apply: "This rule does not apply here because the Markens
are seeking to rezone an entire farm tract rather than a part of it."Application at 27. Although
some cases applying the 'farm unit" rule have dealt with factual circumstances where a parcel
had previously been part of a larger farm unit operation, there is nothing in the rule limiting the
rule to those circumstances. The 59.1 acre property here has been a single farm unit operation
for decades, and OAR 660-033-0020(1)(b) requires it remain agricultural land protected by Goal
3.,,
Applicant responded to the COLW above -quoted Goal 3; OAR 660-033-0020(1)(b) comments (Final
Argument, pages 16 & 17) as follows:
"The Wetherell v. Douglas County, 235 Or App 246, 230 P3d 976 (2010) rev den 349 Or 57
(2010)(Wetherell/Garden Valley) case cited by COLW applies the farm unit rule to a part of a farm
property that had been removed from a farm tract and operated separately that had been
operated profitably before being divided. According to DLCD, the rule is 'a rule designed to address
a parcel's relationship to surrounding land' - 'by its location with respect to neighboring land in
certain soil classes and its relationship to those lands as a farm unit.' Wetherell/Garden Valley,
235 Or App at 256. The Wetherell/Garden Valley court applied this purpose to interpret the
meaning of the rule. With this in mind, it is clear that the farm unit rule prevents the rezoning of
land that was a part of and then removed from a tract of land employed in 'farm use.' This is how
the rule has been applied by Oregon's appellate courts. Given this intent, it would be erroneous
for the County to apply the farm unit rule to the Marken property because it has not since the later
half of the 1970s [been] farmed in conjunction with other area properties. [footnote omitted]
The Oregon Supreme Court has stated, when applying a tract analysis to EFU farm land, that 'the
philosophy of SB 101 was 'to keep the economical farm units intact."Smith v. Clackamas County,
313 Or 519, 836 P2d 716 (1992). In the case of the entire unit of land that the Markens attempted
to farm is before the County for rezoning in its entirety. It is not a part of an 'economical farm unit'
that merits protection by the farm unit rule. The land, in its entirety, does not meet Goal 3's
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definition of Agricultural Land.
In Meyer v. Lord, 37 Or App 59, 586 P2d 367(1978)("Meyer"), the Court of Appeals laid the
groundwork for the 'farm unit'rule. The Court held that a 70-acre parcel of a 250-acre commercial
farm that might not by itself be an economically profitable farm unit is within the definition of
'farm use' if employed as part of a 'profit -capable farming operation.' The purpose of this
approach was to assure that an unproductive part of a farm unit is not considered for rezoning
as an isolated tract. In this case, all land the Markens attempted to farm is proposed for rezoning.
All of it is not productive farm land.
The farm unit rule is an LCDC rule. It supplements Goal 3. The rule says that it applies when 'land'
is 'adjacent and intermingled' within a farm unit. The term 'land' is not defined but, as it has been
applied by appellate courts, it means a parcel or area of land that is or was a part of a larger farm
property proposed to be rezoned without addressing the zoning of the rest of the tract that has
historically been engaged in farm use. It is not applied to convert the results of a soils survey from
a mix of Class I -VI soils and VII-Vll soils into 100% Class I -VI soils/Agricultural Land.
COLW's argues that the farm unit rule should be applied to any piece of property proposed for
rezoning from EFU to a nonresource zoning district. This, however, differs from how the rule has
been applied and is inconsistent with the intent of the rule. It is also an interpretation conflicts
with and renders meaningless the predominance test set out in Goal 3. An interpretation of an
LCDC rule must be consistent with Goal 3 or it will not be applied by Oregon courts. Wetherell v.
Douglas County, 204 Or App 732, 132 P3d 41 (2005), aff'd and reversed 342 Or 666, 160 P3d 614
(2007). vvnerl the farm unit rule is applied LU parcels removed from a larger 'profit -capable' Jurrrl
unit, Oregon courts have held that it is. When the rule is applied to a single tract of land like the
Marken property, it is not consistent with Goal 3 or the intent of the rule set out in Meyer. [footnote:
We have found no appellate court case that applies the farm unit rule in any situation other than
one where a unit of 'land' was removed from a tract of land that was used in one farm operation
and then proposed for rezoning. Deschutes County has declined to apply the rule as requested
by COLW in prior decisions. [footnote: Deschutes County has declined to apply the farm unit rule
to applications where the entire unit of land formerly used for agricultural activities was before it
for rezoning/redesignation. The 'farm unit'rule issue was an issue and was addressed in two cases
with similar facts to those presented by the Marken application (prior unsuccessful farm use and
a mix of Class VI and VII/Vlll soils): Kelly Porter Burns (adjoins N boundary of Marken) and Eastside
Bend (property touches NE corner of Marken).
To read the farm unit rule to apply within the boundaries of land proposed for rezoning if any
Class VI-Vlll soils are present and any effort was to farm it would render the predominance soils
test used by Goal 3 to define 'Agricultural Land' meaningless. To do so would replace the
predominance test of the Goal (over 50%) with a 100% rule of DLCD's own making for essential
any EFU-zoned property because few if any EFU-zoned properties are comprised 100% of Class VII
and Vlll soils."
The Hearings Officer adopts as additional findings for this section the above -quoted Applicant Final
Argument comments. The Hearings Officer finds that the above -quoted Applicant Final Argument
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comments related to OAR 660-033-020 (b) are legally correct. The Hearings Officer finds the Subject
Property to be a single tract of land that is not, because of soil classifications, Goal 3 "Agricultural
Land." The Hearings Officer finds that the Subject Property is not adjacent to or intermingled with
one/more "farm unit" unit as defined by Oregon law. The Hearings Officer finds COLW's Goal 3; OAR
660-033-0020(1)(b) argument is not supported by substantial evidence or persuasive legal argument
contained in the record of this case.
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 did not ask to amend the subzone that applies to the Subject Property;
rather, the Applicant requested a change under Policy 2.2.3 and has provided evidence to support
rezoning the Subject Property to MUA10.
Policy 2.2.3 Allow comprehensive plan and zoning map amendments, including for
those that qualify as non -resource land, for individual EFU parcels as allowed by
State Statute, Oregon Administrative Rules and this Comprehensive Plan.
FINDING: The Applicant requested approval of a plan amendment and zone change to re -designate
the Subject Property from Agricultural to Rural Residential Exception Area and rezone the Subject
Property from EFU to MUA10. The Applicant did not seek an exception to Goal 3 -Agricultural Lands,
but rather sought 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 its Burden of Proof (pages 15 & 16):
"This plan policy has been updated to specifically 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-TRB to MUA-10 for non -resource land. This
is the same change approved by Deschutes County in PA-11-1/ZC-11-2 on land owned by the State
of Oregon (DSL) on a property with a significantly lower percentage of Class Vil and VIII soils. In
findings in the decision attached as Exhibit G, 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
37
247-22-000353-PA, 354-ZC
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 P3d 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 (emphasis added).
The Wetherell court held that when deciding whether land is agricultural land "a local government
may not be precluded from considering the costs or expenses of engaging in those activities."
Wetherell, 342 Or at 680. In this case, the applicant has shown that the subject property is
primarily composed of Class VIl and VIII nonagricultural soils making farm -related endeavors,
including livestock grazing, unprofitable. The property is not currently employed in any type of
agricultural activity and prior efforts at farming were unprofitable. The property is not forest land.
Accordingly, this application complies with Policy 2.2.3."
The Hearings Officer adopts and incorporates as additional findings for this policy the findings for
Chapter 2, Resource Management, Section 2.2 Agricultural Lands, Goal 1, Preserve and maintain
agricultural lands and the agricultural industry (findings related to COLW specific arguments). The
Hearings Officer finds the above -quoted Applicant Final Argument statements to be credible and
persuasive. The Hearings Officer finds that Applicant provided evidence in the record adequately
addressing whether the Subject Property qualified as non -resource land. The Staff also noted that
the Applicant provided evidence in the record addressing whether the Subject Property qualifies as
non -resource land. The Hearings Officer, based upon the incorporated findings (Chapter 2,
Resource Management, Section 2.2 Agricultural Lands, Goal 1, Preserve and maintain agricultural
lands and the agricultural industry), the above -quoted Applicant Final Argument statements, and the
Staff Report comments referenced above, finds that the Subject Property is not Goal 3 "Agricultural
Land" and does not require an exception to Goal 3 under state law.
Policy 2.2.4 Develop comprehensive policy criteria and code to provide clarity on
when and how EFU parcels can be converted to other designations.
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. Staff, in the Staff Report
(page 16) indicated that it concurred with Applicant's conclusion that this application was consistent
with prior County determinations in similar plan amendment and zone change applications. The
Hearings Officer agrees with these Staff comments. The Hearings Officer finds that Applicant's
proposal in this case is consistent with this policy.
38
247-22-000353-PA, 354-ZC
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. The Applicant asserted that the Subject Property was not accurately
designated as "Agricultural Land". Restated, the Applicant asserted that the NRCS map soil
designations did not accurately reflect the actual soil conditions on the Subject Property. The
Applicant, through the Applicant Soil Study, demonstrated that the Subject Property was not Goal 3
"Agricultural Land."
The Hearings Officer adopts and incorporates as additional findings for this policy the findings for
Chapter 2, Resource Management, Section 2.2 Agricultural Lands, Goal 1, Preserve and maintain
agricultural lands and the agricultural industry (findings related to COLW specific arguments). The
Hearings Officer also adopts and incorporates as additional findings for this policy the findings for
Policy 2.2.3. The Hearings Officer finds approval of Applicant's application in this case would
accurately reflect the actual soil conditions at the Subject Property. The Hearings Officer finds that
approval of Applicant's application would accurately reflect the fact that the Subject Property is not
Goal 3 "Agricultural Land." Further, discussion on the soil analysis provided by the Applicant is
detailed under the OAR Division 33 criteria below.
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 has not proposed a specific development application at this time.
Therefore, the Hearings Officer finds that the Applicant is not required to address water impacts
associated with development. Rather, the Applicant will be required to address this criterion during
development of the Subject Property, which would be reviewed under any necessary land use
process for the site (i.e., conditional use permit, tentative plat). The Hearings Officer finds that this
criterion does not apply to the application in this case.
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.
39
247-22-000353-PA, 354-ZC
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. Staff noted, in the Staff Report (page 17), that no LM
Combining Zone applies to the Subject Property at this time. Furthermore, no new development is
proposed under the present application. The Hearings Officer finds that these provisions of the plan
are not impacted by 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
• !_.. lands J_ with :I. that
adjacent
to rural residential
►.e
Some jars► ►areas poor sv►u u►ut are res�ur►►�►u� uses can be
rezoned as rural residential
FINDING: This section of the Comprehensive Plan does not contain Goals or Policies, but does
provide the guidance in the language set forth above. The Applicant provided the following
response to this section in its Burden of Proof (page 18):
"This part of the comprehensive plan is not a plan policy. It is simply text that explains how the
County calculated expected growth. It is also 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 poor soils and it adjoins rural residential areas and
uses on three sides. The property that adjoins the Marken property to the north is pending
annexation to the City of Bend for the development of affordable housing."
40
247-22-000353-PA, 354-ZC
Staff noted that the MUA10 Zone is a rural residential zone and, as discussed in previous findings,
is located adjacent to properties to the north, east and south that are zoned MUA10. One of these
surrounding MUA10 properties has received approval for a Comprehensive Plan Amendment and
Zone Change to be included in the City of Bend UGB. This property is identified on Assessor's Map
17-12-35 as Tax Lot 1500, and is located to the north of the Subject Property, across Bear Creek
Road. Staff noted this policy also references the soil quality. Soil quality is discussed in the findings
for Chapter 2, Resource Management, Section 2.2 Agricultural Lands, Goal 1, Preserve and maintain
agricultural lands and the agricultural industry.
The Hearings Officer finds that this policy is not an approval criterion applicable to this case. The
Hearings Officer finds this policy is aspirational. Further, the Hearings Officer incorporates the
findings for Chapter 2, Resource Management, Section 2.2 Agricultural Lands, Goal 1, Preserve and
maintain agricultural lands and the agricultural industry. The Hearings Officer finds that even if this
policy is determined to apply, the incorporated findings adequately address the policy.
Section 3.3, Rural Housing
Rural Residential Exception Areas
In Deschutes County most rural lands are designated for farms, forests or other resources
and protected as described in the Resource Management chapter of this Plan. The majority
of the land not recognized as resource lands or Unincorporated Community is designated
Rural Residential Exception Area. The County had to follow a process under Statewide Goal
I _____ why these lands did L�....� �.. L'�..�..I. zoning. major determinant
u.,...iw w.... I.
2 to explain these not warrant farm o. forest The major dete►m nant
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 its Burden of Proof
(page 18 & 19):
'The quoted language is a part of the background text of the County's comprehensive plan. It is
not a plan policy or plan goal written to guide the review of zone change and plan amendment
applications. 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
41
247-22-000353-PA, 354-ZC
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 Hearings Officer incorporates the Applicant's above -quoted statements as findings for this
policy. The Hearings Officer finds Applicant sought to demonstrate that the Subject Property was
nonrecourse land. The Hearings Officer adopts and incorporates the findings for Chapter 2,
Resource Management, Section 2.2 Agricultural Lands, Goal 1, Preserve and maintain agricultural
lands and the agricultural industry as additional findings for this policy. The Hearings Officer also
adopts and incorporates as additional findings for this policy the findings for Policy 2.2.3.
The Hearings Officer takes note that Staff agreed (Staff Report, pages 18 & 19) with prior Deschutes
County Hearings Officers' interpretations and decisions which concluded that the above language
is not a policy and does not require an exception to the applicable Statewide Planning Goal 3. The
Hearings Officer agrees with this Staff approach and conclusion. The Hearings Officer finds that the
proposed RREA plan designation is the appropriate plan designation to apply to the Subject
Property.
Section 3.7, Transportation
Appendix C - Transportation System Plan
ARTERIAL AND COLLECTOR ROAD PLAN
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 amendments 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 Hearings Officer
finds that the County will comply with this direction by determining compliance with the
Transportation Planning Rule ("TPR"), also known as OAR 660-012, as described below in subsequent
findings.
OREGON ADMINISTRATIVE RULES CHAPTER 660, LAND CONSERVATION AND DEVELOPMENT
DEPARTMENT
Division 6, Goal 4 - Forest Lands
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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 response to Goal 4 in their burden of proof:
"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 "[w]here
**a plan amendment involving forest lands is proposed, forest land shall include lands which are
suitable for commercial forest uses including adjacent or nearby lands which are necessary to
permit forest operations or practices and other forested lands that maintain soil, air, water and
fish and wildlife resources."
This plan amendment does not involve any forest land as the term is defined by OAR 660-005-
0010. That rule says that lands suitable for commercial forest use and protection under Goal
shall be identified using NRCS sous survey mapping to determine the average annual woo
production figures. The NRCS maps the subject property as soil mapping units 364 and 58C. The
NRCS Soils Survey of the Upper Deschutes River lists all soils mapped by its survey that are suitable
for wood crop production in Table 8. Neither 36A nor 58C soils are soil mapping units the NRCS
considers suitable for wood crop production because neither is listed on Table 8 as such."
The Subject Property is not zoned for forest lands, nor are any of the properties within a 3.5-mile
radius. The Subject Property does not contain merchantable tree species and there is no evidence
in the record that the Subject Property has been employed for forestry uses historically. The
Hearings Officer finds that the Subject Property does not qualify as forest land.
Division 33 - Agricultural Lands & Statewide Planning Goal 3 - Agricultural Lands;
FINDINGS: The Hearings Officer incorporates as additional findings for this section the findings for
Chapter 2, Resource Management, Section 2.2 Agricultural Lands, Goal 1, Preserve and maintain
agricultural lands and the agricultural industry. The Hearings Officer also adopts and incorporates as
additional findings for this policy the findings for Policy 2.2.3. In addition, the Hearings Officer finds
that the Staff proposed findings set forth in the Staff Report (pages 20-34), except as modified or
supplemented by the Hearings Officer in this recommendation, are factually and legally correct. The
Hearings Officer includes (unedited) the Staff Report proposed findings from pages 20-34 as
additional findings for Division 33 - Agricultural Lands & Statewide Planning Goal 3 - Agricultural
Lands.
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247-22-000353-PA, 354-ZC
Quoted Staff Report Findings (Pages 20-34)
"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.
Goal 3 continues on to define "Agricultural Land," which is repeated in OAR 660-033-0020(1). Staff
makes findings on this topic below and incorporates those findings herein by reference.
OAR 660-033-0020, Definitions
For purposes of this division, the definitions in ORS 197.015, the Statewide Planning Goals,
and OAR Chapter 660 shall apply. In addition, the following definitions shall apply:
(1)(a) "Agricultural Land" as defined in Goal 3 includes:
(A) Lands classified by the U.S. Natural Resources Conservation Service (NRCS)
as predominantly Class I -IV soils in Western Oregon and I -VI soils in Eastern
Oregon(footnote omitted];
FINDING: The Applicant's basis for not requesting an exception to Goal 3 is based on the premise
that the Subject Property is not defined as "Agricultural Land." In support, the Applicant offered the
following response as included in the submitted burden of proof statement:
ORS 215.211 grants a property owner the right to rely on more detailed information than 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." Statewide Goal 3, discussed above, and OAR 660-033-
0030(5) also allow the County to rely on the more detailed and accurate information by a higher
order soil survey rather than information provided by the NRCS. The law requires that this survey
use the NRCS soil classification system in conducting the survey, making it clear that the point of
the survey is to provide better soil classification information than provided by the NRCS for use in
making a proper decision whether land is or is not "Agricultural Land."
Continued: Quoted Staff Report Findings (Pages 20-34)
The more detailed ExhibitA soils survey prepared by certified soil classifier Brian Rabe shows that
approximately 61.2% of the subject property is composed of Class VIl and VIII soils and, therefore,
is not predominantly Class 1-VI soils.
Staff has reviewed the soil study provided by Brian Rabe of Valley Science and Engineering, and
agrees with the Applicant's representation of the data for the Subject Property. Staff finds, based
on the submitted soil study and the above OAR definition, that the Subject Property is comprised
44
247-22-000353-PA, 354-ZC
predominantly of Class 7 and 8 soils and, therefore, does not constitute "Agricultural Lands" as
defined in OAR 660-033-0020(1)(a)(A) above.
(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 based on the proposal
that the subject properties are not defined as "Agricultural Land." The Applicant provided the
following analysis of this determination in the burden of proof.
This part of the definition of "Agricultural Land" requires the County to consider whether the Class
Vll and Vlll soils found on the subject property are suitable for farm use despite their Class Vll and
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 P3d
614 (2007).
The Exhibit A soils report includes an evaluation of whether the subject property is land in other
soil classes that is suitable for farm prepared by son classifier, Brian Rabe that begins on page 4
of the study. The review considers all of factors set out in the rule, above, and concludes that the
Marken property is not suitable for farm use as defined in ORS 215.203(2)(a).
The applicant offers the following additional information regarding the seven considerations:
Soil Fertility: Class 7 and 8 soils are not fertile soils. They are not suited for the production of farm crops.
This fact has been recognized in numerous County land use cases, including
Continued: Quoted Staff Report Findings (Pages 20-34)
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.
Additionally, it is not profitable to irrigate the islands of Class VI or better soils that are located on
the property.
The primary agricultural activity that has occurred on the subject property during the time the
property has been owned by the Markens is growing hay. The Markens acquired the property in
1981 and thereafter made determined and unsuccessful efforts to make a profit in money by
farming the property. The Markens grew hay and occasionally raised cattle. Neither endeavor was
profitable. The Markens removed rocks from the land to improve crop yields but this and accepted
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farm practices (irrigation, fertilization, etc.) did not yield a profit in money from their agricultural
enterprises. The Markens suffered financial losses in every year of farm operations, including the
following years:
Year Loss
2016 $5,153
2015 $3,049
2014 $6,020
2013 $1,480
2012 $7,571
2011 $6,316
2009 $11,417
2008 $3,949
2007 $13,854
From 2017 until present, the Markens continued to irrigate their property but did not grow hay or
attempt to earn a profit in money from farming. This, on average, resulted in smaller losses as
follows:
Year Loss
2021 $2,762
2020 $3,395
2019 $2,276
2018 $4,704
2017 $4,407
Suitability for Grazing: The primary agricultural use conducted on properties that lack irrigation
water rights and have poor soils is grazing cattle. The poor soils and development pattern of the
surrounding area make the Marken property a poor candidate for dryland grazing at an economic
scale. The dry climate makes it difficult to produce adequate forage on the property to support a
viable or potentially profitable grazing operation or other agricultural use of the property. This
issue is addressed in greater detail in the ExhibitA soils study.
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 only 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 Marken
property would support from 9 to 14 cow -calf pairs (AUMs) for a month or about one cow -calf
pair for a year.
Deschutes County uses a more aggressive formula to assess potential income from dry land
grazing. It assumes that the Marken property would support 49 AUMs per year which is
approximately 4 cow -calf pairs per year. We've been told that this formula was developed by the
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OSU Extension Service. It assumes that one acre will produce 900 pounds of forage per year and
makes no allowance for good soil stewardship.
•
•
•
One AUM is the equivalent to the forage required for a 1000 Ib. cow and calf to graze for
30 days (900 pounds of forage).
On good quality forage, an animal unit will gain2 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 x2#/day/acre = 60.0 lbs. Beef/acre
(1 acre per AUM)
60.0 lbs. Beef/acre x 49 acres of undeveloped land with Deskamp and Gosney soils x $1.15/Ib. =
$ 3,381 of gross income per year
Using the OSU/County formula, the total gross beef production potential for the subject property
would yield approximately $3,381 annually. This figure represents gross income. It does not take
into account real property taxes, fencing costs, land preparation, purchase costs of livestock,
veterinary costs, labor costs or any other costs of production. These costs would far exceed gross
income. One veterinary emergency could easily erase all $3,381 of annual gross income.
Property taxes for the subject properties were $7,886.01 in 2021. The payment of a modest wage
of $15.00 per hour to the rancher and/or employee for one FTE would cost the ranch operation
$31,200 in 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. Even at part-time only,
labor costs would far exceed the income received from the sale of cattle.
While the amount of forage will be higher on irrigated land, the costs of farm operations and cost
to purchase irrigation water rights impose costs that are not offset by the additional income
obtained because the quality of the soil is so poor. Additionally, raising hay on the irrigated
acreage, although unprofitable, makes better economic sense due to higher gross income, lower
labor costs and a lack of a need for veterinary care and fencing. It, however, is not profitable.
Climate: The climate is cold and dry. The growing season is very short. The subject property is
located between Redmond and Sisters. According to the OSU Extension Service the growing season
for Bend is only 80 to 90 days long. Exhibit 0. The average annual precipitation for Bend is only
11.36 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 grow
crops. Crops require irrigation to supplement natural rainfall. This makes it difficult for a farmer
47
247-22-000353-PA, 354-ZC
to raise sufficient income to offset the high costs of establishing, maintaining and operating an
irrigation system and to purchase water from Central Oregon Irrigation District.
Existing and Future Availability of Water for Farm Irrigation Purposes: The subject property
is located in the Central Oregon Irrigation District. The subject property has 9.49 acres of irrigation
water rights. He originally had 36 acres of COID water rights but sold them because he was unable
to make a profit from farm the poor soils present on his property. Water rights in the Deschutes
Basin are limited because surface water is fully or over appropriated and now new groundwater
withdrawals are allowed without retiring existing water rights - typically water rights from other
irrigated land in Central Oregon that, most likely, is better suited for farm use than the subject
property. Such a transaction would run counter to the purpose of Goal 3 to maintain productive
Agricultural Land in farm use.
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 surrounded on three sides by
properties zoned MUA-10. On one side (west) it on adjoins a narrow strip of EFU-zoned land that
lies between the Bend UGB and the Marken property. This strip contains a total of four properties
that total approximately 60 acres and that are not engaged in commercial farm activities intended
to make a profit in money. The only property being assessed as farm land contains 86.5% Class
VII and Vlll soils that do not yield farm profits. Exhibit P. The proposed MUA-10 zoning will allow
future development that will be consistent with this established land use pattern.
Technological and Energy Inputs Required: Given its poor soils, the Marken property requires
technology and energy inputs over and above uc Lep ed fai pt uLuc.ea one pouf und u, y
climate create a need for excessive fertilization and soil amendments and very frequent irrigation.
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.
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 occurs on Class VI non -irrigated soils. Crops are typically grown on soils in soil
class 111 and IV when irrigated. These soils are Class VI without irrigation. No accepted farm practice
will enable the Markens to obtain a profit in money from agricultural use of the property.
Staff agrees with the Applicant that many of the factors surrounding the subject property - such as
the current residential land uses in the area, soil fertility, and amount of irrigation required result
in a relatively low possibility of farming on the subject property.
The submitted burden of proof indicates the subject property has historically been used for
agriculture but this use consistently did not generate a profit in money. Staff also notes the owner
of the subject property has relinquished 25.61 acres of Central Oregon Irrigation District water
rights. Staff requests the Hearings Officer make specific findings on this issue.
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247-22-000353-PA, 354-ZC
(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 as included in the submitted burden of
proof statement:
The subject property is not land necessary to permit farm practices to be undertaken on adjacent
or nearby lands. None of the properties in the small strip of EFU-zoned land between the Marken
property and the Bend UGB relies on the Marken property to undertake farm uses.
The submitted burden of proof also included the following summary of all EFU-zoned properties
within an area of approximately one mile of the subject property.
Tax Lot
Size
House/
Structures
Tax Status
Farm practices/farm use?
TL 200, 18-
16.99
1969 house
Not deferred
Irrigation ponds; property irrigated to
12-02
acres
keep green; no farm use
TL 202, 18-
1.47
1961 house
Not deferred
Not in farm use
12-02
acres
TL 1003,
27.19
Approved for
Deferred
Soil class of property was changed for
18-12-02
acres
Lot of Record
dwelling
purpose of Lot of Record application to
86.5% LCC 7 and 8 based on soils study
and by review of the study by OR Dept of
Agriculture
An irrigation pivot was purchased in an
attempt to grow hay and maintain farm
tax deferral but not profitable due to
poor soils.
TL 1001,
12.45
Nonfarm
Not deferred
No farming; may be keeping a horse for
18-12-02
acres
Dwelling
riding (not a farm use)
TL 1000,
36.65
Vacant COID
Exempt
BOCC voted to change zoning to MUA-10
18-12-02
acres
property
from EFU-TRB and is expected to adopt
ordinances rezoning property and
changing plan designation to RREA; no
farm use
TL 1005
3.34
1980 single-
Not deferred
No farm use
18-12-02
acres
family home
and utility
building
TL 1308,
39.18
1965 single-
Deferred
Some irrigation (15 of 40 acres per
18-12-02
acres
family house
and shed
Assessor) and pond; unclear whether
there is any farm use; most likely farm
use, if any, based on aerial photography
49
247-22-000353-PA, 354-ZC
would be pasturing livestock or growing
hay
TL 701,
12.12
1973 single-
Deferred
Landscape Maintenance of Bend
18-12-12
acres
family home
and GP
building
(landscape and lawn maintenance
business) per Assessor
Some irrigation (5 acres per Assessor)
TL 700,
26.22
2000 machine
Deferred; will
Hemp Farm/hemp flower/hemp
18-12-12
acres
shed (2595 sq
be
biomass/hemp trimming in 2020
ft)
disqualified
when
approved
nonfarm
dwelling is
built
About one acre in row crops; likely hemp.
Aerial includes two greenhouses and a
pasture/hay field on part of the property.
CU-08-78 approval for nonfarm dwelling
notes 7.53 acres of irrigation/hay.
247-17-000891-CU/247-18-000552-M C
nonfarm dwelling approval; extension
granted 247-21-000915-E.
TL 600, 18-
41.37
2006 farm
Deferred
Two cell towers
12-12
acres
building
Irrigated field (wheel lines and hand
lines); likely grows hay.
IL 601, 18-
4.0
1999 nonfarm
Not deferred
No visible farm use; nonfarm dwelling.
12-12
acres
dwelling
authorized by
CU-99-19
TL 900,
43.89
vacant
Deferred
Not irrigated; no visible farm use
17-12-36
acres
Mostly 58C soil per NRCS which is
predominantly Class VII nonagricultural
soil.
TL 1000,
57.33
vacant
Deferred
Not irrigated; no visible farm use.
17-12-36
acres
TL 500, 17-
19.46
2000 single-
Not deferred
Hay and paddocks suitable for one or two
12-36D
acres
family
nonfarm
dwelling per
horses.
CU-99-123
TL 500, 17-
16.97
1976 single-
Deferred
May or may not be irrigated; no signs of
12-36D
acres
family home
commercial farm use (hay or fenced
50
247-22-000353-PA, 354-ZC
and loft barn
and lean-to
pastures); may be flood irrigating to keep
green.
TL 400, 17-
16.36
2000 single-
Not deferred
No farm use; appears to be a race track
12-36D
acres
family
nonfarm
dwelling, CU-
for dirt bikes
99-124
TL 100, 17-
100.89
Solar farm
Not deferred
No farm use
12-36
acres
TL 700, 17-
83.40
Solar farm
Not deferred
No farm use
12-36
acres
TL 500, 17-
51.54
Solar farm
Not deferred
No farm use
12-36
acres
TL 400, 17-
38.06
Vacant; part of
Not deferred
No farm use
12-36
acres
solar farm site
TL 600, 17-
18.78
1994 single-
Not deferred
No signs of farm use
12-36
acres
family
nonfarm
dwelling CU-
93-46 and
utility building
TL 601, 17-
19.29
Nonfarm
Not deferred
No signs of farm use
12-36
acres
dwelling, CU-
98-27
TL 801, 17-
34.99
Church and
Some
No farm use
12-36
acres
amphitheater
exempt; rest
taxed
TL 200, 17-
3.09
Church
exempt
No farm use
12-36
acres
TL 800, 17-
8.89
vacant
Not deferred
No farm use
12-36
acres
TL 1401,
2.19
Approved for
Not deferred
No farm use; no visible irrigation or
17-12-35
acres
dog training
facility and
kennel; no
kennel yet
farming
TL 1200 &
93.36
vacant
Not deferred
No apparent farm use; not irrigated
1201, 17-
acres
12-35
TL 1205,
2.78
Single-family
Not deferred
No farm use
17-12-35
acres
nonfarm
dwelling
TL 1001,
1.76
1948 single-
Not deferred
No farm use
17-12-35
acres
family
51
247-22-000353-PA, 354-ZC
dwelling and
outbuildings
TL 1402,
4.97
1978 single-
Not deferred
No visible farm use; Google Maps shows
17-12-35
acres
family home
and
outbuildings
as location for Destination Sideways, LLC
(car rebuilding).
TL 1403,
10.0
vacant
Not deferred
No apparent farm use per aerial
17-12-35
acres
photography (road closed).
TL 1301,
10.0
2003 house
Deferred
Pond and irrigated acres; unclear if in
17-12-35
acres
(replacement
dwelling)
farm use; might be able to be used as a
pasture.
TL 1300
28.01
Farm parcel
Deferred
Tax lots owned as a tract - one parcel is a
and 1302,
acres
nonfarm dwelling and the surrounding
17-12-35
property is a farm parcel.
2.06
Nonfarm
Not deferred
acres
dwelling
Unable to drive by property. Aerials may
show some grapevines, a pond and an
irrigated field (pasture or hay).
TL 1203,
.92
2016 nonfarm
Not deferred
No farm use
17-12-35
acres
dwelling
This review shows that a significant majority of EFU-zoned properties inventoried (about 70%) are
not receiving farm tax deferral. Additionally, two large properties that are receiving farm tax
deferral are dry parcels that do not appear to be engaged in any type of farm use.
Staff agrees with the Applicant's analysis and finds no feasible way that the subject property is
necessary for the purposes of permitting farm practices on any nearby parcels discussed in the
Findings of Fact section above, or the larger area more generally. This finding is based in part on
poor quality, small size, and existing development on surrounding EFU properties. If the Hearings
Officer disagrees with Staff's assessment, Staff requests the Hearings Officer make specific findings
on this issue.
(b) Land in capability classes other than I-IV/l-VI that is adjacent to or
intermingled with lands in capability classes I-IV/l-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 submitted burden of proof
statement:
This rule applies when a property owner seeks to rezone a parcel that was formerly a part of a
farm unit without addressing the land capability of the entire farm unit. This rule does not apply
here because the Markens are seeking to rezone an entire farm tract rather than a part of it.
Furthermore, all parts of the subject property were studied by the applicant's soils analysis, Exhibit
A. The analysis shows that the predominant soil type found on the property is Class VIl and VIII,
52
247-22-000353-PA, 354-ZC
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 Vll and VIII soils to be classified agricultural
land.
The submitted soils analysis indicates the subject property contains land in capability classes other
than I-IVI that is adjacent to or intermingled with lands in capability classes I -VI. Given the soil
capability and prior agricultural use of the subject property, staff requests the Hearings Officer
make specific findings on this issue.
(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.
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 mere identification of scientific -soil clayssificatiolje The factors are listed
II/Gr N// the of scientific soil VI JJI,I{.V ■VI J. II■{., factors
in the definition of agricultural land set forth at OAR 660-033-0020(1)(a)(B). This
inquiry requires the consideration of conditions existing outside the lot or parcel
being inventoried. Even if a lot or parcel is not predominantly Class 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. The properties are
not "agricultural land," as referenced in OAR 660-033-0030(1) above, and contain barriers for farm
use including poor quality soils and the development pattern of the surrounding area. The soil study
produced by Mr. Rabe focuses solely on the land within the subject property and the Applicant has
provided responses indicating the subject property is not necessary to permit farm practices
undertaken on adjacent and nearby lands. Staff requests the Hearings Officer make specific findings
on this issue, in part based on the Applicant's responses to OAR 660-033-0020(1), above.
(3)
Goal3 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"
53
247-22-000353-PA, 354-ZC
or "necessary to permit farm practices to be undertaken on adjacent or nearby lands"
outside the lot or parcel.
FINDING: The Applicant submitted evidence showing 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.
The ownership of the subject parcels is not used to determine whether the parcel is "agricultural
land."
(5)(a)
More detailed data on soil capability than is contained in the USDA Natural
Resources Conservation Service (NRCS) soil maps and soil surveys may be used to
define agricultural land. However, the more detailed soils data shall be related to
the NRCS land capability classification system.
(b) If a person concludes that more detailed soils information than that contained in
the Web Soil Survey operated by the NRCS as of January 2, 2012, would assist a
county to make a better determination of whether land qualifies as agricultural
land, the person must request that the department arrange for an assessment of
the capability of the land by a professional soil classifier who is chosen by the
person, using the process described in OAR 660-033-0045.
FINDING: The 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 soil study provides detailed and accurate information about individual parcels based on
.-,li samples from the property. The soil i� elated to the Land
numerous still Jailil�.1ICJ taken from vi i � the subject Nrvpci �y. The is soil study i� related the NCRS
Capability Classification (LLC) system that classifies soils class 1 through 8. An LCC rating is assigned
to each soil type based on rules provided by the NRCS.
The NRCS mapping for the subject properties is shown below in Figure 1. According to the NRCS
Web Soil Survey tool, the subject properties contain approximately 85.3% 36A soil and contain
approximately 14.7% 58C soil.
54
247-22-000353-PA, 354-ZC
Continued: Quoted Staff Report Findings (Pages 20-34)
Figure 1: NCRS Soil Mapping on the Subject Property
The soil study 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 (as quoted from Exhibit A of the
submitted application materials) and the characteristics and LCC rating are shown in Table 1 below.
55
247-22-000353-PA, 354-ZC
Continued: Quoted Staff Report Findings (Pages 20-34)
Table 1: Site -Specific Map Unit Acreage and LCC Rating
36A
Deskamp loamy sand, 0 to 3% slopes
23.23
38.81%
td%
Oa_
non irrigate
6s
irrigated'
3s
57A
Gosney stony loamy sand, 0 to 3% slopes
25.76
43.0%
7e
57C
Gosney stony loamy sand. 0 to 15% slopes
3.85
6.4%
7e
109
Rock outcrop
1.82
3.0%
8s
D
Developed land
4.57
7.6%
8s
W
Water
0.62
1.0%
8s
Total
59.85
100%
NOTES:
Abbreviations: "--' = no data, e = erosion, NRCS = 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).
Delineations of map unit 36A, Deskamp loamy sand, 0 to 3% slopes and map unit 58C, Gosney-
Rock outcrop-Deskamp complex, 0 to 15% slopes were mapped on the Site by the NRCS. As shown
in Table 1, the NRCS classifies Gosney soils as Class Vil and Rock outcrops as Class Vill. Deskamp
soils
u_ are Class W. Map unit 58C :_ expected
..+...J +.. consist of about 7rnL .. /'1,.,..,. 1/ll and .J 1/lll soils. The
soils Crass V . Map is expected to e onsist about i 5%o Class Vi and V I sons. The
conditions observed on the Site are generally consistent with the published soil survey (Appendix
A), except that much more of the shallower Gosney soils were encountered throughout the Site.
There were no issues with access across the Site. Conditions most closely matching Gosney soils
were observed at 24 grid locations and at least 21 additional locations along boundaries between
grid points. Rock outcrops large enough to delineate were noted at 9 locations with smaller rock
outcrops observed at over 55 additional locations. Conditions most closely matching Deskamp
soils were observed at 29 locations. The area between points and along boundaries was walked
and often probed for confirmation. The native vegetation typically associated with both Gosney
and Deskamp soils are similar. However, most of the native vegetation at the Site had been cleared
in an effort to establish a stand of pasture grass with mixed results. This required a higher density
of points than typical.
Slopes were typically within the range associated with letter "A" used to identify the slope class of
0 to 3% for slope phases of map units. A few areas with slopes greater than 3% were better
represented by the letter "C" used to identify slope classes of 8 to 15 percent or 0 to 15% for slope
phases of map units. This is the only difference between the map units formally defined by the
NRCS in the published soil survey and this site -specific soil survey.
The soil study concludes that 61.2% of the subject property consists of Class 7 and Class 8 soils. The
submitted soil study is accompanied in the submitted application materials by correspondence
from the Department of Land Conservation and Development (DLCD). The DLCD correspondence
56
247-22-000353-PA, 354-ZC
confirms that the 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, staff finds the submitted soil study to be definitive and accurate in terms
of site -specific soil information for the subject properties. Staff requests the Hearings Officer make
specific findings on this issue.
(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 requested approval of a non -resource plan designation on the basis that
the subject property is not defined as agricultural land.
(d) This section and OAR 660-033-0045 implement ORS 215.211, effective on October 1,
2011. After this date, only those soils assessments certified by the department
under section (9) of this rule may be considered by local governments in land use
proceedings described in subsection (c) of this section. However, a local government
may consider soils assessments that have been completed and submitted prior to
October 1, 2011.
FINDING: The Applicant submitted a soil study dated September 7, 2021. The soils study was
submitted following the ORS 215.211 effective date. The Applicant also submitted
acknowledgement from Hilary. Foote, Farm/Forest Specialist with the DLCD, dated December
dlKl IVVVICU�CI I ICI Il from I1 Hilary' y Farm/Forest i i v i V� c�� Specialist with the v�...v, December ��.,..� 6,
2021, that the soil study is complete and consistent with DLCD's reporting requirements. Staff finds
this criterion to be met based on the submitted soil study and confirmation of completeness and
consistency from DLCD.
(e) This section and OAR 660-033-0045 authorize a person to obtain additional
information for use in the determination of whether land qualifies as agricultural
land, but do not otherwise affect the process by which a county determines whether
land qualifies as agricultural land as defined by Goal 3 and OAR 660-033-0020.
FINDING: The Applicant has provided a DLCD certified soil study as well as NRCS soil data. Staff
finds the Applicant has demonstrated compliance with this provision."
End of Quoted Staff Report Findings (Pages 20-34)
Based upon the Hearings Officer's findings for Chapter 2, Resource Management, Section 2.2
Agricultural Lands, Goal 1, Preserve and maintain agricultural lands and the agricultural industry, the
Staff Report findings quoted above, and evidence and argument provided by the Applicant, the
Hearings Officer finds that the Subject Property is not Goal 3 "Agricultural Land" and that the
application in this case does not require a Goal 3 exception.
57
247-22-000353-PA, 354-ZC
DIVISION 12, TRANSPORTATION PLANNING
OAR 660-012-0060 Plan and Land use Regulation Amendments
(1) If an amendment to a functional plan, an acknowledged comprehensive plan, or a
land use regulation (including a zoning map) would significantly affect an existing
or planned transportation facility, then the local government must put in place
measures as provided in section (2) of this rule, unless the amendment is allowed
under section (3), (9) or (10) of this rule. A plan or land use regulation amendment
significantly affects a transportation facility if it would:
(a) Change the functional classification of an existing or planned transportation
facility (exclusive of correction of map errors in an adopted plan);
(b) Change standards implementing a functional classification system; or
(c) Result in any of the effects listed in paragraphs (A) through (C) of this
subsection based on projected conditions measured at the end of the
planning period identified in the adopted TSP. As part of evaluating projected
conditions, the amount of traffic projected to be generated within the area
of the amendment may be reduced if the amendment includes an
enforceable, ongoing requirement that would demonstrably limit traffic
generation, including, but not limited to, transportation demand
management. This reduction may diminish or completely eliminate the
significant effect of the amendment.
(A) Types or levels of travel or access that are inconsistent with the
functional classification of an existing or planned transportation
facility;
(B) Degrade the performance of an existing or planned transportation
facility such that it would not meet the performance standards
identified in the TSP or comprehensive plan; or
(C) Degrade the performance of an existing or planned transportation
facility that is otherwise projected to not meet the performance
standards identified in the TSP or comprehensive plan.
FINDING: The Hearings Officer finds the above language is applicable to the proposal because it
involves an amendment to an acknowledged comprehensive plan. The proposed plan amendment
would change the designation of the Subject Property from AG to RREA and change the zone from
EFU to MUA10. The Applicant is not proposing any land use development of the Subject Property at
this time.
The Applicant submitted a traffic impact analysis ("TIA"), Exhibit L, dated April 22, 2022, prepared by
Joe Bessman, PE of Transight Consulting LLC. As noted in the agency comments section above, the
County Transportation Planner identified deficiencies with the submitted TIA and requested
additional information. The Applicant then submitted a revised TIA dated June 23, 2022. The County
Transportation Planner determined that additional information was still required regarding Level
of Service and Volume to Capacity rations in order to fully address OAR 660-012-0060. The Applicant
then submitted a revised TIA dated June 29, 2022.
58
247-22-000353-PA, 354-ZC
The revised TIA was reviewed by the County Transportation Planner, who agreed with the
supplemented TIA report's conclusions. Based upon a review of the revised TIA and the County
Transportation Planner's comments, 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 finds that the
proposed zone change will not change the functional classification of any existing or planned
transportation facility or change the standards implementing a functional classification system.
Regarding the TIA dated June 29, 2022, the County Transportation Planner provided the following
comments in an email dated June 30, 2022:
"The information demonstrates the project complies with the Transportation Planning Rule (TPR)
and Deschutes County Code (DCC) 18.116.310."
Based on the County Senior Transportation Planner's comments and the supplemented TIA, the
Hearings Officer finds compliance with the Transportation Planning Rule has been effectively
demonstrated.
DIVISION 15, STATEWIDE PLANNING GOALS AND GUIDELINES
OAR 660-015, Division 15, Statewide Planning Goals and Guidelines
FINDING: The Statewide Planning Goals and the Applicant's findings are quoted below:
"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.
Goal2, Land Use Planning. Goals, policies and processes related to zone change applications are
included in the Deschutes County Comprehensive Plan and Titles 18 and 23 of the Deschutes
County Code. The outcome of the application will be based on findings of fact and conclusions of
law related to the applicable provisions of those laws as required by Goal 2.
Goal 3, Agricultural Lands. The applicant has shown that the subject property is not agricultural
land so Goal 3 does not apply.
Goal 4, Forest Lands. The existing site and surrounding areas do not include any lands that are
suited for forestry operations. Goal 4 says that forest lands "are those lands acknowledged as
forest lands as of the date of adoption of this goal amendment." The subject property does not
include lands acknowledged as forest lands as of the date of adoption of Goal 4. Goal 4 also says
that "(w]here **a plan amendment involving forest lands is proposed, forest land shall include
lands which are suitable for commercial forest uses including adjacent or nearby lands which are
59
247-22-000353-PA, 354-ZC
necessary to permit forest operations or practices and other forested lands that maintain soil, air,
water and fish and wildlife resources."
This plan amendment does not involve any forest land as the term is defined by OAR 660-005-
0010. That rule says that lands suitable for commercial forest use and protection under Goal 4
shall be identified using NRCS soils survey mapping to determine the average annual wood
production figures. The NRCS maps the subject property as soil mapping units 364 and 58C. The
NRCS Soils Survey of the Upper Deschutes River lists all soils mapped by its survey that are suitable
for wood crop production in Table 8. Neither 36A nor 58C soils are soil mapping units the NRCS
considers suitable for wood crop production because neither is listed on Table 8 as such.
Goal 5, Natural Resources, Scenic and Historic Areas, and Open Spaces. The subject property
does not contain any inventoried Goal 5 resources.
Goal 6, Air, Water, and Land Resources Quality. The approval of this application will not cause
a measurable impact on Goal 6 resources. Approval will make it more likely that the irrigation and
pond water rights associated with the property will ultimately be returned to the Deschutes River
or used to irrigate productive farm ground found elsewhere in Deschutes County.
Goal 7, Areas Subject to Natural Disasters and Hazards. The subject property is not identified
by the comprehensive plan as a known natural disaster or hazard area with the exception that
the entire county is recognized as being a wildfire hazard area. The change of zoning and plan
designation is not, however, precluded by this fact. Development is allowed despite the recognized
hazard .d t4... county h,,..- taken t to develop p programs that .v ,, this known IIULU/U UIIU the l.oul ItJ has tUncI1 steps w Ucvcw/✓u1U� minimize uu.) nI wvvII risk.
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 MUA-
10 zoning and that these lands will help meet the need for rural housing. Approval of this
application, therefore, is consistent with Goal 10 as implemented by the acknowledged Deschutes
County comprehensive plan.
Goal 11, Public Facilities and Services. The approval of this application will have no adverse
impact on the provision of public facilities and services to the subject site. Utility service providers
have confirmed that they have the capacity to serve the maximum level of residential development
allowed by the MUA-10 zoning district.
60
247-22-000353-PA, 354-ZC
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, addressed
above, also demonstrates compliance with Goal 12.
Goal 13, Energy Conservation. The approval of this application does not impede energy
conservation. The subject property is located in a part of the community that contains a large
amount of rural residential development. Providing homes in this location as opposed to more
remote rural locations will conserve energy needed for residents to travel to work, shopping and
other essential services.
Goal 14, Urbanization. This goal is not applicable because the applicant's proposal does not
involve property within an urban growth boundary and does not involve the urbanization of rural
land. The MUA-10 zone is an acknowledged rural residential zoning district that limits the intensity
and density of developments to rural levels. The compliance of this zone with Goal 14 was
acknowledged when the County amended its comprehensive plan in 2011. The comprehensive
plan recognizes the fact that the MUA-I0 and RR zones are the zones that will be applied to lands
designated Rural Residential Exception Area.
Goal 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."
COL Wni 6, page provided following related to Goal 1 A:
I.VLVV (September 2022, 2) the following comments ��..iw i-r.
"The application has not shown that it complies with Goal 14. The requested zoning would allow
1 dwelling per 10 acres on this 60-acre property, or perhaps more under cluster or planned
development conditional uses. As the property currently has only one dwelling, a six fold increase
in the residential density on this property would urbanize rural lands in violation of Goal 14, and
thus requires an exception to Goal 14."
Applicant, in its Final Argument (pages 9 - 12), provided the following response to COLW's Goal 14
arguments:
Central Oregon LandWatch ("COLW") argues that the County must approve an exception to
Statewide Goal 14, Urbanization, in order to apply the MUA-10 zone and RREA plan designation
to the Marken property even if it is found to be non-agricultural land. An exception to Goal 14 is
only required, however, if the proposed zone and designation allows urban development of the
subject property.
In another similar plan amendment and zone change case, COLW relied on the legal case of 1000
Friends of Oregon v. LCDC (Curry County), 310 Or 447, 498-511, 724 P2d 268 (1986) for the
proposition that a county may need to approve a goal exception to apply the RREA plan Page 10
- Applicant's Final Argument (Marken) designation and RR-10 zoning districts to the subject
property. The Curry County case, however, does not support that argument.
61
247-22-000353-PA, 354-ZC
In Curry County, the Oregon Supreme Court determined that rural residential zoning for exception
areas must be proven to be rural in nature when first adopted, even for zones and plans adopted
prior to the allowance of exceptions to Goal 14. Curry County at 476. This means that when
Deschutes County's comprehensive plan and zoning code were acknowledged by LCDC around
1980, it was necessarily determined that RREA plan designation and zoning comply with Goal 14
and do not allow urban development.
Deschutes County Comprehensive Plan ('DCCP) Policy 2.2.3 specifically allows nonresource lands
zoned EFU to be redesignated and rezoned and identifies the property zoning and plan
designations to be applied to non-agricultural lands. The plan also states, in Section 3.3, Rural
Residential Exception Areas:
'As of 2010 any new Rural Residential Exception Areas need to be justified through initiating
a non -resource plan amendment and zone change by demonstrating the property does
not meet the definition of agricultural or forest land 'E'**'
The Plan states that Mach Comprehensive Plan map designation provides the land use framework
for establishing zoning districts. Zoning defines in detail what uses are allowed for each area.'
DCCP Section 1.3, p. 15. Rural Residential Exception Areas, according to the DCCP, 'provide
opportunities for rural residential living outside urban growth boundaries and unincorporated
communities '**' DCCP Section 1.3, p. 15. DCCP Table 1.3.3 provides that Title 18's RR-10 and
MUA-10 are the 'associated Deschutes County Zoning Code(s]' for the RREA plan designation.
The determination that the RREA plan designations and RR-10 and MUA-10 zoning districts should
apply to non-agricultural lands was made when the County amended the DCCP in 2016. Ordinance
2016-005. The comprehensive plan, with that amendment, has been acknowledged by DLCD as
complying with the Statewide Goals. This means that the lot sizes and uses allowed by the RREA
plan designation and RR-10 zone are Goal 14-compliant. The proposed plan amendment simply
proceeds exactly as described by the County's acknowledged comprehensive plan. It provides no
occasion for the County to revisit the issue of whether the MUA-10 zone and RREA plan designation
allow urban development that violates Goal 14. [footnote 2: In Deschutes Development Co. v.
Deschutes County, 5 Or LUBA 218 (1982) LUBA held that 'We lack authority after acknowledgment
of a comprehensive plan to review goal issues related to the plan. Fujimoto v. MSD, 1 Or LUBA 93,
1980, aff'd, 52 Or App 875, 630 P2d 364 (1981). ] COLW's challenge to the application of MUA-10
zoning to the Markens' property that is nonagricultural land is an impermissible collateral attack
on the County's acknowledged comprehensive plan.
This issue is addressed in detail by the Oregon Court of Appeals in Central Oregon LandWatch v.
Deschutes County, 301 Or App 701, 457 P3d 369 (2020)(TID). In TID, the Court held that a decision
made by Deschutes County decades earlier not to apply a resource plan designation to the subject
property made it unnecessary for the property owner to establish that the property is nonresource
land when remapping it from Surface Mining to RREA and MUA-10. This is consistent with earlier
Court of Appeals decisions that hold that Goal 5 is not a relevant issue in a plan amendment and
zone change application if the subject property has not been identified as a Goal 5 resource by
62
247-22-000353-PA, 354-ZC
the applicable comprehensive plan. Urquhart v. Lane Council of Governments, 80 Or App 176,
181-182, 721 P2d 870 (1986); Friends of Neabeack Hill v. City of Philomath, 139 Or App 39, 911
P2d 350, rev den 323 Or 136 (1996).
The case ofJackson County Citizens' League v. Jackson County, 171 Or App 149, 15 P3d 42 (2000)
holds that it is unnecessary to establish compliance with Goal 14 for uses conditionally allowed by
the EFU zone; just as it is unnecessary for the Markens to establish that Deschutes County's
comprehensive plan, a plan that provides that the RREA plan designation and RREA zones (RR-10
and MUA-10) should be applied to nonagricultural lands, complies with Statewide Goal 14.
a. RREA Argument and Goal 14 Factors
While not conceding that an analysis of Goal 14, Urbanization is required, we provide one below.
The MUA-10 zoning district does not authorize urban development that violates Statewide Goal
14. DCCP Chapter 1, Section 1.3 p. 15 (Definitions) says that RREAs provide opportunities for rural
residential living; not urban living that violates Goal 14. A review of the factors identified by the
Supreme Court in Curry County all confirm that the MUA-10 zoning district does not allow urban
development.
i. Density
The MUA-10 zone imposes a maximum density of 1 dwelling per 10 acres. This is not an urban
density. Such a density would never be allowed in any urban residential zoning district other than
a /CJC/ ve o/ holding zone. Byway of comparison, the Porter Kelly Burns property will be developed
at a density of 11 homes per acre (excluding a small park). In Curry County, the Supreme Court
accepted the concession of 1000 Friends a density of one house per ten acres is generally "not an
urban intensity." COLW argues that the comprehensive plan requires a 10-acre minimum parcel
size. If they are correct, this minimum will apply during a review of any subdivision on the subject
property and assure that development is "not an urban intensity. Furthermore, in Curry County,
1000 Friends of Oregon argued that densities greater than one dwelling per three acres (e.g. one
dwelling per one or two acres) are urban. The density allowed by the RR-10 zone in a planned
development is 2.5 times less dense. For a standard subdivision, the density allowed (1 house per
10 acres) is over 3 times less dense.
The density of the RR-10 zone is not, as claimed by COLW, six times greater than the density of
development allowed in the EFU-zone. Deschutes County's EFU zone allows for non -irrigated land
divisions for parcels as small as 40 acres to create two nonfarm parcels (1:20 acres density). It also
allows for 2-lot irrigated land divisions that, in Deschutes County can occur on parcels zoned EFU-
TRB subzone that are less than 30 acres in size. This division requires 23 acres of irrigated land
and imposes no minimum lot size on the nonfarm parcel or parcels. This is a density greater than
one house per 15 acres. A density of one house per 10 acres is not an urban density of
development.
ii. Lot Size
63
247-22-000353-PA, 354-ZC
The MUA-10 zoning district requires a minimum lot size of one house per ten acres. Smaller lots
are allowed only if 65% to 80% of the land being divided is dedicated as open space.
The EFU zone that applies to the subject property imposes no minimum lot size for new nonfarm
parcels. DCC 18.16.055. The only exception is that 5-acre minimum is required for non -irrigated
land divisions of properties over 80 acres in size. DCC 18.16.055(C)(2)(a)(4). The EFU zone requires
that other nonfarm uses be on parcels that are "no greater than the minimum size necessary for
the use."Although not relevant to this Application because the property is nonresource land rather
than land in an exceptions area, OAR 660-004-0040 contemplates lot sizes as small as two acres
in rural residential exceptions areas.
iii. Proximity to Urban Growth Boundaries
The Marken property adjoins the City of Bend. This makes it an excellent candidate for inclusion
in the Bend UGB if properly identified as non-agricultural land. Skipping over the Marken property
to annex the MUA-10 zoned properties east of the Marken property to the City of Bend will require
an inefficient extension of urban services and urban sprawl.
iv. Services
Sewer service is prohibited by Goal 11. An increase in the density of development is not allowed if
a public water system is developed to serve the subject Property so the approval of this application
will not result in a violation of Goal 11.
v. Conclusion of Factors
In totality, the above factors do not indicate that the Applicant's rezoning request implicates Goal
14. Applicant's proposal would increase that allowable density, but not to urban levels. Instead,
approval of the proposal will enable the land to remain in a rural state until such time as it is
included in the Bend UGB. At that time, it can be developed at urban densities."
Staff, in the Staff Report (page 38) stated that it generally accepted "the Applicant's responses and
finds compliance with the applicable Statewide Planning Goals has been effectively demonstrated." Staff,
in the Staff Report, also stated that it took:
"note of public comments concerning potential loss of farmland, impacts to wildlife, and potential for
increased housing density. While these comments detail concerns related to specific potential use
patterns, staff finds the overall proposal appears to comply with the applicable Statewide Planning
Goals for the purposes of this review."
The Hearings Officer concurs with and adopts, as additional findings for this section, the Applicant's
legal analysis and conclusions (Burden of Proof, page 33, Final Argument, pages 9-11) related to the
applicability of Goal 14 to this case. Applicant concluded, and the Hearings Officer agrees, that Goal
14 does not apply to this case. As alternative findings (if it is later determined that Goal 14 does
apply to this case) the Hearings Officer adopts Applicant's "RREA Argument and Goal Factors" as
64
247-22-000353-PA, 354-ZC
findings. The Hearings Officer finds that if Goal 14 is applicable to this case the analysis provided by
Applicant (Final Argument, pages 11 and 12) demonstrates the requirements of Goal 14 are met.
IV. CONCLUSIONS
The Hearings Officer considered the comments of neighboring property owners and the objections
expressed by COLW in making this recommendation. The Hearings Officer finds the primary issues
raised by neighboring property owners involved potential impacts resulting from approval of the
application and the ability of the Subject Property to be farmed. The Hearings Officer finds that
COLW's primary issues related to (1) the Applicant's soil scientist/classifier soil classifications at the
Subject Property were not correct or relevant, (2) the application did not comply with Goal 14 and,
(3) the application was not consistent with DCC 18.136.020(D).
The Hearings Officer reviewed and considered each neighboring property owner and COLW
objection to the approval of the application. The Hearings Officer concluded that the application did
meet all relevant policies and approval criteria. The Hearings Officer recommends approval of the
Applicant's Comprehensive Plan Amendment and Zone Change requests.
V. RECOMMENDATIONS
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer recommends
the Deschutes County Board of County Commissioners approval Applicant's request to change the
designation of the Subject Property from Agricultural (AG) to Rural Residential Exception Area (RREA)
and-,l of Applicant's request for Zone Change to rezone the Subject Property from Exclusive
approval V I Applicant's ��.� request for a Zone Change ib... ��, rezone ��,� �.. the Property .., N�.� �y from i � Exclusive
Farm Use-Tumalo-Redmond-Bend subzone (EFU-TRB) to Multiple Use Agricultural (MUA10).
Dated: November 4t", 2022
,4-6ffe7-9.f-ta4a
GregoryJ Frank
Deschutes County Hearings Officer
65
247-22-000353-PA, 354-ZC
Zoning and Vicinity Map
Land Use Files 247-22-000353-PA, 354-ZC
Bend UGB expansion
pursuant to HB 4079
Subject Property
COID Zone
Change from EFU
to MUA10
Stevens Ranch Master
Plan and annexation
Bend City
Limits
625 1,250 2,500
ft
Date:1/17/2023 i inch= 1,505 feet
28,41 NVki Lola Drive,
www.coBw.org
January 18, 2023
filed via hand delivery and email: 41udrey.Stuar 4,deschutes. org
Deschutes County Board of County Commissioners
c/o Audrey Stuart, Associate Planner
Deschutes County Community Development Department
1300 NW Wall Street
Bend, OR 97703
Re: Application File No. 247-22-000353-PA and 247-22-000354-ZC (Marken)
Dear Chair DeBone, Vice -Chair Adair, and Commissioner Chang:
Central Oregon LandWatch ("LandWatch") submits these comments in opposition to the
above -referenced application, which seeks to rezone 59.1 acres of agricultural land zoned
Exclusive Farm Use to allow rural residential uses.
LandWatch submitted three comment letters w theHearings J111.. _,1 111 the pioce., iiii J
below, which are in the record before you and incorporated here by reference.
This application argues that the 59.1-acre subject property is not agricultural land
protected for farm use by statewide land use Goal 3 Agricultural Lands. Whether land is
protected by Goal 3 is a four-part inquiry that defines agricultural land in terms of (1)
predominant soils class, (2) suitability for faun use regardless of soil class, (3) whether land
is necessary to permit farm practices to be undertaken on adjacent or nearby lands, and (4) land
in capability classes other than I -IV that is adjacent to or intermingled with lands in capability
classes I -IV. Wetherell v. Douglas County, LUBA No. 2005-070, 50 Or LUBA 71, 75 (2005).
Here, the subject property is demonstrably suitable for farm use regardless of its soil
class. Below is a series of Google Earth aerial images of the property from the year 2005 to
2023, with the property's boundaries outlined in red:
1
3 r'.
„---
CN PA oPEGoN
LANDWATCH
= •;,•-•z), '4.,t,t§••;4%• •
"••••
2 ()
(t) 3 0
www.cohm.org
Figure 1. Current Google Earth aerial image of subject property. Accessed 1/13/23.
38,9 2
'E E E NI 0 A 111 0 IP LA, •C) "I 9, '''••\ I )
CE"INTPA OREGON
LAN DWATCH
2843 NW Lo Drive, 8 te, :800 1 e A , 97703
Phune: (541) 64?-2930
www.colw.org
Figure 2. Google Earth aerial image of subject property in 2018. Accessed 1.16.23.
3
WEDEEEN LE) NiA0 pLA
- ,
C NIPA OPEGON
LANDWATCH
243 whi L, 0 D . '200 :2-en 0 77 0 :3
47- 2 9 3,0
www.colw.org
Imagery Date: 5/2612.017
Figure 3. Google Earth aerial image of subject property in 2017. Accessed 1.16.23.
4
E 1)1E, IF' iN1 0 .A P[AM FOR te. 1 Ft, A L, 0 8 1„ 1 -V A ,
T-441E44,4
c NTPA OPEGON
LANDWATCH
-2 343 M
P h o (541) 647 - '29 3 C3
www.colw.org
Imagery Daie: 7/6/2014
Figure 4. Google Earth aerial image of subject property in 2014. Accessed 1.16.23.
5
W E E D AND PAN C. 1, . (2) R 1 v A r fir:,
V41$1&10,t'.= 7----7/7111"--"...:52, • ,
CENTPA oPeGoN
LANDWATCH
284-3 NW Lolo D '\./ S 200 I Bend, OR, SY77 0 3
Phon,D (541) 6-47 -293c)
www.colw,org
- Ntarl„
.44,4,-.SArK,reaCee- e
Figure 5. Google Earth aerial image of subject property in 2012. Accessed 1.16.23.
6
017,1E- k .1.) A I) IF R C E R„A II_ 0 [RES F:c., 0 z4; 1„ V
LAN DWATCH
2843 NW I,00 Dave, Ste, 200 I Bend, OR 97703
Phone (541) 647-2930
www.colw.org
Figure 6. Google Earth aerial image of subject property in 2011. Accessed 1.16.23.
7
WEDEF N D A FOR C8N FRAL OREGON'S LVR0L8 Furu R
4.Aita$ —1
C T AA OPEGON
LANDWATCH
289.3 n 1,N1 , 0 9) 2c)0
92 9 3 0
www.co wog
Figure 7. Google Earth aerial image of subject property in 2006. Accessed 1.16.23.
OEFE [NI A D L F9,9 R. .'.9.„6\ 9'90•
NTPA OPEGON
LAN DWATCH
Imagery Date: 6/28/2005
Ste. 200 Bend, OR. 97703
Phone (541) 647--29 30
www.colw.org
Figure 8. Google Earth aerial image of subject property in 2005. Accessed 1.16.23.
As is obvious from the many years of irrigated agriculture occurring on this property
visible in these photographs, this property is suitable for agriculture. The application itself
describes the long history of farm use for a profit on this land, stating that since acquiring the
property in 1981, the applicant "grew hay and occasionally raised cattle" and made "efforts to
IN IF
61 4
9
OR, 97703
-2930
wwwacolw.org
make a profit in money by farming the property." For many, many years, the property was used
for the "current employment of land for the primary purpose of obtaining a profit in money."
ORS 215.203.
The property is suitable for farm use "taking into consideration soil fertility; suitability
for grazing; climatic conditions; existing and future availability of water for farm irrigation
purposes; existing land use patterns; technological and energy inputs required; and accepted
farming practices." OAR 660-033-0020(1)(a)(B). The only evidence the County need look at to
find that the property is suitable for farm use given all of these factors is the many, many years
when the property was activly put to farm use.
Here, the applicant argues that the profits yielded -froi i iiie subject property were
unsatisfactory. Many properties of the same size and same soil quality in Deschutes County are
home to very profitable commercial agricultural operations. The applicant and Hearings Officer
place entirely too much emphasis on profitability in the Goal 3 inquiry:
"[W]hile profitability is a permissible consideration in determining whether land is
agricultural land under the rule definition, it is a relatively minor consideration, and one
with a large potential for distracting the decision maker and the parties from the primary
considerations listed in the rule definition --soil fertility, suitability for grazing, climatic
conditions, existing and future availability of water for faiiii irrigation purposes, existing
land use patterns, technological and energy inputs required, and accepted farming
practices." (Wetherell v. Douglas County, 58 Or LUBA 638, 657, 2009 WL 1259326, at
*14 (2009))
The property used to have 36 acres of water rights, until the owner/applicant recently sold
all but 9.49 acres of those water rights. Now the applicant appears to argue that the unavailability
of irrigation on the property is a reason it should not be considered agricultural land. LUBA has
rejected this tactic in the past. Peterson v. Crook County, 49 Or LUBA 223, 232-233 (2005).
Water availability is a factor that must be considered in determining whether land is suitable for
faun use. OAR 660-033-0020(1)(a)(B). The applicant could buy back water rights just as
readily as they sold them.
The soils on the subject property also render it suitable for agriculture. According to
the NRCS, the soils of the subject property are predominantly Class III irrigated and Class VI
unirrigated, as documented in the application.
10
,2930
www.colw.or
The soil scientist report relied on by the applicant to assert the property does not qualify
as agricultural land is highly suspect and contradictory. Of the soil observation sites the report
analyzes, 29 were found to be Class I -VI, while 24 were found to be Class VII-VIII. These are
the only soil observations for which the report provides data. Despite the report's data showing
that a majority of soil sites actually analyzed for soil suitability show that the property's soils are
Class I -VI, it nonetheless finds that the property's soils are predominantly Class VII-VIII. To
explain this inconsistency, the soil scientist stated that "additional observations" also showed
Class VII-VIII soils but that they "were not shown on the map or tabulated." Hearings Officer
decision at 25. This is a convenient answer but one that cannot change the only hard soils data
provided in the report, which shows that more than half of the soil observation sites found Class
I -VI soils.
Given its long history of farm use for a profit, availability of irrigation water, and
suitability of its soils for agriculture, this property is clearly agricultural land protected by Goal
3. To approve this application would require a goal exception, which the applicant has not
sought.
Retards,
Rsbell
Staff Attorney and Rural Lands Program Manager
Central Oregon LandWatch
2843 NW Lolo Drive, Ste. 200
Bend, OR 97703
rory co1w.org
(541) 647-2930 x804
11
WELLS B. ASHBY, Presiding judge
BETH M. BAGLEY, Judge
RAYMOND D. CRUTCHLEY, Judge
ALISON M. EMERSON, judge
BETHANY P. FLINT, judge
ALYCIA M. HERRIO 1"1, Judge
MICHELLE A. MCIVER, judge
WALTER R. MILLER, JR., Judge
ALYCIA N. SYKORA, fudge
January 10, 2023
Commissioner Tony DeBone, Chair
Deschutes County Board of Commissioners
1300 NW Wall Street, Suite 200
Bend, OR 97703
RE: Mock Trial Competition
Dear Commissioner DeBone:
CIRCUIT COURT OF OREGON
JUDICIAL DISTRICT
Deschutes County Courthouse
I I00 NW Bond Street
Bend, Oregon 97703
(541) 388-5300
We look forward to resuming a major event for youth in our area this year, the 2023 Mock Trial
Competition. This year's competition will be held on Saturday, February 11th, 2023. We are
requesting permission to use the Justice Building to host the event. We will need access from
approximately 8:30 a.m.- 4:00 p.m. We will also be contacting County Facilities and Sheriff
Nelson W assist us with the event.
We are expecting three teams in this year's competition. We hope you will continue to support
this positive activity. Please contact me if you have any questions or concerns. Thank you for
your consideration.
Respectfully,
Walter R. } iller
Circuit C • rt Judge
CC: Nick Lelack, County Administrator
Whitney Hale, Deputy County Administrator
Lee Randall, Director of Deschutes County Facilities
BOARD OF COUNTY COMMISSIONERS
XXXX
XXXXX
900 Court St., NE, XXXX
Salem, Oregon 97301
RE: Support for Deschutes County Courthouse Expansion
Dear XXXX:
We're writing to ask for your support and partnership to expand Deschutes Circuit Court (a State of Oregon Court)
courthouse. In the past year, due to inflation and cost escalation, our project costs have increased from an
estimated $27 million to close to $40.5 million.
We are requesting $20 million in matching funds from the State to support this critical project, which will add
69,000 square feet to the current courthouse, including a four-story addition and new courtrooms and secure
basement -level parking.
The key focus areas of this project are improving security, providing additional courtroom space for the two new
judges that were approved by the legislature in 2021, new attorney -client conference rooms, and expanded
access for participation in court proceedings. Our current court facility minimally meets current space needs for
services and doesn't accommodate our two new judges.
During the past five years, the legislature has approved $246 million for courthouse replacements and
improvements. More than 95 percent of those funds have been allocated to counties west of the Cascades.
While we are incredibly grateful for the $1.5 million we received for this project in the last legislative session, we
are in need of additional support from the State for this project. We are currently in engaged in the schematic
design stage of this project and estimate that construction will be completed in 2026.
Please feel free to contact us for more information.
Sincerely,
The Deschutes County Board of Commissioners
Anthony DeBone, Chair
Patti Adair, Vice -Chair Phil Chang, Commissioner
1300 NW Wall Street Bend, Oregon 97703
ciN (541) 388-6571 @ board@deschutes .org ? www.deschutes.org
WILDFIRES. EARTHQUAKES. PANDEMICS. FLOODS.
LET'S KEEP
OREGON
SAFE
Central Oregon, Oregon, and the Pacific Northwest are facing growing threats from. natural disasterssuch as wildfire, flooding,
and pandemics, as well as the anticipated Cascadia Subduction Zone event
Redmond, Oregon will play a significant role in rescue and: recovery operations for major statewide disasters, yet the region
lacks a dedicated multi -agency coordination center for :emergency " operations;. or adequate training facilities for large scale
CORES will be a dedicated, multi-agency;coordination center and collaborative trainin
for local, state, and federal personnel.
CORE
Central
Oregon
Ready
Responsive
Resilient
For more Information,
please visit coic.org/core3
CORES 1 REGIONAL EMERGENCY TRAINING AND RESPONSE CENTER
VISION
SHORT TERM (PHASE 1)
• Emergency Coordination Center/classroom facility
• Emergency Vehicle Operator Course (EVOC) and drivers skill pad
• Fire tower and burn building
aI ONG TERM
• Administration Building and Flexible
Classrooms
• High Bay/Indoor Drill and Training Space
• Gun Range
• Urban Search $ Rescue Prop
• Class A Burn Building; 2-story
• Drill Tower Building; 4-story with Class B
burn props
• Shoot House/Reconfigurable Maze
(simulations facility)
• Virtual de-escalation training
= Train car derailment and rescue prop
• Off -road driving course
• Tactical/street grid
• Wildland fire training
• Vehicle extraction prop
• Fire drafting pit - fire truck pump
certification
• Rescue - confined space & trench prop
• ARF -Aircraft Rescue and Fire Fighting
prop
• Emergency Medical Technician (EMT)
Lab
• Roof training prop - Fire, SWAT/
Rappelling, Smoke, etc.
• Continuation of government functions
• Emergency supply cache
$50 MILLION
of which, $25 MILLION has already been secured
FUND CORE3. INVEST
IN OREGON'S FUTURE.
LAND USE ENTITLEMENTS
12-18 MONTHS
GROUND BREAKING
TARGET: 30-36 MONTHS
FUNDRAISING
ONGOING
Central
Oregon
Ready
Responsive
CO -R E- 3 _. Resittent ..
For more Information,
please =vi sit-cotc.or-g/core3=
E3
RT ERS
C;E'NTRAL. OREGON COMMUNITY COLLEGE
CENTRAL OREGON FIR MANAGEMENT
SERVICE.
CENTRAL OREGON i'ERGOVERNMENTAL
COUNCIL
CITY OF BEND FIRE Et RESCUE
CITY OF BEND POLICE DEPARTMENT
CITY OF MADRAS
CITY OF REDMOND
CITY OF REDMOND AIRPORT
CITY OF REDMOND POLICE DEPARTMENT
CROOK COUNTY
CROOK COUNTY EMERGENCY
IMANAO EM E. N T
DEPARTMENT OF PUBLIC SAFETY
STANDARDS Ea TRAINING
DESCHUTES COUNTY EMERGENCY
MANAGEMENT
DESCHUTES COUNTY SHERIFF'S OFFICE
GOVERNOR'S REGIONAL SOLUTIONS
JEFFERSON COUNTY
JEFFERSON COUNTY EMERGENCY
MANAGEMENT
:JEFFERSON COUNTY FIRE Fr EMS
JEFFERSON COUNTY SHERIFF'S OFFICE
OREGON DEPARTMENT OF FORESTRY
OREGON DEPARTMENT OF
TRANSPORTATION
OREGON EMERGENCY MANAGEMENT
OREGON STATE FIRE MARSHAL
OREGON STATE POLICE
REDMONI) FIRE a RESCUE
SISTERS -CAMP SHERMAN FIRE DISTRICT
BOARD OF
COMMISSIONERS
BOARD OF COUNTY COMMISSIONERS MEETING
9:00 AM, WEDNESDAY, JANUARY 18, 2023
Barnes Sawyer Rooms - Deschutes Services Building - 1300 NW Wall St - Bend
(541) 388-6570 1 www.deschutes.org
AGENDA
MEETING FORMAT: In accordance with Oregon state law, this meeting is open to the public and
can be accessed and attended in person or remotely, with the exception of any executive session.
Members of the public may view the meeting in real time via the public meeting portal at
www.deschutes.org/meetings. To view the meeting via Zoom, see below.
Citizen Input: The public may comment on any meeting topic that is not on the current agenda. To
provide citizen input, submit an email to citizeninput@deschutes.org or leave a voice message at
541-385-1734. Citizen input received by noon on Tuesday will be included in the meeting record for
topics that are not on the Wednesday agenda.
If in -person comment from the public is allowed at the meeting, public comment will also be allowed
via computer, phone or other virtual means.
Zoom Meeting Information: This meeting may be accessed via Zoom using a phone or computer.
• To join the meeting from a computer, copy and paste this link: bit.ly/3h3ogdD.
• To join by phone, call 253-215-8782 and enter webinar ID # 899 4635 9970 followed by the
passcode 013510.
• If joining by a browser, use the raise hand icon to indicate you would like to provide public
comment, if and when allowed. If using a phone, press *6 to indicate you would like to speak and
*9 to unmute yourself when you are called on.
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, call (541) 388-6572 or
email brenda.fritsvold@deschutes.org.
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. 2023-002 increasing program appropriations within the
Campus Improvement Fund and Transfer Out appropriations within the Adult Parole &
Probation Fund, Health Services Fund, Veterans' Services Fund, Information Technology
Fund and the 2022-23 Deschutes County Budget
2. Consideration of Board Signature on letters of appointment, reappointment and thanks
for various Special Road Districts
3. Consideration of Board Signature on a letter reappointing Carrie Novick to the
Deschutes County Fair Board for a term commencing January 1, 2023 through
December 31, 2025
4. Consideration of Board Signature on a letter appointing Wendie Every to the Deschutes
County Fair Board for a term commencing January 1, 2023 through December 31, 2025
5. Consideration of Board Signature on a letter thanking Jim Morell for serving on the Fair
Board
6. Consideration of Resolution No. 2023-005, as the governing body of the 9-1-1 Service
District, transferring appropriations between Program Expense and Transfers Out within
the 9-1-1 Service District Fund and the 2022-23 Deschutes County Budget
ACTION ITEMS
7. 9:05 AM 2023 Legislative Session Update
8. 10:00 AM Public Hearing on a request to change the Comprehensive Plan designation
of 59 acres in the 21400 block of Bear Creek Road from Agricultural to Rural
Residential Exception Area with a corresponding Zone change from Exclusive
Farm Use to Multiple Use Agricultural (Marken)
January 18, 2023
BOARD OF COUNTY COMMISSIONERS MEETING Page 2 of 3
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.
ADJOURN
January 18, 2023
BOARD OF COUNTY COMMISSIONERS MEETING Page 3 of 3