2023-256-Minutes for Meeting June 28,2023 Recorded 8/15/2023�v1ES
BOARD OF
COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541) 388-6570
Recorded in Deschutes County CJ2023-256
Steve Dennison; County Clerk
Commissioners' Journal 08/15/2023 2:29:12 PM
FOR RECORDING STAMP ONLY
BOCC MEETING MINUTES
9:00 AM
WEDNESDAY June 28, 2023
Barnes Sawyer Rooms
Live Streamed Video
Present were Commissioners Tony DeBone, Patti Adair and PH Chang. Also present were Nick Lelack,
County Administrator; Kim Riley, Assistant 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:
• Ron Boozell spoke regarding the Board's upcoming $14,000 per year pay raise and
said citizens will not get anything extra for the additional $42,000 annual expense.
He supported expanding the Board from three to five members, saying this would
benefit residents and also allow Commissioners to talk with each other outside of
their meetings which cannot now happen.
Commissioner Chang said he will not accept the full salary increase for FY2024
beyond a 4% cost of living allowance.
Commissioner Adair said her refusal to sign up for PERS saves taxpayers $27,000
each year. She added that she personally lobbied the State legislature for funding
BOCC MEETING
JUNE 28, 2023 PAGE 1 OF 12
for the courthouse expansion, and the County was awarded $15 million for that
project.
• Dorinne Tye said pollution emanating from operations at the Bend Municipal
Airport sickens resident such as herself. She added that training maneuvers are a
nuisance and flight paths should be changed.
• Carl Shoemaker stated that the Republican Party is trying to suppress voting across
the nation, and those who have the highest net worth (the top 2%) use their money
to leverage power.
CONSENT AGENDA: Before the Board was Consideration of the Consent Agenda.
1. Approval of an agreement with the US Forest Service to fund the Oregon Living
With Fire program for another five years
2. Approval of Board Order No. 2023-025 cancelling uncollectible personal property
taxes in the amount of $53,621.57
3. Approval of Minutes of the June 16, 2023 BOCC Legislative Update
ADAIR: Move Board approval of the Consent Agenda as presented
CHANG: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
ACTION ITEMS:
4. Presentation of 25-year service award to Mary Anderson
Steve Gunnels, District Attorney, presented a 25-year service award to Mary
Anderson, Chief Deputy District Attorney. Gunnels praised Anderson's
prosecutorial skills and said he often seeks her advice.
5. Deschutes County District Attorneys' Association Collective Bargaining
Agreement
Whitney Hale, Deputy County Administrator, summarized the terms of the
collective bargaining agreement and associated Memorandums of
Understanding. District Attorney Gunnels added that these agreements will
improve the department's ability to retain staff and recruit new staff as needed.
BOCC MEETING
JUNE 28, 2023 PAGE 2 OF 12
ADAIR: Move approval of Board signature of the Collective Bargaining
Agreement between Deschutes County and the Deschutes County
District Attorneys' Association effective July 1, 2023 through June 30,
2026
CHANG: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
CHANG: Move approval of County Administrator signature of the
Memorandum of Understanding for the DCDAA Tier
Implementation
ADAIR: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
ADAIR: Move approval of County Administrator signature of the
Memorandum of Understanding for the DCDAA Retention Bonus
Incentive Program
CHANG: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes no. Motion Carried 2 - 1
Commissioners Adair and Chang stated their reasons for supporting the
retention bonus incentive program.
6. Public Hearing: Remand of LBNW LLC Plan Amendment and Zone Change
application 247-21-000881-PA, 882-ZC (247-23-000398-A)
Tarik Rawlings, Associate Planner, said the purpose of the public hearing is to
consider a remand decision of the Oregon Land Use Board of Appeals regarding
a Plan Amendment and Zone Change application proposed by LBNW LLC and
originally approved by the Board under files 247-21-000881-PA, 882-ZC.
The public hearing was opened at 9:29 am.
BOCC MEETING
JUNE 28, 2023 PAGE 3 OF 12
Rawlings clarified statements made on June 26th at the Board's work session on
this matter, saying the scope of the remand is limited de novo and restricted to
the Goal 5 and Oregon administrative rule compliance. This matter concerns an
application seeking to rezone and re -designate 19.12 acres at 65301 N Hwy 97
between Bend and Redmond from Agriculture/Exclusive Farm Use to Rural
Industrial. After the application was approved by the Board in December of 2022,
it was subsequently appealed and has now been remanded to the Board by LUBA
to address whether the new industrial zoning designation would allow uses on
the subject property that were not allowed under the previous Exclusive Farm
Use zoning, and if so whether those uses could conflict with protected Goal 5
resources —specifically, scenic view resources.
Adam Smith, an attorney representing the applicant, clarified that because LUBA
already determined that uses allowed in the Rural Industrial (RI) zone could
conflict with Deschutes County's Goal 5 scenic view resources, the County is
required to follow the "ESEE Decision Process" as set forth in OAR 660-023-0040.
Smith explained the ESEE decision process and said the County's Comprehensive
Plan identifies areas which extend one -quarter mile on either side of certain
roads, including Highway 97 between the Bend and Redmond UGBs, as a Goal 5
scenic view resource. Smith emphasized that ESEE consequences are not
outcome -determined, and the Board has discretion to group similar factors
together. He presented a draft ESEE analysis for the Board's consideration, saying
that such analyses require certain actions, as follows:
1. Identify the conflicting use(s), i.e., uses allowed in the RI zone which are
different from the previous EFU zone;
2. Identify the area of impact, i.e. the 19.12 acres associated with the
application;
3. Identify the consequences of the conflicting use(s) to economic,
environmental, social and energy resources; and
4. Identify options such as prohibiting the conflicting use, allowing the
conflicting use in a limited manner (e.g., with mitigating conditions), or
fully allowing the conflicting use.
Smith said the applicant would be satisfied with either the second or third option
and concluded that scenic resources are limited in this location.
Commissioner Chang noted that visual impacts can be vertical or extend
horizontally across a landscape. He said it was important to consider the
cumulative effects of seeing more industrial development in the view corridor as
people drive down the highway. Smith said the applicant will provide more
photographic evidence and reminded that for the purpose of this application, the
County is limited to considering the impacts of allowing different uses on these
BOCC MEETING
JUNE 28, 2023 PAGE 4 OF 12
particular properties and is not able to consider the cumulative impacts of other
properties and uses on the overall view corridor.
Responding to Commissioner Chang about the second option which would allow
the conflicting use(s) in a limited manner with mitigation conditions, Smith said
the base zoning could be changed and the landscape management overlay kept
in place to mitigate any conflicting uses.
Rory Izbell of Central Oregon Land Watch said COLW appealed this matter to
LUBA and continues to oppose this application. He disputed that this is a narrow
issue on remand, saying the issue of scenic resources is broad as is Goal 5, and
industrial uses are most counter to scenic resources than any other use. He
requested that the record be kept open for seven days following the public
hearing to allow COLW to read and digest the applicant's June 23rd letter and
submit comments in response.
In rebuttal, Smith said LUBA's remand compels the Board to consider not just the
social consequences that stem from its decision to approve the Plan amendment
and zone change, but the economic, environmental and energy consequences as
well, and these four types of consequences must be given equal weight.
In response to Commissioner DeBone, Rawlings confirmed that the final ESEE
analysis would be incorporated into a decision of the Board, should they approve
the request.
The public hearing was closed at 10:16 am.
Chair DeBone noted the consensus of the Board to leave the written record open
for new evidence and testimony until 4:00 pm on Wednesday, July 5th
Responding to Commissioner Adair, Rawlings confirmed that the only testimony
allowed will be from persons or organizations with standing in this matter.
7. Public Hearing: Application for 2023 Community Development Block Grant
Erik Kropp, Deputy County Administrator, said Community Development Block
Grant (CDBG) funds can be used to repair and improve housing to ensure
suitable living environments for persons of low and moderate incomes. Business
Oregon administers the state of Oregon's annual federal allocation of CDBG
funds for non -metropolitan cities and counties, and the proposal is to apply for a
$400,000 grant which would be sub -granted to Neighborlmpact for
administration of the funds to eligible persons.
BOCC MEETING
JUNE 28, 2023 PAGE 5 OF 12
Andrew Spreadborough, Deputy Executive Director of Neighborlmpact, read the
required notice of public hearing into the record.
Commissioner Adair asked if these funds would be transferred to eligible persons
as grants or loans. Spreadborough said these would be distributed as deferred
loans made at a current interest rate of 6%. He added that households receiving
the loans are generally considered to be unbankable, yet need funding for
repairs to keep their homes habitable. Spreadborough added that
Neighborlmpact's intention is to serve as many households as possible, and the
budget for administering these funds has not yet been finalized.
Commissioner Chang said this program offers a way to maintain moderate and
affordable housing that otherwise might fall into disrepair and become
uninhabitable.
The public hearing was closed at 10:31 a.m.
CHANG: Move approval of the submittal of an application to Business Oregon
for 2023 Community Development Block Grant funds
ADAIR: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
8. Oregon Health Authority grant agreement #180009 for Public Health
Heather Kaisner, Public Health Director, summarized the terms of the
intergovernmental agreement (IGA) and its program elements, noting that two new
program elements will result in the County receiving $1,517.82 for infection
prevention training and $622,298.28 for Public Health infrastructure.
Responding to Commissioner Chang, Kaisner confirmed that this agreement serves
as the primary Public Health agreement with Oregon Health Authority.
ADAIR: Move approval of Chair signature of Document No. 2023-606, an
intergovernmental agreement with Oregon Health Authority for grant
funding in the amount of $3,646,771.85 in FY 2024
CHANG: Second
VOTE: ADAIR: Yes
CHANG: Yes
BOCC MEETING
JUNE 28, 2023 PAGE 6 OF 12
DEBONE: Chair votes yes. Motion Carried
9. Award of agreement with Parametrix for sole source Solid Waste
Management Facility Siting Phase II consulting services
Chad Centola, Solid Waste Director, explained the consulting work done by
Parametrix over the past 19 months on Phase I of the County's Solid Waste
Management Facility Siting process. This work included the development of criteria
for siting a new landfill, coordinating public outreach, organizing and participating in
monthly Solid Waste Advisory Committee meetings, meeting with state and federal
regulatory agencies, and implementing the Phase I screening process. Solid Waste
requests authorization to award a sole source contract to Parametrix for Phase II of
this consulting work; this request is based on timing and Parametrix's known ability
to satisfactorily complete the work.
Commissioner DeBone noted that prior to being awarded the contract for
consulting work on Phase I of this project, Parametrix underwent a rigorous
selection process.
Commissioner Chang asked whether those who were not selected for Phase I of this
consulting work might have invested more in their responses to that solicitation had
they known that the work for Phase II would be awarded outside of a competitive
process.
Centola said during the RFQ process, all three candidates were told that a detailed
scope of work for the second phase of the project was not yet available. Centola
added that Parametrix is very well -qualified to do this work.
ADAIR: Move approval of Resolution 2023-038 for the sole source
procurement of Solid Waste Management Facility Siting Phase II
consulting services with Parametrix, Inc.
CHANG: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
CHANG: Move approval of Board signature of Document No. 2023-596, an
agreement with Parametrix, Inc. for Solid Waste Management Facility
Siting Phase II consulting services in the amount of $799,220
ADAIR: Second
VOTE: ADAIR: Yes
BOCC MEETING JUNE 28, 2023 PAGE 7 OF 12
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
The Commissioners expressed gratitude to Centola for his many years of quality
public service to Deschutes County upon his retirement.
10. Intergovernmental Agreement between Deschutes County and the Oregon
Judicial Department for Courthouse Improvements
Lee Randall, Facilities Director, presented an Intergovernmental Agreement with the
Oregon Judicial Department for the receipt of $2,000,000 to be used for the
Deschutes County Courthouse expansion and improvement project. Randall
explained that as the County embarks on the project to expand the Courthouse, it
will also make certain improvements to the existing building such as a more
accessible entrance, enlargement and upgrade of the security checkpoint, interior
security improvements, and relocation of the hearing room. The State approved
$1,500,000 towards these improvements along with an additional $500,000 for
furniture, fixtures and equipment to be used in both the existing and expanded
areas of the building.
CHANG: Move approval of County Administrator signature of Document
No. 2023-637, an intergovernmental agreement between Deschutes
County and the Oregon Judicial Department for Courthouse
improvements
ADAIR: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
11. Resolution 2023-040 establishing Solid Waste Disposal Fee Waivers for Fiscal
Year 2024
Tim Brownell, Incoming Solid Waste Director, explained the County's policy which
exempts certain non-profit organizations from solid waste disposal fees up to a
maximum amount of $5,000 per organization. Organizations which qualify are those
such as thrift stores which reuse or resell used goods and thus serve to divert waste
from the landfill. Eleven organizations have applied for the program for the next
fiscal year; the department proposes budgeting a total of $40,000 for these fee
waivers.
ADAIR: Move approval of Resolution No. 2023-040, amending Resolution
No. 2001-038 to establish Solid Waste disposal fee waiver amounts for
BOCC MEETING
JUNE 28, 2023 PAGE 8 OF 12
the 2023-2024 Fiscal Year
CHANG: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
12. CORE3 project land use entitlement applications
Kristie Bollinger, Property Manager, provided an update on the Central Oregon
Ready Response Resilient (CORE3) project which will site a public safety training and
emergency coordination facility in east Redmond on 300 acres which Deschutes
County owns and will donate for this use. The Central Oregon Intergovernmental
Council (COIC) serves as the fiscal administrator and project manager for this
project.
Bollinger explained work done to prepare required land use entitlements for
submittal to the City of Redmond and the County, which include necessary
applications and associated documents for 1) a Comprehensive Plan Text
Amendment; 2) an Urban Growth Boundary Amendment; 3) a Master Development
Plan; 4) Zone Changes, Annexation, & Land Partition; and 5) Deschutes County Plan
Map & Zone Change. These land use entitlement applications have been finalized
and are ready to submit to Redmond and the County's Community Development
Department for processing.
Scott Aycock, COIC Community and Economic Development Director, said 27 local
agencies have agreed to participate in this project, including the Prineville Police
Department. COIC will continue to seek additional funding from the State for this
project.
Commissioner Adair noted the property to be donated by the County is valued at
$16,300,000.
CHANG: Move approval of Board Order No. 2023-027 authorizing the
Deschutes County Property Manager to sign land use entitlement
applications and associated documents for the CORE3 project
ADAIR: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
13. Contract with Central Oregon Bio Solutions for property clean-ups on an
BOCC MEETING
JUNE 28, 2023 PAGE 9 OF 12
as -needed basis
Kristie Bollinger, Property Manager, said this contract would support the work being
done on County -owned property in the north Juniper Ridge area in response to
Code enforcement violations resulting from homeless encampments. Noting that
this vendor is experienced in cleaning sites which involve general waste, biohazard
materials, unsafe structures, and abandoned vehicles and RVs, Bollinger concluded
that the proposed agreement is a cooperative contract in conjunction with the City
of Bend's existing contract with Bio Solutions.
ADAIR: Move approval of Document No. 2023-372, a contract with Central
Oregon Bio Solutions for property clean-ups on an as -needed basis
CHANG: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
14. Deliberations on the Griffin/Renfro Plan Amendment and Zone Change for
approximately 40 acres one mile east of the City of Bend
Rachel Vickers, Associate Planner, described the request for a request for a
Comprehensive Plan Amendment to re -designate approximately 40 acres one mile
east of the City of Bend from Agriculture to Rural Residential Exception Area and a
corresponding Zoning Map Amendment to rezone the properties from Exclusive
Farm Use (EFU) to Multiple Use Agricultural (MUA10) (file nos. 247-22-000792-PA,
793-ZC). The Hearings Officer recommended approval of this request; a public
hearing was held before the Board on May 315t
Commissioner Chang stated he had an in-depth discussion with Arnold Irrigation
District to find out more about water rights; however, his decision for this
application will not take those communications into consideration.
1. Does the subject property constitute agricultural land, as defined by OAR 660-033-
0020(1)(a)?
A majority of the Board was in consensus with the finding of the Hearings Officer
that the property is not agricultural under the statewide planning goals.
2. Does the site -specific soil study show the property is predominantly Class VII-VIII
soils?
BOCC MEETING
JUNE 28, 2023 PAGE 10 OF 12
A majority of the Board was in consensus that the site -specific soil study shows the
property is predominantly Class VII-VIII soils.
3. Has there been a change in circumstances since the property was last zoned?
A majority of the Board was in consensus with the finding of the Hearings Officer
that change in circumstance since the property was last zoned does exist, including
but not limited to new soil data.
4. Does Goal 14 apply to the subject application?
A majority of the Board was in consensus with the finding of the Hearings Officer
that Goal 14 does not apply to the subject application because it does not involve
property within a UGB and does not involve the urbanization of rural land.
CHANG: Move approval of the Plan Amendment and Zone Change for file nos.
247-22-000792-PA, 793-ZC pursuant to DCC 22.28.030 (Griffin/Renfro)
ADAIR: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
OTHER ITEMS:
• County Administrator Nick Lelack referred to a letter received from Governor
Tina Kotek in response to the County's request for land use flexibility to site
supported camps.
Commissioner DeBone stated his appreciation for the Governor's response.
Commissioner Chang said it appeared that the governor's office is trying to
assess the probability of success of the County's proposal. Commissioner Adair
shared she will tour the Gales property tomorrow and noted that some
homeless persons do not want to be in a high -barrier shelter inside of city limits;
rather, they want to be able to retain possession of their vehicles and pets.
Discussion ensued about how to respond to the Governor's letter and who
should coordinate or lead the response effort. The Board reached consensus to
have staff gather and assemble the requested information and present a draft
response to the board of the Coordinated Houseless Response Office (CHRO)
before bringing it to the Commissioners for their consideration. Commissioner
Chang asked that staff loop in the Bend City Council as well as all of the CHRO
member jurisdictions in this effort.
BOCC MEETING
JUNE 28, 2023 PAGE 11 OF 12
• County Administrator Nick Lelack referred to the proposed land swap with the
State involving County -owned property in Redmond.
Deputy County Administrator Erik Kropp said as staff resources will be directed
towards addressing Juniper Ridge at this time, activities associated with the DSL
land swap will be placed on hold. He agreed to make this known to the City of
Redmond and the State along with the REDI Board, Fair Board, and service
providers in Redmond as appropriate.
At 12:13 pm, Chair DeBone announced that the Board would recess for lunch and
reconvene at 1:00 in the Allen Room for executive session.
EXECUTIVE SESSION:
At 1:02 pm, the Board entered executive session under ORS 192.660 (2) (d) Labor
Negotiations.
The Board moved out of executive session at 1:21 p.m. with no action taken.
ADJOURN:
Being no further items to come before the Board, the meeting was adjourned at 1:21 pm.
DATED this i 6 - day of
Commissioners.
ATTEST:
icol(6V
RECORDING SECRETARY
BOCC MEETING
2023 for the Deschutes County Board of
ANTHONY DEBONE, CHAIR
PATTI ADAIR, VICE CHAIR
PHIL CHANG, CO ISSIONER
JUNE 28, 2023 PAGE 12 OF 12
Subject:
Name
Address
BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
Citizen Input or Testimony
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Phone #s 4-1(03" g 7` Liq gc
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In Favor
Neutral/Undecided Opposed
Submitting written documents as part of testimony? Yes N. No
If so, please give a copy to the Recording Secretary for the record.
SUBMIT COMPLETED REQUEST TO
RECORDING SECRETARY BEFORE MEETING BEGINS
Phone #s
E-mail address.
BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
Citizen Input or Testimony
CiaD\
V\ -A LC:1
Opposed
Neutral/Undecided
Submitting written documents as part of testimony? Yes
If so, please give a copy to the Recording Secretary for the record.
SUBMIT COMPLETED REQUEST TO
RECORDING SECRETARY BEFORE MEETING BEGINS
No
w� La BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
Citizen Input or Testimony
Subject: '� �/.� �� Date:
Name cua C4-i°Y);1 ;'
Address �--
t
In Favor
Neutral/Undecided
Submitting written documents as part of testimony? Yes
If so, please give a copy to the Recording Secretary for the record.
SUBMIT COMPLETED REQUEST TO
RECORDING SECRETARY BEFORE MEETING BEGINS
Opposed
vT ES
V
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: June 28, 2023
SUBJECT: Deschutes County District Attorneys' Association Collective Bargaining
Agreement
RECOMMENDED MOTIONS:
1. Move approval of Board signature of Document No. 2023-649, a Collective
Bargaining Agreement between Deschutes County and the Deschutes County
District Attorneys' Association effective July 1, 2023 through June 30, 2026.
2. Move approval of County Administrator signature of Document No. 2023-650, a
Memorandum of Understanding for the DCDAA Tier Implementation.
3. Move approval of County Administrator signature of Document No. 2023-051, a
Memorandum of Understanding for the DCDAA Retention Bonus Incentive Program.
BACKGROUND AND POLICY IMPLICATIONS:
Over the course of the last few months, County staff from Administration, Legal, Human
Resources, Finance, and the District Attorney's Office met with the Deschutes County
District Attorneys' Association to negotiate a successor agreement. The current collective
bargaining agreement expires June 30, 2023. Staff is recommending Board approval of the
following items related to DCDAA:
1. Successor Collective Bargaining Agreement.
2. Memorandum of Understanding regarding the tier implementation for newly
adopted DDA I, II, and III classifications.
This MOU includes details on the specific criteria and duties assigned to each
Deputy District Attorney tier. Additionally, the MOU includes the details on the
management review of employee job duties, roles, and responsibilities as part of
the tier assignment and outlines the employee appeal process and appeal form.
3. Memorandum of Understanding regarding the temporary DDA Retention
Bonus Program and Staff Agreement Form.
This MOU includes the details of the retention bonus program as a one-time
incentive program providing each Member with a $3,000 bonus payment subject to
a minimum three-year stay commitment with a repayment expectation pro -rated
for time stayed within the three-year agreement.
ATTENDANCE:
Kathleen Hinman, Human Resources Director
Chris Bell, Senior Assistant County Counsel
Whitney Hale, Deputy County Administrator
Robert Tintle, Chief Financial Officer
Steve Gunnels, District Attorney
Jessica Chandler, Executive Assistant to the District Attorney
DCDAA executive board members
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: June 28, 2023
SUB B ECT: Public Hearing: Remand of LBNW LLC Plan Amendment and Zone Change
application 247-21-000881-PA, 882-ZC (247-23-000398-A)
RECOMMENDED MOTION:
Hold a public hearing for file 247-23-000398-A (Remand of 247-21-000881-PA, 882-ZC).
BACKGROUND AND POLICY IMPLICATIONS:
On June 28, 2023, the Board of Commissioners (Board) will hold a limited de novo public
hearing held to consider a remand decision of the Oregon Land Use Board of Appeals
regarding a Plan Amendment and Zone Change application proposed by LBNW LLC and
originally approved by the Board under files 247-21-000881-PA, 882-ZC. The full record is
located on the project webpage: https://www.deschutes.org/cd/page/247-23-000398-Iuba-
remand-Ibnw-Ilc-comprehensive-plan-amendment-and-zone-change
BUDGET IMPACTS:
None
ATTENDANCE:
Tarik Rawlings, Associate Planner
I*ES
COMMUNITY DEVELOPMENT
MEMORANDUM
TO: Deschutes County Board of Commissioners (Board)
FROM: Tarik Rawlings, Associate Planner
DATE: June 15, 2023
SUBJECT: Public Hearing: Remand of LBNW LLC Plan Amendment and Zone Change
application 247-21-000881-PA, 882-ZC (247-23-000398-A)
On June 28, 2023, the Board of Commissioners (Board) will hold a limited de novo public
hearing held to consider a remanded decision of the Oregon Land Use Board of Appeals
(LUBA) regarding a Plan Amendment and Zone Change application proposed by LBNW LLC
(Applicant). The record associated with this remanded review is located on the project
webpage'.
I. HEARING PROCEDURE
Deschutes County Code 22.32.040 notes that the scope of the proceeding for an application
on remand must be limited to review the issues that LUBA requires to be addressed,
although the Board may use its discretion to reopen the record where it deems necessary. If
the Board determines this hearing will be held limited de novo meaning that only testimony
directed at the issue on remand, whether the new industrial zoning designation would allow
uses on the subject property that were not allowed under the previous Exclusive Farm Use
(EFU) Zoning and whether those uses could conflict with protected Goal 5 scenic resources
associated with the Highway 97 corridor, will be considered. Testimony on other matters will
not be accepted during the public hearing.
II. BACKGROUND
On September 30, 2021, an application was filed for a Plan Amendment and Zone change
application for a 19.12-acre property located at 65301 N Hwy 97, Bend (Taxlot ID
1612230000305), 65315 Hwy 97, Bend (Taxlot ID 1612230000500), and 65305 Hwy 97, Bend
(Taxlot ID 1612230000301) approximately 4.5 miles south of Redmond and approximately
1 https://www.deschutes.org/cd/page/247-23-000398-luba-remand-Ibnw-Ilc-comprehensive-plan-amendment-
and-zone-change
247-23-000398-A (Remand of LBNW LLC PA/ZC) Page 1
4.25 miles north of Bend. The applicant is requesting to rezone and re -designate the property
from Agriculture/Exclusive Farm Use - Tumalo/Redmond/Bend subzone (EFU-TRB) to Rural
Industrial (RI).
The Deschutes County Hearings Officer issued a decision recommending approval of the
application on July 12, 2022. The second hearing, as required by the County procedures
ordinance, was held before the Board on September 7, 2022. The Board then adopted
Ordinance 2022-011 on December 14, 2022 approving the application with conditions.
Central Oregon Landwatch appealed the county decision to LUBA. On April 24, 2023 LUBA
issued its Final Opinion and Order remanding the decision to the County for further findings
and conclusions of law. On May 17, 2023, the Applicant initiated remand proceedings under
local file no. 247-23-000398-A. A work session was held before the Board on June 26, 2023.
The final day on which the County must issue a final decision on this application is September
14, 2023.
III. LUBA REMAND AND APPLICANT RESPONSE
LUBA, in its Final Opinion and Order, remanded the county decision to address the following
issue:
A. Findings to determine whether the new industrial zoning designation would
allow uses on the subject property that were not allowed under the previous
Exclusive Farm Use (EFU) zoning and whether those uses could conflict with
protected Goal 5 resources.
The final opinion and order provides the following guidance:
(pg. 36) In NWDA v. City of Portland, the court explained that the local
government is required to apply Goal 5 if the PAPA allows a new use that could
conflict with Goal 5 resources.
***
(pg. 36-37) The questions presented here are whether the new RI zoning allows
uses on the subject property that were not allowed under the previous EFU
zoning and whether those uses could conflict with protected Goal 5 resources.
That the county may have conducted an ESEE analysis in 1992 for other RI -
zoned properties in other locations, even nearby locations, and concluded that
the LM zone provided the impacted scenic resources sufficient protection
does not change the requirement to apply Goal 5 to the PAPA for the subject
property.
***
247-23-000398-A (Remand of LBNW LLC PA/ZC) Page 2
(pg. 37) [T]he challenged decision allows new uses that could conflict with
inventoried Goal 5 resources, and, for that reason, the county is required to
comply with OAR 660-023-0250(3).
Staff notes that the applicant, in their initiation of remand materials has not yet provided
additional testimony to demonstrate the proposal's Goal 5 compliance and address the
provisions under OAR 660-023-0250(3). Staff anticipates additional information may be
submitted prior to or at the public hearing for Board consideration, or potentially during an
open record period, should the Board choose to open the record. Any materials received by
the applicant in response to the Board's June 26, 2023, work session will be timely
incorporated into the official record.
IV. RESOLVED ISSUES AND PUBLIC COMMENT
The following are issues that have been resolved by LUBA or were not included in the remand
and therefore cannot be considered by the Board in its decision:
• That the proposal fails to comply with Goals 3 and/or 14.
• Challenges to the validity of a site -specific Order 1 soil survey relied on by the
applicant and Board of County Commissioners in determining whether Tax Lot 301 is
agricultural land including the soil scientist's evaluation of the portions of the subject
property labeled "canal" and "infrastructure" as containing Class 8 soils, as the
proposal relates to Goal 3.
• Whether Tax Lot 301 is considered agricultural land under ORS 215.203(2)(a) and OAR
660-033-0020(1)(a)(B).
• Challenges to the County's reliance on the local Rural Industrial (RI) provisions under
DCC Chapter 18.100 to conclude that the application is compliant with Goal 14.
V. NEXT STEPS
The Board will conduct a hearing on this item on June 28, 2023. Following the hearing the
Board may choose to:
• 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; or
• Close both the oral and written portions of the hearing.
The final day on which the County must issue a final decision on this application is September
14, 2023.
247-23-000398-A (Remand of LBNW LLC PA/ZC) Page 3
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Total of 19.12-acres Along Hwy 97
Assessor's Map: 16-12-23
Tax Lot 301: 15.06 acres
Address: 65305 N Hwy 97
Owner: Johnson
Tax Lot 305: 3.00 acres
Address: 65301 N Hwy 97
Owner: LBNW LLC
Tax Lot 500: 1.06 acres
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June 23, 2023
VIA EMAIL
Deschutes County Board of County Commissioners
c/o Tarik Rawlings, Associate Planner
117 NW Lafayette Ave
Bend, OR 97703
Tarik.Rawlings@deschutes.org
D. Adam Smith
Admitted in Oregon and Colorado
D: 541-749-1759
dasmith@schwabe.com
Bailey Oswald
Admitted in Oregon
D: 503-796-2427
bmoswald@schwabe.com
RE: Deschutes County File Nos. 247-21-000881-PA/882-ZC (247-23-000398-A)
Our File No.: 137396-260734
Dear Commissioners:
As you know, our firm represents LBNW LLC, the applicant ("Applicant") in the above -
referenced files, which sought approval of a map amendment and zone change for properties
owned by the Applicant and Dwight E. and Marilee R. Johnson (the "Properties"). After
Deschutes County (the "County") approved those applications, Central Oregon LandWatch
("COLW") appealed the County's decision to the Land Use Board of Appeals ("LUBA") which
remanded. See Central Oregon Land Watch v. Deschutes County, Or LUBA_ (LUBA No
2023-008, April 24, 2023) (the "LUBA Decision").
Deschutes County Code ("DCC") 22.34.030(A) requires the County to conduct "a
hearing on any remanded or withdrawn decision." The Applicant provides this letter and the
attached documents to the Board of County Commissioners ("Board") in advance of the
required hearing scheduled for June 28, 2023.
Concerns with County Staff Memorandum: Procedural Issues
At the outset, the Applicant is obligated to note several confusing statements in County
staff's memorandum prepared in advance of the June 28, 2023 public hearing. The Applicant
acknowledges that we may have perhaps misunderstood County staffs intent. The Applicant
nevertheless raises these issues to ensure clarity for all parties, and because experience dictates
that vague or inaccurate statements made by County staff too often lead to new assignments of
error in subsequent LUBA proceedings.
420 L Street, Suite 400 I Anchorage, AK 99501 ( M 907-339-7125 I F 503-796-2900 j schwabe.com
June 23, 2023
documents to the record now, on June 23, 2023, because we were only informed that the Board
formally re -opened the record yesterday afternoon, on June 22, 2023.
Concerns with County Staff Memorandum: Scope of the Remand
The Applicant is further concerned by the suggested scope of the remand as stated in
County staff's memorandum. Therein, County staff included the following statement in bold:
"LUBA, in its Final Opinion and Order, remanded the county decision to address the
following issue:
A. Findings to determine whether the new industrial zoning designation
would allow uses on the subject property that were not allowed under the
previous Exclusive Farm Use (EFU) zoning and whether those uses could
conflict with protected Goal 5 resources."
On the next page, County staffs memorandum includes another quote from the LUBA Decision,
which the Applicant asserts better sets forth the faunal holding and thereby better directs the
scope of these remand proceedings:
"[T]he challenged decision allows new uses that could conflict with inventoried Goal 5
resources, and, for that reasons, the county is required to comply with OAR 660-023-
00250(3)."
Returning to staffs bold statement above, there is no doubt that the Rural Industrial ("RI") zone
allows uses on the subject property that are different when compared to the EFU zone. And, the
second quotation from the LUBA Decision answers the question posed by County staff s
proffered bold statement. In other words, LUBA already deteiiiiined that the RI zone allows
uses on the subject Properties that LUBA determined "could be conflicting uses," thus invoking
OAR 660-023-0250(3).
Although disagreeing with LUBA's holding, the Applicant nevertheless elected to forgo an
appeal electing to instead address compliance with OAR 660-023-0025(3) on remand.
Consistent with our understanding of the scope of the remand, the Applicant provides the
following legal analysis beginning with OAR 660-023-0025(3).
Legal Analysis
OAR 660-023-0250, Applicability
(3) Local governments are not required to apply Goal 5 in consideration of a PAPA
unless the PAPA affects a Goal 5 resource. For purposes of this section, a PAPA
would affect a Goal 5 resource only if:
***
Deschutes County Board of County Commissioners
420 L Street, Suite 400 I Anchorage, AK 99501 I M 907-339-7125 1 F 503-796-2900 I schwabe.com
Page 3
June 23, 2023
1612230000305 fall within that'/4 mile corridor and thereby are currently subject to the County's
Landscape Management Combining Zone ("LM Zone"). The majority of Tax Lot
161223000301 also falls within that'/4 mile corridor and thereby is currently also subject to the
County's LM Zone.
Notably, the Applicant did not initially seek to remove the subject Properties from the County's
LM Zone, nor did the Applicant seek to otherwise amend or modify the LM Zone's governing
provisions contained in DCC Chapter 18.84. The subject PAPA only sought to change the base
zone from EFU to RI on the three subject Properties. The only "area in which allowed uses
could adversely affect the identified resource" are those portions of the subject Properties that are
currently within the LM Zone — i.e. within 1/4 mile of the centerline of Highway 97. The
Applicant asserts that the "impact area" in this case is the entirety of Tax Lots 1612230000500
and 1612230000305 and that portion of Tax Lot 161223000301 which is currently within the
County's LM Zone.
(4) Analyze the ESEE consequences. Local governments shall analyze the ESEE
consequences that could result from decisions to allow, limit, or prohibit a
conflicting use. The analysis may address each of the identified conflicting uses, or it
may address a group of similar conflicting uses. A local government may conduct a
single analysis for two or more resource sites that are within the same area or that
are similarly situated and subject to the same zoning. The local government may
establish a matrix of commonly occurring conflicting uses and apply the matrix to
particular resource sites in order to facilitate the analysis. A local government may
conduct a single analysis for a site containing more than one significant Goal 5
resource. The ESEE analysis must consider any applicable statewide goal or
acknowledged plan requirements, including the requirements of Goal 5. The
analyses of the ESEE consequences shall be adopted either as part of the plan or as
a land use regulation.
RESPONSE: The Applicant provides for the Board's consideration an ESEE analysis prepared
by Skidmore Consulting, LLC Land Use Planning & Development Services (See Exhibit 1; the
"ESEE Analysis").
It should be noted, however, that OAR 660-023-0040(4) does not contain criteria governing an
applicant's submittal requirements. Instead, OAR 660-023-0040(4) directs that "[1]ocal
governments shall analyze the ESEE consequences." Further, OAR 660-023-0040(4) directs that
an ESEE analysis "shall be adopted either as part of the plan or as a land use regulation,"
meaning that the ESEE Analysis in this case must ultimately be adopted as part of the Board's
findings. To ensure that the Board's own analysis is incorporated, the Applicant invites the
County Commissioners to ask specific questions or provide further direction on additional issues
to consider. If the Board provides such feedback, the Applicant anticipates then incorporating
those questions and direction into a revised ESEE Analysis which can then be submitted during
an open record period following the public hearing.
Deschutes County Board of County Commissioners
420 L Street. Suite 400 I Anchorage, AK 99501 I M 907-339-7125 I F 503-796-2900 j schwabe.com
Page 5
June 23, 2023
Board to more particularly consider the economic, social, environmental, and energy
consequences that stem from that decision. After considering those consequence as set forth in
the Applicant's ESEE Analysis (or in a an amended or new ESEE analysis), the Board is then
tasked with selecting from one of three options as set forth in OAR 660-023-0040(5)(a) through
(c).
The first option, set forth in subpart (a), allows the Board to prohibit the conflicting use in its
entirety. Because the conflicting uses in this case are those uses allowed conditionally and
outright in the RI zone, choosing option (a) means denying the Applicant's map amendment /
zone change application such that the subject Properties' EFU zoning is not changed.
The second option, set forth in subpart (b), is a "middle ground" as it allows the Board to allow
the conflicting use "in a limited way that protects the resources site to a desired extent." To
implement this option, the Board would re -approve the Applicant's map amendment / zone
change application changing the base zoning from EFU to RI. Although the Board could then
develop a new Goal 5 scenic view program applicable only to the subject Properties, the
Applicant presumes that the Board will instead elect to continue applying the County's existing
Goal 5 program to the subject Properties.
The third and final option, set forth in subpart (c), allows the Board to allow the conflicting use
"fully, notwithstanding the possible impacts on the resource site." To implement this option, the
Board again would re -approve the Applicant's map amendment / zone change application
changing the base zoning for the subject Properties. No further action would be required when it
comes to Goal 5, although the Commissioners may then direct staff to go through the process of
removing the subject Properties from the LM Zone.
The Applicant recommends that the Board elect OAR 660-023-0040(5)(b)'s "middle -ground"
option discussed above. More specifically, the Applicant recommends that the Board adopt
findings determining that both the resource site (i.e. the County's Goal 5 scenic view resource)
and the conflicting uses (i.e. those uses that would be allowed on the subject properties pursuant
to the County's RI zone) "are important compared to each other" such that the "conflicting uses
should be allowed in a limited way that protects the resource site to a desired extent." The ESEE
Analysis highlights that development further on the hillside west of the subject Properties
already significantly diminishes the scenic resources viewed from Highway 97 adjacent to the
subject Properties. Additionally, the Applicant never sought to remove the Properties from the
LM Zone or otherwise proposed amending DCC Chapter 18.84 when it comes to the subject
Properties. Instead, the Applicant always intended the LM Zone to continue applying to the
subject Properties to mitigate any visual impacts caused by development of the subject
Properties.
The Board selecting the "middle ground" option in this case is consistent with the County's
decision in 1992 when first adopting Ordinance No 92-052 as part of developing the County's
Goal 5 scenic view program that has worked for our community for over 30 years. The LUBA
Decision directs the Board to re -consider what is in essence a smaller subset of the same decision
before the County Commissioners in 1992. The County Commissioners in 1992 were tasked
Deschutes County Board of County Commissioners
420 L Street, Suite 400 ( Anchorage. AK 99501 I M 907-339-7125 I F 503-796-2900 j schwabe.com
Page 7
Skidmore Consulting, LLC
Land Use Planning & Development Services
Overview of Goal 5 and ESEE Analyses
Introduction
This Economic Social Environmental Energy (ESEE) analysis was prepared by the applicant
for the Board of County Commissioners' consideration to supplement the Board's findings
supporting Ordinance No 2022-011(File Nos. 247-21-000881-PA / 000882-ZC) or a
subsequent Ordinance that the Board may adopt as part of these remand proceedings.
The applicant, LBNW, originally applied for a plan amendment and zone change for property
at 65301, 65305, & 65315 N. Highway 97, Bend, OR 97701. These properties are also
described as tax lots 1612230000305 (65301 N. Highway 97), 1612230000301 (65305 N.
highway 97), and 1612230000500 (65315 N. Highway 97). The proposal is to change the plan
designation from Agriculture to Rural Industrial and is accompanied by a proposed zone
change from Exclusive Farm Use (EFU) to Rural Industrial (RI). The majority of the property
is within the Landscape Management Overlay associated with Highway 97.
A hearing was held with a hearings officer who recommended approval to the Deschutes
County Board of County Commissioners (BOCC). The BOCC held a hearing and approved the
plan amendment and zone change which was appealed to the Land Use Board of Appeals
(LUBA). An argument raised in the appeal by opponents was that the uses permitted in the
Rural Industrial zone conflict with the goals of the Landscape Management Overlay zone. In
this case and as stated in Deschutes County ("DCC") 18.84.010, the Highway 97 Landscape
Management (LM) overlay zone seeks to maintain and enhance scenic vistas and natural
landscapes seen from Highway 97. LUBA remanded the case to Deschutes County to conduct
an ESEE analysis to consider the impacts of RI uses considering the Highway 97 LM combining
zone.
Recognizing that uses permitted in the RI zone on the subject property are new conflicting
uses in portions of the Highway LM combining zone, LUBA required Deschutes County to
apply Goal 5 in consideration of this PAPA.
Deschutes County Goal 5 Program
The purpose of Goal 5 is "to protect natural resources and conserve scenic and historic areas
and open spaces". Specific to the Landscape Management combining zone and to protect
view sheds from specific roads, the Comprehensive Plan contains the following language:
To protect scenic views, landscape management areas have been defined and a combining zone
created. On lands outside urban growth boundaries and rural service centers along the portions of
roadways listed below, landscape management zoning applies and a case -by -case site plan review
is required. The area extends 1/4 mile on either side from the centerline of the roadways.
Exhibit 1
Page 1 of 17
Skidmore Consulting, LLC
Land Use Planning & Development Services
1. Identify Conflicting Uses - Does the land use or activity negatively impact natural
resources?
2. Determine Impact Area - What is the geographic extent to which land uses or
activities adjacent to natural resources could negatively impact those resources?
3. Analyze ESEE Consequences - What are the positive and negative consequences (both
for development and natural resources) of a decision to fully protect natural
resources, fully allow conflicting uses, or limit conflicting uses?
4. Develop a program - How and to what extent will the natural resources be protected
based on the ESEE analysis?
In this case, the conflicting use (uses permitted in the RI zone) has already been identified
during the LUBA proceedings. Deschutes County has already through its action in 1992 in
Ordinance 92-052 identified the impact area - a quarter mile on either side of the center line
of Highway 97. The Deschutes County Comprehensive Plan ("DCCP") identifies an area
extending 1/a mile on either side from the centerline of certain roadways, including Highway
97 between the Bend and Redmond UGBs, as a Goal 5 scenic view resource. In this case, the
entirety of Tax Lots 1612230000500 and 1612230000305 fall within that'/a mile corridor and
thereby are currently subject to the County's Landscape Management Combining Zone. The
majority of Tax Lot 161223000301 also falls within that '/a mile corridor and thereby is
currently also subject to the County's LM Zone.
The ESEE consequences are provided below for consideration as to fully protect the scenic
views, fully allow the conflicting use or limit conflicting uses. One item particularly relevant
to the ESEE specific to the subject property is the quality of the scenic view or natural
appearance of the landscape the LM aims to protect. Generally, the scenic view the LM
Combining Zone seeks to protect in the area of the subject properties are views of the
natural, undeveloped landscape in addition to views of the Cascade Mountains to the west.
The subject property is located at the foot of a hill that rises directly to the west behind it.
The hill blocks any view of the Cascade Mountains from Highway 97 at that location. The
property directly to the west is zoned Rural Residential-10 (RR-10) and is developed with
2.5+/- acre lots within the Whispering Pines Estates subdivision. What is visible from the
highway to the west of the subject properties is mainly juniper trees, brushes, and scattered
dwellings/rooftops located within the Whispering Pines Estates subdivision. As this ESEE
analysis considers the subject properties in isolation, it must be acknowledged that as seen
from Highway 97, the aforementioned existing development on the hill directly west of the
subject properties already diminishes the scenic view resources protected by the County's
Goal 5 program.
This ESEE analysis primarily focuses on impacts that are common to all uses permitted in the
RI zone as generally, the impacts to the scenic view resources will be similar. The visual
impacts from buildings associated with any of the permissible uses won't change
Exhibit 1
Page 3 of 17
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Social Consequences of
Allowing
Negative Social Consequences of
Allowing
The social value of the LM zone to
preserve the natural appearance of
The variety of uses permissible in
landscape could be marginally
the RI zone would offer positive
impacted. As noted in Ordinance 92-
social consequences to nearby
052, "[h]aving good visual quality areas
residents in the rural areas
more accessible to the public
between Redmond and Bend by
enhances the livability of Deschutes
Common to all
offering needed services. A welding
County. As Deschutes County
Conflicting Uses
sheet metal or machine shop for
continues to urbanize, the need for the
example, located on site could offer
public to have ready access to areas of
any agricultural operations in the
good visual quality will become more
area access to those needed
important." The same observations
services without having to drive to
are equally true today, although
Redmond or Bend.
mitigated in this case by the
diminished viewshed from Highway 97
adjacent to the subject properties.
Tier 3 wireless telecommunications
facilities as they are defined in DCC
Wireless
18.116.250(C) could be taller than 75
telecommunications
feet with required aviation lighting. The
facilities, except those
Such a facility could improve
site and light impacts of such a facility
facilities meeting the
wireless access for our increasingly
of this magnitude would be difficult if
requirements of DCC
wireless -device dependent society.
not impossible to mitigate. Light
18.116.250(A) or (B)
pollution could be a concern and
impact the many rural residential
properties in direct and close
proximity.
Conflicting Use
Positive Environmental
Consequences of Allowing
Negative Environmental
Consequences of Allowing
Uses permissible in the RI zone
could reduce travel distance to the
Development of the subject properties
Common to all
many area residents who rely on
could remove existing trees and
Conflicting Uses
such services thereby reducing
brushes that provide habitat for
vehicle miles traveled and reducing
squirrels, rock chucks, birds and other
carbon emissions from
automobiles.
smaller animals.
Such a use on the subject property
The dust from such uses can introduce
could benefit nearby residents and
particles into the air, reducing air
Concrete or ready mix
agricultural uses by providing
quality for the many nearby rural
plant,
needed services in close proximity.
Ready mix plants in Bend and
residential properties (especially for
those with compromised respiratory
Redmond are all at least 10 miles
systems). Particulate matter (PM)
from this location. Projects in the
emissions from batch plants if inhaled,
Exhibit 1
Page 5 of 17
Skidmore Consulting, LLC
Land Use Planning & Development Services
would remove the economic development contribution this property could make to the
county. As shown in the market data from Compass Commercial brokers, the low vacancy
rates in the industrial market demonstrate a need for this RI land.
Attachments:
A. Compass Commercial, Compass Points, First Quarter Market Report.
B. Photos 65301, 65305, & 65315 N. Highway 97 Landscape Management Area
C. https://www.epa.gov/pm-pollution
D. Jon Skidmore Resume
Exhibit 1
Page 7 of 17
Compass Commercial surveyed 224 office buildings totaling 2.77
million square feet for the first quarter office report of 2023. The
market experienced 19,609 SF of negative absorption in Q1 2023
with an increase in vacancy rate from 3.09% in Q4 2022 to 3.94%
in Q1. This is the first uptick in vacancy over the last six quarters and
is most likely a sign of the economy starting to take its toll on the
office market. While we don't include sublease listings in the vacancy
calculations, as of today, there is 60,988 SF of office space available
for sublease. This inventory, added to the 109,147 SF of vacant office
space, results in an availability rate of 6.14%. An increase in sublease
listings is something to monitor moving forward.
LEASING: Leasing demand is stable with solid activity across all
three submarkets, evidenced by the vacancy rate declining for five
consecutive quarters. This quarter, the Hwy 97/3rd Street submarket
led the way with 10,517 SF of positive absorption, largely due to 7,473
SF being leased at 2500 NE Twin Knolls Drive. The Downtown and
West Side submarkets experienced negative absorption of 10,787 SF
and 19,339 SF respectively.
RENTS: Lease rates remain steady with the high end of the market
ranging from $2.00 to S3.00/SF/Mo. NNN and
more affordable space ranging from $1.40 to
52.00/SF/Mo. NNN.
CONSTRUCTION: The Shevlin Crossing
development, an approximately
45,054 SF two -building Class
A office project in NorthWest
Crossing, is under construction with
the shell of the first building nearly
completed. There are no other
speculative office developments
under construction.
SALES: There were no notable
office sales this quarter.
Written by partner and broker
lay Lyons, SIOR, CC1M
OFFICE VACANCY RATES (Change since last quarter)
II Increased i Decreased No Change
BEND OFFICE NET ABSORPTION
MARKET AREA
Downtown 52 504,150 5.90% (10,787) (10,787)
Hwy 97/3rd St. 54 677,717 1.76% 10,517 10,517
West Side 118 1,587,732 4.25% (19,339) (19,339)
TOTAL 224 2,769,599 3.94% (19,609) (19,609)
NO.
BLDGS.
TOTAL
SF
VAC. 1ST QTR. TOTAL YTD
RATE ABSORP. SF ABSORP. SF
hibit
Page 9 of 17
Compass Commercial surveyed over 4.63 million square feet of retail
space across 266 buildings for the first quarter retail report of 2023.
The market experienced another strong quarter to start off the year, with
8,739 SF of positive absorption, resulting in a slight drop in the citywide
vacancy rate from 2.67% in Q4 2022 to 2.60% in Q1 2023. There is now
120,300 SF of available retail space in Bend for lease.
LEASING: Leasing in the retail sector remained steady through the first
quarter of 2023, with six of the seven submarkets showing positive
absorption and an overall decrease in the market's vacancy rate. The West
Side was one of the few submarkets to experience negative absorption this
quarter, which was accompanied by a corresponding bump in the West Side
vacancy rate to 2.53%. The South 97 submarket saw a decrease in retail
vacancies from 8.32% to 8.02%, due to a new lease signed with Play It
Again Sports at the Bend Factory Stores for 7,290 SF. The Bend Endurance
Academy leased the 13,000 SF former Patio World space at 222 Reed
Market Road in the Central 97 submarket, decreasing the vacancy to 2.10%.
Super Burrito leased 2,025 SF of space at 425 Windy Knolls Drive, which
contributed to the East Side's 3,125 SF of positive absorption this quarter.
RENTS: Asking rental rates for Bend retail space continue to hold steady
between S1.15 and 54.00/SF/Mo. NNN with the highest rates associated
with drive-thru sites and new construction.
CONSTRUCTION: The Cascade Lakes Brewing building at Reed South is
close to completion. Grading has begun for the new
multifamily development at 515 SW Century Drive,
which will feature a 129-unit apartment complex
and an adjacent 1,625 SF retail building. Shell
construction is complete at Pioneer Plaza,
located at 1848 NW Wall Street. Fifty
percent of this new project was pre -
leased to Urban Waxx and 30 Minute
E Hiit. The remaining 3,016 SF of
available retail and restaurant space
bumped the Downtown vacancy rate
from 0.00%to 0.68%.
SALES: The 5,925 SF building
at 903 NW Wall Street sold for
83,750,000 or S632.91/SF with a
4% Cap Rate.
Written by broker
Eli Harrison
Downtown
0.7%
West Side
2 5°/
Old Mill
0.6%
North 91
0.6%
East Side
2.1
Central 91
2.1%
outh 97
8.0%
RETAIL VACANCY RATES (Change since fast quarter)
■ Increased Decreased No Change
BEND RETAIL NET ABSORPTION BLDGS.OVER 3,000 SF
MARKET AREA
South 91
Central 91
North 97
East Side
West Side
Old Mill District
Downtown
TOTAL
N0.
BLDGS.
22
44
28
30
56
19
67
266
TOTAL
SF
829,207
677,348
1,254,493
601,480
562,129
265,502
440,415
4,630,574
VAC.
RATE
8.02%
2.10%
0.63%
2.11%
2.53%
0.64%
0.68%
2.60%
1ST QTR.
ABSORP.SF
2,443
2,541
2,889
3,125
(5,504)
229
3,016
8,739
TOTAL YTD
ABSORP.SF
2,443
2,541
2,889
3,125
(5,504)
229
3,016
8,139
Page 2 of 5 PAGE 2
MULTIFAMILY REPORT I BALANCING SUPPLY & DEMAND
Achieving supply and demand equilibrium is always challenging. Just
ask any small business owner (think restaurants). In the housing
market, it is an ongoing sequence of market cycles. Bend is experi-
encing a severe housing shortage. Population growth has exceeded
the regions' capacity to produce housing for the last decade. Home
prices and rents have skyrocketed.
However, it was only about 14 years ago that there was a glut of hous-
ing. Entire neighborhoods sat vacant. Homes prices crashed. Rents
plummeted. Apartment vacancies spiked. Builders and developers
went broke and left town. Banks were trying to manage a growing
inventory of foreclosed homes. How fast things can change, and how
quickly we can forget.
No one wants to see that again. But how can the current acute
shortage be addressed? At least a partial solution is at hand in the
multifamily sector of the housing market. Measuring and forecasting
housing supply and demand is an inexact science at best, but let's
take a stab at it.
Bend has grown by just under 3% annually over the last decade. That
is a strong rate of growth that has put a strain on housing, traffic, in-
frastructure and more. Some census experts are forecasting a modest
slowing of this growth rate. A population influx of 2,000 to 3,000
per year would create demand for 400-500 new apartment units.
New multifamily deliveries have exceeded this number in the last few
years. The vacancy rate is inching upward and rent growth last year
was just 1.3%. Supply is catching up. There will likely be over 600
units coming online this year, and there are over 2,000 additional
units in the pipeline that could be delivered by 2025. Even if Bend's
growth does not slow and there is a demand for 600 to 700 units per
year, there will likely be a surplus of multifamily housing by 2025.
CoStar is predicting that vacancy rates could hit double digits and
rent growth will be flat or declining for the next few years. The new
multifamily development pipeline for both Bend and Redmond looks
extremely robust for the foreseeable future.
This should result in a much better
housing environment for apartment residents.
It is not necessarily good news for housing providers, but investors
and developers understand the ups and downs of market cycles.
They have enjoyed a long cycle of rising rents and property values
and should be well positioned to withstand the inevitable changing
conditions. Rising interest rates and cap rates, and a more difficult
lending environment will be additional headwinds in the short term. In
the bigger picture, multifamily ownership in Bend, Oregon will always
be a winning investment over the long haul providing much needed
housing for a growing and vibrant community.
Call us for all your multifamily buying or selling needs or if you want
a deeper dive into our market statistics and tracking of the supply
and demand equation.
Written by broker Ron Ross, CUM
MULTIFAMILY LISTINGS
FOR SALE & RECENTLY CLOSED
Sign up for our Multifamily New Listing Alerts by going to
CompassCommercial.com/M Fn ews
42-Units 1 S10,777,000 1 4.24% Cap Rate
Spring Pines Apartments, Bend
9-Unit Complex 1 Sold for S3,900,000
1455 NW 8th Street, Bend
19-Unit Apartments 1 Sold for S5,900,000
Nehalem 13 Apartments, Portland
Page 11 of 17
Page 4 of 5 PAGE 4
Attachment B - 65301, 65305, & 65315 N. Highway 97 Landscape Management Area
Road Landscape Management Combining Zone - Highway 97
Photo 1: Looking west from existing driveway onto N. Highway 97. The hill to the west of the
property contains lots in the Whispering Winds Estates subdivision. The hill blocks any views of the
Cascade Mountains to the west. It is overwhelmingly vegetated with juniper trees, native brushes
and grasses.
Photo 2: Looking west from the north side of the subject properties. Houses are clearly visible.
Maintaining or enhancing the natural landscape with additional landscaping can be accomplished
easily on the subject properties.
Exhibit 1
Page 13 of 17
Attachment B
Page 1 of 1
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Exhibit 1
Page 15 of 17
Attachment C
Page 2 of 2
Hired as the city's first business advocate to manage the Bend Economic Development
Advisory Board (BEDAB) and implement economic development programs. Created and
implemented the BEDAB strategic plan and made adjustments to various business
operations including online payments, lease relocation assistance and business loan
program.
2009 — 2011
COMNIUNITY DEVELOPMENT DIRECTOR, JEFFERSON COUNTY, OR
Managed the building, onsite septic and land use planning programs. Led the effort to
create state technical advisory group to reduce land use regulatory barriers for
establishment of solar farms on agriculturally zone land in Oregon.
2005 — 2011
OWNER, SKIDMORE LAND USE SERVICES, LLC, BEND, OR
Founded land use consulting, entitlement and project management firm servicing
developers and land owners within Central Oregon. Led entitlement team for proposed
eco-resort. Acquired land, designed, developed and operate mixed -use building in
downtown Bend.
2004 — 2005
PROJECT PLANNER, W&H PACIFIC, BEND, OR
Worked as land use planner and project manager for civil engineering firm providing land
development consulting services in Central Oregon. Presented master plans and other
development proposals to city councils, planning commissions and neighborhood
associations.
1999 — 2004
LAND USE PLANNER, CLACKAMAS AND DESCHUTES COUNTIES
Worked as a staff land use planner reviewing land use applications. Served as floodplain
administrator for Clackamas County.
EDUCATION
2001
MASTER OF URBAN & REGIONAL PLANNING, PORTLAND STATE UNIVERSITY
1995
BACHELOR OF SCIENCE WITH HONORS, POLITICAL SCIENCE, UNIVERSITY OF
OREGON
SKILLS
• Communications Organizational development
• Oregon Land Use Planning ® Entitlement strategy
• Team building ® Community engagement
2
Exhibit 1
Page 17 of 17
Attachment D
Page 2 of 2
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: June 28, 2023
SUB B ECT: Public Hearing: Application for 2023 Community Development Block Grant
RECOMMENDED MOTION:
First, hold a public hearing. Thereafter, approve submittal of the grant application to
Business Oregon as proposed.
BACKGROUND AND POLICY IMPLICATIONS:
The purpose of this hearing is for the Board of County Commissioners to obtain citizen
input and to respond to questions and comments about: community development and
housing needs, especially the needs of low- and moderate -income persons, as well as other
needs in the community that might be assisted with a Community Development Block
Grant project; and the proposed project.
Business Oregon administers the state of Oregon's annual federal allocation of
Community Development Block Grant (CDBG) funds for non -metropolitan cities and
counties. The primary objective of the CDBG program is to develop livable urban
communities for persons of low and moderate incomes by expanding economic
opportunities and providing housing and suitable living environments.
Deschutes County is eligible to apply for a 2023 Community Development Block Grant from
the Business Oregon. Community Development Block Grant funds come from the U.S.
Department of Housing and Urban Development. The grants can be used for public
facilities and housing improvements, primarily for persons with low and moderate
incomes.
Deschutes County is preparing an application for a 2023 Community Development Block
Grant from the Business Oregon for the Central Oregon Regional Housing Rehabilitation
project, which will provide home repair and rehabilitation loans to homeowners in Crook,
Deschutes and Jefferson counties, outside of Bend and Redmond. It is estimated that the
proposed project will benefit at least 25 persons, of whom 100% will be low or moderate
income.
The cities of Bend and Redmond are urban/entitlement communities that receive funds
directly from the US Department of Housing and Urban Development and not eligible to
apply for a CDBG grant. Deschutes County is a non -entitlement entity and may access
CDBG funds through this grant process. Approximately $12 million will be awarded to
Oregon non -metropolitan cities and counties in 2023.
Deschutes County will be applying for a $400,000 grant. Although funds are sub -granted to
Neighborlmpact, Deschutes County will retain responsibility for compliance with program
rules, regulations, etc. Neighborlmpact is responsible for various grant administration
activities to support the grant recipient local government, in addition to operator of the
lending program.
BUDGET IMPACTS:
None
ATTENDANCE:
Erik Kropp, Deputy County Administrator
Stephanie Robinson, Administrative Analyst
Andrew Spreadborough, Deputy Executive Director, Neighborlmpact
Public Notice and Notice of Public Hearing
Deschutes County is eligible to apply for a 2023 Community Development Block Grant from Business
Oregon. Community Development Block Grant funds come from the U.S. Department of Housing and
Urban Development. The grants can be used for public facilities and housing improvements, primarily
for persons with low and moderate incomes.
Approximately $11 million will be awarded to Oregon non -metropolitan cities and counties in 2023. The
maximum grant that a city or county can receive for a housing rehabilitation project is $500,000.
Deschutes County is preparing an application for a 2023 Community Development Block Grant from the
Business Oregon for the Central Oregon Regional Housing Rehabilitation project, which will provide
home repair and rehabilitation loans to homeowners in Crook, Deschutes and Jefferson counties,
outside of Bend and Redmond (cities that directly receive Community Development Block Grant funds).
It is estimated that the proposed project will benefit at least 30 persons, of whom 100% will be low or
moderate income.
A public hearing will be held by the Deschutes County Board of Commissioners at 9:00 AM on
Wednesday, June 28, at the Deschutes Services Building, 1300 NW Wall Street, Bend, Oregon. The
purpose of this hearing is for the Board of County Commissioners to obtain citizen views and to respond
to questions and comments about: community development and housing needs, especially the needs of
low- and moderate -income persons, as well as other needs in the community that might be assisted
with a Community Development Block Grant project; and the proposed project.
Written comments are also welcome and must be received by June 28 at the Deschutes County Services
Building, 1300 NW Wall Street, Bend, Oregon. The public may also comment by emailing
citizeninput@deschutes.org or leaving a voice mail message at 541-385-1734. Both oral and written
comments will be considered by the Board of County Commissioners in deciding whether to apply.
The location of the hearing is accessible to persons with disabilities. Please contact Stephanie Robinson,
Grants and Operations Specialist, at 541-330-4627 if you will need any special accommodations to
attend or participate in the meeting.
More information about Oregon Community Development Block Grants, the proposed project, and
records about the city's past use of Community Development Block Grant funds is available for public
review at Deschutes Services Building, 1300 NW Wall Street, Bend, Oregon during regular office hours.
Advance notice is requested. If special accommodations are needed, please notify Stephanie Robinson,
Grants and Operations Specialist, at 541-330-4627 so that appropriate assistance can be provided.
Permanent involuntary displacement of persons or businesses is not anticipated as a result from the
proposed project. If displacement becomes necessary, alternatives will be examined to minimize the
displacement and provide required/reasonable benefits to those displaced. Any low- and moderate -
income housing that is demolished or converted to another use will be replaced.
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: June 28, 2023
SUBJECT: Deliberations on the Griffin/Renfro Plan Amendment and Zone Change for
approximately 40 acres one mile east of the City of Bend
RECOMMENDED MOTION:
The Hearings Officer recommended approval of file nos. 247-22-000792-PA, 793-ZC
pursuant to DCC 22.28.030.
BACKGROUND AND POLICY IMPLICATIONS:
The Board will deliberate on June 28, 2023 in relation to a request for a Plan Amendment
and Zone Change (file nos. 247-22-000792-PA, 793-ZC) for approximately 40 acres one mile
east of the City of Bend.
BUDGET IMPACTS:
None
ATTENDANCE:
Rachel Vickers, Associate Planner
1ES
COMMUNITY DEVELOPMENT
MEMORANDUM
TO: Deschutes County Board of Commissioners
FROM: Rachel Vickers, Associate Planner
DATE: June 28, 2023
SUBJECT: Griffin/Renfro Comprehensive Plan Amendment and Zone Change - Deliberations
The Board of County Commissioners ("Board") held a public hearing on May 31, 2023, to consider a
request for a Comprehensive Plan Amendment and Zone Change (file nos. 247-22-000792-PA, 793-
ZC) for one tax lot totaling approximately 40 acres one mile to the east of the City of Bend. The Board
is scheduled to deliberate on June 28, 2023, in consideration of this request.
I. BACKGROUND
The applicants, Kevin Griffin and Libby Renfro, are requesting a Comprehensive Plan Amendment to
re -designate the subject properties from Agriculture to Rural Residential Exception Area and a Zoning
Map Amendment to rezone the properties from Exclusive Farm Use (EFU) to Multiple Use Agricultural
(MUA10). The applicant argues the property was mistakenly identified as farmland, does not contain
high -value soils or other characteristics of high value farmland, and therefore should be re-
designated and rezoned for rural residential use. The applicants provided a supplementary soil study
that identifies non -high value (Class Vil and VIII) soils on a majority of the subject properties.
Additionally, the applicant's burden of proof includes findings that demonstrates compliance with
state and local requirements and policies.
I1. PUBLIC COMMENTS
Staff received four (4) public comments from neighbors and local interest groups related to the
February 28, 2023 Hearing's Officer hearing and proceedings. All four comments opposed the
application, however staff notes that one of the comments from a nearby neighbor related to using
the property as a drug treatment facility which is unrelated to this proposal. Comments received in
opposition expressed concern related to potential Toss of agricultural land, credibility of the
submitted soils report, and the applications ability to meet all relevant local and state regulations. No
public comments were received during the Board Hearing.
III. HEARINGS OFFICER RECOMMENDATION
The Deschutes County Hearings Officer held a public hearing on February 28, 2023. One individual,
not including the applicant's team, provided testimony during the hearing in support of the
application.
On March 24, 2023, 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 DELIBERATIONS
If the Board finds that additional deliberations are necessary, the Board may schedule a future date
for continued deliberations. If the Board finds no additional deliberations are necessary, the Board
may then vote on whether to approve or deny the Plan Amendment and Zone Change request.
Per DCC Section 22.20.040(D), the review of the proposed quasi-judicial Plan Amendment and Zone
Change is not subject to the 150-day review period typically associated with land use decisions. The
full record is available for inspection at the Planning Division and at the following link:
https://www.deschutes.org/cd/page/247-22-000792-pa-793-zc-%E2%80%93-comprehensive-plan-
amendment-and-zone-change.
Staff prepared a matrix outlining key issue areas for the Board's deliberation. This matrix is included
as an attachment, and provides additional review and discussion of the application's compliance with
applicable approval criteria.
V. NEXT STEPS
If the Board determines that additional deliberations are necessary, staff will work with the Board to
schedule a future meeting for continued deliberations. If the Board concludes their deliberations
during the June 28, 2023, meeting, the Board may then vote on whether to approve or deny the Plan
Amendment and Zone Change. If the Board renders a vote during the June 28, 2023, meeting, staff
will coordinate with the Board to return for a future meeting to review the draft decision, draft
ordinance and relevant exhibits. If appropriate, the first reading of the ordinance can be initiated at
that time.
VI. SUGGESTED MOTION
To the extent the Board decides to approve Plan Amendment and Zone Change, a motion as follows
will likely be appropriate:
The Board moves to approve the Plan Amendment and Zone Change for file nos. 247-22-000792-
PA and 247-22-000793-ZC.
To the extent the Board decides to modify or reverse the Hearings Officer's decision, that motion will
need to be crafted to address the Board's specific concerns, as discussed in the deliberations.
ATTACHMENTS:
Page 2 of 3
1. Area Map
2. Board Decision Matrix
3. Hearings Officer Recommendation
Page 3 of 3
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Has there been a change in circumstances
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• If yes, the Board can continue reviewing the
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PA/ZC.
• If no, the Board may deny the application
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Land Use File #247-22-000792-PA, 793-ZC
.m vNICIP.
HEARING OFFICER FINDINGS AND RECOMMENDATIONS
ALE NUMBERS: 247-22-000792-PA, 793-ZC
HEARING DATE: February 28, 2023, 6:00 p.m.
HEARING LOCATION: Videoconference and Barnes and Sawyer Rooms
Deschutes Services Center
1300 NW Wall Street
Bend, OR 97708
SUBJECT PROPERTIES/
OWNER:
Mailing Name: GRIFFIN, KEVIN J
Map and Taxlot: 181201 D000200
Account: 109857
Situs Address: 21900 RASTOVICH RD, BEND, OR 97702
APPLICANT: Kevin Griffin and Libby Renfro
ATTORNEY
FOR APPLICANT: Tia Lewis
REQUEST: The Applicant requests approval of a Comprehensive Plan Amendment
to change the designation of the Subject Property from Agricultural
(AG) to Rural Residential Exception Area (RREA). The Applicant also
requests a corresponding Zone Change to rezone the Subject Property
from Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA-10).
HEARINGS OFFICER: Alan A. Rappleyea
STAFF CONTACT: Rachel Vickers, Associate Planner
Phone: (541) 388-6504
Email: Rachel.Vickers@deschutes.org
RECORD: Record items can be viewed and downloaded from:
https://www.desch utes.o rg/cd/page/247-22-000792-pa-793-zc-
%E2%80%93-comprehensive-plan-amendment-and-zone-change
SUMMARY OF
RECOMMENDATION: The Hearings Officer finds that the Applicants have met their burden of
proof with respect to the requested Comprehensive Plan Amendment
and Zone Change and, therefore, recommends APPROVAL of the
Application based on the Findings set forth in this Recommendation.
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 System Plan
Oregon Administrative Rules (OAR), Chapter 660
Division 12, Transportation Planning
Division 15, Statewide Planning Goals and Guidelines
Division 33, Agricultural Land
Oregon Revised Statutes (ORS)
Chapter 215.010, Definitions
Chapter 215.211, Agricultural Land, Detailed Soils Assessment
II. BACKGROUND AND PROCEDURAL FINDINGS
NATURE OF PROCEEDING: This matter comes before the Hearings Officer as a request for approval
of a Comprehensive Plan Map Amendment ("Plan Amendment") to change the designation of the
Subject Property from Agricultural (AG) to Rural Residential Exception Area (RREA). The Applicants
also request approval of a corresponding Zoning Map Amendment ("Zone Change") to change the
zoning of the Subject Property from Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA10).
The basis of the request in the Application is the Applicants' assertion that the Subject Property does
not qualify as "agricultural land" under the applicable provisions of the Oregon Revised Statutes or
Oregon Administrative Rules governing agricultural land. Based on that assertion, the Applicants
are not seeking an exception to Statewide Planning Goal 3 for the Plan Amendment or Zone Change.
NOTICES: The Application was filed on April 14, 2022. On October 5, 2022, the County issued a
Notice of Application to several public agencies and to property owners in the vicinity of the Subject
Property (together, "Application Notice"). The Application Notice invited comments on the
Application.
Following additional submittals by the Applicants, the County mailed a Notice of Public Hearing on
February 3, 2023 ("Hearing Notice") announcing an evidentiary hearing ("Hearing") for the requests
in the Application. Notice of the hearing was published in the Bend Bulletin on February 5, 2023.
Notice was given to the DLCD of the hearing on January 17, 2023. Pursuant to the Hearing Notice, I
presided over the Hearing as the Hearings Officer on February 28, 2023, opening the Hearing at
6:00 p.m. The Hearing was held via videoconference, with Staff and a representative of the
Applicants in the hearing room. The Hearings Officer appeared remotely. On February 21, 2023, the
2
247-22-000792-PA, 793-ZC
Deschutes County Planning Division ("Staff") issued a report setting forth the applicable criteria and
presenting the evidence in the record at that time ("Staff Report"), The Hearings Officer finds that
all procedural notice requirements were met.
HEARING: At the beginning of the Hearing, I provided an overview of the quasi-judicial process and
instructed participants to direct comments to the approval criteria and standards, and to raise any
issues a participant wanted to preserve for appeal if necessary. I stated I had no ex parte contacts to
disclose or bias to declare. I asked for but received no objections to the County'sjurisdiction over the
matter or to my participation as the Hearings Officer. Next, Staff provided a summary of the staff
report. The applicant's attorney, Ms. Lewis then made a presentation. The Applicant, Mr. Kevin Griffin
also testified in support of the application. There was no one present either in person or remotely to
offer neutral testimony or opposition testimony. Staff reported on the letters in opposition from
Kristen Sabo and Carol Macbeth of COLW, Devin Kesner of 1000 Friends of Oregon including one that
recently arrived from Ms. Macbeth from Central Oregon Land Watch (COLW), and Mr. Jerry Wilke. I
noted that I had read the letters that were submitted but had not yet seen the COLW most recent
letter. I have now reviewed that letter.
The applicant stated that the letter in opposition from Jerry Wilke was likely addressing a different
application as the current application does not propose a drug rehabilitation facility. I concur in that
statement.
The applicant also rebutted the arguments provided by COWL and 1000 Friends. The applicant and
staff then responded to my questions. I mentioned that the Board would be hearing a similar
application in Marken 247-22-000353-PA and 247-22-000354-ZC. I wanted to take judicial notice of
that decision when it is issued for the record. The applicant did not have an issue with having that
decision reviewed by the Hearings Officer. I noted that I have a contractual obligation to issue timely
decisions.
No participant requested that the record remain open. The Hearing concluded at approximately 6:59
p.m. At that time, I closed the Hearing and the record, and I took this matter under advisement.
150-DAY CLOCK: Because the Application includes a request for the Plan Amendment, the 150-day
review period set forth in ORS 215.427(1) is not applicable. ORS 215.427(7). The Staff Report also
notes that the 150-day review period is not applicable by virtue of Deschutes County Code ("DCC"
or "Code") 22.20.040(D). No participant to the proceeding disputed that conclusion.
III. SUBSTANTIVE FINDINGS AND CONCLUSIONS
Adoption of Factual Findings in Staff Report:
The Staff Report contains a comprehensive summary of evidence in the record as it relates to each
of the applicable criteria. The Staff Report, although it expresses agreement with the Applicants in
many places, does not make a final recommendation. Instead, the Staff Report asks the Hearings
Officer to determine if the Applicants have met the burden of proof necessary to justify the Plan
3
247-22-000792-PA, 793-ZC
Amendment and the Zone Change. Comments have challenged some specific evidence or findings
presented in the Staff Report. Where the staff legal finding have been challenged, those will be
addressed below. There is only one area that challenges the factual finding and will be addressed
here. For those factual and legal findings that are not challenged, I hereby adopt as fact the
evidentiary findings in the Staff Report as my evidentiary findings. To the extent any of the findings
in this Recommendation conflict with the findings in the Staff Report, my intent is to have these
findings control. The remainder of this Recommendation sets forth the legal criteria and adopts
legal findings based on those factual findings.
The factual finding that is challenged by COWL is the determination of the soils report provided by
the applicant. Although there is also a legal aspect to this challenge as COWL believes that the
County's NRCS maps should prevail over the applicant's soil study (which will be addressed
subsequently), a primary factual challenge is the make up of the soil. COWL's testimony is that the
soil is predominantly Class 3-6. Macbeth COLW Public Comment 2/28/23. The Applicant's soil study
finds that the property is predominantly Class 7-8 (hereinafter, except for quotes, I will use the
Arabic numerals instead or Roman for ease of reading). The Hearings Officer finds that the expert
testimony provided by the applicant concerning soils along with staff's analysis of Applicants
submittal is more persuasive than the testimony provided by Ms. Macbeth. 2022-09-30 App
Materials 22-792-PA, 793-ZC Page 176. Ms. Macbeth relies on the more general NRCS studies and
the applicant's study is more detailed. The applicant has met the burden of proof that the soil is
predominantly class 7-8 and is not predominantly class 3-6.
Title 18 of the Deschutes County Code, County Zoning
Chapter 18.136, Amendments
Section 18.136.010, Amendments
DCC Title 18 may be amended as set forth in DCC 18.136. The procedures for text or
legislative map changes shall be as set forth in DCC 22.12. A request by a property owner
for a quasi-judicial map amendment shall be accomplished by filing an application on
forms provided by the Planning Department and shall be subject to applicable procedures
of DCC Title 22.
FINDING: The Applicants are the owners of the Subject Property and have requested a quasi-judicial
Plan Amendment and filed applications for that purpose, together with the request for a Zone
Change. No participant to this proceeding objects to this process. It is therefore appropriate to
review the Application using 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:
4
247-22-000792-PA, 793-ZC
A. That the change conforms with the Comprehensive Plan, and the change is
consistent with the plan's introductory statement and goals.
FINDING: According to the Applicants, the County applies this Code provision by considering
whether: (1) the zone change conforms to the Comprehensive Plan; and (2) the change is consistent
with the Comprehensive Plan's introduction statement and goals.
With respect to the first factor, the Applicants note that they are also seeking a Plan Amendment,
which will change the Comprehensive Plan designation of the Subject Property from Agriculture to
Rural Residential Exception Area. If that Plan Amendment is approved, which is addressed in more
detail below, the proposed change from the EFU zone to the MUA-10 zone will be consistent with
the new Comprehensive Plan designation. No participant to this proceeding disputes that
conclusion.
With respect to the second factor, the Staff report goes into detail describing the criteria which the
hearings officer has to apply relying on past Hearing Officers decision on a similar application.
Powell/Ramsey decision (PA-14-2 / ZC-14-2) and Landholdings Decision (247-16-000317-ZC / 318-
PA). The staff report states that "introductory statement and goals are not approval criteria for the
proposed plan amendment and zone change." The Hearings Officer adopts the Applicant's
statement and the staff report's legal analysis on the standards that apply. The staff report then
proceeds to address the relevant requirements.
Based on the foregoing, and in the absence of any countervailing evidence or argument, I find that
this Code provision is satisfied.
B. That the change in classification for the subject property is consistent with the
purpose and intent of the proposed zone classification.
FINDING: Only the Applicants and Staff offer any evidence or argument with respect to the purpose
of the MUA-10 zone. The purpose of the MUA-10 zoning district 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 fulltime 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.
According to the Applicants, the Subject Property is not suited to full-time commercial farming. The
MUA-10 zone will instead allow the owners to engage in hobby farming, and the low -density of
development allowed by the MUA-10 zone will conserve open spaces and protect natural and scenic
resources. As a result, the MUA-10 zoning provides a proper transition zone from city, to rural, to
5
247-22-000792-PA, 793-ZC
EFU zoning. Additionally, the staff report finds that the maximum density of the approximately 40.0-
acre property is 7 lots, if developed with a cluster development under Title 18. This low density will
preserve open space, allow owners to engage in hobby farming, if desired, and preserve natural
and scenic resources and maintain or improve the quality of air, water, and land resources. The
MUA-1 0 zoning provides a proper transition zone from the City, to rural zoning, to EFU zoning.
The Staff Report agrees that the change in classification is consistent with the purpose and intent
of the MUA10 Zone, and no participant to this proceeding disputes that conclusion. Based on the
foregoing, and in the absence of any countervailing evidence or argument, I find that this Code
provision is satisfied.
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: As noted in the Staff Report, this criterion specifically asks if the Zone Change will presently
serve public health, safety, and welfare. The Applicants and the Staff Report provided the following
as support for why this criterion is met:
• Necessary public facilities and services are available to serve the Subject Property including
power and water.
• Transportation access to the Subject Property is available off a Rastovich Road, and the
impact of increased traffic on the transportation system is negligible.
• The Subject property receive police services from the Deschutes County Sheriff and fire
service from Rural Fire Protection District # 2, which has a fire station two miles from the
Subject Property.
• The close proximity of the Subject property to urban development will allow for efficient
service provision.
• Prior to development of the properties, the Applicants would be required to comply with the
applicable requirements of the Code, including possible land use permit, building permit,
and sewage disposal permit processes. Through these development review processes,
assurance of adequate public services and facilities will be verified.
Staff concludes and the Hearings Officer finds that there are no known deficiencies in public services
or facilities that would negatively impact public health, safety, or welfare. Based on the foregoing,
and in the absence of any countervailing evidence or argument, I find that this Code provision is
satisfied.
2. The impacts on surrounding land use will be consistent with the specific goals
and policies contained within the Comprehensive Plan.
FINDING: Only the Applicants and Staff offer any evidence or argument with respect to this
criterion. Specifically, the Applicants noted the following:
6
247-22-000792-PA, 793-ZC
The MUA-10 zoning is consistent with the specific goals and policies in the comprehensive plan
discussed above. The MUA-10 zoning is the same as the zoning of many other properties in the
area west and south of the subject property. In addition, the MUA-10 zoning provides a proper
transition zone from the City, to rural zoning, to EFU zoning.
The zone change will not impose new impacts on the EFU-zoned land adjacent to the subject
property because many of those properties are residential properties, hobby farms, already
developed with dwellings, not engaged in commercial farm use, are idle, or are otherwise not
suited for farm use due to soil conditions, topography, or ability to make a profit farming.
Some of the properties adjacent and near the subject property are in small, hobby farm use and
are receiving farm tax deferral. Tax Lots 1100, 100, 301, and 200 are adjacent to the east and
southwest and are in common ownership and part of Rastovich Farm. Most of the Rastovich
properties are receiving farm tax deferral and are being used for raising livestock. One of the
Rastovich parcels adjacent to the subject property is a nonfarm parcel developed with a nonfarm
dwelling. Submitted herewith as Exhibit 12 is a letter from Robert and Colleen Rastovich stating
they have no objection to the requested zone change and attesting to the fact that the subject
property is not intermingled and is not necessary or useful to them for any farming on the
Rastovich parcels.
The adjacent properties to the north and northeast, Tax Lots 101, 102, 1101, are currently receiving
farm tax deferral and appear to be used as residential properties with hobby farms. Attached
hereto as Exhibit 13 are letters from David Nader, owner of Tax lot 101 adjacent to the north of
the subject property and Steve and Keri Sawyer, owners of Tax lot 1101 adjacent to the northeast
of the subject property stating they have no objection to the requested zone change and attesting
to the fact that the subject property is not intermingled and is not necessary or useful to them for
any farming occurring on their parcels. These properties will not suffer new impacts from the
proposed zone change because they are hobby farms, already developed with dwellings, not
engaged in commercial farm use, and are smaller size than the subject property. The zone change
would allow the subject property to be divided into parcels similar size to the adjacent properties
to the north and be used for similar hobby farming uses.
As discussed below, the subject property is not agricultural land, is comprised of predominantly
Class 7 and 8 soils, and as described by the soil scientist, Mr. Gallagher, the nonproductive soils
on the subject property make it not suitable for commercial farming or livestock grazing. The
subject property is not land that could be used in conjunction with the adjacent property and any
future development of the subject property would be subject to building setbacks.
The Staff Report agrees that the Applicants have demonstrated the impacts on surrounding land
use will be consistent with the specific goals and policies contained within the Comprehensive Plan.
Based on the foregoing, and in the absence of any countervailing evidence or argument, I find that
this Code provision is satisfied.
7
247-22-000792-PA, 793-ZC
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: Only the Applicants offer any evidence or argument with respect to this criterion.
According to the Applicants, a mistake in zoning was made and the EFU zoning designation on the
Subject property was likely based on the best soils data that was available to the County at the time
it was originally zoned, during the late 1970's, when the Comprehensive Plan and Map were first
adopted. The Applicants also assert that there has been a change in circumstances since that time.
Specifically, the Applicants note that there are new data regarding soils on the Subject Property and
that the updated soils report shows the Subject Property do not have agricultural soils. The
Applicants also assert that the economics of farming and the viability of commercial farm uses in
Deschutes County have significantly changed, and farming for a profit has become increasingly
difficult. The applicant also notes the encroachment of the urban area to the Subject Property.
Although the Hearings Officer agrees with the applicant that the urban area is encroaching on this
property, he does not find that this encroachment would be a change in circumstance that should
be considered as any such plan change would further create encroachment for other properties.
Staff finds that "[i]t is unclear to staff why the Subject Property was initially zoned EFU. Staff is
unaware of any evidence such as soil classification, availability of irrigation, or historic farming,
which explains its current zoning." Based on the foregoing, and in the absence of any countervailing
evidence or argument, I find that this Code provision is satisfied.
Deschutes County Comprehensive Plan
Chapter 2, Resource Management
FINDING: Chapter 2 of the Comprehensive Plan relates to Resource Management. Section 2.2 of
that Chapter relates specifically to Agricultural Lands. The Applicants and Staff have identified the
following goals and policies as relevant to the Application.
Section 2.2 Agricultural Lands
Goal 1, Preserve and maintain agricultural lands and the agricultural industry.
FINDING: According to the Applicants, they are pursuing the Plan Amendment and Zone Change
because the Subject Property do not constitute "agricultural lands", and therefore, it is not
necessary to preserve or maintain the Subject Property as such. In support of that conclusion, the
Applicants rely on a soils report showing the Subject Property consist predominantly (58.5%) of
Class 7 and 8 nonagricultural soils. Such soils have severe limitations for agricultural use as well as
low soil fertility, shallow and very shallow soils, abundant rock outcrops, low available water
capacity, and major management limitations for livestock grazing.
The Staff Report notes the property has 5 acres of water rights. The fact that the property has some
water rights and that the soils are only 58% class 7 and 8 makes this decision more difficult. It is
8
247-22-000792-PA, 793-ZC
likely that many properties in Deschutes County are used for farming, particularly hobby farming,
have worse soil conditions. However, the majority of the soils are predominantly class 7 and 8.
Based on the foregoing, and in the absence of any countervailing evidence or argument, I find that
the Application is consistent with this portion of the Comprehensive Plan.
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 Applicants have not asked to amend the subzone that applies to the Subject Property.
Instead, the Applicants requested a change under Policy 2.2.3 and have provided evidence to
support rezoning the Subject Property as MUA-10.
Based on the foregoing, and in the absence of any countervailing evidence or argument, I find that
the Application is consistent with this portion of the Comprehensive Plan.
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 Applicants request approval of the 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 MUA-10. The Applicants do not seek an exception to Goal 3 for that
purpose, but rather seek 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).
In support of this approach, the Applicants rely in part on the Land Use Board of Appeals' decision
in Wetherell v. Douglas County, 52 Or LUBA 677 (2006), where LUBA states as follows:
As we explained in DLCD v. Klamath County, 16 Or LUBA 817, 820 (1988), there are two ways a
county can justify a decision to allow nonresource use of land previously designated and zoned
for farm use or forest uses. One is to take an exception to Goal 3 (Agricultural Lands) and Goal 4
(Forest Lands). The other is to adopt findings which demonstrate the land does not qualify either
as forest lands or agricultural lands under the statewide planning goals. When a county pursues
the latter option, it must demonstrate that despite the prior resource plan and zoning designation,
neither Goal 3 or Goal 4 applies to the property.
The Applicants assert that the facts presented in the Application are sufficiently similar to those in
the Wetherell decision and in other Deschutes County plan amendment and zone change
applications. The Staff Report agrees and concludes the Applicants have the potential to prove the
Subject Property is not agricultural land and do not require an exception to Goal 3 under state law.
9
247-22-000792-PA, 793-ZC
The opposition letter submitted by Ms. Kesner from 1000 Friends argues that the applicant did not
adequately address the agricultural land factors in the rule. This argument will be addressed
specifically under OAR 660-033-0020.
Based on the foregoing, I find that the Application is consistent with this portion of the
Comprehensive Plan.
Policy 2.2.4 Develop comprehensive policy criteria and code to provide clarity on
when and how EFU parcels can be converted to other designations.
FINDING: The Applicants assert this plan policy provides direction to Deschutes County to develop
new policies to provide clarity when EFU parcels can be converted to other designations and that
the Application is consistent with this policy. The Staff Report also concludes the proposal is
consistent with this policy.
Based on the foregoing, and in the absence of any countervailing evidence or argument, I find that
the Application is consistent with this portion of the Comprehensive Plan.
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: The Applicants assert that this Comprehensive Plan policy requires the County to identify
and retain agricultural lands that are accurately designated. The Applicants propose that the Subject
Property was not accurately designated as demonstrated by the soil study in the record.
Based on the foregoing, and in the absence of any countervailing evidence or argument, I find that
the Application is consistent with this portion of the Comprehensive Plan.
Section 2.5, Water Resources Policies
FINDING: Section 2.5 of Comprehensive Plan Chapter 2 relates specifically to Water Resource
Policies. The Applicants and Staff have identified the following goal and policy in that section as
relevant to the Application.
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 Applicants and Staff assert that the Applicants are not required to address water
impacts associated with development because they have not proposed a specific development
application at this time. Instead, the Applicants will be required to address this criterion during
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development of the Subject Property, which would be reviewed under any necessary land use
process for the site.
Based on the foregoing, and in the absence of any countervailing evidence or argument, I find that
the Application is consistent with this portion of the Comprehensive Plan.
Section 2.7, Open Spaces, Scenic Views and Sites
FINDING: Section 2.7 of Comprehensive Plan Chapter 2 relates specifically to Open Spaces, Scenic
Views and Sites. The Applicants and Staff have identified the following goal and policies in that
section as relevant to the Application.
Goal 1, Coordinate with property owners to ensure protection of significant open spaces
and scenic view and sites.
Policy 2.7.3 Support efforts to identify and protect significant open spaces and
visually important areas including those that provide a visual separation between
communities such as the open spaces of Bend and Redmond or lands that are
visually prominent.
Policy 2.7.5 Encourage new development to be sensitive to scenic views and sites.
FINDING: The Applicants assert 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. Because there is no LM combining zone
applicable to the Subject Property, the Subject Property is not identified as a Goal 5 resource, and
no new development is proposed, the Applicants argue there is no applicable regulation that
requires the Subject Property to be protected as open space or for scenic views.
Based on the foregoing, and in the absence of any countervailing evidence or argument, I find that
the Application is consistent with this portion of the Comprehensive Plan.
Chapter 3, Rural Growth
Section 3.2, Rural Development
FINDING: Chapter 3 of the Comprehensive Plan relates to Rural Growth. Within that chapter,
Section 3.2 relates specifically to Rural Development. The Applicants and Staff have identified the
following language in that section as relevant to the Application.
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
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development. The following list identifies general categories for creating new residential
lots, all of which are subject to specific State regulations.
• 2009 legislation permits a new analysis of agricultural designated lands
• Exceptions can be granted from the Statewide Planning Goals
• Some farm lands with poor soils that are adjacent to rural residential uses can be
rezoned as rural residential
FINDING: This section of the Comprehensive Plan does not contain Goals or Policies but does
provide the guidance above. In response to this section, the Applicant provided the following
response in the burden of proof:
The above part of the plan is not a plan policy and is not an applicable approval criterion but
rather an explanation of how the County calculated expected growth. As shown above, the
County's Comprehensive Plan provisions anticipate the need for additional rural residential lots
as the region continues to grow. This includes providing a mechanism to rezone farm lands with
poor soils to a rural residential zoning designation. While this rezone application does not include
the creation of new residential lots, the applicant has demonstrated the subject property is
comprised of poor soils that are adjacent to rural residential, MUA-10 zone, uses to the west as
well as near rural residential, RR-10 zone and MUA-10 zone, uses to the south and is near (within
1 mile) of the City limits of Bend to the west and even closer to the Stevens Road Tract, which will
be brought inside the UGB pursuant to HB 3318.
Rezoning the subject property to MUA-10 is consistent with this criterion, as it will provide for an
orderly and efficient transition from the Bend Urban Growth Boundary to rural and agricultural
lands. Additionally, it will link the non -productive lands of the subject property with existing
residential development and street systems to the west, furthering the creation a buffer of MUA-
10 zoned land along the City's eastern boundary where the quality of soils are poor and the land
is not conducive for commercial agriculture.
Staff noted that the MUA-10 zone is a rural residential zone and as discussed in the Basic Findings
section, there are several nearby properties to the north and northeast that are zoned MUA-10 as
well as nearby EFU zoned properties developed with residential uses. Staff noted this policy
references the soil quality, which staff has discussed above. Staff agreed with the Applicant's
response and finds the proposal complies with this policy.
Based on the foregoing, and in the absence of any countervailing evidence or argument, I find that
the Application is consistent with this portion of the Comprehensive Plan.
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
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Rural Residential Exception Area. The County had to follow a process under Statewide Goal
2 to explain why these lands did not warrant farm or forest zoning. The major determinant
was that many of these lands were platted for residential use before Statewide Planning
was adopted.
In 1979 the County assessed that there were over 17,000 undeveloped Rural Residential
Exception Area parcels, enough to meet anticipated demand for new rural housing. As of
2010 any new Rural Residential Exception Areas need to be justified through initiating a
nonresource plan amendment and zone change by demonstrating the property does not
meet the definition of agricultural or forest land, or taking exceptions to farm, forest,
public facilities and services and urbanization regulations, and follow guidelines set out in
the OAR.
FINDING: Prior Hearings Officer's decisions have found that Section 3.3 is not a plan policy or
directive. PA-11-17/ZC-11-2; 247-16-000317-ZC/318-PA; 247-18-000485-PA/486-ZC. I hereby adopt
the findings in the staff report for this criterion.
Based on the above, the Hearings Officer agrees with the past Deschutes County Hearings Officer
interpretations and with the staff interpretation and finds that the above language is not a policy
and does not require an exception to the applicable Statewide Planning Goal 3. Staff finds the
proposed RREA plan designation is the appropriate plan designation to apply to the Subject
Property. In the absence of any countervailing evidence or argument, I find that the Application is
consistent with this portion of the Comprehensive Plan.
Section 3.7, Transportation
FINDING: Section 3.7 of Comprehensive Plan Chapter 3 relates specifically to Transportation. The
Applicants and Staff have identified the following goal and policy in that section as relevant to the
Application.
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: The Applicants and the Staff Report assert this policy advises the County to consider the
roadway function, classification and capacity as criteria for Comprehensive Plan amendments and
zone changes. Compliance with OAR 660-012, also known as the Transportation Planning Rule (TPR),
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is described below in subsequent findings, and the Applicants and Staff assert that such compliance
is sufficient to demonstrate compliance with these transportation goals and policies.
Based on the foregoing, and in the absence of any countervailing evidence or argument, I find that
the Application is consistent with this portion of the Comprehensive Plan.
OREGON ADMINISTRATIVE RULES CHAPTER 660, LAND CONSERVATION AND DEVELOPMENT
DEPARTMENT
FINDING: The Applicants and the Staff Report identify several administrative rules as potentially
applicable to the Application.
Division 6, Goal 4 - Forest Lands
OAR 660-006-0005
(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 Applicants and the Staff Report assert that the Subject Property does not appear to
qualify as forest land and, therefore, the administrative rules relating to forest land are not
applicable. The Subject Property is not zoned for forest lands, nor are any of the Subject Property
within a 3-mile radius of forest lands. 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.
Based on the foregoing, and in the absence of any countervailing evidence or argument, I find that
the Application is consistent with these administrative rules.
Division 33 - Agricultural Lands & Statewide Planning Goal 3 - Agricultural Lands;
OAR 660-015-0000(3)
To preserve and maintain agricultural lands.
Agricultural lands shall be preserved and maintained for farm use, consistent with existing
and future needs for agricultural products, forest and open space and with the state's
agricultural land use policy expressed in ORS 215.243 and 215.700.
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FINDING: 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);
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 offers 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 that 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." The Subject Property is not
properly classified as Agricultural Land and does not merit protection under Goal 3. The soils are
predominately Class 7 and 8, as demonstrated by the site -specific soils assessment conducted by
Mr. Gallagher, a certified soils scientist. State law, OAR 660-033-0030, allows the County to rely on
for more accurate soils information, such as Mr. Gallagher's soil assessment. Mr. Gallagher found
that approximately 58.5 percent of the soils on the Subject Property (approximately 23.4 acres)
are Land Capability Class 7 and 8 soils that have severe limitations for farm use. He also found
the site to have low soil fertility, shallow and very shallow soils, abundant rock outcrops, rock
fragments on the soil surface, restrictive for livestock accessibility, and low available water holding
capacity, all of which are considerations for the determination for suitability for farm use.
Because the Subject Property is comprised predominantly of Class 7 and 8 soils, the property does
not meet the definition of 'Agricultural Land" under OAR 660-033-020(1)(a)(A), listed above as
having predominantly Class 1-VI soils.
Ms. Macbeth from COLW argued that applicant misconstrues this rule in its burden of proof
statement. Ms. Macbeth finds fault with the applicant referring to OAR 660-033-0030 to provide
"more accurate soils information." She argues that a "more detailed study is not more accurate".
Page 2, February 28, 2023 testimony. Ms. Macbeth argues that the applicant's soil study cannot
"change or replace the NRCS data...."
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The applicants responded to this testimony in its February 28, 2023, submittal.
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."
The applicants then argues that ORS 215.211(1) the legislature specifically provided the rights for
applicants to provide more detailed soils information. The applicant argues that the rules support
this finding:
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 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."
I find that the applicant's argument is more convincing. That statutes and the rules and the
DLCD's interpretation of their rules allow applicants to submit more detailed soils
information which can be used to determine whether the property meets the definition of
"agricultural lands." See following sections.
Staff reviewed the soil study provided by Andy Gallagher of Red Hill Soils (dated September 26, 2022)
and agree with the Applicant's representation of the data for the Subject Property. Staff found that
based on the submitted soil study and the above OAR definition, that the Subject Property is
comprised predominantly of Class 7 and 8 soils and, therefore, does not constitute "Agricultural
Lands" as defined in OAR 660-033-0020(1)(a)(A) above.
Based on the foregoing, I find that the Subject Property should not be considered agricultural land
under this part of the administrative rules.
(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;
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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: According to the Applicants, this part of the definition of "Agricultural Land" requires the
County to consider whether the Class 7 and 8 soils found on the Subject Property are suitable for
farm use despite their Class 7 and 8 soil classification. The Applicants rely on a decision by the
Oregon Supreme Court that determined 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.' Applying that definition, the Applicants describe various
limitations on the ability of the Subject Property to support farm uses, including, among other
factors, a limited water rights and low soil fertility. Applicant argues that these factors demonstrate
that the property is not agricultural land.
Mr. Kesner from 1000 Friends of Oregon argues in its February 28th submittal that:
The applicant's analysis as to whether the property is agricultural land as defined by DC 18.04.030
and OAR 660-033-0020(1)(a) is faulty in several ways. First, the applicant fails to demonstrate that
the property is not suitable for any 'farm use" as defined under ORS 215.203(2)(a). See OAR 660-
033-0020(1)(a)(B) (agricultural land includes "(l]and in other soil [soil] classes that is suitable for
farm use as defined in ORS 215.203(2)(a)). "Farm use" is defined as "current employment of land
for the primary purpose of obtaining a profit in money by raising, harvesting and selling crops or
the feeding, breeding, management and sale of, or the produce of, livestock, poultry, fur -bearing
animals or honeybees or for dairying and the sale of dairy products or any other agricultural or
horticultural use or animal husbandry or any combination thereof." ORS 215.203(2)(a). The
applicant has only addressed capacity for raising crops and livestock, and has not considered the
capability of the land to support other activities classified as a 'farm use."
Mr. Kesner makes an interesting argument here that the applicant and the County must consider
other farm uses such poultry, fur -bearing animals or honeybees etc. in making the determination
of whether the property is agricultural land. Mr. Kesner would require a review of the general
definition of "farm use" found in the statute for the determination of whether the property is
"agricultural land."
I find that Mr. Kesner's interpretation is not persuasive. The legislature would not have adopted ORS
215.211 and allowed a county to consider more detailed soils information "to make a better
determination of whether land qualifies as agricultural land..." if they also had to consider whether
the applicants could raise bees etc.. The rules also specifically allow for the consideration of soil
types in determining "agricultural land". This statute and the rules implementing it all lead to my
conclusion that this additional analysis of whether the property must meet the broad definition of
agricultural in ORS 205.203(2)(a) is not required.
1 Wetherell v. Douglas County, 342 Or 666, 160 P3d 614 (2007).
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Mr. Kesner also argues that since the property has a significant amount of class 3-6 soils and that
there are many farms in Deschutes County that operate with much smaller acreage than the Subject
Property. Mr Kesner argues that this demonstrates that these small farms are "an accepted and
predominant farm practice in Deschutes County." This is also an interesting argument. However,
under the statute and administrative rules the County is examining whether this property is
"agricultural land" based on its soils and other factors. I find that based on the above -described law
as applied to soils types and the other factors described in the staff report, that the property is not
property classified as "agricultural land."
Staff agrees with the Applicant that many of the factors surrounding the Subject Property - such as
nearby residential and non-agricultural related land uses, high -cost of dryland grazing, soil fertility,
and lack of availability of water rights result in an extremely low possibility of farming on the Subject
Property.
Based on the foregoing, I find that the Subject Property should not be considered agricultural land
and is not suitable for farming under this part of the administrative rules.
(C) Land that is necessary to permit farm practices to be undertaken on adjacent
or nearby agricultural lands.
FINDING: The staff report found that the Applicant provided an analysis of land uses and
agricultural operations surrounding the Subject Property. The Applicant analysis determined that
barriers for the Subject Property to engage with these properties in a farm use include: poor quality
soils, lack of irrigation, proximity and significant topography changes.
Based on the foregoing, and in the absence of any countervailing evidence or argument, I find that
the Subject Property is not necessary to permit farm practices to be undertaken on adjacent or
nearby agricultural land under this part of the administrative rules.
(b) Land in capability classes other than 1-IVIl-VI that is adjacent to or
intermingled with lands in capability classes I-IVIl-VI within a farm
unit, shall be inventoried as agricultural lands even though this land
may not be cropped or grazed;
FINDING: Staff report agrees with the Applicant's findings that this property is not part of a farm
unit with the surrounding agricultural lands.
The staff report include the applicant's response to arguments from 1000 Friends as to the Farm
Unit rule.
Goal 3 applies a predominant soil type test to determine if a property is "agricultural land." If a
majority of the soils are Class 1-6 in Central or Eastern Oregon, it must be classified "agricultural
land." 1000 Friends position is that this is a 100% Class 7-8 soils test rather than a 51% Class 7
and 8 soils test because the presence of any Class 1-6 soil requires the County to identify the entire
property as "agricultural land." Case law indicates that the Class 1-6 soil test applies to a subject
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property proposed for a non-agricultural plan designation while the farm unit rule looks out
beyond the boundaries of the subject property to consider how the subject property relates to
lands in active farming in the area that was once a part of the area proposed for rezoning. It is
not a test which requires that 100% of soils on a subject property be Class 1-6.
I find that the applicant's argument is more persuasive. The law allows for land that is not
predominantly class 1-6 soils to not be considered agricultural lands. As such, it makes sense that
the test under the farm unit rule would not require property to be 100% class 7-8 soils to meet this
test. The applicants also argue:
The farm unit rule is written to preserve large farming operations in a block. It does this by
preventing property owners from dividing farmland into smaller properties that, alone, do not
meet the definition of "agricultural land." The subject property is not formerly part of a larger area
of land that is or was used for farming operations and was then divided to isolate poor soils so
that land could be removed from EFU zoning. As demonstrated by the historic use patterns and
soils reports, it does not have poor soils adjacent to or intermingled with good soils within a farm
unit. The subject property is not in farm use and has not been in farm use of any kind. It has no
history of commercial farm use and contains soils that make the property generally unsuitable for
farm use as the term is defined by State law. It is not a part of a farm unit with other land.
I agree with the applicant that the property was not formerly part of a larger area of land that was
used for farming operations. As such, I find that the application complies with this part of the
administrative rules.
OAR 660-033-0030, Identifying Agricultural Land
(1) All land defined as "agricultural land" in OAR 660-033-0020(1) shall be inventoried
as agricultural land.
(2) When a jurisdiction determines the predominant soil capability classification of a
lot or parcel it need only look to the land within the lot or parcel being inventoried.
However, whether land is "suitable for farm use" requires an inquiry into factors
beyond the mere identification of scientific soil classifications. The factors are listed
in the definition of agricultural land set forth at OAR 660-033-0020(1)(a)(13). 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. I find that 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 lack of irrigation as described in the soil study
produced by Mr. Gallagher. I also find that the Applicant has provided adequate responses
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indicating the Subject Property is not necessary to permit farm practices undertaken on adjacent
and nearby lands. Based on the foregoing, and in the absence of any countervailing evidence or
argument, I find that the administrative rules do not require the Subject Property to be inventoried
as agricultural land.
(3) GoaI3 attaches no significance to the ownership of a lot or parcel when determining
whether it is agricultural land. Nearby or adjacent land, regardless of ownership,
shall be examined to the extent that a lot or parcel is either "suitable for farm use"
or "necessary to permit farm practices to be undertaken on adjacent or nearby
lands" outside the lot or parcel.
FINDING: As concluded in other findings above, the Subject Property is not suitable for farm use
and are not necessary to permit farm practices to be undertaken on adjacent or nearby lands. The
ownership of the Subject Property is therefore not being used as a factor to determine whether the
Subject Property is agricultural land.
Based on the foregoing, and in the absence of any countervailing evidence or argument, I find that
the Application is consistent with this part of the administrative rules.
(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: Mr. Gallagher's soil study concludes that the Subject Property contains 58 percent Class
7 and 8 soils. The submitted soil study prepared by Mr. Gallagher is accompanied in the submitted
application materials by correspondence from the Department of Land Conservation and
Development (DLCD). The DLCD correspondence confirms that Mr. Gallagher's prepared soil study
is complete and consistent with the reporting requirements for agricultural soils capability as
dictated by DLCD. Based on Mr. Gallagher's qualifications as a certified Soil Scientist and Soil
Classifier, the staff found the submitted soil study to be definitive and accurate in terms of site -
specific soil information for the Subject Property.
I find that the Applicants have elected to provide a more detailed agricultural soil assessment,
conducted by Mr. Gallagher, a Certified Professional Soil Scientist approved by the Department of
Land Conservation and Development. The analysis under section OAR 660-033-0020(1)(a), above,
also applies here to address the comments by COWL. Based on the undisputed facts in that report,
the Subject Property do not qualify as "agricultural land."
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(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: I find that this administrative rule does not establish a particular standard and simply
confirms when this section of the administrative rules applies.
(d) This section and OAR 660-033-0045 implement ORS 215.211, effective on October 1,
2011. After this date, only those soils assessments certified by the department
under section (9) of this rule may be considered by local governments in land use
proceedings described in subsection (c) of this section. However, a local government
may consider soils assessments that have been completed and submitted prior to
October 1, 2011.
FINDING: The Applicant submitted a soil study by Mr. Gallagher of Red Hill Soils dated September
26, 2022. The soils study was submitted following the ORS 215.211 effective date. The Applicant
submitted to the record an acknowledgement from Hilary Foote, Farm/Forest Specialist with the
DLCD, dated October 27, 2022, that the soil study is complete and consistent with DLCD's reporting
requirements. Staff found this criterion to be met based on the submitted soil study and
confirmation of completeness and consistency from DLCD
Based on the foregoing, and in the absence of any countervailing evidence or argument, I find that
the Application is consistent with this part of the administrative rules.
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
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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: This 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 MUA-10.
The Applicant is not proposing any land use development of the properties at this time.
As referenced in the staff report, the Senior Transportation Planner for Deschutes County requested
additional information to clarify the conclusions provided in the traffic study. The Applicant
submitted an updated report from Joe Bessman, PE of Transight Consulting, LLC dated January 3,
2023, to address trip distribution, traffic volumes, and Transportation Planning Rule (TPR) criteria.
The updates were reviewed by the Senior Transportation Planner who indicated his concerns were
satisfied with the amended report. Mr. Bessman includes the following conclusions in the traffic
impact analysis dated January 3, 2023:
• Rezoning of the 40-acre property from EFU-TRB to MUA provides nearly identical potential impacts
as the existing zoning, with the potential for a reduction in weekday daily and weekday p.m. peak
hour trips, even with inclusion of the conditionally allowed uses within the MUA zoning.
• With a comparative assessment of outright allowable uses the rezone reduces the trip generation
of the property in comparison to what could be built within the EFU zoning.
• The lack of a change in trip generation potential trip generation potential between reasonable
build -out scenarios does not meet Deschutes County, ODOT, or City of Bend thresholds of
significance at any nearby locations.
• Comparison of the maximum outright development in the MUA zoning to the single existing home
would only show seven additional weekday p.m. peak hour trips and 66 additional weekday daily
trips.
• Operational analysis shows that the Stevens Road and Ward Road corridors remain within
Deschutes County's performance thresholds using either the adopted 2030 TSP or values within
the pending 2040 TSP Update.
Based on the County Senior Transportation Planner's comments and the traffic study from
Transight Consulting, LLC, staff found compliance with the Transportation Planning Rule had been
effectively demonstrated. Based on the revised traffic study, staff believed that the proposed plan
amendment and zone change would be consistent with the identified function, capacity, and
performance standards of the County's transportation facilities in the area.
22
247-22-000792-PA, 793-ZC
Based on the foregoing, and in the absence of any countervailing evidence or argument, I find that
the Application satisfies this administrative rule.
DIVISION 15, STATEWIDE PLANNING GOALS AND GUIDELINES
OAR 660-015, Division 15, Statewide Planning Goals and Guidelines
FINDING: Division 15 of OAR chapter 660 sets forth the Statewide Planning Goals and Guidelines,
with which all comprehensive plan amendments must demonstrate compliance. The Applicants
assert the Application is consistent with all applicable Goals and Guidelines, which no participant to
this proceeding disputes. In light of the foregoing, and in the absence of any counter evidence or
argument, I adopt the Applicants' position and find that the Plan Amendment and Zone Change are
consistent with the applicable Goals and Guidelines as follows:
"Goal 9, Citizen Involvement. Deschutes County will provide notice of the application to the
public through mailed notice to affected property owners and by requiring the Applicants to post
a "proposed land use action sign" on the Subject Property. Notice of the Hearings held regarding
this application was 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 Applicants have shown that the property is not agricultural land
because it consists predominantly of Class 7 and 8 soils that are not suitable for farm use.
Goal 4, Forest Lands. Goal 4 is not applicable because the Subject Property does not include any
lands or soils that are zoned for, or that support, forest uses.
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 impact
the quality of the air, water, and land resources of the County. Any future development of the
Subject Property will be subject to applicable local, state, and federal regulations that protect these
resources.
Goal 7, Areas Subject to Natural Disasters and Hazards. According to the Deschutes County
DIAL property information and Interactive Map, the entirety of Deschutes County, including the
Subject Property, is located in a Wildfire Hazard Area. The Subject Property is also located in Rural
Fire Protection District #2. Rezoning the property to MUA-10 does not change the Wildfire Hazard
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247-22-000792-PA, 793-ZC
Area designation. Any future development of the Subject Property will need to demonstrate
compliance with any fire protection regulations and requirements of Deschutes County.
Goal 8, Recreational Needs. This goal is not applicable because no development is proposed and
the Subject Property is not planned to meet the recreational needs of Deschutes County. Therefore,
the proposed rezone will not impact the recreational needs of Deschutes County.
Goal 9, Economy of the State. This goal is not applicable because the Subject Property is not
designated as Goal 9 economic development land. In addition, the approval of this application
will not adversely affect economic activities of the state or area.
Goal 10, Housing. The County's comprehensive plan Goal 10 analysis anticipates that farm
properties with poor soils, like the Subject Property, will be converted from EFU to MUA-10 or RR-
10 zoning and that these lands will help meet the need for rural housing. Approval of this
Application, therefore, is consistent with Goal 10 as implemented by the acknowledged Deschutes
County Comprehensive Plan.
Goal 11, Public Facilities and Services. The approval of this Application will have no adverse
impact on the provision of public facilities and services to the Subject Property. Pacific Power has
confirmed that it has the capacity to serve the Subject Property and the proposal will not result in
the extension of urban services to rural areas.
Goal 12, Transportation. This application complies with the Transportation System Planning
Rule, OAR 660-012-0060, the rule that implements Goal 12. Compliance with that rule also
demonstrates compliance with Goal 12.
Goal 13, Energy Conservation. The approval of this application does not impede energy
conservation. The Subject Property is located within 1 mile from the city limits of Bend. If the
property is developed with additional residential dwellings in the future, 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 provided in the City of Bend.
Goal 14, Urbanization. Staff found that this goal is not applicable because the Applicants'
proposal does not involve property within an urban growth boundary and does not involve the
urbanization of rural land. The MUA-10 zone is an acknowledged rural residential zoning district
that limits the intensity and density of developments to rural levels. The compliance of this zone
with Goal 14 was recently acknowledged when the County amended its Comprehensive Plan. The
Comprehensive Plan recognizes the fact that the MUA-10 and RR zones are the zones that will be
applied to lands designated Rural Residential Exception Areas.
Mr. Kesner, 1000 Friends of Oregon, argues that the application does not adequately consider this
goal or seek an exception. February 28, 2023, submittal. At the hearing, the applicant testified that
the MUA-10 zone has been acknowledged to be in compliance with Goal 14. The staff concurred
with that decision.
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247-22-000792-PA, 793-ZC
I find that this Goal is not applicable for the reasons above.
Goals 15 through 19. These goals do not apply to land in Central Oregon."
IV. CONCLUSIONS
Based on the foregoing findings, I find the Applicants have met their burden of proof with respect
to the standards for approving the requested Plan Amendment and Zone Change. I therefore
recommend to the County Board of Commissioners that the Application be APPROVED.
Dated this 17th Day of March, 2023
i 'Raw 4 Rao -easel
Alan A. Rappleyea
Deschutes County Hearings Officer
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247-22-000792-PA, 793-ZC
TINA KO 1'EK
GOVERNOR
June 27, 2023
Deschutes County Board of Commissioners
1300 NW Wall Street
Bend, OR 97703
RE: Juniper Ridge Request
Dear Chair DeBone, Vice Chair Adair, and Commissioner Chang,
Thank you for your letter regarding people experiencing homelessness who are camping and
engaging in survival activities on the Juniper Ridge property in your county. I share your
concern about the health and safety of people experiencing unsheltered homelessness and want
to assure you that I am committed to addressing homelessness in every corner of our state.
On my first full day in office, I declared a homelessness state of emergency (EO 23-02), which
includes Central Oregon. A critical element of a successful outcomes -driven emergency
response is the establishment of Multi -Agency Coordinating Groups (MACs) at the local level.
MACs operationalize the emergency response by coordinating key emergency response partners
and collectively developing and executing a plan to address the emergency. In Central Oregon,
the Central Oregon Intergovernmental Council (COIC) is the lead of your MAC, and I appreciate
Deschutes County Emergency Management being a contributing member.
MAC groups are so important because to address homelessness as a state, we must have locally
driven plans that are developed and executed in a coordinated fashion. Central Oregon's MAC
developed a strong plan in response to outcome targets provided by the state via the
implementation of EO 23-02.
Understanding the need for additional state funds to support local plans, I advocated for an
Emergency Homeless Response Package which I signed into law on March 29, 2023. This $155
million package will support local coordinating groups to create 700 new shelter beds, rehouse
1,650 households experiencing homelessness, and prevent homelessness for 8,750 households
statewide. Less than one month after signing the Emergency Homeless Response Package into
law, I made funding available to emergency areas, including Central Oregon. Central Oregon
was awarded $13.9 million to rehouse 161 households and create 111 shelter beds. This award
from the state is more than fourteen times the federal funding award provided to Central
Oregon's Continuum of Care (CoC) to address homelessness in FY2022.
254 STATE CAPITOL, SALEM OR 97301-4047 (503) 378-3111 FAX (503) 378-8970
W W W.GOV ERNOR.OREGON.GOV
Deschutes County Board of Commissioners
June 27, 2023
Page 3
Addressing the crisis of homelessness is complex and requires strong partnership. I look forward
to working with you, your MAC group, and your entire community to achieve our shared goals of
reducing unsheltered homelessness and improving the health and safety of our communities. You
are encouraged to contact my Housing and Homelessness Initiative Director Taylor Smiley Wolfe
should you have any questions: Taylor.SmileyWolfe@oregon.gov.
Thank you for your time and attention.
Sincerely,
Governor Tina Kotek
cc: Senator Lynn Findley
Senator Tim Knopp
Senator Dennis Linthicum
Representative Vikki Breese Iverson
Representative Jason Kropf
Representative E. Werner Reschke
Representative Emerson Levy
Oregon Department of Land Conservation and Development
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BOARD OF
COMMISSIONERS
BOARD OF COUNTY COMMISSIONERS MEETING
9:00 AM, WEDNESDAY, JUNE 28, 2023
Barnes Sawyer Rooms - Deschutes Services Building - 1300 NW Wall St - Bend
(541) 388-6570 I 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 YouTube using this link:
http://bit.ly/3mminzy. To view the meeting via Zoom, see below.
Citizen Input: The public may comment on any topic that is not on the current agenda.
Alternatively, comments may be submitted on any topic at any time by emailing
citizeninput@deschutes.org or leaving a voice message at 541-385-1734.
When 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.
11
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.
Time estimates: The times listed on agenda items are estimates only. Generally, items will be heard in
sequential order and items, including public hearings, may be heard before or after their listed times.
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. Approval of an agreement with the US Forest Service to fund the Oregon Living With Fire
program for another five years
2. Approval of Board Order No. 2023-025 cancelling uncollectible personal property taxes
in the amount of $53,621.57
3. Approval of Minutes of the June 16, 2023 BOCC Legislative Update
ACTION ITEMS
4. 9:10 AM Mary Anderson 25-year service award
5. 9:15 AM Deschutes County District Attorneys' Association Collective Bargaining
Agreement
6. 9:25 AM Public Hearing: Remand of LBNW LLC Plan Amendment and Zone Change
application 247-21-000881-PA, 882-ZC (247-23-000398-A)
7. 10:15 AM Public Hearing: Application for 2023 Community Development Block Grant
8. 10:30 AM Oregon Health Authority grant agreement #180009 for Public Health
9. 10:40 AM Award of agreement with Parametrix for sole source Solid Waste
Management Facility Siting Phase II consulting services
10. 10:55 AM Intergovernmental Agreement between Deschutes County and the Oregon
Judicial Department for Courthouse Improvements
June 28, 2023
BOARD OF COUNTY COMMISSIONERS MEETING Page 2 of 3
11. 11:10 AM Resolution 2023-040 establishing Solid Waste Disposal Fee Waivers for Fiscal
Year 2024
12. 11:20 AM CORE3 project land use entitlement applications
13. 11:30 AM Contract with Central Oregon Bio Solutions for property clean-ups on an
as -needed basis
14. 11:40 AM Deliberations on the Griffin/Renfro Plan Amendment and Zone Change for
approximately 40 acres one mile east of the City of Bend
LUNCH RECESS
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.
15. Executive Session under ORS 192.660 (2) (d) Labor Negotiations
ADJOURN
June 28, 2023
BOARD OF COUNTY COMMISSIONERS MEETING Page 3 of 3